The abuse of the ‘standing’ argument

I mentioned a few days ago a hopeful sign in that a US District Court judge Katherine Forrest had ruled that the NDAA, an awful piece of legislation, was unconstitutional. Glenn Greenwald later wrote also hailing the ruling and examining it in more detail. He highlights the fact that the judge rejected all three of the Obama administration’s objections to the lawsuit challenging the constitutionality.

The ruling was a sweeping victory for the plaintiffs, as it rejected each of the Obama DOJ’s three arguments: (1) because none of the plaintiffs has yet been indefinitely detained, they lack “standing” to challenge the statute; (2) even if they have standing, the lack of imminent enforcement against them renders injunctive relief unnecessary; and (3) the NDAA creates no new detention powers beyond what the 2001 AUMF already provides.

Note that it was the standing issue that was used to overturn an earlier federal court ruling that the National Day of Prayer was unconstitutional.

The standing requirement makes sense in general. If people could bring lawsuits without having suffered any concrete injury, then we would be even more awash in litigation than we are now. But what constitutes a concrete injury has to be judged differently when the issue involves relative intangibles such constitutionally protected freedoms as opposed to (say) defective products.

It is significant that the judge in the NDAA case threw out the ‘standing’ dodge, rejecting the administration claim that the people bringing the case do not have the right to sue since they have not (as yet) suffered any injury the law. Of course, the government then also invokes national security to argue that they should not be forced to reveal if you are being targeted or not. It is a perfect Catch-22: You can’t complain because you cannot show that the law targets you and we, the only ones who know who is being targeted, are not going to tell you if you are or not.

The government will certainly appeal. Unfortunately, the higher courts have been far too sympathetic to the government whenever it claims national security for its abominable actions.


  1. Phillip IV says

    because none of the plaintiffs has yet been indefinitely detained, they lack “standing” to challenge the statute

    A completely logical argument – the plaintiffs are free to challenge the consitutionality of the statue, but only after never coming back from some black prison in Poland. By that same logic, the constitutionality of the death penalty could never have been challenged because no one left standing would have had standing.

  2. thewhollynone says

    Would a spouse or a child have standing because he/she could claim economic and emotional damage?

  3. Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    Very possibly, but it is not guaranteed. Facts, such as whether the person is dependent on the income of someone detained, would be relevant to deciding whether such a person has standing.

  4. Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    This post is rather light on content. I’m actually surprised given the title.

    What constitutes a concrete injury IS handled differently in such cases.

    Heck, just look at Roe – the time required to get a case to SCOTUS is far longer than the 40 weeks of pregnancy. No one could ever file a case claiming to be prevented from getting an abortion and still be in need of an abortion when the case reached SCOTUS.

    Roe articulated that if a violation of rights was subject to recurrence without review, it could be taken up by the courts even when burdens of standing would -under normal requirements- not be met.

    Are you saying that the courts do not consider only legal injuries but instead only consider physical injury? Or physical and economic? That’s just false.

    Or do you just dislike that the US Attorney asserted a standing argument at all? This is a hurdle that has to be passed. The US Attorney is going to say why it isn’t and the plaintiff will say why it is. When it should be an easy call and the judge looks stuck or decides the “wrong” way, the problem is the judge, not the fact that the US Attorney made a particular argument.

    Remember: The US has an adversarial system. If you don’t like the adversarial system, say so. But don’t penalize some attorney for playing a role mandated by the system as if the attorney was responsible for the role itself.

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