Appellate Review of Standing in King v. Burwell (with Updates)

The latest hot topic in King v. Burwell is standing: Have the challengers’ hand-picked plaintiffs actually suffered an injury that allows them to sue to invalidate the IRS’s tax-subsidy rule? Nicholas Bagley does a nice job of walking through the legal and factual basics in a post this morning. I’m going to start with a short introduction to standing and King before moving on to what I think is the more interesting question: an appellate court’s power to reexamine the factual bases of plaintiffs’ standing. Continue reading


Twitter, Standing, and “Standing”

William Carleton has an interesting and important post up at Counselor @ Law regarding a recent New York State Court decision involving Twitter, Occupy Wall Street, and something the court calls “standing.”  Bill sets out the facts of the case in his post, but the gist as is follows: New York is investigating Malcolm Harris in connection with alleged disorderly conduct during the OWS (or #OWS, in the hashtag-laden parlance of the Court’s opinion) protests. Pursuant to that investigation, the New York DA’s office issued a subpoena to Twitter to produce Harris’s tweets related to #OWS. Harris was notified of the subpoena and moved to quash it. The Court denied Harris’s motion, holding that Harris “has no standing to move to quash the subpoena.”

Bill takes issue with the Court’s holding on standing — calling it “downright crazy” — and I tend to agree. He points out that Harris had “obvious interests at stake” in the subpoena, since the subpoena goes after his tweets in connection with a criminal investigation of him. How could he not have standing!?

Well, like I said, I agree with Bill — and I’d like to spend a few words expanding on that agreement and discussing how courts often use the term “standing” in all sorts of different circumstances with different meanings all of which leads to a good deal of sloppiness. Continue reading