Standing

  • March 26, 2014
    Guest Post

    by Brandon L. Garrett, Roy L. and Rosamond Woodruff Morgan Professor of Law, University of Virginia School of Law. Since the 2011 publication of Convicting the Innocent: Where Criminal Prosecutions Go Wrong, Professor Garrett has written widely on issues of criminal procedure, scientific evidence, corporate crime, and the law. This fall, Harvard University Press will publish his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.

    Yesterday the Supreme Court heard arguments in the long awaited cases of for-profit corporations arguing that Obamacare's contraception mandate endangers their constitutional and statutory religious exercise rights.  Both Hobby Lobby Stores Inc., a national arts and crafts store chain, and Conestoga Wood Specialties Corp., a small kitchen cabinet maker, argued that they should be exempt from the health insurance regulations due to not just their owners’ beliefs, but their corporate consciences. Rather than focus on whether a company is a "person" that "has" a statutory or constitutional right to free exercise of religion, the Justices could have pushed harder on a constitutional question that comes first: whether the lawsuit even belongs in a federal court.

    During the arguments, Justice Elena Kagan noted: “I'm not sure I understand it as a threshold claim that . . . the claim is not recognizable at all.” And Justice Anthony Kennedy asked: “You say profit corporations just don't have any standing to vindicate the religious rights of their shareholders and owners.” Does Hobby Lobby have standing to sue?  For a federal judge to hear a case, Article III of the Constitution requires there to be a “Case or Controversy.” The Supreme Court has interpreted the requirement to mean that a plaintiff must suffer a "concrete injury" to its own interests – and not those of others – in order to sue. The Court has kicked out cases holding that a "mere interest in a problem" was not concrete enough. The Court has only in unusual cases allowed a third-party to sue on behalf of another, like an employee, owner, or customer. 

    These companies say that they suffer direct harm: the contraception mandate costs them money. That is what the Tenth Circuit in Hobby Lobby briefly noted: the companies “face an imminent loss of money, traceable to the contraceptive-coverage requirement.” But even if that is true (which was the subject of tough questions at the arguments), paying that money does not directly affect any individual’s ability to freely exercise religion. Only the employees and officers can directly exercise their individual religious beliefs. And they are not the ones paying to comply with the regulations. They are separate from the company.

  • July 3, 2013
    Guest Post

    by Professor Anthony F. Renzo. Professor Renzo is teaching Constitutional Rights at the University of New Mexico School of Law.

    The close of the latest term of the Roberts Court provided more evidence of the conservative majority’s interest in protecting corporate America and government officials from being held accountable for violating the rights of everyday Americans. This includes hostility to challenges to abusive and unconstitutional actions by the federal government in its perpetual war on terror and the massive spying network that this war has spawned.

    The prime example from the latest term is the high court’s opinion in Clapper v. Amnesty International, which slammed the courthouse doors on a challenge to the broad and unchecked spying powers authorized by Congress in the 2008 Amendment to the Foreign Intelligence Surveillance Act (FISA)(50 U.S.C. § 1881a.)  That Amendment, §1881a, vastly expands the government’s electronic surveillance powers by authorizing sweeping wiretaps even if the targets are not foreign agents or linked directly to terrorism. These powers include dragnet type surveillance operations of large categories of phone or email addresses that are not limited to any one individual or any particular place. While the statute limits targets to “non-U.S. persons,” the private conversations of those targets with American citizens and residents are not excluded from its scope. In any event, to the extent the statute imposes any meaningful limitations on the scope of the surveillance it authorizes, these limitations do not have the force of law because §1881a eliminates the requirement of a judicial warrant based on individualized probable cause. In effect, §1881a  strips the FISA Court of its checking power, replacing independent judicial review with a certification process that effectively makes the assertions of the Attorney General and the Director of National Intelligence conclusive evidence of the legality of the Executive’s own spying operations with no meaningful judicial oversight or constitutional scrutiny.

  • March 20, 2013
    Guest Post

    by Anthony S. Winer, Professor of Law, William Mitchell College of Law, Saint Paul, Minnesota. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

    As most readers realize, the Supreme Court asked all parties in both of the upcoming marriage cases to brief and argue issues of standing. The possibility that either or both of the cases could be dismissed on the basis of a lack of Article III standing should therefore be taken seriously. 

    In particular, regarding the Prop 8 case, Hollingsworth v. Perry, I have given some thought to a 2011 opinion of the California Supreme Court that specifically addressed the standing of the Prop 8 proponents.   The Prop 8 proponents emphasize this California opinion in defending their standing before the U.S. Supreme Court. However, in this posting I assert that the U.S. Supreme Court should not give any substantial weight to the California Supreme Court’s opinion.

    To start with, I’ll say that dismissal for lack of standing in either or both of the cases could have at least a modestly positive result for same-sex marriage rights. A lack of standing in either case would be attributed to the litigants petitioning the Court in opposition to same-sex marriage.  Failure of standing would thus go against the opponents of same-sex marriage. Contrarily, any such dismissal is most likely to favor, at least to some extent, the litigants who are advancing same sex-marriage. For those of us supporting same-sex marriage rights, that would most likely be a positive development. 

    By the same token, however, any such dismissal would also probably result in a relatively narrow ruling with relatively limited effects. That is, in the Prop 8 case, dismissal for the proponents’ lack of standing could result in the reinstatement of the District Court’s determination that Prop 8 is unconstitutional. But such a result would not necessarily affect the constitutionality of similar propositions adopted in other states. 

  • February 22, 2011
    Guest Post

    By Martin Magnusson. Mr. Magnusson is an associate at Day Pitney LLP.
    In 1997, the United States Senate ratified the Chemical Weapons Convention, an international treaty that outlaws the production, stockpiling, and use of chemical weapons. As a signatory to that treaty, the United States agreed also to criminalize private individuals' production, stockpiling, and use of chemical weapons. Accordingly, Congress enacted legislation that made it illegal for any person knowingly to "develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon."

    Thankfully, the United States has had few occasions to bring chemical-weapons charges under this law. One such prosecution, though, is currently before the United States Supreme Court, which will hear oral argument today in Bond v. United States.

    The defendant in that case, Carol Anne Bond, was a microbiologist who had been married for several years but couldn't bear a child. When Ms. Bond's best friend announced that she was pregnant, Ms. Bond was excited. When Ms. Bond discovered that her husband was the child's father, though, her mood understandably soured. She vowed to get revenge against her one-time best friend and tried, at least 24 times, to poison her with lethal chemicals that she stole from work and ordered online.

    Ms. Bond was ultimately charged with possessing and using a chemical weapon, in violation of the criminal statute that implemented the United States' treaty obligations under the Chemical Weapons Convention. At the district court, Ms. Bond unsuccessfully argued that when Congress passed this statute, it exceeded its powers under the Constitution. The district court rejected that argument, but Ms. Bond continued to pursue it on appeal.

    Ms. Bond's position makes intuitive sense: The Tenth Amendment expressly provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." And, unlike other federal statutes that address assaults, the law under which Ms. Bond was prosecuted includes no requirement that the alleged assault occur within the special jurisdiction of the United States, that the assault have an effect on interstate commerce, that the victim be a person or institution with recognized federal status, or that some other federal interest be involved. It also includes no requirement that the government prove a federal interest as an element of the offense. As such, the law criminalizes conduct with very little connection to a legitimate federal interest.

  • August 23, 2010

    A federal judge in Washington has temporarily blocked federal funding for human embryonic stem cell research authorized by Obama administration regulations.

    In a preliminary injunction, U.S. District Judge Royce Lamberth held that the plaintiffs were likely to succeed on the merits because the government guidelines violate a law that prohibits the use of federal funds for research in which human embryos are destroyed, Reuters reports.

    "(Embryonic stem cell) research is clearly research in which an embryo is destroyed," Lamberth wrote in a 15-page decision.

    Lamberth initially dismissed a suit by the same plaintiffs in October, holding that "embryos lack standing because they are not persons under the law" and the unborn have no right to life protected under the Constitution's 14th Amendment, Bloomberg reported at the time.

     The Court of Appeals overturned the standing decision and remanded the case to Lamberth.