There recently was a hearing against the federal government and as is so frequently the case, a fair amount of time was spent debating the legal question of standing. Standing in legal concept terms is a serious issue and a personal pet peeve of mine so I am writing about it. I apologize for getting into the weeds with this but the concept is simply too important to remain so far under the radar.
In legal terms, standing means that you have the ability to bring a case before a court. It generally hinges on whether there is a junction between the injury, the possible plaintiff, and the possible defendant. The current best law on standing stems from Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). The facts of the case are not as relevant as the ruling coming out of it.
In that case, the Supreme Court laid out that for a party to have standing, there is a three part test that the party must satisfy. First, the plaintiff must have suffered an “injury in fact,” which is (a) concrete and particularized, and (b) actual or imminent, not “conjectural” or “hypothetical.” Second, the injury must have been caused by the conduct complained of and traceable to the defendant. Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”
Standing is the main reason most of the election fraud cases of 2020 were thrown out and also figures substantially into a number of difficulties in filing COVID and many other cases against the government. It is important to understand that when considering standing, it has always existed in the courts but is not found in the Constitution. This is not to say the concept is entirely unconstitutional, but rather misapplied.
Standing in its historical context stemmed from the common-sense idea that you cannot sue someone for something they are not accountable for and should not sue someone if their actions are not impacting you. In other words, there should be some junction between the parties and the action complained thereof. The problem is that throughout the 20th. century, the lawyers and courts have allowed for the application of standing to go well beyond its common sense roots and it is now being used by the courts to dodge difficult issues that they may find uncomfortable ruling on. Unfortunately, that is not a good thing because ruling on tough issues is the fundamental reason for the existence of courts and foundational to the reasoning of why judges are given life tenures.
We now see the courts throwing out cases against the government because rules that would likely be unconstitutional are made against the public and so the injury is not particularized. In other cases, courts have held that citizens have no standing to challenge administrative rules because governments are committed to agency discretion or administrative in nature and can only be enforced by the other relevant governmental agencies.
This entire situation to say the least, is a mess and frankly, untenable.
To my mind it is critical that citizens be able to challenge government actions which may be illegal or unconstitutional directly and without artificial roadblocks. It is fundamental to our nation that there is accountability for those that govern to those they would govern. Given the difficulties that exist as it stands in suing the government, throwing in standing as an obstacle leaves Americans without redress if an agency or bureaucrat chooses to ignore the law or Constitution for all practical purposes.
No where in our Constitution is there anything suggesting that our founding fathers would want elected officials and bureaucrats to be above the law. These people have sacred duties to follow in our form of government and of enforcing laws, so if they are not performing those obligations, I believe the people have the absolute right to challenge them.
While I do not know if we will soon see successful reformation in this matter, I am personally pushing for it on every front that I am able to wage it on. |
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