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How liberals learned to stop worrying and love standing doctrine

In an op-ed in yesterday’s Los Angeles Times, I discuss the Obama Administration’s embrace of standing doctrine:

President Obama’s proclaimed strategy to “bypass Congress” — most conspicuously his broad rewriting of the Affordable Care Act — has given unusual prominence to a fairly arcane legal doctrine: standing. Standing is what is preventing a potential blizzard of litigation against the president’s unilateral decrees, and ironically, it’s a doctrine liberal jurists have long decried.


The standing doctrine enables the White House to “go it alone” by largely keeping the administration out of court and potentially sparing it legal embarrassment. Liberals today seem less vociferous about how standing limits are preventing the courts from defending the substance of the Constitution.

What has been most impressive about the Republican reaction to the legal wall they’ve run into in opposing the White House’s policies is the notable absence of arguments to ignore or dismantle standing. This is constitutionalism at its best: principled limitations on one’s own actions and desired goals out of an understanding that the restraint of government power is ultimately in everyone’s best interest.

Hopefully, the current episode will be a lesson to all sides that the only thing more dangerous than unbridled executive power is unleashing unchecked judicial power to defeat it.

I should note not all conservatives have embraced the standing restrictions with grace. Writing in Politico, David Rifkin and Elizabeth Price Foley argue for watering down standing limits by allowing legislative standing because “standing should not bar enforcement of the separation of powers when there are no other plaintiffs capable of enforcing this critical constitutional principles.”

Yet standing doctrine recognizes that sometimes constitutional issues will escape judicial review, at least in the short term – see United States v. Richardson for the paradigmatic, and very defensible, example. The Framers assumed that there would be genuine legal questions that would arise “in circumstances that do not give a cognizance of them to the tribunals of the country.”

Moreover, it is too easy to throw up one’s hands and say there can be no plaintiff. Sometimes plaintiffs appear in surprising and unforeseen circumstances, and it is the existence of such circumstances that help justify standing doctrine. That is to say, if the Courts could perfectly see in a crystal ball all the possible applications of a law or constitutional provision, we would have less problems with advisory opinions.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.



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