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36.2

More Citizen Standing

Summary:

Every citizen shall have standing in court to seek the meaning of the Constitution or to challenge the constitutionality or validity of any federal law or regulation or to seek a declaration of the meaning thereof.

More Citizen Standing: Proposed Language

Every citizen shall have standing in court to seek a declaration of the meaning of any part of the Constitution or to challenge the constitutionality or validity of any federal law or regulation or to seek the meaning thereof.

Commentary:

Article III §1 of the Constitution states that “The judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”. While this judicial power is vested in Article III §1, by Article III §2, it “shall extend to all Cases...arising under this Constitution” and other “Controversies”. The meaning of a “Case” has occupied many court decisions with enough evolution and change and dissenting opinions to muddle the clear meaning of that term. Some decisions say, if there is no “Case”, then there is no jurisdiction whereas others say, if there is no “Case”, then there is no standing. In either event, when a controversy is determined not to be a “Case”, the courts will not hear the matter. 

When a person believes there is some illegality in America and decides to do something in court, he has to have “standing”.  The first thing he notices is the language in Marbury v. Madison, 5 U.S. 137 (1803), that there is no standing unless there is “injury”. Yet, the Supreme Court has made clear that not every injury will entitle one to standing and the protection of the laws. The Supreme Court has said one needs a particular kind of injury or he does not have standing. In Baker v. Carr, 369 U.S. 186 (1962) (the “one man, one vote” case), the Supreme Court said there was standing when there was an actual controversy and the plaintiff alleged “a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues....” However, these simple rules began to change. In Allen v. Wright, 468 U.S. 737 (1984), the Supreme Court said standing was one of those doctrines that cluster about Article III, which “relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government”. Make sense? In its effort to give substance to the word, the Supreme Court has relied on tradition and a “concern about the proper – and properly limited – role of the courts in a democratic society...”, Warth v. Seldin, 422 U.S. 490 (1975), or “the idea of separation of powers”, Allen v. Wright, 468 U.S. 737 (1984). In Allen v. Wright, the court acknowledged the “absence of precise definitions” but stated it “hardly leaves courts at sea in applying the law of standing” as it proceeded to ask rhetorical questions that could only be answered by subjective determinations. The abyss of subjectivity is also made apparent by the lack of unanimity in the court on major standing questions, with dissenting justices complaining that standing decisions reflect a hostility to the underlying claims.

In an effort to give shape to an amorphous term, the court decided that the “central mechanism of separation of powers depends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts” (emphasis supplied), Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-560 (1992). In Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102 (1998), the court stated “standing to sue is part of the common understanding of what it takes to make a justiciable case”. The court fails to define what is “appropriate” or what is a “common understanding”. Complicating the matter is the court’s position that the standing inquiry involves both constitutional and prudential limitations, the former dealing with jurisdiction itself and the latter dealing with the exercise of that jurisdiction. With respect to the former, the Supreme Court says “Standing imports justiciability: whether the plaintiff has made out a ‘case or controversy’ between himself and the defendant within the meaning of Article III”. Warth v. Seldin, 422 U.S. at 498. Of course, the average person recognizes that these complicated and intertwined concepts give the courts wiggle room in avoiding cases they subjectively believe should not be decided. 

Shackled by standing rules that did not always work, the court has crafted exceptions, a discussion of which is beyond the scope of this commentary. These exceptions relate to First Amendment cases or cases grounded in “weighty, countervailing policies” or cases involving public safety.

A review of the cases shows that, with the exception of Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court’s foray into a search for standards has not been helpful as shown by the many exceptions, the controversies among the justices, the tendency of the Court to find standing when it wants to, and the definition of standing in terms of “tradition” or “the idea of democracy” or “the separation of powers” or “common understanding.” The Supreme Court admits that standing “incorporates concepts concededly not susceptible of precise definition” and is characterized by the “absence of precise definitions”. None of this bodes well for the rule of law. 

It is time to put this issue to rest and require the Supreme Court or lower federal courts to hear cases even when they would prefer not to. If citizens cannot challenge the constitutionality or legality of federal laws, they have no way of enforcing accountability in the President or Congress.

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