Monday, March 9, 2009

Follow-up on Standing to Enforce Qualifications of Elected Officials

In a recent decision, the District Court for the District of Columbia dismissed yet another suit challenging Barack Obama's qualifications to serve as the 44th President.  However, this case was noteworthy as it was dismissed as frivolous.  Further analysis of the opinion can be found at PrawfsBlawg.  (Thank you Professor Wasserman!)  Professor Wasserman's summary can be found here:

The court found that it had jurisdiction, under both the diversity and interpleader jurisdictional grants. And the court addressed neither standing (I still believe there is a decent argument about undifferentiated interests) or political question doctrine (I am trying to figure out what relief the court possibly could have granted that would not have stepped on the congressional toes that certified Obama as the Electoral College winner). Didn't matter, because the court rejected the interpleader claim as "frivolous," stating that all the cases the plaintiff cited involved money or property and no court ever had allowed a "duty" to be treated as an interpleader res.

I previously wrote that there was a possibility of a court finding that a plaintiff in such a case could have standing.  The plaintiff in Hollister was a retired general who claimed an interest based on the duty owed to serve the president.   While the court found this did not satisfy the interpleader statutes, could a military plaintiff raise a strong argument on standing grounds?  I believe the answer could be yes.   Assuming that a proper injury argument could be crafted, it would seem that a member of the military would have a stronger argument than a normal taxpayer.  Unlike civilians, a member of the military must take orders directly from the president.  As a result, such a person would seem to have more of a stake in assuring that the President is in fact a citizen.  I am certain this argument could also be refuted - for instance, what would injury could come from following the orders of a duly elected president? - but my main point is that is that while some have stated quite forcefully that there could almost never be a situation in which a person could challenge the qualifications of a president, it could be possible.

On the other hand, even if no person could be found to have standing to raise the issue, would that be so horrible?  The Court has decided that a number of issues are best left to the political process.  If there is a question as to the qualifications of a person for an office, perhaps the current system is designed to ensure that such questions are raised and refuted during the campaign.  The problem here is that some persons were not satisfied with the results of the inquiry - perhaps delusionally so.  But even in these instances, wouldn't the better course of action be to assume - without deciding - that the court has standing, and then dismiss the case on the merits?  If such questions are swirling, isn't the better way to quash them to deal with directly?  By allowing such questions to fester, the courts do us all a great disservice.  It would be better for us all to have the truth supported and vertified by the judiciary rather than speculated by the chattering classes.  The Hollister case seems a good step in that direction.  Perhaps the next court will take the next step.

NLS 

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