Monday audio. 11th Amendment papers due Tuesday. For our double session tomorrow, we will go until 12, take a 15-minute break, then go until around 1:25.
We continue with Considerations. Is there standing in 303 Creative? What about for the restaurant owner who wants to begin a Sunday family drag brunch and has made plans (designed a menu, finding talent, designed decorations, planned advertising), where state law prohibits drag for mixed audiences and the law has been enforced against other venues?
• What is "adverseness" and how does it fit into the standing analysis?
• What is the standing argument in the lawsuit above against the "Only You Can Stop Hate Speech" Act (discussed in class last week)?
• Congress in 2017 amended the Affordable Care Act to zero-out the penalty for not purchasing insurance. The obligation remains in the statute, but no consequence can be imposed. Does an individual who does not want to purchase insurance have standing?
• Consider traceability and redressability in Warth (building affordable housing), Allen (challenging tax-exempt status for private academies), and Clapper.
• What are the principles, purposes, or policies underlying standing? How do they explain the doctrine? What is the argument that each does not, in fact, explain the doctrine?
• What is an "ideological plaintiff?" Why is that not sufficient for standing and why should it be?
• What is the connection between standing and merits? See pp. 40-47 in Judge Newsom's concurring opinion in this 11th Circuit case.
• How does standing protect the executive power, given Article II? What is the argument that separation of powers does not explain standing--and arguably undermines it? If not S/P, what other values does standing serve?
• How do merits and standing interact? (See pp. 40-49 of the Newsom concurring opinion in this 11th Circuit case).
• How should the court resolve the following case: State law prohibits companies from labeling their products as "meat" if the product is not derived from animals. Plaintiff is a vegan food producer who does not use the word "meat" on its labeling or marketing. Plaintiffs brings an EpY action and seeks a preliminary injunction (requiring likelihood of success on the merits) against enforcement of the law on free speech grounds.
Prep Taxpayer Standing and Third-Party Standing.
• Why special taxpayer standing rules for the Establishment Clause? Can taxpayers challenge the student-loan forgiveness program?
• Why limit third-party standing?
• What are the requirements for third-party standing? Why is this not 1st-party standing?
• Consider the standing and third-party standing analysis in the following cases:
• Drs., clinics, or distributors challenging limits on the use and sale of contraception
• White homeowner challenging a racially restrictive covenant
• Attorney challenging state law not providing free attorneys for appeals of guilty pleas.
• Bar owner challenging a state law imposing a higher drinking age for men than women
• Criminal defendant challenging the prosecution's use of a racially discriminatory peremptory challenge
• Man (whose deceased father was US citizen) facing removal from the country challenging federal law imposing higher requirements for a father to pass citizenship compared with mother.
