the Future of Change

Monday’s oral argument in Trump v. Hawaii, the travel ban case, did not reveal much in terms of where the Court may ultimately be headed, but one thing seems clear: the case is NOT about so-called “third-party” standing, the idea that the state and the individual plaintiffs might be suing on behalf of others.  That means the standing aspect of the so-called “justiciability” question on which the Court granted review may be answered. Only Justice Gorsuch seems to address this issue, and Neal Katyal, arguing for Hawaii, stated quite clearly: “This is not a third-party case.”  (Transcript at 51.)  In other words, the state and the individual plaintiffs are suing on their own behalf, on the injuries they suffer directly, like the economic harm to the state’s university system.  If of interest, I explore some of these justiciability issues in a piece recently published by the Oregon Law Review, available here.