re Prof. Althouse's comments

[Howard Schweber]

City of Boerne was not just a statement about proportionality under 
XIV(5).  It also contains a strong separation of powers statement to the 
effect that Congress' attempt to overrule Smith by RFRA was  an invasion of 
the province of the judiciary.  Here, Congress is telling the courts to 
grant standing where it otherwise would not exist.  Why is there no parallel?

One answer, of course, is the distinction that was emphasized in Dickinson 
between judicial policies and rights -- so if we view the standing 
doctrines in question as purely prudential, rather than as intrinsic to the 
case or controversy requirement, then they are the equivalent of a court 
regulation which is subject to congressional override under Congress' power 
to establish federal courts rather than the equivalent of a constitutional 
right.  I take it that was the point of Prof. Althouse's comment to the 
effect that the standing rule in Newdow was presented as merely prudential.

The problem is, I don't think the situation is quite that clear.  The 
majority in Newdow certainly described their decision as prudential, but as 
grounds for their action they cited the principle of judicial federalism as 
the reason to defer to state law determinations of parental rights.  "Long 
ago we observed that 'the whole subject of the domestic relations of 
husband and wife, parent and child, belongs to the laws of the States and 
not to the laws of the United States. . . . Thus, while rare instances 
arise in which it is necessary to answer a substantial federal question 
that transcends or exists apart from the family law issue, in general it is 
appropriate for the federal courts to leave delicate issues of domestic 
relations to the state courts."  In Newdow that "delicate issue of domestic 
relations" determined the standing issue.  I do not see an obvious 
slam-dunk argument that Congress cannot be seen to be invading the province 
of the judiciary (City of Boerne) by dictating a rule of standing that 
violates judicial federalism (Newdow).

Which brings us back to the state action argument in which to find the 
necessary "substantial federal question."  Sure, a state court's 
enforcement of a private party's decision counts as state action; but here 
there is not even enforcement by the state, only the absence of 
intervention.  To find state action, would we not have to find an 
affirmative right to state protection of the kind that was explicitly 
denied in DeShaney?

Howard Schweber
Dept. of Political Science
Univ. Wisconsin - Madison 
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