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.