Â Â Â Â On Monday, December 8,Â the Supreme Court turned down a request to prevent the Presidential Electors from voting for Barack Obama our next President.Â A number of persons have brought lawsuits contending that Barack Obama is not a "natural born" United States citizen and that therefore he is ineligible to become President. In order to win such a case it would not be enough to prove that Obama's Hawai'i birth certificate is a fake and that he was really born outside the United States; it would also be necessary to prove that Ann Dunham was not his mother, because the children of American women are "natural born citizens" no matter where they are born. Nevertheless, some people persist in the belief that Obama simply cannot be eligible to be President and some of themÂ persist in filing these lawsuits.Â One suspects that this belief and these cases are motivated more by anger and frustration at losing the election than by rationality.
Â Â Â Â These lawsuits have so far been dismissed, not on the merits, but because the plaintiffs lack standing. What is standing and why is it required?
Â Â Â Â Article III of the Constitution creates the federal courts and specifies the jurisdiction of those courts. The Constitution provides that the federal courts have the power to hear a number of different types of "cases" and "controversies." For example, Article III states that federal courts may hear cases arising under the Constitution and laws of the United States ("federal question" cases) and controversies between citizens of different states ("diversity cases").
Â Â Â Â To be a "case or controversy" several elements must be satisfied. The case must be "ripe" for decision and not "moot," that is, no longer relevant. The case must be a dispute between two different parties who are adversaries. The dispute between those parties must be actual, not hypothetical; the federal courts do not issue advisory opinions. Finally, the parties must have "standing" to litigate the issues that are raised.
Â Â Â Â For a plaintiff to have standing the plaintiff must prove three elements: (1) injury; (2) causation; and (3) redressibility. The plaintiff has to show the court that he or she suffered an injury to his legal rights, that the injury was caused by the defendant and that the courts, by ruling in favor of the plaintiff, could redress the injury that the plaintiff sustained. For example, a person injured by another driver in an auto accident has standing because all three elements are met. The plaintiff suffered an injury, the defendant caused it, and if the defendant is made to pay compensation to the plaintiff the plaintiff's injury will be redressed.
Â Â Â Â An important point – a critical point in a case such as this – is that under the Constitution there is no such thing as "citizen" standing. To have standing a person must have suffered some injury that is greater or of a different kind than every other person in society.
Â Â Â Â When the government directly takes action against someone – for example, if the I.R.S. files a tax lien against someone's property – then that person has standing to challenge the government's action. The person was injured in their legal rights, the government caused the injury, and if the plaintiff wins and a court orders the I.R.S. to lift the tax lien then the plaintiff's injury will be redressed. The same is true in any other case where the government has taken direct action against an individual: when the police falsely arrest someone, when the Board of Health wrongfully closes a restaurant, or when a public school suspends a student without justification – in all of these cases the injured party has standing to sue the government.
Â Â Â Â But standing problems are more complicated when the plaintiff claims that the government injured him or her by taking action against someone else. For example, if the government conducts illegal wiretapping against someone else, or tortures someone else, or unlawfully detains someone else, I would not have standing to challenge the government's actions. Even though I am a citizen and even though my tax dollars are being used for these activities and even though I am appalled by the government's lawbreaking, I simply don't have standing to challenge the government's actions. Similarly, it is difficult to get standing when my complaint is that the government should have acted but failed to do so. If I can show that the government's failure to act directly caused me harm, then I might obtain standing to sue, but if my only complaint is that the government was breaking the law or failing to enforce the law then I have no more justification for suing than anyone else has, and the courts will find that I do not have standing.
Â Â Â Â Who would have standing to challenge Obama's eligibility to serve as President? Who is directly and personally injured in their legal rights by his becoming President, at least more than any other citizen? At the moment, Hillary Clinton and John McCain come to mind as persons who wouldÂ clearly have standing to assert this claim since Obama denied them the nomination and the general election respectively. (Of course, they didn't sue because they were probably part of the conspiracy to elect Obama President!Â Based upon her performance in her interviews with Katie Couric, it would appear that Sarah Palin was also a member of this nefarious plot!)Â I believe that any of the Presidential Electors, who will soon cast their ballots for President, would also have standing to challenge Obama's right to be on the ballot. Once Obama takes office there will be hundreds, thousands, or millions of people who will have standing to challenge his right to lead from the Oval Office – any government employee who is fired as a result of his actions, any organization that loses any funding which was under his control, or any citizen or corporation whose legal rights are affected by one of his Executive Orders – all would have standing to challenge his eligibility to serve as President.
Â Â Â Â So if someone seriously wants to litigate this matter there will be plenty of people with standing after January 20, 2009, when Barack Obama is inaugurated as the 44th President of the United States. Until then, the self-appointed guardians of American citizenship will just have to wait.