Friday, February 14, 2014


"I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them but to inform their discretion by education. This is the true corrective of abuses of Constitutional power."
-Thomas Jefferson

One of the principles by which the legal system works in America, and likely other nations with their background in English Common Law, is the idea of "standing."  Basically Standing is a legal concept that argues you cannot bring a suit against someone unless you are personally affected in some negative way by their actions.
In other words, if I see someone cutting the limbs off my neighbor's tree, I can't sue them for it, because I have no Standing, I have no legal basis for a lawsuit.  My neighbor does, as it is his tree.  You can look at the Wikipedia entry for more information on the topic, as the site is pretty good on that kind of thing.
The reason this principle exists is so that it cuts down on nuisance lawsuits, people using the system to either punish people they don't like, search for things to get rich off of, or bog down the system with absurd claims.  It is a functional device from an organizational or bureaucratic standpoint.
Several major cases in my memory have been thrown out for lack of standing.  A few years ago, some guy named Michael Newdow sued California to make them stop having the words "under God" in the pledge of allegiance because his daughter is forced to say it.
The 10th circuit court predictably agreed and ruled the statement an unconstitutional violation of the separation of church and state doctrine (which isn't actually in the constitution).  The Supreme Court saw the case and threw it out, because while the man was technically the girl's father, he was separated and had nothing to do with her.
Newdow has been trying over and over in courts to get this phrase removed, its sort of an obsession with the man.  As an aside, I happen to agree it should be removed, since while everything is under God, the US is not especially or notably so in practice, so the pledge is a lie as it is intended.
So this concept is used by courts to throw out cases which the plaintiff has no stake in the outcome, a lawsuit brought because of desire not actual impact on the person's life.  Its useful to keep the load of cases down and prevent some lawsuit predation, where people look for targets to sue and make money off of (or as in Newdow's case, to promote a personal vendetta).
Some are wondering why on earth the president is repeatedly violating the constitution and there never seems to be any sort of legal challenge.  After all if its really illegal, why doesn't someone do something?  There are those who argue, in fact, that it must not be illegal, since there's no legal challenge (which is sort of like arguing it wasn't really murder if nobody tries to arrest you).
So what's going on, why no challenge?  Well it comes down largely to standing.  Courts won't allow a lawsuit against the president in most cases just on general principle (suing the president is really bad for the country), but in this case specifically because most people have no standing.
See, its not enough to argue that you're negatively impacted by the decision or law, it has to be a legal damage, something that the law supports or recognizes.  Being upset or psychologically damaged isn't sufficient.  A general loss of liberty or violation of the constitution isn't even enough.  You have to be able to demonstrate direct physical damage, financial impact, or personal, direct loss of rights.  The Wikipedia entry puts it this way:
In the United States, the current doctrine is that a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that he/she/it is or will 'imminently' be harmed by the law.
So the mere fact that the president is violating the constitution is not sufficient standing for you or I to sue over.  Again, this is partly to reduce the nuisance lawsuits, just suits because you don't like someone or are trying to cause trouble.
Now, congress could sue because the president is poaching on their constitutional authority, but who'd expect Democrats who control most of congress (all of one house and nearly half of another) to sue the president to stop doing what they like him to do?
Now I'd argue that any American citizen has standing to sue to stop any constitutional violation on the principle that this is destructive to their liberty and the founding fathers meant for the people to be the final arbiters on constitutional authority, but that's not how the courts see it.  If something is wrong or illegal, everyone is harmed by it even if there's no direct, "imminent" and easily identified personal injury.
I get that the principle of standing protects the courts and others from "lawfare" where you target people and attack them through the courts using lawsuits and injunctions.  I get that it reduces the number of crackpots just attacking someone in authority or wealth.  But there's a certain point at which its taken too far.
And its hard to avoid the impression that standing is used for another purpose.  See, the courts really don't like getting involved in issues like the president's signing orders.  They hate that kind of thing for several reasons.
  1. They are worried that reversing an executive order over constitutionality sets up a cascade effect going back decades through wrong orders and that's a huge headache
  2. They don't like to cause a constitutional crisis by nailing either of the other two branches
  3. The president would likely just ignore them anyway and that makes them look bad, something of supreme importance, apparently, to Chief Justice Roberts
So they fall back on standing.  Nope, can't see this case, no standing.
And it seems like this principle is, as a commenter said at Ace of Spades HQ, "...a way for a feckless and impotent court to weasel out of having to make a tough decision."
As I wrote a couple days back, the United States was founded on the principle that all men are created equal.  Not that everyone is identical or that no one has advantages or drawbacks relative to others, but that all are equal in class and status.  No man is innately superior as a human being.  That means no one of us is any less or more than others legally as well.
So I guess the principle of standing has its value and is an important concept, but there are some areas which it shouldn't apply to - or, rather, that it should always apply to: violations of the constitution immediately give all citizens standing to take action upon.
Interestingly enough in the 80s, the concept of standing was all but eliminated in England, and the result has not been legal chaos.  That's probably because the courts soon after came up with the idea of "legal interest" to replace it which was virtually identical.
The problem is, this would require courts to show greater discernment in terms of why and what the cases were brought upon rather than just taking the easy way out and ignoring them for lack of legal standing.  And while it seems rare to have a higher court overrule a lower court's decision on standing, they will overrule on a decision on merit.  
And if there's one thing a judge hates more than anything else, its having their decision overruled by a higher court.  Standing is the easy way out, and we all suffer for it.

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