Supreme Court Won't Hear ACLU Wiretap Case 323
I Don't Believe in Imaginary Property writes "The US Supreme Court refused without comment the ACLU's appeal of a lower court ruling that prevented them from suing over the government's warrantless TSP program. The problem was a Catch-22: they lack legal 'standing' to sue over it because they can't prove that they were suspected terrorists, but neither can they find out who was actually suspected, because this is a matter of national security." Update: 02/20 00:17 GMT by KD : Removed an incorrect statement after a reader pointed out that, with the expiration of the Protect America Act this weekend, foreign surveillance will revert to oversight by the FISA court.
In other words (Score:5, Funny)
Re:In other words (Score:5, Informative)
Anyway, why would precedent on this type of law force them to look at this case?
Re:In other words (Score:5, Interesting)
Re:In other words (Score:5, Insightful)
Life, liberty, and the pursuit of happiness. The fact is that the constitution does not grant the federal government the right to tell us what can go into our bodies. Weed was made illegal under the much-abused interstate commerce clause.
Unless they fall for the trap (Score:2)
What did you expect? (Score:4, Insightful)
Re:What did you expect? (Score:4, Interesting)
That hand doesn't feed them. They serve for life. The president has no political power over sitting justices. They ARE loyal cronies, but that won't change with administrations.
Re:What did you expect? (Score:5, Insightful)
That is why they are appointed for life "while in good behavior". This has come to mean anything short of being imprisoned or bribed (even then...) will let you keep your judgeship. But these people are supposed to be the intellectual barrier between the law and the masses. They are supposed to keep congressmen, who have to follow the whims of their constituents, in check. And for the most part, they do.
Putting judges under popular control would allow all of the branches to fall to "fly-by-night" laws and legislation, severely undermining the relatively stable system we have now.
Not quite (Score:3, Interesting)
The whole point of the lifetime appointment of judges to the Supreme Court is that they wouldn't have to be beholden to whichever powers appointed them. Scalia, Alito, and Thomas could have a change of heart and become flag-burning, dope-smoking, abortion-promoting hippies, and there's really nothing that could be done to punish them. I think they can be impeached by Congress, but that isn't really common.
Re:What did you expect? (Score:5, Informative)
Regardless of your politics, the decision of the trial court was awful.
http://althouse.blogspot.com/2006/08/shocking-decision-in-aclu-v-nsa.html [blogspot.com] This just puts an ACLU fantasy about its reach to bed.
Justice is served.
Re:What did you expect? (Score:4, Insightful)
Re:What did you expect? (Score:5, Interesting)
This particular legal doctrine has nothing to do with the Bush administration. Despite the Catch-22 of "lack of standing", it's used quite often. Courts have been avoiding Second Amendment challenges for decades, using the same rationale.
A writ of certiorari requires only four votes among the nine Supreme Court justices. Four justices: Stevens, Souter, Ginsburg and Breyer, are generally thought of as the Court's liberal wing. If they felt strongly about this case, they could have voted to do so.
Re: (Score:3, Insightful)
Those of us with something to hide... (Score:4, Insightful)
What's kind of depressing is how much the general public just doesn't care about this at all.
I'll admit up front: I have things to hide. Dirty little secrets that are none of your business, and that the government doesn't need to know. Things that are embarrassing, things that could be used to damage my reputation, nothing particularly dangerous, but stuff that should be between me, myself, and I, and no one else.
I think most people are like that, even the ones who proclaim so loudly that they have nothing to hide. I mean, if you have something to hide, you're a terrorist, right? The government could never use your dirty little secrets in any shape, form, or fashion, right? Because the government never loses our personal information, never has "leaks" that could reveal compromising information, would never do anything seedy for purely political purposes?
All of those who have "nothing to hide" are really starting to piss off those of us who do.
Re: (Score:3, Informative)
Re:Those of us with something to hide... (Score:5, Insightful)
"The only thing we have to fear is fear itself."
That's because fear is the only thing that will always lead us to hurt ourselves while we are under its control. The fear of dying will strip us of our rights to live. The threat of anonymous terrorists will allow the domestic terrorists we elected to weild impending doom over our heads and threaten us with more attacks unless we bow to the demands to give them more power. If we do not obey or question that power we are labled enemy combatants and no longer have the rights we were afforded as citizens and we are then shipped away to where the remaining laws we haven't lost cannot even protect us. Torture by any other name, and terror by any guise are both using fear to conquor the will. And we are letting it happen.
Re: (Score:2)
Unless the government has come up with some way to read your mind I think you're safe.
Re:Those of us with something to hide... (Score:5, Funny)
I'll admit up front: I have things to hide.
Oooh, are you into BBW too?
Re:Those of us with something to hide... (Score:5, Funny)
Like what ?
Evidence that Slashdot has become self-aware (Score:3, Funny)
"paranoia, n.: A healthy understanding of the way the universe works."
--AC
Get it out in the open! (Score:2, Funny)
Re: (Score:3, Insightful)
but stuff that should be between me, myself, and I, and no one else
Then why are you talking about it on the phone? Are you calling yourself?
The reason why SCOTUS refused the case is because the ACLU doesn't have standing. Those who are performing the wiretaps would be really, really stupid to show the list of those they are tapping to anyone else, especially a group on a fishing expedition to sue them.
If the wiretappers did show the list to the ACLU, the ACLU would sue them for doing the wiretaps. Then, they would sue them for releasing the information. Can't have
Good thing TSP no longer exists (Score:4, Informative)
TSP no longer exists, and hasn't since 17 January 2007 [nytimes.com].
ALL surveillance was happening under the guise of the Protect America Act [whitehouse.gov], which was designed exclusively to allow foreign intelligence collection without a warrant when the traffic travelled through the United States, whether incidentally or by design. Foreign intelligence collection is always allowed without court oversight; the changes explicitly allowed such collection on US soil as long as the target was reasonably believed to be a non-US person physically outside of the United States, regardless of the other end of the conversation. The change was absolutely done to make such surveillance easy.
Now the Protect America Act has expired with its automatic sunset, and ALL surveillance must again happen only via FISA [washingtontimes.com].
There is no TSP or any warrantless surveillance program. What a horrible summary.
Of course, I'm sure a bunch of people will respond, "Oh, sure, there is no warrantless surveillance...THAT WE KNOW OF." Oh, how convenient: arguing about something that we can't prove one way or another? Please, let's keep the discussion in the realm of known facts, namely, that TSP no longer exists. The article even says as much. Did the submitter not even RTFA?
Re:Those of us with something to hide... (Score:4, Insightful)
Re: (Score:3, Funny)
Re: (Score:3, Insightful)
It's kinda bad that D.C. ain't as far away as London, separating from that could be a tad bit harder...
Anyway, where was I? Right. Maybe warrantless
Re:Those of us with something to hide... (Score:5, Insightful)
How important is "that important"? As the marginal cost of wiretapping decreases towards zero, I think you'll find that more and more people are going to be "that important".
Re: (Score:3, Interesting)
Re: (Score:2)
Re: (Score:2)
And what are you going to get once they have turned our home, your credit rating and your life upside down, made sure every neighbor thinks you're Osama's best buddy and pretty much ruined you? "Whoopsie. Our bad."
If you're lucky.
Re: (Score:2)
You're not that important until some overworked person takes something out of context.
Now you're presumed guilty and have to prove yourself innocent.
You mention that the pile of 20s you've got is now up to $10,000? You must be a drug dealer... gov't seizes it until you can prove where it came from.
Too bad you can't since you just popped a 20 in there every time you hit the ATM.
They overhear you talking about that nice little rifle you've got, and they have so
Re: (Score:3, Interesting)
"They're all the same! I'll show you politics in America; here it is right here."
"I think the puppet on the right shares my beliefs."
"I think the puppet on the Left is more to my liking.... hey, wait a minute, there's one guy holdin' up both puppets!"
"SHUT UP! Go back to bed, America, your government is in control. Here'
Quick Summation (Score:4, Insightful)
Must be a terrorist to challenge the law? (Score:2, Interesting)
Re:Must be a terrorist to challenge the law? (Score:4, Funny)
Re: (Score:2, Troll)
I (and and many others) suspect that the Democratic presidential candidates are those who have been wiretapped illegally.
Re: (Score:2)
Besides, from another perspective, right now we're in the midst of a gigantic conspiracy to unseat and replace the government of the US. They even know the target date - next November and the following January. So it's merely a matter of using the tools of government to foil this heinous attempt at overthrow.
Re: (Score:3, Informative)
Indications are that the government spied on thousands of people, and based on what the AT&T worker who installed the hardware said, it's quite possible that they gathered communications from millions of people in a way that would require a warrant. Ultimately this whole fiasco is due to the fact that the Executive's definition of "suspected terrorist" is so loose and flimsy that not even FISA, a cour
What was that again? (Score:5, Insightful)
Wasn't one of the bits in the declaration of independence criticizing King George III about secret trials?
Bit sad, really, that it's coming to this.
Re:What was that again? (Score:5, Interesting)
Damn, and I'm out of practice on the last one.
Re: (Score:2)
Sure, there's no way the 2nd will fall. But I'm fairly sure that some backdoor will be found sooner or later (for 'national security reasons') that pretty much makes sure that nobody but a handpicked few can still legally have more than BB guns.
Re: (Score:3, Insightful)
Re: (Score:3)
Seems we need a wistle-blower at the NSA (Score:5, Insightful)
Re: (Score:2)
It's entirely possible that it has never happened. The decision is disturbing because it _enables_ the abuse of power, without actually indicating that the abuse of power has in fact occurred.
Supporters of the warrantless wiretap are basically trusting that it won't occur, and that all warrantless wiretaps are used against valid terrorist targets. T
Re: (Score:2)
Re: (Score:2)
There may not actually be anybody with the standing to sue, yet. The Bush administration is essentially telling us that there won't ever actually be one, because they're only wiretapping bad guys. The ACLU wants to know how they can know that's true, and they're especially suspicious because the bar to get a warrant isn't terribly hig
And then they could post it on Wikileaks... (Score:4, Funny)
Olden Times (Score:5, Insightful)
In March of 1857, the United States Supreme Court, led by Chief Justice Roger B. Taney, declared that all blacks -- slaves as well as free -- were not and could never become citizens of the United States. The court also declared the 1820 Missouri Compromise unconstitutional, thus permiting slavery in all of the country's territories.
The case before the court was that of Dred Scott v. Sanford. Dred Scott, a slave who had lived in the free state of Illinois and the free territory of Wisconsin before moving back to the slave state of Missouri, had appealed to the Supreme Court in hopes of being granted his freedom.
Taney -- a staunch supporter of slavery and intent on protecting southerners from northern aggression -- wrote in the Court's majority opinion that, because Scott was black, he was not a citizen and therefore had no right to sue. The framers of the Constitution, he wrote, believed that blacks "had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it."
Referring to the language in the Declaration of Independence that includes the phrase, "all men are created equal," Taney reasoned that "it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration. . .
props to PBS
This is the same Catch-22...
Re: (Score:2)
U.S. government: Lots of catches (Score:2, Insightful)
Catch-23: Oil and weapons investors Cheney and Bush want the price of oil and weapons to rise, so Iraqis must die.
Cheney and Bush have killed more Americans than the terrorists, and far more Iraqis than Saddam Hussein.
Re: (Score:2)
Re: (Score:2)
Perfect work-avoidance scheme (Score:2)
That's a perfect work-avoidance scheme: "We just do as much work as we want to do."
If a case gets all the way to the U.S. Supreme Court, that indicates SOMETHING is broken. However, faults in the law generally cannot be fixed because of a conflict of interest. A large part of what lawyers do is work generated by faults in the law. They don't want most of their work taken away from
Re:U.S. government: Lots of catches (Score:4, Insightful)
Also, the Oil futures market is much larger than anything going on in Iraq. Oil is rising not because of anything Bush or Cheney or the US is doing, but rather because you have over 2 billion people slowing rising in the middle class in Asia. Not to mention that "easy" oil is getting increasing more difficult to find. The good side is that alternate energy sources are finally getting a chance to prosper and we should be in the next decade finally be able to break our dependence on middle eastern oil sources..
Finally, just for the record I am certainly no fan of Bush, but I also dislike thoughtless propoganda statements with no logical backing...
Re:U.S. government: Lots of catches (Score:4, Interesting)
Last I checked they still have plenty of friends in the oil industry, and may want extremely cushy and well paying jobs in a ridiculously profitable industry after they're done running the country. Of course Cheney's Halliburton stock option sales all go to charity, so there's no direct personal conflict of interest. Thus there's no motivation whatsoever and all those no-bid contracts were perfectly fair? Yeah right, making huge bank for all their oil and defense contractor friends is a huge motivation, and one they themselves will ultimately reap the benefit from.
How much you want to bet Cheney ends up back on the Board of Directors for any number of companies who directly profited from the war in Iraq?
Also, the Oil futures market is much larger than anything going on in Iraq. Oil is rising not because of anything Bush or Cheney or the US is doing, but rather because you have over 2 billion people slowing rising in the middle class in Asia.
Uh yeah I'm pretty sure "Middle East insecurity" has a major impact on the futures market, what with the whole thing being speculation on the future (both near and long term) supply, and Middle East sources still being a huge portion of that supply. Prices jumped hugely after 9/11, again after the invasion of Iraq. Yes there has been an otherwise oscillating but upward trend due to general increasing consumption and lessening of reserves, and yes the market is much larger than just Iraq. To conclude that therefore nothing Bush or Cheney has done has affected the price of oil is completely illogical.
Holding stock options IS a "financial interest". (Score:4, Informative)
See these stories, for example:
Cheney's Halliburton Options Up 3,281% Last Year [corpwatch.org]
Cheney: "I cut all ties to Halliburton years ago." Congressional Research Service: "Cheney made $8,000,000 from Haliburton while in office." [reddit.com]
Quote from one of the comments in that story: "The Congressional Research Service has concluded that holding stock options while in elective office DOES constitute a "financial interest" whether or not the holder of the options donates the proceeds to charities, and deferred compensation is also a financial interest." [My emphasis]
Also, in general Cheney and Bush have shown that they don't believe any rules apply to them. So, there may be hidden bank accounts in Dubai [hrw.org], for example, which is where the head office of Halliburton is located [yahoo.com] now.
Re: (Score:3, Insightful)
Of course, both of these numbers are absolutely abominable, and this war is not about those killings (the US was buddies with him back then), so it's not like one is the cost of stopping the other. Still,
Before the Law (Score:5, Interesting)
Only 95% onerous (Score:4, Interesting)
Of course, it's still 95% onerous, because there are still people reviewing the wiretap data (recordings, records, etc.) and those people are privy to otherwise private conversations.
WRONG! (Score:2, Insightful)
Guess what, you won't be tried. Ever. You will be held so that they can illegally solicit more evidence from you through nefarius means such extradition out-of-country, or just a secret location somewhere in Washington. Did I mention that the illegal solicitation of further evidence
Re: (Score:2)
The problem is that invading one's privacy, even if only a suspected invasion, is damaging to the individual.
How is this any different from the police coming to visit you every night, and sticking around until you go to bed? When it comes down to it, you'd be hard pressed to show any actual damages from such behavior, yet the thought of this is unsettling to even the most radical neo-cons.
The problem is that freedom, even if it does not have a monetary equivalent, still has tremendous value. The go
Re: (Score:3, Insightful)
Re: (Score:2)
Phase 1. I illegally monitor and scan all conversations in the us for a keyphrase, and shortlist everyone who uses it.
Phase 2. I then send out someone to either find or trump up some legitimate evidence.
Phase 3. I get a warrant, gather enough evidence to make a case, and then charge you.
The 'illegal evidence gathering' in phase 1 would o
Re: (Score:3, Informative)
When it comes down to it, this ruling (and the ruling of the lower court) isn't 100% onerous, because a US citizen who is tried using evidence obtained in this manner would finally have standing to contest the government's actions.
Tried? Who said anything about a trial?. From past actions, if they thought they had reason to act against someone due to these wiretaps, the person in question would be declared an enemy combatant, kept in custody without legal access, and if even was innocent, be forced to ta
Re:Only 95% onerous (Score:5, Insightful)
What makes anyone think that illegal wiretapping is about giving people fair trials? They're not even concerned with convicting suspected terrorists, and the fact that these wiretaps are too dubious to deserve even FISA warrants should make it clear that terrorists aren't the target.
FISA was created after Nixon's attempts to use espionage for political gain. If Bush is doing the same thing then the illegally obtained results won't be seen by judges. Anything incriminating will be leaked to the media or used to anonymously blackmail the target; anything innocent will be exploited by campaign strategists. Even if the most damaging use of an unwarranted wiretap's results is a prosecution, it won't be done by introducing unconstitutionally obtained evidence in court. They'll use "anonymous tips" to launder the results to get seemingly-legit evidence instead. The "fruit of the poisoned tree" rule won't help when the connection between the evidence and it's original source has been hidden from sight.
The Argument Sketch (Score:5, Funny)
Well what?
You're listening to my phone calls and it's not a secret.
I told you, you're not allowed to sue me unless you know my secret.
But I do!
No you don't.
I DO!
No you don't.
Look, I don't want you spying on me.
Well, that's a secret.
Aha. If it's a secret, I must be a terrorist, so it's not a secret anymore! I got you!
No you haven't.
Yes I have. If it's an official government secret that you're spying on me, I must be a terrorist.
Not necessarily. I could be listening to your phone calls in my spare time.
The lack of transparency is really disturbing... (Score:5, Insightful)
The fact that the government is let off the hook because the victims can't legally show harm - that is, they are prevented from actually knowing if their privacy is invaded - is quite disturbing. A child pornographer could use the same argument; that because his children (err, victims...) aren't old enough to understand the harm done to them, that they have no grounds for objecting to their pictures being taken.
I think, though, that there's a double standard when it comes to government. Unlike "terrorists" - which are presumed guilty except when there exists incontrovertible exculpatory evidece - the government is presumed innocent, and its evidence and intentions beyond reproach, except when the accused manage, by some legal loophole, to show otherwise.
Justice at the federal level has completely changed:
"If you aren't doing anything wrong, what do you have to hide?"
Indeed, all patriotic Americans need to ask themselves this question of the government, particularly the executive branch. If indeed, they aren't doing anything wrong, why must they keep everything so secret - even from Congress and the Courts? Isn't it more likely that they are using the secrecy to cover up activities that most Americans would consider wrong?
Most worrisome is the fact that we have gone from an open society which feared nothing ("The only thing we have to fear is fear itself...") to a society where everyone is suspect and fear of what one might do is sufficient to deny anyone and everyone their rights under the law. The justice system has been transformed from an open and transparent process which followed the principles of fairness to a capricious and arbitrary exercise of power.
Bah (Score:2, Insightful)
Re: (Score:2, Insightful)
The Rule of Law (Score:5, Insightful)
In the US, the rule of law has been abandoned. You are back to the rule of power: Everyone does whatever he can get away with. Your so-called president leading the way.
Plus ca change... (Score:2)
rj
Hmmm... (Score:5, Insightful)
Supreme Court writes: "We don't believe in imaginary problems."
I forgot that spying is in the constitution (Score:3, Funny)
Re: (Score:3, Interesting)
What gets me about Slashdot is that it's full of people who have a giant fucking hardon for the Internet and "information wants to be free" and how all this technology changes everything and shifts paradigms and makes collaboration easier and technology transfer faster and all that good stuff, but are willfully ignorant about the major changes to the nature and scope of warfare and the battlefields on which it will be fought.
Y
TSP has been gone for over a year (Score:5, Informative)
If someone could point out the warrantless surveillance program that is known to exist today, I'd appreciate it. And yes, the burden of proof is on you, as simply asserting that one must exist doesn't quite cut it. Remember how TSP came to light: leaks to the New York Times. The government simply cannot keep such controversial programs secret. There is no evidence of any current, ongoing "warrantless" surveillance.
The other important thing to remember is that foreign intelligence collection never requires a warrant or court oversight of any kind; the FISA modifications were designed to enable easy foreign intelligence collection via assets on US soil or traffic that may travel physically through the United States. It does not matter in the least if the other end of the conversation is a US person on US soil, as long as they are not the target of such collection.
Such collection is always legal and allowable without a warrant if the collection occurs outside of the United States and the US person is not the target of such surveillance. Special and very extensive measures are undertaken to conceal the identity of US persons in such collection.
The main difference with what became known as TSP, and refined in the Protect America Act, was the provision to enable such collection via means to which we have easy and routine access; namely, the massive amounts of communication traffic flowing through equipment under US control. Whether or not you may agree with that is a different issue entirely. The purpose was never to target US citizens without a warrant. The purpose was to collect foreign intelligence via US assets. Currently (after PAA expiration), if traffic travels through the United States, even if BOTH ends are non-US persons physically outside of the United States, the Intelligence Community is prohibited from collection without a warrant. That's the "Intel Gap" [archive.org] we wanted to close.
Simple way out of catch-22 (Score:4, Interesting)
On the other hand, good luck in getting Congress to do something as blatantly beneficial for the country as that...
The Tree of Liberty (Score:4, Insightful)
This tree looks distinctly drought-stricken.
Re: (Score:3, Insightful)
Too many Yoda references (Score:5, Funny)
Re:Far too much power (Score:5, Interesting)
Looking from a purely constitutional perspective, the supreme court is also the branch that has abused its power the least imho. Congress routinely enacts laws that are only constitutional if justified by the "general welfare" clause of the preamble, not any part of the actual constitution. The president can send troops anywhere to fight that he wants without a declaration of war, and this president has outright ignored several parts of the constitution.
So, while I am a strong believer that the supreme court has had its share of overreaching rulings that weren't strictly constitutional, I think that pales in comparison to the abuses that the other branches have managed to pull off.
Re:Far too much power (Score:5, Interesting)
Really? You should double check the Constitution with regards to the enumerated powers (you know, what the 10th amendment discusses) of SCOTUS... in fact they are the ones (not the constitution) that declared themselves the supreme arbiter of the constitution (see Marbury v. Madison).
Technically speaking... the scope of power SCOTUS has is in of itself unconstitutional... problem is that as things have evolved... in order to change things back... we'd either need a SCOTUS ruling (of them giving up their power) or a constitutional amendment... which could still in theory be ignored by them (see cases of how they have ignored the 10th amendment).
Re:Far too much power (Score:5, Interesting)
How you figure? The Constitution itself states that the Judicial branch shall have jurisdiction over all cases arising under the Law of the U.S. and the Constitution. Marbury v Madison was just a case where a Law passed by Congress conflicted with the Constitution -- and again, it is clear from the Constitution that in such a case, the Constitution wins. That case may have formalized the notion of "Judicial Review", but the principle itself is quite Constitutional.
Oh and by the way, the statute which the Court ruled in Marbury v Madison to be Unconstitutional was one which increased the Court's power. It's kind of hard to call this a power grab when the executed their Constitutional power to judge a case under the law in order to reject an Unconstitutional increase in power.
see cases of how they have ignored the 10th amendment
True enough, everyone pretty much ignores the 9th and 10th. But it's worth pointing out that they ignore this ammendment by not finding a law passed by Congress to be in conflict with the 10th, and thus Unconstitutional. How exactly would they do this if not via Judicial Review as established via Marbury v Madison?
In other words this is a case of the Judicial Branch abusing their powers by under-utilizing them, resulting in an increase in power of the other two branches.
Re:Far too much power (Score:5, Interesting)
No it decreased the power of the other two branches, because they can only act with the approval of the Judicial Branch - not striking down a law is a tacit approval. To play devil's advocate - why can't the President serve as an arbitor of Constitutionality by rejecting the execution of a law?
Re:Far too much power (Score:4, Insightful)
Yes, it is: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority"
What do you think a judge does, if not arbitrate? This is the fundamental meaning of "judging", to interpret the meaning of the law, and when multiple laws conflict, to decide which applies and which must fold. And in the case of a law passed by Congress and the Constitution, the laws of Congress must always fold.
Or more to the point, what do you think should happen when a case comes before the Supreme Court, and a law passed by Congress is in conflict with the Constitution?
No it decreased the power of the other two branches, because they can only act with the approval of the Judicial Branch - not striking down a law is a tacit approval. To play devil's advocate - why can't the President serve as an arbitor of Constitutionality by rejecting the execution of a law?
The other two branches have always been subject to decisions made by the Courts in cases that came before it. To suggest otherwise is to imply that the other two branches are in fact above the law and cannot be brought to justice for violating the law. That may be a popular theory these days, at least for the Executive branch, but it has zero Constitutional basis.
As to your "devil's advocate" question: Because the Judicial power isn't granted to the President. The Executive branch can in fact decline to enforce a law, this is what the DoJ does all the time by choosing who to prosecute and who not to. But that decision does not in any way constitute a legal decision, because matters of law are decided by a Judge. And if a certain law requires action of the Executive branch, then in a case brought before the courts, the Judicial branch has the power to render judgement against them and a proscribe appropriate penalties.
Re: (Score:3, Insightful)
Marbury v. Madison established that the judicial power the Court was granted was sufficient to establish that "an act of the legislature repugnant to the constitution is void". It was the first decision to defer to a "founders' intent" argument to read non-textual power into the Constitution -- that of removing invalid laws from the books.
The founders didn't write in the Constitution that illegal laws were to be voided by the judiciary, relying instead on inferior courts being bound by
Re:Far too much power (Score:5, Interesting)
In Free Lunch [npr.org], David Cay Johnston notes a trend in limiting access to the courts. In this way, If someone somewhere doesn't want a case to be heard, they just have to buy a little influence and can claim a legitimate victory. Note the reason the courts dismissed ACLU's earlier efforts in this line: only persons under surveillance have standing to sue, and the nature of the program is such that you're not allowed to know that you're under surveillance. That is, if you can prove that you have standing, you can be imprisoned. If you can prove that someone else has standing, you can be imprisoned.
In the book, Johnston details one case of a couple who owned an auto repair business in a spot where (I think) Jeep wanted green space for its factory complex. You can guess whose complaint was thrown out. These days it seems like there are only checks and balances when they're backed up by personal relationships or bullying. Note the number of subpoenas the white house has simply ignored.
Re: (Score:2)
Re: (Score:3, Insightful)
While it kinda sucks for the activist, I guess it's one way to keep from having to hear cases from every stupid schmuck who wants to challenge a law that doesn't p
Re:Far too much power (Score:4, Insightful)
Re:Far too much power (Score:5, Interesting)
Note, of course, that the "general welfare" clause was not intended to permit unrestrained growth of government services for whatever vaguely-collective reason Congresspeople might concoct in the service's defense. The "general welfare" clause was not intended to permit galloping socialism.
At least, that's true according to James Madison in Federalist 41. [wikipedia.org] Alexander Hamilton, OTOH, took the broader view that Congress may spend as it sees fit, so long as it doesn't favor a particular party.
Of course, even according to Hamilton's relatively-leftist, pro-government position, expenses to pay for, say, private military contractors, farm subsidies (which mostly go to the largest 20% of farms, often owned by e.g. Tyson Foods), welfare checks for the poor, (benefiting a subset of the population is not necessarily a benefit to the whole population. This doesn't make welfare a bad idea (though its implementations thus-far have ranged from moderately-useful at best (e.g. the EITC), and idiotic at worst) - merely, it conflicts with the way the U.S. Constitution both stands and as was intended by its authors), etc. would, I suspect, be invalid reasons for government spending.
Luckily for American Congresspeople, the majority of the American public has neither read the Constitution or Bill of Rights, nor has been asked to think hard about those documents -- we can thank the public education that the Dept. of Education tries to manage -- and the 20% or so who might have given them more than a passing thought tend neither to abide by those documents nor care about their intent. Combined with incentives to ignore the meaning of the highest law of the land, Congresspeople thus trample the documents they are supposed to uphold...
Re:Far too much power (Score:4, Insightful)
What, you want the U.S. Supreme Court to be forced into taking cases that don't meet legal criteria for bringing a lawsuit? That doesn't make sense. Any court in the U.S. has that power, by the way, not just the Supreme Court.
Would you prefer, then, that the U.S. Supreme Court hear the case and start issues subpoenas for classified information on behalf of the ACLU? That makes even less sense, as then the SC would be exercising far too much power.
If there is any digging to be done, the ACLU is not the one to do it, nor is the Supreme Court. That power is granted to the U.S. Congress by the Constitution. Congress must investigate, hold hearings, and can even produce a report detailing "injured" parties. It is at this point that those injured parties could sue, or join a class action suit brought by the ACLU.
By refusing to hear the case, the U.S. Supreme Court is correctly interpreting the law and the Constitution with regard to what powers it holds. In other words, the refusal was just right.
Re: (Score:3, Insightful)
Re: (Score:2)
Re: (Score:3, Funny)
I eagerly await the outcome of Congress' investigation into this secret program.
Re:Far too much power (Score:4, Informative)
Re: (Score:2)
Re: (Score:2)
Excellent post (Score:2)
Re: (Score:3, Insightful)
What way of life? Fear- and scaremongering? You want to protect that? Because that's what the US are about today. The US used to be the epitome of freedom. Of liberty. The place to be on this pla