From: *Travis* Date: Fri, Feb 13, 2009 Subject: Why Some Constitutional Suits Don't Stand a Chance in Court
*Being a person of very limited legal training outside of contract law, I often read various legal court decisions in a state of total dismay. The recent cases involving our new leader's citizenship status come to mind. This article does an excellent job explaining the dismissal of various suits due to 'lack of standing' on the part of the plaintiffs. Now I still don't agree with the actual decisions, but I understand why they were made. Now I am concerned that various suits relative to the current administration's clearly unconstitutional behavior will never see the light of day in a court room due to this easy escape clause. * Why Some Constitutional Suits Don't Stand a Chance in Court * * By JESS BRAVIN<http://online.wsj.com/search/search_center.html?KEYWORDS=JESS+BRAVIN&ARTICLESEARCHQUERY_PARSER=bylineAND> WASHINGTON -- David Rodearmel, a Purcellville, Va., man who works in the State Department's religious-freedom office, believes that Secretary of State Hillary Clinton is forcing him to violate the Constitution. It's nothing Mrs. Clinton has done, Mr. Rodearmel asserts, but the very fact of her being secretary that is the problem. The Constitution bars former senators and representatives from holding government posts for which salaries were increased during the lawmakers' terms. While Mrs. Clinton was a senator, President George W. Bush approved routine cost-of-living raises for federal employees, including cabinet secretaries. Therefore, she is ineligible to be secretary of state, says Mr. Rodearmel, who observes that he has taken an oath to defend the Constitution. Rather than answer to an illegitimate superior, he has filed suit to have her removed. "I have absolutely no question as to her abilities," Mr. Rodearmel says. But as a sworn Foreign Service officer, "I have a duty to bring up this constitutional question," he says, adding, "I'm perfectly content to live with whatever the [court's] decision is." The suit is almost certainly doomed to failure, even before considering whether or not Mr. Rodearmel is right. That is 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. The idea of standing 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." That is why judges toss out certain cases -- because the plaintiffs weren't able to show they suffered concrete harm. That was the circumstance when an Internet-fueled rumor sparked several lawsuits seeking to bar Honolulu-born Barack Obama from the presidency because the plaintiffs doubted he was, as the Constitution requires, "a natural-born citizen." In dismissing one such suit, Judge R. Barclay Surrick, of federal district court in Philadelphia, said an aim of the standing doctrine is to prevent courts from deciding questions "where the harm is too vague." He observed that a disgruntled voter who suffered no individual harm "would have us derail the democratic process by invalidating a candidate for whom millions of people voted and who underwent excessive vetting during what was one of the most hotly contested presidential primary in living memory." Judge Surrick acknowledged that "standing can be a difficult concept for lawyers and nonlawyers alike." Nonetheless, he wrote, "standing has been a consistent barrier to lower courts hearing generalized, undifferentiated claims by voters and citizens." Other failed suits have alleged that Mr. Obama's opponent, Sen. John McCain, also flunked the "natural-born citizen" test (he was born to American parents in the Panama Canal Zone), and that the 12th Amendment barred Texas delegates to the 2000 Electoral College from voting for both George W. Bush and Dick Cheney because both resided in the same state. Sometimes, the issues raised are serious. In 1974, for instance, the Supreme Court rejected a suit the Reservists Committee to Stop the War filed to expel members of Congress from the military reserves. The group alleged that the lawmakers were violating a constitutional provision barring senators and representatives from "holding any Office under the United States." By serving in the reserves, the group said, members of Congress were answerable to President Richard Nixon and therefore couldn't act as independent members of the legislative branch. Once again, standing was the obstacle. The allegation was "simply a matter of speculation," Chief Justice Warren Burger wrote, but even if true, only affected "the generalized interest of all citizens in constitutional government, and that is an abstract injury." *Still, even if no one has standing to sue them, "government 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. (Mr. Obama take note)* That doesn't satisfy Mr. Rodearmel, himself a lawyer and a retired Army officer who is represented by the conservative advocacy group Judicial Watch. He argues that *officials are apt to ignore laws that can't be enforced against them.* One oft-raised hypothetical involves the Austrian-born governor of California, Arnold Schwarzenegger, running for president. If Mr. 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." As for Mr. Rodearmel's suit, which the Justice Department is reviewing, it would face an uphill battle on the merits even if it got a hearing because Mrs. Clinton didn't actually receive the cost-of-living boost. After Mrs. Clinton was nominated, Mr. Bush, following a century-old bipartisan practice intended to comply with constitutional requirements, signed a bill rescinding the secretary of state's raise. *Write to *Jess Bravin at [email protected] [image: navy jack.jpg] __._,_.___ Messages<http://groups.yahoo.com/group/grendelreport/messages;_ylc=X3oDMTJmNmNkcDhmBF9TAzk3MzU5NzE0BGdycElkAzIwMTk0ODA2BGdycHNwSWQDMTcwNTMyMzY2NwRzZWMDZnRyBHNsawNtc2dzBHN0aW1lAzEyMzQ1NDAxOTA-> MARKETPLACE ------------------------------ >From kitchen basics to easy recipes - join the Group from Kraft Foods <http://us.ard.yahoo.com/SIG=13roehee4/M=493064.12016295.13271503.10835568/D=groups/S=1705323667:MKP1/Y=YAHOO/EXP=1234547390/L=/B=HehwFkPDhFU-/J=1234540190928562/A=5530388/R=0/SIG=11nuutlas/*http://explore.yahoo.com/groups/kraftmealsmadesimple/> [image: Yahoo! 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