Why Some Constitutional Suits Don't Stand a Chance in Court

[question everything]

FEBRUARY 12, 2009

Why Some Constitutional Suits Don't Stand a Chance in Court
By JESS BRAVIN
WSJ

WASHINGTON -- David Rodearmel, a Purcellville, Va., man who works in the State Department's religious-freedom office, believes that Secretary of State Hillary Clinton is forcing him to violate the Constitution. It's nothing Mrs. Clinton has done, Mr. Rodearmel asserts, but the very fact of her being secretary that is the problem. The Constitution bars former senators and representatives from holding government posts for which salaries were increased during the lawmakers' terms. While Mrs. Clinton was a senator, President George W. Bush approved routine cost-of-living raises for federal employees, including cabinet secretaries. Therefore, she is ineligible to be secretary of state, says Mr. Rodearmel, who observes that he has taken an oath to defend the Constitution. Rather than answer to an illegitimate superior, he has filed suit to have her removed. "I have absolutely no question as to her abilities," Mr. Rodearmel says. But as a sworn Foreign Service officer, "I have a duty to bring up this constitutional question," he says, adding, "I'm perfectly content to live with whatever the decision is." The suit is almost certainly doomed to failure, even before considering whether or not Mr. Rodearmel is right. That is because courts are likely to conclude that he lacks "standing," a crucial concept that has blocked many lawsuits alleging that the government itself isn't following the law.

The idea of standing flows from the Constitution, which grants federal courts jurisdiction over "cases" or "controversies." The Supreme Court has interpreted this to mean that courts can't give advisory opinions or make policy pronouncements, and only should decide disputes where the plaintiff alleges "concrete" and "particularized" harm, rather than what Justice Antonin Scalia has called "purely psychological displeasure." That is why judges toss out certain cases -- because the plaintiffs weren't able to show they suffered concrete harm. That was the circumstance when an Internet-fueled rumor sparked several lawsuits seeking to bar Honolulu-born Barack Obama from the presidency because the plaintiffs doubted he was, as the Constitution requires, "a natural-born citizen." In dismissing one such suit, Judge R. Barclay Surrick, of federal district court in Philadelphia, said an aim of the standing doctrine is to prevent courts from deciding questions "where the harm is too vague." He observed that a disgruntled voter who suffered no individual harm "would have us derail the democratic process by invalidating a candidate for whom millions of people voted and who underwent excessive vetting during what was one of the most hotly contested presidential primary in living memory."

(snip)

Sometimes, the issues raised are serious. In 1974, for instance, the Supreme Court rejected a suit the Reservists Committee to Stop the War filed to expel members of Congress from the military reserves. The group alleged that the lawmakers were violating a constitutional provision barring senators and representatives from "holding any Office under the United States." By serving in the reserves, the group said, members of Congress were answerable to President Richard Nixon and therefore couldn't act as independent members of the legislative branch. Once again, standing was the obstacle. The allegation was "simply a matter of speculation," Chief Justice Warren Burger wrote, but even if true, only affected "the generalized interest of all citizens in constitutional government, and that is an abstract injury."

Still, even if no one has standing to sue them, "government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law," Justice Anthony Kennedy wrote in a 2007 case. That doesn't satisfy Mr. Rodearmel, himself a lawyer and a retired Army officer who is represented by the conservative advocacy group Judicial Watch. He argues that officials are apt to ignore laws that can't be enforced against them. One oft-raised hypothetical involves the Austrian-born governor of California, Arnold Schwarzenegger, running for president. If Mr. Schwarzenegger managed to win the election, by being on the ballot or as a write-in candidate, it is highly unlikely that any court would block him from taking office, says Harvard law professor Mark Tushnet.

(snip)

As for Mr. Rodearmel's suit, which the Justice Department is reviewing, it would face an uphill battle on the merits even if it got a hearing because Mrs. Clinton didn't actually receive the cost-of-living boost. After Mrs. Clinton was nominated, Mr. Bush, following a century-old bipartisan practice intended to comply with constitutional requirements, signed a bill rescinding the secretary of state's raise.

http://online.wsj.com/article/SB123440666520775795.html (subscription)

[4lbs]

1. I thought the Hillary Clinton situation was already settled. David Rodearmel is an idiot.

[happyslug]

4. Two rationales for Hillary's case

First, is that Congress technically did NOT increase the wages of the Secretary of State, the only thing that happened was Bush implemented a pay raise to reflect inflation under a pre-existing law permitting such pay wages. When this happen Clinton was a Senator, she did NOTHING to get the salary increases but also did nothing to get it decreased (The underlaying law permits Congress to reject the pay increase within a set time period, no such vote occurred). This is based on the understanding that the issue of pay for such position was intended in the Constitution to be the exclusive power of Congress AND all Congress did when it gave the President the right to increase salaries to reflect inflation was to preserve salary NOT increase it (No REAL Increase in salary, NOT a problem).

Second, to be on the safe side, Hillary agreed to take the job at the salary the job had WITHOUT the pay increase. This has been the norm for members of Congress who takes positions in the Executive branch since the President Nixon appointed Senator Saxby to a position in his cabinet in the 1970s (Through the first "Saxby-Fix" was in 1909 under President Taft). Given that the intent of the Constitutional provision was to prevent Congress from increasing the pay of a position and then using their political power to get appointed into the position with its high pay, the option of taking the position at the pay it was BEFORE the pay increase occurred has been viewed as constitutional since the 1970s (When a Democratic Congress voted for the "Fix" so that a Republican could be a member of the Cabinet of a Republican President).

In simple terms, Hillary's appointment to be Secretary of State is constitutional given she took the position WITHOUT the pay raise that occurred when she was a Senator. First, she did NOT vote for it, and second she took the position without the pay increase. Thus the INTENT of the constitutional provision was followed. She did NOT vote for an increase in pay for a position so she could take that position AND its increase pay.

The roll back of the Secretary of State's salary:
http://www.chicagodefender.com/article-2699-secretary-of-state-salary-cut-for-clinton.html

For more on the "Saxbe Fix" see:
http://en.wikipedia.org/wiki/Saxbe_fix

One last note, the Courts will NOT want to intervene in this dispute, while they might cite "Standing" the real reason is this is a "Political Question" best settled by the Congress. If Congress does NOT want to contest this point, neither will the Court.

[Manifestor_of_Light]

2. The Sierra Club case is the one I remember about "standing to sue".

Actual harm must be shown to the plaintiff.

(The old brain cells have not forgotten everything I learned in law school.) :D

[TreasonousBastard]

3. Oferchrissakes, not this again-- the idjit doesn't know...

that it's happened before and the accepted way to deal with it is to reduce the salary.

It doesn't even have to get to "standing."

[LiberalFighter]

5. I do hope they find another job for Mr. Rodearmel.

There is no doubt in my mind this guy is a Republican scumbag.