Thursday, February 24, 2011

Common Sense and Marbury v Madison - 2

Two years ago, before the Health Care Reform issues received constitutional attention in the federal courts, Dredd Blog contemplated the history of how statutes of congress are perused by the courts:

Today marks the 206th year since the world famous Marbury v Madison case was decided.

If a nation's statutes are governed by a constitution that guides those statutes toward the betterment of the nation, then the betterment of the nation will depend on the legal hermeneutics (a.k.a textual interpretation) of that constitution.

The Marbury case made it crystal clear this means that betterment will depend on what judges say the constitution says.

In that light it is an every day occurrence for a common citizen to read the text of the constitution and say "it says thus and such", and for that citizen's lawyer to respond "actually it says what the judge says it says".

And that is where the rubber meets the road. The famous Marbury case has a common sense foundation:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
(Marbury v Madison, 5 U.S. 137 (1803), italics added).

A federal district judge in San Francisco is tasked with that problem at the moment. In Hepting v AT&T these issues are currently being litigated.

In a case that concerns what is called "immunity", the congress passed a bill allowing the DOJ to, in effect, give retro-active immunity to telephone companies that helped Bush II get access to all of your phone and email records without a warrant. Contra the 4th Amendment of our constitution.

Bush II said he needed to know all about you to protect you, and therefore he asked congress to give DOJ the power to give the phone companies retroactive immunity. Because they gave your records to Bush II illegally.

Why Bush II did not simply pardon the telecoms is a mystery, because that act would have ended the matter.

Perhaps Bush II was tired of taking all the blame and wanted congress to share the blame load? Who knows.

Then senator, and now President, Obama voted for that statute to the chagrin of many civil rights activists (me included). Now his Attorney General, Eric Holder, is supporting the statute as did Bush II Attorneys General.

Federal Judge Walker has ordered the parties in the telecom immunity cases, including AG Holder, to explain why that statute does not violate, among other things, the separation of powers doctrine.

The basis of the order stems in part from a 1944 Supreme Court ruling which requires a statute to clearly define the bounds of performance of the administration of that statute so as to constitutionally delineate legislative will from administrative will:
[T]he only concern of courts is to ascertain whether the will of Congress has been obeyed. This depends not upon the breadth of the definition of the facts or conditions which the administrative officer is to find but upon the determination whether the definition sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.
(Walker's Order, 2/11/09), quoting from Yakus v United States, 321 US 414, 425 (1944).

Judge Walker ordered the parties to further brief the court and to answer the following question:
Does the retroactive immunity statute give the DOJ unfettered authority, thereby, in effect giving it the power to make law - which is the sole province of the legislative branch of government?
(ibid). In essence congress can't say to the president, "you make the laws", and if it did so in this retroactive immunity case, then that statute is unconstitutional.

In the final analysis, Judge Walker must decide not whether anyone or any company is above the law, but whether or not congress can lift them that high.
The bleep goes on in the 207th year now.


  1. RE NoBama vs. Bush: Meet the new boss, same as the old boss

    RE the law in general: It's all political and can be interpreted to say whatever an interest group, political party, or whomever is exercising power at the moment WANTS it to say.

    The GOP's current strategy to defund family planning and abortions is also an ingenious approach to something they've had their sights set on for years but have not YET been able to manage.

    The bottom line: the law is increasingly viewed as a means to an end, which is exactly what happens when it becomes overtly politicized and practiced by an elite group of over educated plutocrats. It's not for nothing that the law is largely incomprehensible to the common man and that protection under the law has become unaffordable for most; that was the plan all along.

  2. The Pentagon is all aTwitter about a Rolling Stone article that outs psyops on senators.

    I think it may have been leaked to neutralize the fact that massive psyops take place as a matter of course.

    This leak will take some of the sting off the real story of massive psyops on a regular basis.

    A Dredd Blog post on the issue is Psyops Psyche! ...

    Anyway, it is good to get some of this out to ma and pa ...

  3. Lawyers also have an effect on how the law is made and decided in the courts.

    An article in the Stanford Law Review details one survey.

  4. Psyops is really just a form of extreme marketing, and in that respect, is viewed as just another legitimate form of "opinion shaping." Marketing - it's what makes the capitalist world go 'round.

  5. Bankruptcy courts will get busy when oil breaks a record by July:

    $150 bbl Oil By July

    (and when states can file bankruptcy) if the neoCons in congress get their way.

  6. Could be much higher than that even if TSHTF in earnest. I don't even think I'd call a major supply disruption a black swan event anymore, as it's entirely foreseeable and only a matter of when.

  7. disaffected,

    It is likely that the Iraq oil we seized will be touted as a wise move at some point in time.

  8. Randy,

    In short order it's likely that any drop we can get our hands on will be touted as a wise move. The risk levels are inching higher daily now, and most people are blissfully (and willingly) unaware of how little needs to go wrong in the current environment for the domino effect of disaster to begin. Global capitalism has increased our risk exponentially, and the subsequent fascist deregulation enabled kleptocracy has removed all the safe guards and safety nets that might have ameliorated its effects.

    I'm watching an HBO special called 'Reagan' as we speak, so forgive me while my blood boils. And he was one of the relatively SANE ONES!

    We are indeed all f***ed, and in quite short order I'm afraid.