The Betrayal

The Post & Email published

OF VERY RECENT PRECEDENT, A SELF-ABDICATION BY THE COURTS OF THEIR AUTHORITY TO ENFORCE THE CONSTITUTION
by John Charlton

(Oct. 7, 2009) — Standing is a legal concept which has been employed in many suits regarding challenges to Obama’s usurpation of office.  For most Americans it is a concept which is obtuse, illogical, and non-sensical; but what most do not know that it is of very recent provenance, originating only in the last 35 some years.

A legal definition of the standing doctrine is as follows — I quote from Lectric Law Library:

STANDING – The legal right to initiate a lawsuit. To do so, a person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action.

There are three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992) (Lujan). The party invoking federal jurisdiction bears the burden of establishing each of these elements. Id.

In deciding whether xxx has standing, a court must consider the allegations of fact contained in xxx’s declaration and other affidavits in support of his assertion of standing. See Warth v. Seldin, 422 U.S. 490, 501 (1974) (Warth). see also Warth, 422 U.S. at 501 (when addressing motion to dismiss for lack of standing, both district court and court of appeals must accept as true all material allegations of the complaint and must construe the complaint in favor of the party claiming standing).

Standing is founded “in concern about the proper–and properly limited–role of the courts in a democratic society.” Warth, 422 U.S. at 498. When an individual seeks to avail himself of the federal courts to determine the validity of a legislative action, he must show that he “is immediately in danger of sustaining a direct injury.” Ex parte Levitt, 302 U.S. 633, 634 (1937). This requirement is necessary to ensure that “federal courts reserve their judicial power for `concrete legal issues, presented in actual cases, not abstractions.’ ” Associated General Contractors of California v. Coalition for Economic Equity , 950 F.2d 1401, 1406 (9th Cir. 1991) (quoting United Public Workers, 330 U.S. at 89), cert. denied, 112 S. Ct. 1670 (1992). National Environmental Policy Act (NEPA), 42 U.S.C. S 4331, et seq.

Someone who seeks injunctive or declaratory relief “must show `a very significant possibility’ of future harm in order to have standing to bring suit.” Nelsen v. King County, 895 F.2d 1248, 1250 (9th Cir. 1990), cert. denied, 112 S. Ct. 875 (1992).

Let’s Break down the Legalese in Lujan

First, the often praised Justice, Justice Anthony Scalia, wrote the key decision in Lujan vs. Defenders of Wildlife; so it is a judge praised for his upholding of the Constitution, who in fact undermined the rights of all U.S. Citizens to see that the Constitution is upheld.  Let’s examine the arguments Scalia marshalled in Lujan to see how he did this.

The case was brought by Wildlife advocates who wanted a previous decision by the Department of the Interior, which arrogated a right to regulate the activities of wildlife protection outside of the U.S. jurisdiction, that is in foreign countries, restored.  The patent folly of the attempt of the plaintiffs is evident to anyone:  the U.S.A. does not have authority to govern other countries.  The case could have been dismissed on that basis alone. So the use of the case to abdicate the court’s authority to enforce the Constitution, is rather quite absurd.

First Justice Scalia lays out the context of the legal dispute:

While the Constitution of the United States divides all power conferred upon the Federal Government into “legislative Powers,” Art. I, § 1, “[t]he executive Power,” Art. II, § 1, and “[t]he judicial Power,” Art. III, § 1, it does not attempt to define those terms. To be sure, it limits the jurisdiction of federal courts to “Cases” and “Controversies,” but an executive inquiry can bear the name “case” (the Hoffa case) and a legislative dispute can bear the name “controversy” (the Smoot Hawley controversy). Obviously, then, the Constitution’s central mechanism of separation of powers depends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts. In The Federalist No. 48, Madison expressed the view that “[i]t is not infrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere,” whereas “the executive power [is] restrained within a narrower compass and . . . more simple in its nature,” and “the judiciary [is] described by landmarks still less uncertain.” The Federalist No. 48, p. 256 (Carey and McClellan eds. 1990). One of those landmarks, setting apart the “Cases” and “Controversies” that are of the justiciable sort referred to in Article III — “serv[ing] to identify those disputes which are appropriately resolved through the judicial process,” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) — is the doctrine of standing. Though some of its elements express merely prudential considerations that are part of judicial self government, the core component of standing is an essential and unchanging part of the case or controversy requirement of Article III. See, e. g., Allen v. Wright, 468 U.S. 737, 751 (1984).

Scalia then cites the recent cases which have established this novel interpretation of the doctrine of standing:

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements: First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756; Warth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16 (1972); ^[n.1] and (b) “actual or imminent, not `conjectural’ or `hypothetical,’ ” Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42 (1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Id., at 38, 43.

He then explains the requirement this “doctrine” imposes upon the one brining the lawsuit:

The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990); Warth, supra, at 508. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. See Lujan v. National Wildlife Federation, 497 U.S. 871, 883-889 (1990); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 114-115, and n. 31 (1979); Simon, supra, at 45, n. 25; Warth, supra, at 527, and n. 6 (Brennan, J., dissenting). At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we “presum[e] that general allegations embrace those specific facts that are necessary to support the claim,” National Wildlife Federation, supra, at 889. In response to a summary judgment motion, however, the plaintiff can no longer rest on such “mere allegations,” but must “set forth” by affidavit or other evidence “specific facts,” Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be “supported adequately by the evidence adduced at trial,” Gladstone, supra, at 115, n. 31.

Justice Scalia then explains what this “doctrine” requires in the pleadings presented by the plaintiff:

When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction — and perhaps on the response of others as well. The existence of one or more of the essential elements of standing “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretionthe courts cannot presume either to control or to predict,” ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989) (opinion of Kennedy, J.); see also Simon, supra, at 41-42; and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury. E. g., Warth, supra, at 505. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily “substantially more difficult” to establish. Allen, supra, at 758; Simon, supra, at 44-45; Warth, supra, at 505.

Then Scalia explains how this “doctrine” is based on earlier Supreme Court decisions which self-exonerated the Court from upholding the Constitution and ipso facto prevented a manner of recourse for grievences from citizens seeking the Court to uphold it:

We have consistently held that a plaintiff raising only a generally available grievance about government — claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy. For example, in Fairchild v. Hughes, 258 U.S. 126, 129-130 (1922), we dismissed a suit challenging the propriety of the process by which the Nineteenth Amendment was ratified. Justice Brandeis wrote for the Court:

“[This is] not a case within the meaning of . . . Article III . . . . Plaintiff has [asserted] only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit . . . .” Ibid.

In Frothingham v. Mellon, 262 U.S. 447 (1923), we dismissed for lack of Article III standing a taxpayer suit challenging the propriety of certain federal expenditures. We said:

“The party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. . . . Here the parties plaintiff have no such case. . . . [T]heir complaint . . . is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co equal department, an authority which plainly we do not possess.” Id., at 488-489.

Justice Scalia then cites the precedents in questions of eligibility for office:

In Ex parte Lévitt, 302 U.S. 633 (1937), we dismissed a suit contending that Justice Black’s appointment to this Court violated the Ineligibility Clause, Art. I, § 6, cl. 2. “It is an established principle,” we said, “that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and itis not sufficient that he has merely a general interest common to all members of the public.” Id., at 634. See also Doremus v. Board of Ed. of Hawthorne, 342 U.S. 429, 433-434 (1952) (dismissing taxpayer action on the basis of Frothingham.).

And another case regarding the denial of taxpayer rights to seek redress for unconstitutional misuse of taxes:

More recent cases are to the same effect. In United States v. Richardson, 418 U.S. 166 (1974), we dismissed for lack of standing a taxpayer suit challenging the Government’s failure to disclose the expenditures of the Central Intelligence Agency, in alleged violation of the constitutional requirement, Art. I, § 9, cl. 7, that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” We held that such a suit rested upon an impermissible “generalized grievance,” and was inconsistent with “the framework of Article III” because “the impact on [plaintiff] is plainly undifferentiated and common to all members of the public.” Richardson, supra, at 171, 176-177. And in Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974), we dismissed for the same reasons a citizen taxpayer suit contending that it was a violation of the Incompatibility Clause, Art. I, § 6, cl. 2, for Members of Congress to hold commissions in the military Reserves. We said that the challenged action, “standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance . . . . We reaffirm Lévitt in holding that standing to sue may not be predicated upon an interest of th[is] kind . . . .” Schlesinger, supra, at 217, 220. Since Schlesinger we have on two occasions held that an injury amounting only to the alleged violation of a right to have the Government act in accordance with law was not judicially cognizable because “assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. III without draining those requirements of meaning.” Allen, 468 U. S., at 754; Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 483 (1982). And only two Terms ago, we rejected the notion that Article III permits a citizen suit to prevent a condemned criminal’s execution on the basis of “the public interest protections of the Eighth Amendment;” once again, “[t]his allegation raise[d] only the generalized interest of all citizens in constitutional governance . . . and [was] an inadequate basis on which to grant . . . standing.” Whitmore, 495 U. S., at 160.

It is notable that in all these cases, denying tax-payer standing, what is being defended in actuality, is the claim to use constitutional power by politicians, unconstitutionally.

Scalia then explains the logic in his argument, that the Article III Judiciary was instituted to protect individuals, not the entire nation:

To be sure, our generalized grievance cases have typically involved Government violation of procedures assertedly ordained by the Constitution rather than the Congress. But there is absolutely no basis for making the Article III inquiry turn on the source of the asserted right. Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch — one of the essential elements that identifies those “Cases” and “Controversies” that are the business of the courts rather than of the political branches. “The province of the court,” as Chief Justice Marshall said in Marbury v. Madison, 1 Cranch, 137, 170 (1803) “is, solely, to decide on the rights of individuals.” Vindicating the public interest (including the public interest in government observance of the Constitution and laws) is the function of Congress and the Chief Executive. The question presented here is whether the public interest in proper administration of the laws (specifically, in agencies’ observance of a particular, statutorily prescribed procedure) can be converted into an individual right by a statute that denominates it as such, and that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue. If the concrete injury requirement has the separation of powers significance we have always said, the answer must be obvious: To permit Congress to convert the undifferentiated public interest in executiveofficers’ compliance with the law into an “individual right” vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to “take Care that the Laws be faithfully executed,” Art. II, § 3. It would enable the courts, with the permission of Congress, “to assume a position of authority over the governmental acts of another and co equal department,” Frothingham v. Mellon, 262 U. S., at 489, and to become ” `virtually continuing monitors of the wisdom and soundness of Executive action.’ “ Allen, 468 U. S., at 760 (quoting Laird v. Tatum, 408 U.S. 1, 15 (1972)). We have always rejected that vision of our role:

“When Congress passes an Act empowering administrative agencies to carry on governmental activities, the power of those agencies is circumscribed by the authority granted. This permits the courts to participate in law enforcement entrusted to administrative bodies only to the extent necessary to protect justiciable individual rights against administrative action fairly beyond the granted powers. . . . This is very far from assuming that the courts are charged more than administrators or legislators with the protection of the rights of the people. Congress and the Executive supervise the acts of administrative agents. . . . But under Article III, Congress established courts to adjudicate cases and controversies as to claims of infringement of individual rights whether by unlawful action of private persons or by the exertion of unauthorized administrative power.”

Stark v. Wickard, 321 U.S. 288, 309-310 (1944). “Individual rights,” within the meaning of this passage, do not mean public rights that have been legislatively pronounced to belong to each individual who forms part of the public. See also Sierra Club, 405 U. S., at 740-741, n. 16.

Nothing in this contradicts the principle that “[t]he . . . injury required by Art. III may exist solely by virtue of`statutes creating legal rights, the invasion of which creates standing.’ “ Warth, 422 U. S., at 500 (quoting Linda R. S. v. Richard D., 410 U.S. 614, 617, n. 3 (1973)).

What Scalia deftly avoids discussing are the higher principles involved, namely the upholding of the Constitution as the supreme law of the land.

Why the Court Cannot Abdicate its own Jurisdiction

The Article III Judiciary has the role of deciding all “cases and controversies”; if, as Scalia says, that only the Executive Branches and Legislative Branches can uphold the Constitution, then there exists no means against usurpation when the Executive and Legislative have colluded in the conspiracy. And when one party controls both branches, you have the perfect storm, as it were; if the Judiciary refuses to intervene.

Notice what the Constitution does say in Article III, Section ii:

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

The “shall extend to all Cases” is a mandatory statement, as much as it is a universal one. If the Court refuses to extend its jurisdiction to all Cases, then it is acting unconstitutionally.  The “arising under this Constitution”, clearly explains that it is the duty of the Court to uphold the Constitution; because since the Constitution is the supreme law of the land, its very determinations indicate that diverse parties have rights, and that these rights must be upheld if the Constitution is to remain legally binding.

To refuse to uphold the Constitution, or the constitutional exercise of authority by the other 2 branches of government, for any reason whatsoever, is innately unconstitutional, because it is directly contrary to the duty of the Article III Judiciary.

The controversy then is, “Whether the Executive and Legislative branches have a right to exercise their authority, when that excercise is clearly unconstitutional?”  The obvious answer is “No.”  Thus there ought to be no question of applying the standing doctrine to such cases; there ought to be first a determination if the action of itself was unconstitutional; if it was, then all citizens should have standing in virtue of the 9th Amendment, which expressly reserves to We the People any right not specified in the Constitution. And since there is no right granted in the constitution, for any branch to violate the constitution, the people retain the right to see that it is enforced, since the U.S. Constitution is first and foremost a historical and legal contract imposed by the People upon the People.

The logic could not be simpler.  The cowardice of the Court could not be clearer.

This is why it is so obvious to the common man or woman, that the Judiciary is shirking its duty.

Tags: Constitutional Backgrounders, Legal Backgrounders //