Another Swipe at Citizen Standing


The Supreme Court did a bunch of crap yesterday, and I'll probably be blogging about a number of its orders and decisions severally over the course of the next few days. Then again, I might not.

I did want to point out that the Court reaffirmed its broad skepticism toward "citizen standing" in DaimlerChrysler v. Cuno. The underlying issue was whether state tax subsidies to an auto manufacturer violated the Commerce Clause, but the Court unanimously punted the case on standing grounds, holding that the plaintiffs couldn't challenge the tax breaks simply because they paid taxes too. In other words, you can't sue the government just because you don't like what it's doing with your taxes. At least not in Federal Court (because of that whole Article III "case" or "controversy" requirement).

The Court has often used the standing requirement to duck issues that it didn't want to get involved with. Although this practice has become less necessary since the Certiorari Act (which made the vast majority of Supreme Court appeals discretionary rather than mandatory), it still happens every now and then. The Newdow Pledge of Allegiance case was dismissed on (questionable, some might say) standing grounds. Here, the Court may not want to get its hands dirty on the subject of corporate tax subsidies. Although Chief Justice Roberts does sing, or at least mumble, the praises of tax subsidies in his discussion of whether the plaintiffs had alleged an injury at all.

Another thing that struck me is that the Court once again limited the Flast v. Cohen decision to its facts. In Flast, the Court held that taxpayer standing existed within the context of certain Establishment Clause challenges (the facts, I believe, involved a Congressional grant of property to a religious group). Roberts did a big song and dance to distinguish the Flast holding from the current case, since the Court still doesn't have the balls to admit that Flast is an outlying case that isn't really consistent with the Court's overall standing jurisprudence.

There are my thoughts. I probably got a few things wrong, but I may have done that intentionally just to see if Steve still reads this blog.


Rather than abnoxiously hunt for mistakes and then mock you (as has been my M.O.) I thought I'd introduce my take on the citizen standing problem.

The problem case in my mind is SCHLESINGER v. RESERVISTS TO STOP THE WAR, 418 US 208 (1974). It, to my mind, most clearly deviates from the principle that in the case of a generalized grievance the court should let the democratic process play out, rather than stepping in as a super-legislature. If the court will not grant standing when there is a clear constitutional violation AND no democratic means to cure the violation (at least within a two year time period) AND willfull defiance of the constitution by the other two branches of government, then there can really be no more swipes at citizen standing as the concept must be dead.

At a minimum citizen standing is necessary in cases when the democratic process has failed to follow the constitution, the action is not easily reversable by democratic means and the harm is general.

In the Daimler case it seems that a company that had been denied a subsidy could gain standing. Further, I assume the subsidies could be terminated by the legislature so there is hope of a political solution.

To conclude, loosening the injury in fact requirement for standing, Breyer style, is generally a good thing. However, at least in this case a political solution seems plausible which is ultimately a preferable outcome to state government by judicial decree.

Yes I read the blog. More law posts equal more Me comments.

Christ, I forgot how complicated law is. Thanks for wrecking a beautiful Slovak morning.

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This page contains a single entry by hb published on May 16, 2006 8:55 AM.

Justice Kennedy Rocks: Now in Patent Form! was the previous entry in this blog.

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