Wednesday, August 23, 2006

A Harpy Unto Herself

Ann Althouse pretends to be a "serious person" in a N.Y. Times Op/Ed. Reacting to the ACLU v. NSA lawsuit, she opines:
Laypeople consuming early news reports may well have thought, “What a courageous judge!” and “It’s a good thing someone finally said that the president is not above the law.” Look at that juicy quotation from Judge Taylor’s ruling: “There are no hereditary kings in America and no powers not created by the Constitution.”

But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity....

Althouse forgets this pithy phrase: "L’État, c’est moi".

... (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution....

Of course not. He wouldn't. We're claiming that.

... He isn’t arguing that he’s above the law....

Well, outside of the fact that he says he's acting contrary to the requirements of the FISA law ... Hey, waiddaminnit: He's been issuing "signing statements" left and right as well!

... He’s making an aggressive argument about the scope of his power under the law.

Under what law? That's the nub of the problem, and one that Althouse wants so desperately to skirt.

It is a serious argument, and judges need to take it seriously....

And then dismiss it. With prejudice.

... If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?

Bit of circular reasoning there: He's legit because his lawyers tell him he's legit? Bet that works dandy for the mob, ya think? Why should his view prevail, Althouse asks. Because he has the army? I suggested this in ConLaw class once, and Prof. Choper said that was a topic for a different class (PolySci perhaps? World History?); in ConLaw, we are supposed to decide things in the usual fashion. But despite Althouse's radicalism about who gets to decide in the end on matters of law here, she goes on to exalt our traditional notions of what role the judiciary should play:
This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.
What a steaming pile of ... arrant nonsense. There's no Constitutional requirement that judges "restrict[] them[selves] to resolving concrete controversies and requir[ing] them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law". She just made that up (but there is a Constitutional requirement that the president "take care that the laws be faithfully executed"). If we decided tomorrow to abolish stare decisis, there would be no Constitutional prohibition on such. Our notion of "controversies" is also pliable; certainly not laid out in concrete in the Constitution.

Althouse thinks that judges can do what they do as long as they behave themselves. Their job is not a responsibility but a privilege. But Althouse doesn't show that Taylor violated any such notions of 'good behaviour'. Althouse simply disagrees with her decision.
This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury.
Althouse carefully omits the fact that the gummint has gone out of their way to prevent anyone from demonstrating standing to complain about Dubya's spying program. They have invoked the "state secret" privilege to say they won't even admit who they're spying on. I wonder if Althouse approves of this privilege being invoked to deny poor Khaled el-Masri his day in court as well. "Rendition"? Well, Khaled, sorry it happened to you and all, but in our Great War On Terra, a few eggs are going to have to be cracked, and we can't even admit this simple fact and pay up when we've screwed the pooch because that would mean the Terra-ists are winning....

Althouse finishes with this fine flourish:
If the judge’s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.

There’s irony for you.

There's stoopidity for you. Althouse's 'logic' here is that if (assuming arguendo here) Taylor's opinion is wrong (or even just poorly stated) on certain specific issues, then, ipso facto, Dubya's views must all be right.


At 8:16 AM, Anonymous Realist said...

we ought to wonder why a court gets to decide what the law is and not the president

Tell me a lawyer - even worse, a law professor - didn't really say that.


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