Do States have standing to challenge Trump’s EO?
Standing in Article III courts, something that the average person doesn’t know anything about, but luckily for me, I took Professor Berch’s Federal Courts class.
In 2015 (back when Obama was President), there was an op-ed in the New York Times urging the Supreme Court to hold that states should never have standing to challenge an executive order, not under any circumstances. I wonder if those two law professors still believe that, and if the New York Times would still print an op-ed urging such a thing?
In Texas et al. v. United States, 787 F.3d 733 (5th Cir. 2015), the Fifth Circuit did hold that states had standing to challenge an executive order on the basis that states would be required to issue drivers’ licenses to illegal immigrants.
I see two ways in which Washington’s claim of standing in the current case before the 9th Circuit differs from the Texas case.
1. Obama’s EO required the states to do something, issue drivers’ license, while Trump’s EO poses no direct burden on the states to do anything.
2. Obama’s EO had no other party who could claim injury other than the states. The Supreme Court, for example, has long held that individual citizens have no standing based on their status as taxpayers or because of a general dislike for a federal law or regulation which doesn’t affect them directly.
But in the case of Trump’s EO, the logical party to have standing would be a person who was denied entry to the United States because of the EO. (Although the reason they are not suing is because of previously established law that non-citizens lack standing in immigration matters in Article III courts. The immigration “courts” are actually tribunals run by the DOJ and are not real courts. It’s all part of the longstanding principle that immigration policy is outside the purview of Article III courts and rests with the President and Congress.)
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On a slightly different topic, I have this advice for Trump:
Do not treat the courts the way you treat the news media or some celebrity whom you dislike. If you want to say something about a case, you may speak to the legal issues, but personally-directed put-downs against judges are going to hurt you and not help you.
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To expound on how Trump treats judges, don’t forget that the federal judiciary is an independent branch of government, and that all federal judges, regardless of whether they are liberal or conservative, agree that the judiciary is independent and they desire to maintain the power of their branch of government. Any attempt at bullying judges with insults is going to hurt him by turning conservative judges against him.
Trump can and should make a public legal case for why his order is constitutional, but it if it’s not done in a way that respects the federal judiciary, it will backfire on him.
Trump has plenty of lawyers working for him, he should task one with helping him comment about litigation in a manner that won’t offend the federal judges.