Standing, and Rights vs. Remedies

Every now and again, it’s worth looking at the worst of the worst of the healthcare suits. And Purpura v. Sebelius is definitely that. The linked page explains it’s a combination birther/tenther suit — add the “Amero” or the transcontinental highway thing for the conspiracy theory trifecta — and makes some hilarious errors, like imagining economic discrimination is a thing, and conflating it with bills of attainder. Hilarious!

Anyways, the plaintiffs’ complaint was dismissed for lack of standing. On appeal, they have a novel new argument — that the denial of standing denies their First Amendment right to to “petition the Government for a redress of grievances.” This is wrong, but novel, so it’s worth commentary.

First, and by way of noting the threshold error in the plaintiff’s logic,

Nothing in the First Amendment or in this Court’s case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to communications of members of the public on public issues.

Minnesota Board for Community Colleges v. Knight, 465 U.S. 271 (1984). The petition right means exactly what it says. Citizens may petition without facing adverse consequences. But the government doesn’t have to care.

What I think they’re getting at, though, is something deeper. Standing is one of several legal doctrines that acknowledges an extant right, but denies any remedy, equitable or legal. That’s discomforting to novices — as these plaintiffs surely are — because it’s in violation of the Marbury principle, that a remedy must exist “for the violation of a vested legal right.” But it’s the way the law works. Even Mr. Marbury lost and, dicta notwithstanding, had nowhere else to turn for relief. Not all error is reviewable, and not all rights can be vindicated in a judicial forum.

The contrary conclusion is sloppy law, and sloppier conservative philosophy. I would expect there’s some tension between expanding the judiciary’s ability to hear clearly political cases, and any notion of “judicial restraint,” but apparently that doesn’t bother today’s GOP.

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One comment

  1. Oh man. Sloppy Bluebooking in that appeal suggests sloppy thinking throughout.

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