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.
To challenge the government in federal court, it isn't enough to simply believe that the government's conduct is illegal or even unconstitutional. Federal courts can hear only specific disputes about the law as applied to particular people. To be heard in court, a person must have a concrete complaint that he or she has suffered or will suffer a distinct injury stemming from the government action.
This limit, rooted in Article III of the Constitution, is designed to prevent courts from becoming arenas for endless ideological rehashing of the merits of government policies. But the upshot is that federal courts cannot simply review any allegation of illegality by the government. And further, when the government has a policy that does not directly affect particular individuals, there may be no plaintiff with standing.
For example, on Monday, the Supreme Court heard arguments in a major case about the Obama administration's regulation of greenhouse gases, which the plaintiffs claim vastly exceeds what Congress has authorized. Yet the court will review only a portion of their complaints; several were thrown out in the lower courts for lack of standing.
The counterintuitive thing about standing is that it can result in situations in which the government may well be violating the law, even the Constitution, and yet there may be no vehicle for judicial review. Problems of this sort arise when governmental action affects most everyone uniformly. In such cases, the political process — working through Congress — is a more efficient and proper solution than piecemeal adjudication. Congress is where wholesale policy is made; the federal judiciary works in retail decision-making.
The Obama administration's unilateral decision to delay implementation of parts of the Affordable Care Act, or give waivers for compliance to certain businesses, is a perfect example. This may well be a violation of the separation of powers. But because the law is not being enforced against anyone — indeed, it is not being enforced at all — there is no one who has a specific beef. Rather, everyone has the same beef: The president is defying the Constitution by in effect rewriting the law, a role reserved for Congress.
An inability of federal courts to immediately deal with such alleged official lawlessness is certainly a cost of the standing doctrine. But it is one that the Constitution accepts as the price for preventing judicial tyranny. If the judiciary could take up any issue it wanted, whenever it wanted, the court would become omnipotent.
This can be seen by looking at countries such as Israel, where a hyper-activist Supreme Court succeeded in eliminating standing limits and emerged as perhaps the most powerful institution in the nation. U.S. federal courts already have great power as the primary arbiters of constitutional cases. But if they could also seek out such cases, they would become a constitutional Spanish Inquisition, with an open mandate to hunt down constitutional heresy.
That is not to say that there is never anyone with standing in situations like the rewriting of the Obamacare mandates. Proper plaintiffs often take time to emerge. One might imagine an employer that already took measures to comply with the law as required, and is now at a competitive disadvantage to companies that hadn't bothered. But we have to wait for such a plaintiff to surface; this is not a mere ritual formality but a necessary part of limiting the power of courts to decisions on a particular sets of facts, rather than allow a judicial slash-and-burn approach.
Standing is one of the jewels in the Constitution. But it remains a very controversial doctrine, with conservatives supporting it and liberals seeking its contraction. Obama's former regulatory czar, Cass Sunstein, even argued that standing was essentially a constitutional myth. At the Supreme Court, standing rulings often break down 5 to 4 along ideological lines.
Conservatives see standing as essential to the separation of powers, while liberals see it as implicitly favoring old-fashioned property and personal injuries over more inchoate regulatory ones; standing, for example, makes it very hard to challenge governmental mismanagement of the environment.
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.
Eugene Kontorovich teaches constitutional law at Northwestern University School of Law.