Standing in a Constitutional Hole.

In the United States, the law includes rules about the things the government cannot do. But in the United States, the mechanism to force the government to obey the law is the same as for others: go to court. And in the United States, to get to the point where the courts will block illegal actions by the government, one must have standing. That is, one must be in the legal position to present the case. Standing can be by-statute, but in places where Congress hasn’t specifically authorized a suit, it can be the case that no party is sufficiently injured by an illegal action to challenge it in court. This is a blind-spot of the law, and it undermines claims that the United States operates under the rule of law. When a law meant to restrain the government is unenforceable, that’s a sign that the law is defective to an extent that deserves attention.

One example is the issuance of illegal emoluments to Donald John Trump. “Foreign Emoluments Clause:” § “[First] Trump administration” mentions three suits, one of which fell for lack of standing, the other two as moot once Donald John Trump left office in 2021.

Ideally, Congress would have passed a law upon recognizing the deficiency of blocking illegal emoluments. They would see the gap in the law, and taking its measure would patch that hole. They have not done so, and it’s unclear they will in the near future. More likely, in some future decade, the historians of the day will revisit the failures in and around the Donald John Trump administrations, and their future Congress will finally patch the hole.

It is a bruise on the law, to see quite often the same brute of justice wailing on so many for minor infractions, delivering punishments that are disproportionate and ineffective at rehabilitating, while greater crimes continue without any care. It can be hard not to be mad at the invention of standing, but standing itself isn’t the issue. It makes good sense that there be limits to who can drag whom into court and why.

As with the hole in the enforcement of Constitutional prohibitions of foreign emoluments (a particular standing problem), some future Congress will likely reform the standing doctrine in more generally useful ways, but until then it will take citizens continuing to stand up for the union we ought to have, not the one we’ve inherited.

Perhaps a future Congress will enact a general right of action to challenge any law that could be construed to lack any other viable standing mechanism by which to challenge it. I reject the idea our legal system should ever contemplate such thing as a law beyond the law’s own reach. Legal fictions are sometimes useful, but legal absurdities are always harmful.