iMEGA on standing & ripeness

[JPFisher55]

Thanks for the answer Skall. I guess the worst that can happen on the standing issue is that the judge can order iMEGA to identify a member who is an affiliate to establish standing.
I don't think that the regs part of the suit means much.

[Legislurker]

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JP - I think IMEGA demonstrated at least some standing, certainly with respect to their First amendment claims. I think they have a shot, having identified affiliates as part of the group, at standing to challenge the UIGEA on WTO and Commerce Clause grounds, but that analysis is far more complex.

Legislurker - No, the judge cant order the Regs to happen (thank god) - but that part of the suit could be re-filed once they do appear (if ever).

Skallagrim

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So if the gov't so chooses, they can never publish the regs?
They can deny standing by just being asswipes? At some point who holds them accountable for promulgating the law by publishing the regs? It would seem to me the judge should be able to say they can't just hold legal limbo and actually issue the TRO until the regs are out, and THEN examine standing to force the gov't to be forthright.

[JPFisher55]

Legislurker, I think that you confuse standing and ripeness. The ripeness issue applies only to the request to injoin the issuance of regulations; not to the request to injoin enforcement of UIGEA. But the standing issue affect the whole lawsuit. The iMEGA must show standing or the lawsuit fails. But, in theory, the judge could grant an TRO against enforcement of the UIGEA, but not the issuance of the regs. That is highly unlikely, but possible.

[Wynton]

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So if the gov't so chooses, they can never publish the regs?

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No. A government agency has to follow a congressional mandate to publish regulations. It is possible to bring an action to force the agency to do so, eventually. But that may require a separate proceeding altogether, and as a practical matter, the regulations would probably be issued before a decision was ever issued.

In any event, I'm sure we will see regulations soon enough.