top of page
Civil Litigation - Private
comment #:
average rating is 5 out of 5
average rating is 4 out of 5
Having read J. Surrick's lengthy opinion in Berg v Obama, I find it well reasoned and consistent with the law. Standing is well recognized as a constitutional minimum requirement for bringing suit. To have standing, a plaintiff must satisfy a three part test: (1) There must be an injury in fact -- a deprivation of a legally protected interest that is concrete and particularized and is actual or imminent, and not conjectural or hypothetical. (2) There must be a direct causal connection between the injury and the defendant's conduct that can be traced to the actions of the defendant and not to some other third party. (3) A favorable decision must be likely to redress the complained-of injury. It has long been established that an individual citizen does NOT have standing to bring an action that claims harm to all citizens from some alleged violation of the Constitution, since the harm is not particularized. If the plaintiff is suffering an alleged injury that is no different than the public at large, then the plaintiff does not have standing. While this concept is long-standing, recent decisions arising out of the political arena are instructive: In Jones v. Bush the court (in 2000) held that individual voters did not have standing to seek injunctive relief alleging a violation of the Twelfth Amendment (since both Bush and Chaney were alleged to be citizens of Texas, and thus members of the Electoral College from Texas could not vote for both of them as it would violate the 12th Amendment). The plaintiffs claimed that their status as voters and citizens was sufficient to confer standing. The court dismissed the action, finding that the plaintiffs' alleged harm was not particularized and that they, therefore, did not have standing. In Becker v. FEC, the court (in 2000) dismissed a suit by supporters of Ralph Nader, because they did not have standing to challenge the FEC's debate regulations that prevented Nader from participating in the presidential debates, since the party sustaining the alleged harm was Nader, not the voters who did not suffer a particularized harm. In Hollander v McCain, the plaintiffs brought suit alleging that John McCain was ineligible to be president because he was born in the Panama Canal Zone and was, thus, not a natural born citizen as that term is used in the Natural Born Citizen clause of the Constitution. The court (in 2008) dismissed the claim for lack of standing because the harm the plaintiff alleged was too generalized, and was not a particularized harm sustained by the plaintiff. Going back a little farther in time, the court in U.S. v. Richardson held (in 1974) that a taxpayer did not have standing to obtain information about the expenditures of the C.I.A. under the Constitution's Accounts Clause, in Article I, Section 9. In Ex parte Levitt, the court (in 1976) held that a citizen did not have standing to challenge the appointment of Hugo Black to the Supreme Court under the Constitution's Ineligibility Clause, in Article I, Section 6. This principle is well-established. To have standing to bring a lawsuit, the plaintiff must have sustained an individualized harm that is different than a harm sustained by all citizens or by a large group of citizens.
7/15/19, 2:11 AM
Hon. R. Barclay Surrick

Send reply to the comment poster:

note: comment poster will be able to reply directly to your email

bottom of page