(SCOTUS) Strictly Constructed Arguments

With the overturning of the lower court's decision that the warrantless wiretapping program was unconstitional, stating that ACLU had no standing to bring the case, we need to pause for a moment and reassess. I had hope the Appeals court would uphold the lower court decision (but that whole habeus corpus thingy works both way).

Unfortunately, we can't rely on the good will of the court, or even it's moral compass. Now of course, spying on Americans without a warrant is morally wrong, and SHOULD be illegal, and imo, that reasoning is supported constitutionally.

...we have been losing some battles that we should be winning, and most of them on technicalities.

The courts love to punt cases. Anything to not rule on cases that set "constitutional" precedent. Think back to the Pledge Of Allegiance case that came before SCOTUS. They didn't actually decide anything instead ruling that Mr. Newdow had no standing to bring the case on behalf of his daughter (he didn't have legal custody of his daughter). Of course, Ashcroft, the Attorney General at that time, went into spin mode stating:
"...[this] ensures that school children in every corner of America can start their day by voluntarily reciting the Pledge of Allegiance."
The court decided no such thing but the Republican echo chamber was able to frame it that way, and the MSM let it be argued in that frame setting. The same thing happen with this warrant wiretapping case. The appeals court did not affirm the Bush administration policy. And this also leads me to a question: Do more judges actually disagree with Bush's policy but need more rigorous, thought out challenges to justify ruling in the favor of the defendent?

We saw it with the Libby commutation. Judge Walton was not letting Bush get away with destroying the rule of law, effectively saying (paraphasing)"...you need to clarify your reason for commuting Libby since it is not align with your own DoJ guidelines...".

So I'm going to take a piece of legistlation and try to demostrate, to the best of my abilities, what points I would use before the Supreme Courts to challenge a bad piece of legistlation, without triggering a habeus corpus trap that the courts just love (their version of a loophole). That legistlation is the Military Commission Act of 2006, a piece of legistlation put together in roughly 3-day. I'll take just a section of it, specifically SEC. 6. IMPLEMENTATION OF TREATY OBLIGATIONS.

Military Commission Act of 2006

First lets state what the President, and Judiciary, can do:
US Constitution, Article II, Section 2

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
US Constitution, Article III, Section 2

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;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
Also let's look at the part of the constitution that deals with supreme law:
US Constitution, Article VI

All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; (1) and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and (2) the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

(3) The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

(emphasis mine)
We all know that the President has the constitutional authority to make treaties with the advice and consent of the Senate. However, that treaty becomes the supreme law of the land when it is ratified by our Congress, and is treated as if it was an amendment to the Constitution. The Geneva Conventions where ratified by our Congress thus, imo, the ruling authority over monitoring it leans towards the Legistlative branch. As long as it is not ratified it is the providence of the Executive Branch to monitor. But because it was ratified, the Geneva Convention's applicability means no one branch of government can interpret the same "supreme law" differently pursuant to Article VI (emphasis 1, 2, and 3 above).

With respect to Sec 6 of Military Commission Act the following subsections,
Military Commission Act, (Sec 6.a.3) INTERPRETATION BY THE PRESIDENT

(A) As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

(B) The President shall issue interpretations described by subparagraph (A) by Executive Order published in the Federal Register.

(C) Any Executive Order published under this paragraph shall be authoritative (except as to grave breaches of common Article 3) as a matter of United States law, in the same manner as other administrative regulations.

(D) Nothing in this section shall be construed to affect the constitutional functions and responsibilities of Congress and the judicial branch of the United States.
I would think, comes into conflict with the strictly construed argument above about supreme law. Subsection (A), and (B) would be, imo, true iff the Geneva Conventions had <u>not</u> been ratified and we were just signatories to the treaty. Interpretation of US supreme law rest with the Judicial Branch, and Executive Orders do not usurp laws passed by the Congress. And no branch can be stripped of it's constitutional power by another branch. So along that vein...
The Legistlative Branch can not strip the Judicial Branch of the right to hear constitutional challenges to legislation that allows the Executive branch of government to reinterpret supreme law (pursuant to US Constitution, Article III, Sec 2)

Would you consider that a strictly construed line of reasoning.

I don't know.....

Is my reasoning sound?

I guess what I'm trying to do is let the Constitution, itself, fulfill the habeus corpus loophole. We need to use the words of the Robert's (supposedly strict constructionist) court against them. Challenging the government head on hasn't worked to well, so perhaps nibbling at the cake may yield better result. We need to remember to what extent this administration went to in order to subvert the rule of law. We have several bad pieces of legistlation enacted. And while some can be reverse by Congress, some have interwoven the powers of the Legistlative, Executive, and Judicial branches to an extent that constitutional challenges may be the only way to restore rule of law.

Tags: ACLU, constitution, rule of law, SCOTUS, strict construction (all tags)


1 Comment

Only Juries, Not Judicial Politicians Will Protect

We have degenerated into having a government of the lawyers, by the lawyers, for the lawyers. Go to any law library and you will find more law books than you could count. The laws have become incomprehensible and impervious to common sense. Most judges are merely lifetime tenured politicians in black robes -- nothing more!

Article III, Section 2 Of the Constitution says:

[....]The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

In other words, the only legitimate roll of the judges is to preside over juries. These often unelected politicians have no right to interpret the laws, only a jury could do that impartially. So every court, including the Supreme Court, must have juries, randomly selected on a case-by-case basis, empowered to make all but narrowly procedural decisions, of both law and fact. Assuming we wish to have the judicial impartiality the Constitution requires.

by blues 2007-07-09 03:56AM | 0 recs


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