One of the big issues with respect to recent court rulings that the Trump administration did not have the authority to issue is Muslim ban is whether or not the plaintiffs, i.e., the states of
had standing. That is, did they have a
right to sue the United
States government? In order to do that had to show they were
damaged or affected, which is what standing is.
Now this is not the first case in which states have had to prove standing to take the
S. to court.
Here is the very conservative National
Review describing some cases in the past.
“The government had challenged the states’ standing to raise its objections to its changes to lawful status in the form of expanded DACA and DAPA. But the Court rejected that argument because the change of lawful status triggers the granting of state benefits, specifically since
law does not issue state-subsidized driver’s licenses to aliens without lawful
presence. Enlarging the category of aliens with lawful presence thus
imposes a cost on Texas,
giving the state a stake in the outcome of the litigation, which is all that is
necessary to show standing.
Ironically, the Supreme Court paved the way for this sort of challenge in
Massachusetts v. EPA (2007), which gave what it
called “special solicitude” to the state’s sovereign interests and found
had standing to sue the EPA because it could lose some shoreline due to
global warming, even over several decades. The Court then reinforced the Massachusetts path in Arizona State Legislature v. Arizona
Independent Redistricting Commission (2015) just last Term, holding
that a state legislature could sue another state entity as an institutional
plaintiff asserting an institutional injury. Compared to the basis for
standing in Massachusetts, the
burden of DAPA on Texas
is far less speculative and much more concrete.”
The case under discussion was where
Texas sued the Obama administration’s
decision not to go after un-documented aliens who were law abiding residents in
favor of going after aliens who committed criminal acts. Conservatives hated this and ultimately the Fifth
Circuit ruled for Texas
and the Supremes tied on the appeal, thus leaving the Fifth Circuit ruling in
effect. Conservatives, who favor state’s
rights over federal rule, were overjoyed.
So one might have expected conservatives to support the idea that
Washington and Minnesota had standing in their suit. But that requires intellectual honesty. Conservatives only support principles when
they favor the outcome conservatives want.
One would also have expected conservatives to mightily condemn the
federal government’s argument that it was above the law, that its actions were
not reviewable by the courts. This
usurpation of power would have enraged conservatives had the President been
Obama. But to repeat, that requires
intellectual honesty. Conservatives only
support principles when they favor the outcome conservatives want. GET IT!!
So how would real conservatives have reacted to the
case? They would have agreed that the
states had standing and they would have agreed that the courts had jurisdiction
and then argued that the law was on the side of the Muslim ban. Of course that assumes the current
conservatives are real conservatives, not the case here or in most other