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By midafternoon on March 1, Supreme Court Justice Ruth Bader Ginsburg was tired enough to take a little nap during oral arguments in the Texas redistricting case. But earlier that morning, Ginsburg was wide-awake and firing questions at the unlucky lawyer there to argue that Ohio’s tax-incentive program, aimed at boosting jobs and development in the state, violated the Constitution’s commerce clause. She asked Peter Enrich to name the best precedent that supported a point he was making about standing, a make-or-break issue in the case. “ Craig v. Boren,” Enrich said, citing a 1976 ruling by the Court. Bad choice. Turns out, Ginsburg wrote a brief on the case as a lawyer for the American Civil Liberties Union. Armed with a strong memory of the case’s holding, Ginsburg was all over Enrich, asserting that the case stood for a different proposition. Enrich persisted, citing a footnote, at which point Justice Antonin Scalia sniffed, “I don’t read footnotes anymore.” It was a bad moment for Enrich, a Northeastern University law professor who was championing the cause of Toledo taxpayers who claim they pay more taxes because of the incentives, which were used to lure DaimlerChrysler into building a Jeep plant in Toledo. But DaimlerChrysler v. Cuno was no longer the case Enrich had signed up to litigate when consumer activist Ralph Nader called him up a decade ago. Then it was about a commerce clause challenge. But on March 1 the Court was much more concerned about standing than it was about the merits. Enrich had written a Harvard Law Review article in 1996 asserting that tax incentives, a fixture in nearly every state, violated the commerce clause. He argued that if Ohio reduces taxes for a company investing in Ohio, for example, it disadvantages another Ohio business that invests the same amount in, say, Wisconsin. It’s a classic, if difficult to grasp, form of economic discrimination. Nader saw the article and asked Enrich to represent opponents of the Jeep plant. Enrich originally filed the case in state court, partly because he worried about the standing issue. Federal courts make it harder than state courts for plaintiffs to achieve standing to sue merely by claiming that a government program increases their tax burden. But DaimlerChrysler had the case removed to federal court, making assurances that the taxpayers did, in fact, have federal standing. The U.S. Court of Appeals for the 6th Circuit surprised the company and the state by striking down the Ohio program, and they petitioned the Supreme Court, without ever raising the standing issue. All that changed last September when the Supreme Court granted review but also directed parties to address “whether respondents have standing to challenge Ohio’s investment tax credit.” Suddenly, Enrich had to become an expert on standing. “As soon as we saw the order, we knew that would be the big issue,” says Alan Morrison, a Stanford Law School professor who helped Enrich in the case and who headed the Public Citizen Litigation Group, created by Nader, when the litigation began. On the other side, former Solicitor General Theodore Olson, who represented DaimlerChrysler, could relax a bit. “This is going to be a Court that I think will be very tough on standing,” says Olson, including the two new justices in his calculation. Olson is a partner at Gibson, Dunn & Crutcher, which is arguing five cases before the Court this term — including one that partner Miguel Estrada argued right after Olson, on March 1. Alerted that he had to take a position on standing, Olson argued in his brief that Enrich’s clients, in fact, had none — a switch that angers the plaintiffs. So, Olson was unsurprised, and not a bit unhappy, when justices peppered him with questions about standing, which he portrayed as an “insurmountable obstacle” for the plaintiffs. Almost all of his 15 minutes at the podium were occupied with standing questions. When Ginsburg asked the inevitable question of who could challenge the Ohio program if these taxpayers could not, Olson had a ready answer. Business competitors who did not enjoy the same tax benefit might possibly be able to sue, he allowed, but he also seemed to convince the justices that, conceivably, no one at all would have standing to sue. It was left to Douglas Cole, Ohio’s solicitor general, to defend the program on its merits. The tax benefit was available equally to in-state and out-of-state businesses that invest in the state, he said. Plaintiffs, he said, “cannot identify any burden on interstate commerce.” Because of the standing question, Enrich was barely able to discuss the issue that got him into the case in the first place. He called the Ohio program “a tariff by another name,” but it did not stick. Scalia responded that if taxpayers did not like the program, it was for the politicians, not the courts, to “fight it out.” After the argument, Enrich said his main regret was not pressing harder to argue about the harm his clients suffered due to the Ohio program. One of his clients in the audience was stunned to hear the justices brush off their right to sue. “I can’t understand how they can say we were not hurt,” the client told Enrich afterward. If the Ohio taxpayers lose, they will return to state court, where their standing claim is stronger, and four years of federal court litigation will have been a costly, time-wasting detour. But Morrison says the taxpayers may have an ace in the hole, thanks to the maiden opinion of Chief Justice John Roberts Jr., issued last December. In Martin v. Franklin Capital Corp., Roberts wrote that when a case removed to federal court is remanded to state court, the party that sought removal can be forced to pay attorney fees if there was “no objectively reasonable basis” for removal. DaimlerChrysler’s switcheroo on the issue of standing might be just what is needed to prove that removal to federal court was unreasonable, says Morrison. “As soon as it comes down, they will receive a motion” for attorney fees.
Tony Mauro can be contacted at [email protected].

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