Posted on 09/07/2026 5:10:54 AM PDT by MtnClimber
Non-lawyer commenters at this site often express befuddlement at the doctrine in the federal courts known as “standing.” Where did that come from?
In practical application, the “standing” doctrine seems like a tool of left-wing control. Left-wing litigants seeking an expansive role for the government seem to always succeed in establishing this “standing,” and thus they are always granted access to the federal courts to have their claims adjudicated; and if they can find their way to a friendly judge, they can get whatever policies they are challenging of the Trump administration (or other Republican administration) overturned. Meanwhile, right-wing litigants challenging government actions often get thrown out for lack of “standing.” How could that be?
Given the often one-sided application of the standing doctrine, it might be surprising to learn that I think that the doctrine is fundamentally a good thing. Without it, the situation of judicial overreach could be far worse than it is. The problem is that so far we have been missing oversight from the top to assure that the standing doctrine gets applied in a neutral manner. The recent Supreme Court decision in the White House ballroom case (National Park Service v. National Trust for Historic Preservation) suggests that we may finally be getting some oversight in this area.
The origin of the “standing” doctrine is not complicated. It derives from Article III, Section 2 of the Constitution:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
As you can see, each instance of what a federal court has jurisdiction to determine is described as either a “case” or a “controversy.” That leaves out some very large categories. Most important, there is no constitutional authority for a federal court to issue what is called an “advisory opinion.” If someone just wants to know what the law is on a particular subject, that is not a “case” or “controversy,” and the federal courts don’t have any jurisdiction to provide an answer, unless and until there is come concrete dispute that puts the question at issue. This puts our courts at a sharp distinction from many courts in Europe and (as another example) Israel, which have explicit advisory jurisdiction. That type of authority has provided the opportunity for courts in those countries to engage in endless mischief.
The problem with the standing doctrine is that the entire text on which the doctrine is based is what I have just quoted above. There are no detailed statutes setting out any further information as to what it takes to constitute a “case” or a “controversy.” So the courts have been left on their own to fashion rules on what is sufficient to meet the test. During the era of left-wing ascendancy in the judiciary (roughly 1960s to early 2000s) that provided an opportunity to make rules favorable to left-wing litigants.
Probably the most notable example is in the area of environmental litigation. What kind of stake in an environmental issue is sufficient to give an environmental activist (individual or group) “standing” to challenge a government action? Is a mere aesthetic interest in a pretty environment sufficient? A 1965 case from the Second Circuit Court of Appeals called Scenic Hudson Preservation Conference v. FPC held that that was enough. Key quote:
In order to insure that the Federal Power Commission will adequately protect the public interest in the aesthetic, conservational, and recreational aspects of power development, those who by their activities and conduct have exhibited a special interest in such areas, must be held to be included in the class of "aggrieved" parties under § 313(b). We hold that the Federal Power Act gives petitioners a legal right to protect their special interests.
Since that time, there have been numerous cases granting standing to environmental groups or their members to challenge regulatory actions on what are basically aesthetic grounds. The cases are often long and complex, and I won’t go into detail here. But here is one notable example from the U.S. Supreme Court, Friends of Earth v. Laidlaw (2000).
Well, the White House ballroom case sought to take things to the absolute limit. To try to establish standing, the National Trust for Historic Preservation submitted an affidavit from a single member, one Alison K. Hoagland, asserting that she was offended by the prospective aesthetics of the new ballroom. From the Court’s Opinion:
To establish its standing to bring this case, the Trust relies on a declaration from a single of its members, Alison K. Hoagland. Hoagland says that she lives in Washington, D. C., and expects to visit the neighborhood around the White House “about once a month.” App. to Application 73a–74a. She asserts that having to view the finished ballroom the government is constructing would cause her to suffer “injuries” to her “aesthetic, cultural, and historical interests” because she finds the “scale,” “height,” and “massing” of the government’s design distasteful.
Here is a picture of the prospective ballroom structure (from the New York Times, not the Court’s opinion):
My own view is that I would probably have preferred something a little less grandiose, but basically this is not too bad. Especially when you compare it to a lot of the other federal buildings in Washington, which are positively hideous. For example, here is a picture of the FBI building:
Somehow, Ms. Hoagland never saw fit to object to that one.
Anyway, with the Supreme Court’s decision in the ballroom case, the bare assertion that “I don’t like this” appears now to be insufficient to confer standing to become a federal litigant. With any luck, that will stick, and will start to move the needle on standing somewhat back toward a reasonable balance. That is a positive development.
Dear FRiends,
We need your continuing support to keep FR funded. Your donations are our sole source of funding. No sugar daddies, no advertisers, no paid memberships, no commercial sales, no gimmicks, no tax subsidies. No spam, no pop-ups, no ad trackers.
If you enjoy using FR and agree it's a worthwhile endeavor, please consider making a contribution today:
Click here: to donate by Credit Card
Or here: to donate by PayPal
Or by mail to: Free Republic, LLC - PO Box 9771 - Fresno, CA 93794
Thank you very much and God bless you,
Jim
Manhattan Contrarian ping
The lower courts see SCOTUS as weak and timid; easily manipulated.
In 2020 dozens of cases alleging voter fraud were dismissed due to lack of standing. Despite the fact the plaintiffs argued they suffered injury in that voting fraud essentially cancelled their vote. But not finding a landscape pleasing is sufficient injury to confer standing. The system is rigged.
My “ass”umption (holiday inn express) is that entities with a vested interest in a subject would have “standing “. If said object is being privately funded, would only donors have “standing”? If tax dollars are being used then the public would have “standing”. May just be me. Or because it is on public land, does that add a new monkey wrench? Saskt, it’s not like other POTUS’ haven’t had alterations done and nary a peep.
Happy Labor Day! 😊👍🇺🇸
Sadly, not saskt. 🙄
They found she didn’t have standing.
*** Anyway, with the Supreme Court’s decision in the ballroom case, the bare assertion that “I don’t like this” appears now to be insufficient to confer standing to become a federal litigant. ***
Would you want Chicago’s Obamanation to have been built on White House grounds?
On Pennsylvania Avenue between the Capitol and the White House?
Iconic, isn’t it?
ONE enviro-NGO-funded group “is offended”, or ONE-TDS-hating-liberal “doesn’t want to see it”, and that position “has standing” in Washington’s court system.
Tens of thousands of republican voters are disenfranchised and their votes overwhelmed by illegal votes, by fake mail-in-papers, by illegal and improper voting and counting and re-re-re-counting campaigns .. .. .. and those cases are thrown out by 72 different courts. For “no standing”. By the voters in-state, by voters-out-of-state, by voters in the precincts themselves, by the electors, by the representatives who are being voted upon, by the parties in the election, by the state’s AG’s, by the mayors/governors/lawyers’ groups. NOBODY “had standing”.
Lacking superiority, BLM has no standing
As a non-lawyer, I am constantly irritated by this issue of “Standing” in legal action, particularly in the case of seeing litigation on presidential federal election fraud dismissed for “no standing”.
That was infuriating. Now, I know why much of that litigation failed, and I don’t fault the people trying to do it all that much, because they had zero time in which to do it before statutes made it all moot.
We all understand that, don’t we? The Left certainly did. They knew that if they could obfuscate, delay, and generally gum up the works, that each election milestone after the November election would come and go, and it would make their perfidy even more of a fait accompli that would not, or could not be undone.
They knew that intimately, and that was part of their plan. They knew that two weeks after the election, “this” would have to happen. Then a week later, “that” would have to happen, and a month later, some “other” thing would be mandatory.
And the way that played out, it was January 6th which was the last point at which anything could have been done within the bounds of the Constitution to prevent the stolen election, and even more so, it is both easy and reasonable to understand why many people view January 6th as a setup for what happened on that day.
I most certainly do. The Left knew what it was doing. I don’t fault anyone for going to Washington DC to protest. I very nearly went myself, but I had specific work deadlines and responsibilities, so I could not go in the end.
You hear people say all the time on this forum that they knew it was a setup and people should not have gone.
BS.
If the problem was compounded by having that take place, then if there were ever a time when a problem was worth compounding, it was that one. I am just sickened that those who DID stand up and try to do something about that travesty of an election were illegally and unfairly targeted by a weaponized DOJ, and if any of the suffering those people is worth anything, it is that it fully exposed that.
In the end, the Left used friendly courts and “Standing” to continually push things out until nothing could be done to reverse the theft of the election.
Thank you to Manhattan Contrarian for writing this, and thank you for posting it.
No one would be saying a thing - and in fact, praising the building of a ballroom, even using taxpayer dollars to do it (which Trump is not) - if it were Biden or Obama doing the building. Or any other Democrat.
Ditto for the falling-down Kennedy Center where part of the roof just collapsed.
That’s really the FBI parking garage, right?
I understand that. I was pointing out the hypocritical way the federal courts, including the Supreme Court, applied the standing doctrine before this case. Hopefully this approach will continue in the environmentalist cases.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.