05 January 2012

Who's still standing?

This morning I was reading a story on the Volokh Conspiracy about how a judge in Georgia has allowed a lawsuit challenging Obama's listing on that state's presidential election ballot. A sentence in the middle of the article caught my attention:
Similar challenges have generally been rejected on procedural grounds, such as on the grounds that plaintiffs lack standing to sue because they have no greater stake in the matter than any other citizen. Generally speaking, federal courts have concluded that in such cases where the plaintiff doesn’t have a particularized stake in the matter, the resolution even of constitutional controversies should be left to the political process and not to courts.
This reminded me of the Kucinich lawsuit against Obama claiming the latter's violation of the War Powers Act in sending forces to Libya in early 2011. This lawsuit was dismissed for a similar reason -- lack of standing:
Judge Walton held the members of Congress lacked standing to bring the challenge, as they had ample legislative means at their disposal to oppose the President’s use of military force.
I haven't read the decision in this case, but I suspect that the judge's decision rested, at least partially, on the "political question" doctrine. This is the idea that the judicial branch should "avoid inserting itself into conflicts between branches of the federal government" and that "some questions [are] best resolved through the political process". This strikes me as incorrect, as it should be justiciable as to whether or not the president's actions were in accordance with the War Powers Act (or whether that act is itself constitutional). But I digress.

The point is that if the government breaks the law (in a general enough way), it would seem that no one has standing to challenge that action. Say the executive branch eavesdrops on everyone's communications, in clear violation of the fourth amendment, and that this is readily provable and a potential court case is not subject to being tossed under the state secrets doctrine. It seems that the case would still be tossed under the theory that everyone is equally harmed/oppressed, so none have standing to challenge. Furthermore, Congess is powerless here (via the courts) for the same reason Kucinich was unable to stop Obama's action in Libya: Congress has "ample legislative means at their disposal to oppose the President", namely defunding and impeachment.

But defunding and impeachment are themselves political, not judicial actions. They require the votes of members that (may) have an interest in the outcome of these actions that is not necessarily aligned with upholding the constitution or the laws or even the interests of justice. The entire idea underlying the court system is that it is comprised of impartial, disinterested officials. (Whether or not this is true in practice is a separate matter.) The executive and legislative branches are explicitly not comprised of such people. If the court is unwilling to get involved, then we must resign ourselves to the idea that the law is whatever the majority of the Congress says it is (or fails to say that it isn't).

While this may be comforting to some, in that these officers are (in theory) the "people" themselves, democracy is no panacea:
But what kind of person runs for public office? Madison failed to foresee that even the so-called "separation of powers" could not restrain men forever. Entry into politics does not require any particular skill or morality. It simply requires some combination of money, connections, personality, and a desire to rule others, particularly the last one. In fact, that last reason is probably the main reason that anyone runs for office. The idea that the world would be a better place if was in charge is probably not foreign to anyone. To succeed in government, however, involves backroom deals and "compromises" ensuring that only the least moral and most willing to deal away their principles will rise to the top. Thus, government will ultimately be populated with the worst people in society, and it is only a matter of time before they decide to work together to turn their legal authority to use force on the people themselves.
It would seem that we are inexorably on a path to this end in which we will be ruled by the oligarchs in office and their benefactors or by the "people" both of which, in practice, believe that positive law is superior to and therefore trumps natural law. No matter which prevails, one thing is certain: it's not going to be pleasant.

1 comment:

  1. "Thus, government will ultimately be populated with the worst people in society..."

    Indeed. This is why I've always been in favor of amending the constitution to include "terminal limits" for all members of Congress. No, that was not a typo. After their term(s) is(are) up, they are gently and humanly put to death. Thus only the most dedicated amongst us will consent to run for Congress. Which may not make it better overall, but will certainly cut down on the number of ex-Congressmen working as lobbyists.


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