“In general, for a party to establish Article III standing, he must allege (and ultimately prove) that he has a genuine stake in the outcome of the case because he has personally suffered (or will imminently suffer): (1) a concrete and particularized injury; (2) that is traceable to the allegedly unlawful actions of the opposing party; and (3) that is redressable by a favorable judicial decision.”
The issue of legal “standing” became a major item of interest for the nation after the 2020 election. The above definition is a summarized version of Article III, Section 2, Clause 1 from the US Constitution. It has, obviously, been a valid and major procedural hurdle for a plaintiff to clear prior to being granted his/her day in court. Each state, county and locality has unique criteria for “standing” but this article is focused on the August 2023 COS Simulation addressing states rights before the Supreme Court of the United States (SCOTUS). States must be granted “standing” before SCOTUS in order to address the following grievances:
Executive Orders
Arguably the greatest concept woven into the US Constitution is the structuring of separation of powers among the executive, legislative and judicial branches. Acknowledging human nature, the founders realized power is not easily yielded. By making each branch co-equal and unable to function absent consent from the others, they strove to deter federal tyranny.
Executive orders are a grievous example of the yielding of power from the legislative and judicial branches to the presidency over the decades. The origins of this trend are numerous, long and a subject for another day.
Two recent examples of legislative abdication are student loan forgiveness and pipeline cancellations. Each was done absent Congressional approval. Congress has failed to mount meaningful resistance to these dictates and pushback has fallen to the individual states.
Failure to Faithfully Execute the Law
Article II, Section 3 of the Constitution grants law enforcement authority to the President but restricts the office from disregarding legislation passed by Congress. Although the President is granted tremendous enforcement powers, the Constitution requires duly passed legislation to be executed by the White House.
The reluctance of the executive branch to enforce existing immigration legislation is a clear example of failure to faithfully administer our laws. States that attempt to protect their borders in the absence of federal enforcement find themselves at odds with the branch of government tasked to protect them.
Unaccountable Bureaucracy
Sometimes referred to as the fourth branch of government, Congress and
the Presidency have transferred immense powers to an unelected federal bureaucracy. Two recent examples of bureaucratic overreach are federal Covid mandates and EPA wetlands regulation. In both cases an aggressive “fourth branch” has imposed restrictions on individual behavior and rights by circumventing Congress and has faced judicial scrutiny as a consequence.
Congressional Laws
When Congress does take action, it is often against the welfare of the nation. The passage of “green energy” giveaways in a giant omnibus bill at the end of 2022 circumvented a reasoned and structured regular order budgetary process for each appropriation committee. This was unacceptable for a policy that will affect American fortunes for decades to come.
Congress was given the privilege of determining their compensation by the US Constitution. Whether their income is fair or excessive is a matter not currently up for debate. The individual states have the power to amend this situation through Article V. Our representatives are not just elected by us but are also paid by us. As their employers we can reasonably demand a return on the dollar.
The COS Proposed Amendment to Address “Standing”
Federal Term Limits & Judicial Jurisdiction Proposal 2: Section 2. Each of the several states shall have standing to bring an action challenging the constitutionality of any action of the Executive Branch or any enactment of Congress.
Simply put, each state individually or joined will automatically be granted “standing” before SCOTUS when protesting Executive and/or Congressional actions. Since the unelected bureaucracy falls under the purview of the Presidency, alphabet agencies are also subject to states “standing” before SCOTUS.
Conclusion
The ability for states to adjudicate their valid concerns regarding federal overreach before SCOTUS is a strong message to the nation. The automatic right to “standing” before SCOTUS gives the separate states a braking mechanism on orders and legislation that are all too often unchallenged.
COS believes that an Article V convention will bring much needed balance back to our nation. If you feel similarly, please ask your local and state representatives to join the cause. And by all means sign the COS petition.
