LAWYERS, PARALEGALS, AND VOLUNTEERS

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Standing – We should not take this sitting down

I had a hearing against the federal government recently and, as is so frequently the case, I spent a fair amount of time debating the legal question of standing. Standing, as a legal concept is a serious issue and a personal pet peeve of mine so I am writing about it. Let me apologize up front for getting into the weeds but this concept is simply too important to remain so far under the radar.

In the law, standing means that you have the ability to bring a case before a court. It generally turns on whether there a junction between the 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 so relevant as the rule coming out of the case. 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 cases and many other cases against the government. It is important to understand when considering standing that 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, that I think it is 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 of. The problem is that throughout the 20th century, the lawyers and courts allowed for the application of standing to go well beyond its common sense roots and, in my opinion, it is now being used by courts to dodge difficult issues that they may be 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 reason judges are given life tenures.

We now see the courts throwing cases against the government out 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 a citizen has no standing to challenge administrative rules because they are committed to agency discretion or administrative in nature and can only be enforced by the other relevant government agency. This entire situation is a mess and, frankly, untenable.

To my mind it is critical that citizens be able to challenge government action that 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 in suing the government as it stands, throwing standing in 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 to suggest our founding fathers would not want elected officials and bureaucrats to be above the law. These people have sacred duties in our form of government to follow and enforce the law and if they are not doing their job, I believe the people should have a right to challenge them. While I do not know if we will successfully see reform in this area soon, I can assure you I am pushing for it on a lot of fronts.