Had a thought this AM concerning standing.....Since the Constitution doesn't state who has authority to determine if a candidate is eligible, and no case has been brought to it previously regarding eligibility, there seems to be no precedence to determine standing. Your thoughts?
Thanks!
Yeah this is definitely what the call a case of “first impression”. It’s one of those things in life, I suppose, that we just take for granted perhaps because it seems so simple. It seems a simple enough thing to check. And, regardless of which side one takes as to what has been produced by way of a BC from the Obama camp, it is clearly not as simple as it once seemed.
Having said that . . . standing.
Since the courts have, obviously, never addressed this particular issue before (can’t find any other eligibility cases so far where citizens have sued) the courts will rely on other similar standing cases.
The first type are the taxpayer cases. There are TONS of those. A taxpayer doesn’t like that his taxes are being spent on the Iraq War and sues. He doesn’t have standing. Even if he is in Iraq and is being shot at. He doesnt’ have standing. The test is “is his ‘injury’ significantly different than that from the population at large? By ‘injury’ I mean the effect of the action (spending of taxes on Iraq) taken by the government. And even if he/she is in Iraq getting shot at, he/she is no different from any other taxpayer. Again, part of the reason for this type of ruling is that to rule otherwise could easily cause a flood of millions of taxpayer cases.
But perhaps the example is best expressed through the following type of case. Let’s say I don’t like the fact that there someone is opening class with a prayer in a local public school. And let’s say that I am a raving athiest. As a taxpayer, I sue. I don’t have standing. Now if my kid went to that school, I would have standing. That is what I mean by unique damage.
Now courts will open cases like unto this to larger groups to sue. And this would be the only argument I could see that would have ANY shot at working in what Berg is trying to do. That would be license plate cases. There have been some cases where any taxpaying citizen could sue to ask to be removed phrases they may deem “inappropriate.”
Now the other “lack of standing” cases are a bit different. Those would be the ones recently ruled upon concerning the Ohio Secty or State. The reason that those where thrown out by SCOTUS is because the statute under which the GOP was suing (HAVA) did not give them standing. The cause of action, i.e. the reason there was any suit at all, was not some constitutional issue, it was only there because of a statute passed by Congress. And it was ruled that Congress only gave the DOJ the right to pursue this.
As an aside, whenever any suit is filed in Federal Court, it is required that you put in the pleadings upon what you base your standing claim. It, along with jurisdiction, is the first thing at which a court looks. You don’t get by standing and you go no further. That is why it was pretty immaterial that the Obama camp didn’t respond to the Discovery. The court hadn’t even yet ruled that the case could even be a case.
So, I turned out to be a bit more long winded than intended (insert lawyer joke here). =) And there will certainly be cases out there where it seems that the court is ruling a bit differently than these basic rules. And that is one of the jobs of the lawyer . . . argue to the court that those favorable cases should apply to this case.
But my conclusion is that there will never be a favorable ruling on standing for private citizens in this case. It will never be ruled that they have a right to bring this case. And the reason isn’t so much the nature of this case, as to allow it would be precedent to allow other types of private citizen cases, i.e. taxpayer cases, that heretofor the courts have been loathe to accept.
Hope this helped and made some sense.
And no, I didn’t go back and proof read this post either. =) I so miss my assistant. lol