How does Judge Sullivan have standing? As I understand it, Judge Sullivan is appealing a writ of mandamus in the Flynn case. As the Supreme Court has interpreted the Federal Constitution as having a case or controversy requirement that embodies a requirement of injury in fact and party seeking review must have suffered an injury, what is the injury here? Either Judge Sullivan is standing in for the American people and acting on behalf (but in opposition to) the executive branch (which would create a precedent that the judicial branch can step in and perform the executive branch function), or he has some some other injury. But as the judicial branch is expected to just be impartially interpreting law, it does not seem as though he would have any real injury in fact here, even if he is unhappy with the outcome of a particular case.
The Court of Appeals made Judge Sullivan the respondent. Flynn petitioned the Court of Appeals for a writ of mandamus to order the inferior court to dismiss the criminal proceedings against Flynn. Normally the adversary in the 'parent' proceedings would oppose such a petition but in this case the adversary, the Department of Justice, supported Flynn's petition. The Court of Appeals made Judge Sullivan the respondent and did not appoint an amicus curiae. That allowed Judge Sullivan to seek a review en banc of the Court of Appeals' 24 July 2020 decision. The Court of Appeals has since vacated the 24 July 2020 decision and will re-hear the petition for the writ of mandamus en banc. It has asked parties to consider whether there are &quot;no other adequate means [than mandamus] to attain the relief&quot; desired. Federal Rules of Appellate Procedure, Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs: The court of appeals ordinarily will be adequately informed not only by the opinions or statements made by the trial court judge contemporaneously with the entry of the challenged order but also by the arguments made on behalf of the party opposing the relief. The latter does not create an attorney-client relationship between the party's attorney and the judge whose action is challenged, nor does it give rise to any right to compensation from the judge. If the court of appeals desires to hear from the trial court judge, however, the court may invite or order the judge to respond. In some instances, especially those involving court administration or the failure of a judge to act, it may be that no one other than the judge can provide a thorough explanation of the matters at issue. Because it is ordinarily undesirable to place the trial court judge, even temporarily, in an adversarial posture with a litigant, the rule permits a court of appeals to invite an amicus curiae to provide a response to the petition. In those instances in which the respondent does not oppose issuance of the writ or does not have sufficient perspective on the issue to provide an adequate response, participation of an amicus may avoid the need for the trial judge to participate. Interesting point made at 41:00 in episode 175 of The National Security Law Podcast by Bobby Chesney and Steve Vladeck: the Court of Appeals didn't address the question of 'standing' or whether Sullivan was a proper party to make a petition. The Court announced that &quot;Upon consideration of the petition for rehearing en banc, the responses thereto, and the vote in favor of rehearing en banc by a majority of the judges eligible to participate&quot; they ordered the re-hearing of Flynn's petition en banc.
I am assuming you are not the councilor. Civil matter you have no standing. The councilor does. Maybe the hotel bar does. I can’t think of anyone else who does. Criminal matter If a crime was committed in DC, the DC prosecutor is under no obligation to prosecute it. As a political matter, if you were a citizen of DC you could complain and try to get the prosecutor voted out next election. Political matter As a citizen of your city, it is a political matter: You call your councilman* or any city councilman really and ask them to begin impeachment or whatever similar action you have there. Then next election to try to get the mayor voted out. If you are unsatisfied with the council, try to get them voted out also. The cost of investigation is a cost of running a government. Someone could have chosen not to spend seven grand investigating a hundred bucks, but they did it. *Note this is called petitioning for redress which is the right that the current SCOTUS nominee could not recall off the top of her head.
That remains to be determined. This article (100 Tex. L. Rev. 56 (2021)) discusses the possibility. To start, the Constitution does not directly say that a sitting president cannot be prosecuted. The lack of an express presidential immunity and the fact that an attempt by Madison to create such an immunity is an indication of &quot;original intent&quot;. The view that an incumbent president cannot be indicted, prosecuted, convicted or punished is a policy stance set forth by the Dept. of justice, but is not constitutional law. Alito in Trump v. Vance points to some apparently negative consequences of allowing indictment of a sitting president, but this was in a dissenting opinion. Practical considerations of policy might argue for not prosecuting a sitting president, but the Constitution itself does not expressly forbid it. As we know from numerous SCOTUS rulings, the court is also capable of finding implicit support for a rule in the Constitution. For example theimpeachment provisions do not demand or even hint that impeachment must precede trial and punishment. An argument that prosecution would &quot;incapacitate&quot; the president is met with the fact that there is a provision for replacing an incapacitated POTUS with VPOTUS as acting president. The idea that a trial interferes with a person's ability to do their job (or that they can't adequately participate in their defense if they are doing their job) has not actually prevented ordinary people with jobs from being prosecuted for their crimes.
The direct answer is &quot;no&quot; and the indirect answer is &quot;yes&quot;, that is, your way of putting the matter diverges significantly from how the Bill of Complain puts the matter. The claim is that the defendant states violated the Electors Clause, the Equal Protection Clause, and the Due Process Clause. Texas claims that there is an injury in fact, citing various SCOTUS rulings e.g. Wesberry v. Sanders which says that No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined See the argument in the brief for more legal rhetoric. There can be no question that one state can sue another; equally clearly, the plaintiff must show actual harm and not just annoyance. New Jersey v. New York is a case involving a question of equity, not the federal constitution, but there is no legal principle to the effect that one state cannot sue over a constitutional harm rather than an equitable harm. See the brief p. 65 ff. The court does not require that there be exact precedential analogs (otherwise, Roe v. Wade would have turned out differently), what's required is simply that there be reasonable logical steps: SCOTUS gets to decide what is reasonable (or it can decline to decide).
I conclude (contrary to an earlier expression) that there is no such list, nor can there be, because the term "officer" is not well enough defined. The inferior officers are those officers who are not principal officers (as specified in the Constitution, e.g. ambassadors, cabinet members, judges), since there are only two kinds of officers. There is no constitutional or statutory definition of "Officer of the United States", so we have to figure it out from case law. As noted in Morrison v. Olson 487 U.S. 654 The line between "inferior" and "principal" officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn. Officers of the US cannot be appointed by Congress (Buckley v. Valeo 424 U.S. 1 (1976), so that narrows down the possibilities – if in fact an appointment can be made by Congress, that is not an inferior office (since Congress has no such authority). That court also said that We think that the term "Officers of the United States," as used in Art. II, defined to include "all persons who can be said to hold an office under the government" in United States v. Germaine, supra, is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an "Officer of the United States," and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article. To take a specific example, "special trial judges", authorized in 26 USC 7443a are an example of an officer. We know they are officers, because Freytag v. Commissioner 501 U.S. 868 says so (since they read Buckley): A special trial judge is an "inferior Office[r]" whose appointment must conform to the Appointments Clause. Such a judge acts as an inferior officer who exercises independent authority in cases governed by subsections (b)(1), (2), and (3). The fact that in subsection (b)(4) cases he performs duties that may be performed by an employee not subject to the Appointments Clause does not transform his status. The Dept. of Justice offers an analysis of "Officer of the United States". The main elements in their opinion are that the position must possess delegated sovereign authority of the Federal government, and the position must be continuing. There are other criteria possibly applicable (things that were invokes at some time) including method of appointment, having been established by law, taking an oath of office, an emolument (not a volunteer), and receiving a commission. Still, Congress authorizes (by law) the hiring of federal employees, and not all employees are "officers". An earlier memorandum on the topic is here. Footnote 54 notes that It is at least arguable, however, that the authority exercised by second lieutenants and ensigns is so limited and subordinate that their analogues in the civil sphere clearly would be employees. Warrant officers and non-commisioned officers would likewise have quite limited authority. Since the definition of "Officer of the United States" is up for grabs, there can't be a complete list of inferior officers, especially if all military officers are included. There is a long list of civilian officers under the executive branch published in United States Government Policy and Supporting Positions, after each presidential election. The so-called Plum Book is on a government web page here in the 2012 version, and here for 2016. However, you will not find special trial judges of the tax court in the Plum Book, which were held in Freytag to be officers, and are civilians in the executive branch. The special trial judges are apparently listed here, as are the sitting judges (who are also not in the Plum book).
As an example, POTUS does not undertake the entire pardon process on his own, instead they are preliminarily processed by the Department of Justice, which makes a recommendation. Only POTUS can "grant" the pardon, and we lack substantive information on how deeply he gets involved (does he just sign documents based on staff recommendations? does he do his own research?). I don't know what physical form Clinton's 450 pardons on January 20, 2001 took, but a president might use an autopen (Obama did use such a device). Questions have been raised and definitive answers from SCOTUS are lacking as to whether hand-to-paper signatures are demanded by the Constitution. DoJ at one point thought it was okay. This article lists the Constitutional functions which cannot be delegated: reporting to the Congress on the state of the Union; convening either or both Houses of Congress and adjourning Congress; signing and vetoing bills; receiving ambassadors and public ministers (recognition); appointing and removing ambassadors, ministers, and certain other public officers; nominating federal judges; and making recess appointments However, the Constitutional function of negotiating treaties or numerous functions as commander in chief of the armed forces is generally delegated, within the executive branch. Numerous statutory functions can be delegated (and Congress may say explicitly that some function can be delegated, in passing the law). The matter of implied power to delegate statutory function is the topic of a couple of centuries of litigation, but as an example in Williams v. United States, 42 U.S. 290 SCOTUS held that a law prohibiting the advance of public money in any case whatsoever to the disbursing officers of government except under the special direction of the President does not require the personal and ministerial performance of this duty, to be exercised in every instance by the President under his own hand. SCOTUS has not established bright lines regarding the extent of permissible delegation.
It is binding precedent for lower federal courts in the Ninth Circuit. They are required to follow it. It is persuasive precedent for the other circuits and for state courts. They may be persuaded by the reasoning and will consider the fact that the Ninth Circuit held as it did to be one factor in their decision-making, but they can make a different decision if they want to. Some courts are also more persuasive than others, although this is usually not explicitly acknowledged in written opinions. For example, state courts in the Ninth Circuit are likely to give more weight to a Ninth Circuit opinion than they are to give weight to a decision from another circuit. Cases from the Second Circuit are more likely to be persuasive than cases from other circuits, because of its reputation. Cases from the Southern District of New York are more likely to be persuasive than cases from most other non-local District Courts. There is also a personal reputation function that comes into play when looking at persuasive decisions. Some judges have a better reputation or a better reputation with a particular other judge, and their decisions may be considered more carefully. This is not explicit, but it means a good lawyer will mention the judge's name when a case in support of his position was decided by a well-regarded judge. Finally, the Ninth Circuit's holding would be persuasive precedent for the Supreme Court. You could write law review articles about this, but to dip one toe in: they may be persuaded by the reasoning and it matters to their function of providing unifying law, so especially during the process of applying for a writ of certiorari, they will care what different circuits have held on an issue and which circuits are going which way. But they are not bound by the circuit courts, and will overturn all of the circuits if they think that's the right decision. They did that a while ago with a statute about what it meant to use a firearm while committing a crime, for example.
According to this CNBC story the case brought by members of Congress (Blumenthal v. Trump) was dismissed for lack of standing by a three-judge panel at the Circuit Court level. As reported earlier a federal district court judge had allowed the case to proceed. This 2017 Politico story reported on the dismissal of an earlier suit on the same issue, also for lack of standing. The AP story &quot;Supreme Court ends Trump emoluments lawsuits&quot; reports that in Jan 2021 the US Supreme Court dismissed remaining cases on the issue as moot, since Trump was no longer President. In the piece &quot;Supreme Court Ducks an Opportunity on Trump Emoluments Cases&quot; by Ciara Torres-Spelliscy of the Brennan Center, the author reviewed the history of the constitutional provisions, expressed the view that rump had violated them, and suggested that new legislation should be passed to deal with any future cases of a similar sort. So far as I know, no such legislation has been introduced to date.