Standing . . . in the Way of the Constitution?

[WSJ_law_blog]

Few posts we’ve done in recent months have generated as much heat as those on Barack Obama’s alleged birth-certificate issues (click here, here and here). More recent posts raising possible constitutional problems with Hillary Clinton’s becoming Secretary of State have generated a lot of interest as well (click here and here).

Part of the frustration expressed by readers, it seems, owes to the fact that it’s unlikely that any individual citizen can do anything about a perceived constitutional slight.

It hasn’t stopped some from trying, including most recently David Rodearmel (pictured, left), who has sued to keep Hillary Clinton out of the Secretary of State chair.

But, writes WSJ Supreme Court reporter Jess Bravin in an article today, Rodearmel is unlikely to succeed. That’s because courts are likely to conclude that he lacks “standing,” a crucial concept that has blocked many lawsuits alleging that the government itself isn’t following the law.

Understanding this, writes Bravin, requires an understanding of the notion of “standing.” The concept flows from the Constitution, which grants federal courts jurisdiction over “cases” or “controversies.” The Supreme Court has interpreted this to mean that courts can’t give advisory opinions or make policy pronouncements, and only should decide disputes where the plaintiff alleges “concrete” and “particularized” harm, rather than what Justice Antonin Scalia has called “purely psychological displeasure.”

So, what’s to keep government officials from obeying the law if no one has standing to sue them? “[G]overnment officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law,” Justice Anthony Kennedy wrote in a 2007 case.

One oft-raised hypothetical involves the Austrian-born governor of California, Arnold Schwarzenegger, running for president. If Schwarzenegger managed to win the election, by being on the ballot or as a write-in candidate, it is highly unlikely that any court would block him from taking office, says Harvard law professor Mark Tushnet.

“People would say, ‘Who cares that there’s this technical violation of the Constitution?’” he says. Standing cases often “arise in the context of constitutional provisions that no longer seem so terribly significant.”