How American Government's Presumption Of Good Faith Among Opposing Parties May Yet Be Its Downfall

Sahil Kapur of TPM wrote the post that drove me to that thought:

This Supreme Court Case Could Upend The Separation Of Powers

Sahil Kapur – January 10, 2014, 6:00 AM EST

The Supreme Court is scheduled to hear oral arguments on Monday in a case with potentially dramatic long-term implications for the balance of power between the executive and legislative branches.

The legal question is whether the president may temporarily appoint people to staff executive branch agencies when Congress is not conducting business but also not technically in recess -- known as pro forma sessions. Noel Canning, a business based in Washington State, claims that actions taken against it by the National Labor Relations Board (NRLB) are invalid because they relied on the decisions of recess appointees to the board who were put in place during pro forma sessions.

A decision against the Obama administration "would overturn the long-settled understanding of the Recess Appointments Clause, upsetting the equilibrium between the political branches created by our Constitution's framers," said Elizabeth Wydra, the chief counsel for the Constitutional Accountability Center, a liberal legal advocacy group.

Wydra called the lawsuit "ahistorical and myopic."

...

It is a sign of the times we live in that a decision preserving the historical interpretation of a clause in the Constitution could be advocated by a "liberal legal advocacy group," while supposedly "conservative" elements propose to overturn that traditional interpretation. "War is peace. Freedom is slavery. Ignorance is strength" ... to which I suppose we may now add, "radicalism is conservatism."

Will this dog hunt?

US Supreme Court, 2013

There is an apparent assumption implicit in the crafting of America's Constitution that all parties are good-faith advocates for their positions and willing to abide by the legitimate result of the legal process. But in the American body politic, there is a kind of person who spends all of his (or occasionally her) efforts in attempts to game the system, sometimes with the apparent intention of tossing a spanner in the works. Unfortunately, some members of our current Supreme Court seem hellbent on assisting those individuals in matters of American government. For example, who would ever have thought up the chain of "reasoning" in Citizens United, were it not for Chief Justice John Roberts's hostility toward the framework of American government as observed by pretty much the whole political spectrum in America... until now?

Prior to the Roberts Court, prior to Citizens United, I'd have felt more confidence that such a decision as Noel Canning is seeking here would be outside the pale. But that was then, and this is now. Yes, this dog may hunt, the Roberts Court may be the hunter, and President Obama may be the prey it pursues.

Federal Judge Rules Nothing Can Possibly Challenge PATRIOT Act Section 215 — UPDATED 2x

Kevin Gosztola of FDL:

Judge Defends Government Secrecy & Dismisses ACLU Lawsuit Challenging NSA Surveillance Program

... Friday December 27, 2013

A federal judge on the United States District Court for the Southern District of New York has ruled in a lawsuit filed by the American Civil Liberties Union that the National Security Agency’s bulk data collection of Americans’ phone records is “lawful” and not unconstitutional.

The ruling comes just over a week after another federal judge ruled in a similar lawsuit that the surveillance program violates Americans’ privacy rights and James Madison, one of America’s founding fathers, would be “aghast” if he was alive to see this program.

Judge William H. Pauley, appointed by President Bill Clinton, did find that the ACLU had standing. The ACLU had not had been granted standing in its case against dragnet warrantless NSA surveillance before the Supreme Court and the lawsuit was dismissed. However, Pauley found that Congress had precluded challenges to the provision of the PATRIOT Act known as section 215, which the government has claimed grants the power to indiscriminately collect Americans’ phone records from telecommunications companies. He also did not find the constitutional claims argued by the ACLU had any merit.

“Allowing any challenge to a section 215 order by anyone other than a recipient would undermine the government’s vital interest in keeping the details of its metadata collection program secret,” he wrote in his decision. “It would also—because of the scope of the program—allow virtually any telephone subscriber to challenge a section 215 order.” Congress “intended to preclude statutory causes of action.”

...

[Bolds mine. - SB]

So a federal judge, a Bill Clinton appointee, has ruled that God can make a stone so heavy S/He cannot lift it Congress can pass a law whose constitutionality cannot be challenged by other branches of government through ordinary judicial processes.

This cannot end well. This cannot end with the survival, intact, of the Constitution of the United States of America.

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UPDATE: patrick devlin at FDL offers thoughts worthy of our attention, notwithstanding a few punctuation and syntax problems:

... a federal judge (appointed by Democratic president Bill Clinton), has established as federal case law that citizens cannot have privacy in their associations and communications under American law and have no right to challenge what the US government has acknowledged is complete and continuous spying within the US court system.

Furthermore, the judge declared that the personal communications of Americans and the citizens of other countries, even as these communications are the physical expressions that reveal the personal cogitative energies carried out by individual humans – the thoughts that are our own and that we understand to be ‘self-expressions’, are in fact not “owned” by us (the expressing individuals) but, are rather the personal possessions of the data service and communications businesses upon whose equipment we hire to deliver our personal ideas and expressions through. As in: the above 2 sentences are the personal possession of the dizzying array of owners, renters, users, firewall builders, server operators and data transmitting and information storing entities who may desire to lay claim to the above two comma laden attempts at cogitation&communication (& this one, too).

...

As inheritors of the Bill of Rights and the US Constitution, we can rest easy because all of this personal rights subversion and annihilation is being carried out as a “counter punch” [ed. note: the judge's words, not devlin's] by our protecting homeland security operatives against the “al-Qaeda’s terror network,” ...

Further, and most importantly as it coagulates our proctors’ in big business, our elected leaders and now the court system, vision of a new American philosophy of freedom, we must understand and accept the notion that;

Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law…the success of one helps protect the other. Like the 9/11 Commission observed: The choice between liberty and security is a false one, as nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil.

One may ask if Pauley’s ruling is not itself the creation of case law that pours poison on the soil of American democracy and its citizens’ rights in an effort to render that fertile ground permanently barren; ...

...

Yes, it's a "counter punch," all right...

... though a head might be a better emblem than a fist.

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UPDATE: emptywheel is also worth reading on the subject.