Strengthening Constitutional Self-Government

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NYT on the Cheney Case

The New York Times editorial page argues today that the district court decision finding a lack of standing for the comptroller to bring an action to get documents from Cheney should be overturned on appeal. The argument would have been somewhat more effective if they made an argument that resembled a legal one, rather than huffing and puffing about the necessity for open government.

The closest that the Times gets to the legal question is asserting: "But his [Judge Bates’s] decision ignores the fact that the General Accounting Office was established by Congress for the express purpose of helping it to investigate and analyze matters like this." As the opinion makes clear, it is not that apparent how broad the investigative authority is meant to be. Even if we assume for the sake of argument that it is that broad, and if we recognize that Congress said that the Comptroller could sue to get documents, that still does not per force give rise to standing. Congress’s grant of statutory or prudential standing does not supercede the requirement for constitutional standing--that is, even when Congress says that someone may sue, they still have to have an interest or injury in the matter sufficient to meet the constitutional requirements of standing. This is an interesting question upon which the Cheney case turns, and it is one which the Times ignores.

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