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Comment by Osiris | Hacker News Reader

One of the main points of the U.S. constitution is to provide checks and balances so that one branch of government cannot ac t unilaterally without oversight. For the executive branch to argue that in this case there is no way to challenge it is disingenuous at best and at worst, as this judge pointed out, unconstitutional.

It's frustrating to me as a citizen that if a government agency decides it has a problem with me, I'm pretty much screwed unless I have plenty of cash to hire the best lawyers.

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Realistically, you are just as screwed if any large organization launches a civil suit against you. Congress frequently produces laws that attempt to mandate the behavior of the Executive branch* while excluding that behavior from judicial review (which courts do not take kindly to and frequently dismiss).

A lot of legislators do not like the Judicial branch and consider it to be an annoying restraint on their lawmaking power; what looks like tension between the Executive and Judicial branches is often as not a proxy for Legislative claims. Whenever you see a piece of legislation with phraseology like '[officer of some executive branch agency] shall do x, y, z, in the following fashion...' pay attention to the word shall. In law this is understood to make the action mandatory, and where the law is very specific on procedures and actions it's basically an attempt to micromanage the operation of the agency in question.

Consider the following imaginary law:

If any person wears white after Labor Day, the head of the Fashion Police shall cause that person to be arrested and fined $1,000. This procedure shall not be subject to judicial review.

Now if you're the Fashionista-general, you have no choice but to arrest people wearing white after Labor Day [for non-Americans, wearing white after late September is jokingly regarded as an offense against good taste]. Failure to do so clearly violates the oath of office required of office-holders in the Executive branch. And the same law says that you don't get to complain about this in court, so judges are supposed to dismiss your case without even giving it a hearing. That will make people mad with the Fashion Police and frustrated with the Courts, even though the blame for this law lies with the Legislature.

Here's an example of a real law that operates this way, from a current immigration statute: http://www.law.cornell.edu/uscode/text/8/1252

Note section (a)(2)(A)(i): the law applies to people who receive orders of removal, aka deportation orders (a); it's explicitly not subject to judicial review (2)(A); and the procedures for dealing with individual cases are very narrowly specified in the section linked to from clause (i), with a lot of detail specifying how people shall be categorized and treated.

And (a) explicitly not constitutional in that it attempts to bypass the limits knowingly placed upon government by the people. An order to bypass auditors is never valid, especially from government.

That you think this is okay is scary. But this is why we need to remember that the law is an imperfect rendering of our intent, not the other way around.

You need to distinguish between the different branches of goverment; it's not a monolithic entity, nor is it constituted as one.

It's not as clear as you think that the example above isn't constitutional, because in making immigration law Congress is exercising one of its enumerated powers to 'establish an uniform rule of naturalization,' and an argument can be made that the Judicial branch has business poking its nose into that situation. Likewise, there's a school of legal philosophy - a minority one to be sure, but present nonetheless - that Marbury v. Madison, upon which much of the judicial power to constrain the other branches rests, represented an inappropriate overreach by the Marshall court - a criticism first voiced by no less a personage than Thomas Jefferson. See http://en.wikipedia.org/wiki/Marbury_v._Madison#Criticism for example.

That you think this is okay is scary.

You have no idea what I think is OK. I'm telling you how it works now, not how I'd like it to work.

I know the government isn't a monolithic entity - we rely on it being many departments in many agencies all full of individual people each bringing their own ethics into play or we'd simply have an automated dictatorship - Chinese-Room style. The problem we're discussing is one governmental body trying to remove peoples' recourse to appeal to the other branches of government, specifically to avoid their work being audited.

By that tired "X needs Y, thus X implies Y for any interpretation of X" argument the existence of bottled water makes drinking of rainwater fall under federal control via the inter-state commerce act. It's kind of clever in one sense but pointless in another.

And if you don't think this is okay you sure spend a lot of time "explaining" it. We weren't having a cite contest but you sure tried to win, and in doing so you don't miss my point so much as you try to overrule it with precedent.

We wouldn't have a system of carefully enumerated powers if we really didn't care and they all just meant the same thing. In the end, yes, we still end up governed. But in the same way people dislike trusting a single company with all their services they dislike trusting a single governmental body with too much power. And the power we really can't let anyone have is the power to grant themselves more power. If there's a law, or combination of laws, that read that way, it's a bug not a feature.

I have a lot to say about it because I'm very interested in law, as well as theories and philosophy of law. I feel these offer some important context that is otherwise missing from these discussions, and that many people are unaware of. I'm not trying to swamp your point, though.

I too am interested in law, but more with anthropological curiosity. My thinking on governance is akin to the rape model though - all that matters is if they're currently saying "No".

It looked like you were just saying that eminent people (Jefferson) had once thought the courts too powerful among the branches of government and that this had bearing on this situation via some "requires the powers to enforce their mandate" argument.

Where were you going with it?

Oh, just pointing out that quite eminent historical personages had different opinions on the merits of judicial review, and that similar views still exist today, although they're in a minority. I think people are inclined to assume that The Way Things Are is much the same as How They're Supposed To Be, when in fact the country might have developed quite differently very easily, despite having started from the same constitutional beginning.

I've re-read your earlier post and I have to say that any view that requires the supreme court to enact laws they find outside the scope of the constitution is just baffling and tautologically wrong.

Marbury v. Madison didn't establish a power, it clarified the obvious. If the law oversteps the bounds of the constitution the court has no power to enforce it - their and congress' own power being derived from the constitution. Nobody can be ordered by law to do something beyond the scope of law.

But above and beyond that, "The judicial power of the United States shall be vested in [the supreme court]" is pretty clear - congress passes laws and the courts enforce them. If a single entity was desired, it'd have been specified.

It doesn't mean the SC is the final arbiter of constitutionality, the people are, but they certainly have the ability and duty to say no.

I don't subscribe to the view that the Supreme Court has to allow laws dramatically outside the constitution to stand; I said there exists such a school of thought with some influential members, whether I agree or not. The SC can't enact laws, that's what Congress does.

The Executive branch enforces the laws, per article II section 3 of the Constutition. The Judicial branch adjudicates disputes, it does not enforce anything.

The SC is the final arbiter of constitutionality - as Justice Robert Jackson said, it's not final because it's the SC, it's the SC because it's final.

Or the EFF, it's almost like little guy insurance

Yep. Donate to the EFF regularly. With all luck, you won't need their services; but in the rare case that you do, it's much better to have them still be around and well funded.

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