This is stupid and bad, and the entire Judiciary should feel bad.

“Standing” is a legal concept that lets a court decide who should and should not be allowed to bring a case.

It’s gotten pretty bad.

The fundamental idea is OK: you have to have some kind of rule to say who’s allowed to bring what kind of case. You can’t just have randos suing anyone they want over everything.

That’d be chaos; chaos I tell you.

But the current standing rules are absurd.

It has literally reached the point that no one can enforce constitutional limits via the courts on the Presidency (other than possibly the Justice Department, and why would they do that?).


No one.

Take emoluments, please.

This is a term that’s been much-searched on the Internet in the last few years, and one that probably no one but “Introduction to Constitutional Law, 101” instructors had used in the previous 200 years.

But it’s kinda important: the Constitution’s “Emoluments Clause” is pretty much the only absolute rule forbidding bribing the President.

And the courts have decided that no one other than maybe the Justice Department, who are of course appointed by the President, can bring an action to enforce it.

That’s … not being our best, America.

It’s also just the most current and extreme example; the standing rules also mean no one can enforce privacy protections or warrant requirements against the Executive unless they can prove harm, which of course they can’t do since you can’t get any evidence to submit without a court order that you can’t get because you can’t prove you were harmed without that evidence that you can’t get without a court order …

(And that’s even assuming that the feds would comply with a court order; that’s not guaranteed.)

This is why all those blatantly unconstitutional watch-lists and no-fly lists are still around: the courts claim that they’d love to help, really, but they just can’t until someone with proper standing comes along.

So the standing rules have to change.

Ideally, what we need is a Constitutional amendment stating that any citizen has the standing to sue to enforce any provision of the Constitution.

This government allegedly exists by our consent; if it breaks the rules, it’s only reasonable that we have standing to enforce those rules.

(We could also split the Executive branch to create an actually independent oversight organization that would by definition have standing as in Failed Constitution Check: Executive Oversight.)

But whatever we do, we need to do it and do it soon; this has gone on far too long already.

Leave a Reply