Avoiding The Merits Of The Case

My years as Executive Director of Indiana’s ACLU gave me the kind of education that schooling just can’t supply. It was during that time that I first recognized how few Americans knew even the most basic principles of the Constitution and Bill of Rights; for example, there was–and probably still is–a belief that the majority always rules.

I can’t count the number of Hoosiers I encountered who insisted that if a majority of citizens wanted a book banned or a public prayer said– why, that should be the law. The idea that the Bill of Rights enumerates things government cannot do –even if a majority wants government to do them–was both a foreign concept and an unpleasant surprise.

When the issue involved criminal procedure, people expressed widespread disgust at “stupid rules” (for example, the Fourth Amendment) that allowed an occasional defendant to “get off on a technicality.” (“Occasional” is the operative word; aside from television episodes of “Law and Order,” that’s a pretty rare occurrence.)

I thought about those negative attitudes toward “technicalities” a while back, while I was reading a New York Times column by Linda Greenhouse on the standing doctrine. Standing actually is a “technicality” in the sense that when the doctrine is too expansively applied, it allows a court to ignore the merits of a case–to sidestep the issue that is being litigated.

I’m copying a fair amount of the Greenhouse column, because the concept of standing is unfamiliar to most Americans, and its significantly expanded use by the Courts is far more dangerous than the likelihood that fidelity to the Fourth Amendment will free an accused felon.

Pop quiz No. 1: What do the following have in common: an abortion clinic in Louisiana; the county of El Paso, Tex.; and two individuals who don’t want to buy health insurance?

Answer: All are plaintiffs in federal court.

The Hope Medical Group for Women, in Shreveport, La., is the petitioner in the June Medical case now at the Supreme Court, challenging the constitutionality of Louisiana’s latest effort to shut down the state’s few remaining abortion clinics.

El Paso County is suing the Trump administration to stop construction of a new section of border wall on its southern border with Mexico that will be paid for in part by siphoning off millions of dollars that Congress intended for a project at the Fort Bliss Army base, the county’s biggest employer and economic engine. This case is not yet at the Supreme Court, but is most likely headed there.

And Neill Hurley and John Nantz, the two men who object to being told to buy health insurance? They and a group of red states led by Texas are in the Supreme Court defending the lower courts’ conclusion that the Affordable Care Act’s individual mandate, which no longer carries any penalty for noncompliance, is unconstitutional.

Pop quiz No. 2: Which of these are the only plaintiffs that the administration’s lawyers are not trying to throw out of court?

Answer: The ones who don’t like Obamacare.

And how are Trump’s lawyers trying to keep the other issues from being decided by the courts? By arguing that the plaintiffs lack standing —the right to bring the lawsuit in the first place.

Courts have developed a three-part inquiry for deciding whether a plaintiff has standing, designed to ensure that a lawsuit presents the “case or controversy” that Article III of the Constitution requires for the exercise of federal court jurisdiction. Did the plaintiff suffer a real injury? Was the injury caused by the defendant? And can a victory in court actually bring relief? These questions appear to invite simple yes-or-no answers. But a few minutes’ reflection shows that they are far from value-free, and finding the answers requires the exercise of judgment.

For example, El Paso County claims that even before a dime has been diverted from Fort Bliss and spent on the wall, it is already suffering damage to its reputation that will cost it business investment and tourist dollars.

The District Court Judge agreed with El Paso that “reputational and economic injuries”  were real, and sufficient to establish standing, and that the injuries were traceable to the government’s proposed action.The Court of Appeals for the Fifth Circuit, however, granted the administration’s request for a stay of the injunction, finding a “substantial likelihood that appellees lack Article III standing.”

Greenhouse goes through the arguments for and against standing in each of the other cases; the explanations demonstrate both the dishonesty of the administration’s positions and the pliability of the doctrine.

“Actual damage” is in the eye of the beholder, and when the beholder is an unqualified partisan put on the bench by Trump and McConnell, standing becomes a “technicality” that can be used to neuter constitutional guarantees.


  1. “Actual damage” is in the eye of the beholder, and when the beholder is an unqualified partisan put on the bench by Trump and McConnell, standing becomes a “technicality” that can be used to neuter constitutional guarantees.”

    Can a Supreme Court verdict be appealed under Constitution Amendments? Can the House appeal on behalf of victims denied Amendment IV (Search and Seizure Warrants), XIX (Black Suffrage) and XV (Women’s Suffrage)? The latter two regarding appealing the loss of voter rights? Can Amendment IV be questioned regarding Trump’s announcement in his SOTU address, his request that Congress pass a bill allowing victims of legally released criminal immigrants to file suit against Sanctuary Cities and/or States?

    After the fiasco of Rush Limbaugh receiving the Presidential Medal of Honor and adding to the question can the president pardon himself; can Trump have Melania or maybe Pence or McConnell fasten a Presidential Medal of Honor around his neck? Not a ridiculous question when you think back over the past 3 years of Trump’s heavily applied presidential power plays.

  2. We just saw “law and order” be ripped to shreds by partisan hacks, except for Mitt Romney.

    Meanwhile, right-wingers are posting articles about Mitt from 1983 to discredit him. LOL

    We just saw “order” be blown up during the Iowa Caucuses by a corrupt and inept Iowa Democratic Party. One caucus result spreadsheet was posted on Twitter, showing votes for Sanders and Warren were given to two unviable candidates.

    Waiting for Tom Perez to resign as chair of DNC over the Iowa Caucuses or he’ll get Hillary Clinton and Obama to blame the Russians for hacking the app…an app with personal connections to Joe Biden and Pete Buttigieg, the shining star of the national security folks.

    I think it’s fair to say that we have reached the point in our country where lawlessness is the rule, and “law and order” are the exceptions. This period of chaos should last decades unless U.S. citizens get off their couches and protest in the streets.

    Authoritarianism will become more relevant as the masses reject what is going on in this country. Our Surveillance/Security State will kick into overdrive as they try to stop the protesting before it begins. We can’t have other countries see Americans protesting what we’ve become as long as our military occupies other countries to assist with “socialist” regime changes so our capitalists can extract vital resources like lithium and oil.

  3. Todd and others; does anyone else believe Tom Perez was given the DNC chairmanship due to being Hispanic in hopes of gaining their votes? His appointment came as a surprise to many Democrats.

  4. As to standing, it seems more than a little vague, since there is no definition, nor even a mention of standing in Article III. One might argue that harm is committed to any citizen when the leadership violates its obligations under the Constitution, since those actions diminish the effectiveness of the document itself, and therefore of the liberty of the people. That would grant standing to all.

    As to Iowa and the DNC: I have to say I welcome the debacle that is Iowa as it may finally drive changes to the primary process. We might at least see a move toward a vote, rather than a caucus in Iowa. Iowa has had, for far too long, an outsized influence over the nominees of the Democratic Party. They have had no impetus to change their strange and undemocratic system. Meanwhile, the DNC has been loathe to take away Iowa’s spot as first in the nation, because of the economic impact it has on Iowa and Iowans. Note that I still favor a national primary to end this whole nonsensical charade.

  5. Peggy Hannon; I stand with you on this issue, “Note that I still favor a national primary to end this whole nonsensical charade.”

    A simple, national solution to a ridiculous, convoluted, confusing and in some states unfair, election issue which adds to the full control of Electoral College members to select their choice for president, and in turn, vice president. Taking presidential elections out of the hands of the voters and allowing 538 select people make the decision based on a questionable and centuries old outdated decision.

    But now is not the time to take this issue before the Supreme Court.

  6. JoAnn:

    Tom being Hispanic, didn’t hurt his chances of becoming chair for sure. I also think he is more of an order taker, which is what the donors want. DWS was also very good at doing what others wanted during her reign as chairperson.

    The DNC needs to throw someone under the bus for the debacle in Iowa. Who will it be? 😉

    The Nevada Democratic Party has already chosen to drop the app for their caucuses later this month, so let’s see how they handle the progressive wave. In 2016, NV Caucuses became so heated that the stage was lined with a police barricade. I expect we’ll see another kind of debacle there as well.

  7. Yes, Todd, Tom Perez is nothing more than a shill. He should be replaced by someone like Rick Wilson who actually understands American politics and how to run an election.

    Next on the agenda: William Barr – yes, THAT William Barr – has just sent out a letter to all district attorneys barring (You gotta love the word here) them from investigating or prosecuting any candidate running for office this year. Now why would he do that? You don’t suppose that he had a particular candidate in mind, do you?

    The horror show that we’ve all feared is about to commence. The prayer breakfast today will be just the preamble to an election season that the founders feared. If you have any doubts about how this will turn out, re-read Sinclair Lewis’ “It Can’t Happen Here.” Oh. Right. He wrote it in the mid-1930s. You’ll ask yourself, “How did he know?”

    It’s like reading “Das Kapital”. How did Marx know that capitalism would throw up all over itself? Did he know that the current Republican party would show up to fulfill his predictions? Never underestimate those who see far.

  8. JoAnn, the Democratic Party has embraced triangulation. Don’t Make No Waves…Don’t Back No Losers An Insiders’ Analysis of the Daley Machine is a book published in 1976 by Milton L. Rakove about Daley the Elder’s machine politics in the Chicago area.

    Rakove, writes in great detail about the selection process of candidates. Bottom line as the book’s title explicitly says -“Don’t Make No Waves” in other words you have to fit in the power structure and carry out what the leadership wants.

    In this case the DNC represents the Corporate Wing of the Democratic Party, which is why the DNC and DCCC is so adamant in opposing Progressives. The 1% in no way shape or form wants a Sanders or Warren heading the Democratic Ticket for President.

    The wretched failure of Iowa Caucus was painful to behold, snatching defeat from the jaws of victory.

    Funny article in The Onion ( a satire source).

    WASHINGTON—Hoping the yellow, graphite-based writing instrument would allay voter doubts following the chaos of the Iowa caucuses, the Democratic National Committee reportedly offered a technology startup $500 million Tuesday to develop a pencil that can accurately record election results. “As of this morning, we have commissioned the design and manufacture of a cutting-edge tabulation device that will be able to legibly report vote totals on a sheet of paper 99% of the time,” said DNC chair Tom Perez, holding up a rough prototype of the 7.5-inch hexagonal marking implement, which will be built and rigorously stress-tested by a new Silicon Valley business venture known as Sharpen.

    “It may not be easy to encase a cylinder of graphite with wood or put a slick coat of glossy paint on its outside. But with this new partnership, we believe we will soon have at our disposal a pencil that is both reliable and totally resistant to any attack by foreign powers.”

    At press time, sources confirmed plans for the pencil had been scrapped after election security experts warned the rubber eraser on its tip would quickly erode public trust in the product.


    Sad to say in this day and age satire and reality are so close to each other.

  9. When Carmel “Businesses”, Indiana Family Institute and the American Family Association of Indiana sued over Indiana’s RFRA fix and new Carmel city LGBTQ protections, I read the story and said, “they don’t have standing”. They had not been injured, and they would not even be affected by the new law. I did not know there was a third criteria. Thanks Shelia. A few months later the case was dismissed because the plaintiffs did not have standing.

    But that said, I can see how the argument of standing can be used as hammer to drag out a case until you get some ideologue that chooses to ignore the rule of the law and dismisses the case. I would hope that by the time you get to upper level appeals, you have to have the bench stuffed with multiple ideologues and the this kind of injustice gets harder. But, it seems like the President and the Republican Senate are exactly on this path.

    I must have had some good history teachers as well. I do remember from high school, that one of the chief dangers seen for any democracy was to prevent a tyranny by the majority, and that just because a majority of people support something does not mean that it should be law. I think slavery was an extreme example of that. But separation of church and state is another one that seems to be dying by a thousand paper cuts.

  10. the new breed of mafia,,the white house,,,Barr as the back street lawyer,and rush limbering,as the (decorated)propaganda misinster..seems were seeing what the republicans have planned prior to obama. they didnt do this in a decade..they have groomed and demanded from those who run for office,to ALEC themselves or be hushed..(we have a deal you can not refuse) i joked long ago about alumni and college of the rich, gathering the dust to spit out a planet..i was hoping i would have died by now than to see this sham.. we have failed to look over that damm fence again..we have journalists now who report the issues, then find we are barraged again with a diffrent slant,or new issue.(propaganda at its best).the standing law in this country has taken a back seat to a mafia style corprate desk. (communism,as you wish,not socialism,)im looking at this next election to find the whole damn thing being shoved out a window and denied any win except what the fantasy maker mcconnel has decided….we have allowed the rich to demand what they want,and be damned if its against the very meaning of our existance, this is truly a russoinian style of law,and a chinese style of oppression.(and the band plays on) putin desolves hos law makers for who he wants,and the concentration style camps in china,in rethink policy,you can not,and will not think….we have become a corprate owned entity with no voice or action that can and will untie this. trump will win in november,and not by votes,its by self proclaimed ownership via the wall street grunge..perez should have never happened,along with the DNCs sham decisions. they are now,the same in affect,as putins new congress,chinas ongoing mass rethink…best wishes..

  11. I remember my high school govenment teacher asking if we believed in freedom of speech for those who disagreed with us. Most of us did, but I was surprised at how many did not. I am distressed that so many Americans do not believe in the constitutional rights of others who are different from themselves in political party, religion, race, economic condition, gender, health insurance coverage, age, sexual orientation, disability, national origin, geographic residency, and more.

    As one who has long enjoyed the competition of politics, I looked for the wedge issues that would convey real choices between candidates. HOWEVER, the nation’s current polarization scares me. It’s too deep and wide to be healthy. It’s making ‘e pluribus unum’ impossible. We expect immigrants to assimilate while we natives can’t assimilate ourselves toward a common good.

    So I find myself increasingly gravitating to candidates who don’t only want to defeat Trump but the ‘Trumpism’, anger, and alienation that enabled his election. Our common good at home and position in the eyes of the rest of the world are dangerously at risk. I SERIOUSLY doubt our nation can survive 4 more years of this.

  12. Cringe at all the “hero” and “profile in courage” accolades for Romney. His votes look like pure today’s GOP. Vote against “corruption” and look like a good elder back home (future votes) and then vote that it is ok to obstruct Congress and defy the separation of powers (hey, I am a power politician and that bodes well for the future of the GOP and…maybe me in 2024?)

  13. The addiction to entertainment as a replacement for purpose and accomplishment has added new data to the ongoing experiment in liberal democracy performed by our republic. Those who pay for our entertainment, a group of wealthy corporations, who trade our attention for their money, can now use our entertainment addiction not only to sell us goods and services that are not worth what they charge us for them, but also to misinform us in ways that let them get away with no longer offering value by enlisting us to vote for politicians who also offer no value but allow corporations to fleece the public in ever more lucrative ways.

    The experiment in liberal democracy was showing positive results up until this development but now appears not to be sustainable because it requires informed voters rather than the misinformed sycophants who emerge from lives of passive entertainment rather than active accomplishment.

    Sadly the failure of liberal democracy also seems to conclude that humans on the average are simply not intelligent enough to be free and can be brought into a state of slavery by exposure to too many screens and speakers playing shiny objects 24/7. In this way they seem to follow the domesticated feline species, due to zero attention span, into a state of pethood for corporate owners .

  14. I have been involved in fact situations where I advised those to go home and nurse their wounds because their case would not survive a standing objection. Philosophically, and class action suits to the contrary, I think standing is as much judicial economy as constitutional and is sometimes decided by other factors not within either. A close scrutiny of case law is helpful in such connection.

  15. I have serious doubts, Pete, that the brainwashing you describe is even possible. Schooled in psychology as I was, I was unable to brainwash my kids. I was unable to brainwash my students. When I was an Information Officer in the US Army, my job was to “brainwash” the public, but I never saw a single example of it working. I am still failing to brainwash anyone with whom I interact, and not from a lack of trying. I did once get my three-year-old grandson to brush his teeth using the method I preferred. Let’s see…I think he reached the four years birthday before he rejected that bit of brainwashing and took up some other strategy of teeth cleaning.

    In my experience, I calculate that 100% of those people whom I have observed being groomed, brainwashed, or otherwise induced toward long-term positions on matters of idea have eventually rebelled and ended up positioning themselves against the idea they were pushed to accept.

    When I used to observe people following along with some fad or idea, I assumed that they were being led. Later, I deduced that they were not being led at all. The fad they had hooked up with was simply the thing their fickle mind had been looking for, or was close enough to that thing, whatever it is, to fulfill their emptiness while they looked for something of even better fit.

    That is not to say that no one attempts to groom and induce. Grooming and inducing seem to be a national pastime, like trying to lose weight or to keep a New Year’s resolution; but an even greater national pastime is failure, and the biggest failure of all is getting people to think a certain way.

  16. Pete,amusing ourselves to death,,1985- i turned off the tube when i started driving truck,1978, and started to get answers why the masses ie. working class allows a state of control to even exist.( played over an over again)
    maybe its orwellian to think it went this way,or by chance someone seen a door open,and then ran with it.. weve lost a great deal of people involvement with democracy,as in we the people,for a pacified nation of rubber brains..everything just bounces off..we lost the fight when the last reagan days began king george the first days…now its a monster…(steppenwolf 1972)

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