What is “standing”? Here is how FindLaw defines the term.

standing adj
: continuing in existence, use, or effect indefinitely [a order]
n 1 : the status of being qualified to assert or enforce legal rights or duties in a judicial forum because one has a sufficient and protectable interest in the outcome of a justiciable controversy and usually has suffered or is threatened with actual injury [only one who already has can argue the public interest in support of his claim "Hawaii's Thousand Friends v. Anderson, 768 P.2d 1293 (1989)"]
2 : a principle requiring that a party have standing in order to justify the exercise of the court’s remedial powers

Consider this excerpt from the definition at Cornell University Law School website.

At the heart of these statutes is the requirement that plaintiffs have sustained or will sustain direct injury or harm and that this harm is redressable.

At the Federal level, legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law. Federal courts only have constitutional authority to resolve actual disputes (see Case or Controversy). Only those with enough direct stake in an action or law have “standing” to challenge it. (from here)

Why are the terms “case” and ”controversy” relevant?

The provisions of the U.S. Constitution setting out the powers of the Federal judiciary, define those powers in using two different but related words “cases” and “controversies”. See U.S Constitution, Article III, section 2. In framing judicial authority these words also represent limits. The Federal Courts do not, under Article III, have the power to resolve legal questions that do not arise out of an actual dispute between real parties. (from here)

Therefore, before a Federal Court will hear any suit (particularly against the government), the plaintiff must define a controversy and show they have a stake in the outcome.

Thus, the question arises. In the case that is the subject of JUDGE’S RULING BLOCKS INDEFINITE MILITARY DETENTION, what was the controversy, and what was the plaintiffs stake in the outcome? The case relates to the National Defense Authorization Act for Fiscal Year 2012. Here is Wikipedia’s description of the controversy.

The most controversial provisions to receive wide attention are contained in Title X, Subtitle D, entitled “Counter-Terrorism.” In particular, sub-sections 1021 and 1022, which deal with detention of persons the government suspects of involvement in terrorism, have generated controversy as to their legal meaning and their potential implications for abuse of Presidential authority. Although the White House and Senate sponsors maintain that the Authorization for Use of Military Force (AUMF) already grants presidential authority for indefinite detention, the Act states that Congress “affirms” this authority and makes specific provisions as to the exercise of that authority. The detention provisions of the Act have received critical attention by, among others, the American Civil Liberties Union (ACLU), the Bill of Rights Defense Committee, and some media sources which are concerned about the scope of the President’s authority, including contentions that those whom they claim may be held indefinitely could include U.S. citizens arrested on American soil, including arrests by members of the Armed Forces. (from here)

As a result of the provision for indefinite military detention, some folks filed a lawsuit.

Weeks after Obama signed the law, Pulitzer Prize-winning journalist Chris Hedges filed a lawsuit against its so-called “Homeland Battlefield” provisions. Several prominent activists, scholars and politicians subsequently joined the suit, including Pentagon Papers whistle-blower Daniel Ellsberg; Massachusetts Institute of Technology professor Noam Chomsky; Icelandic parliamentarian Birgitta Jonsdottir; Kai Wargalla, an organizer from Occupy London; and Alexa O’Brien, an organizer for the New York-based activist group U.S. Day of Rage. (from here)

Do these folks have legal standing? The government said no. Here is an excerpt from the judge’s decision (Case 1:12-cv-00331-KBF Document 36 Filed 05/16/12).

The Government opposes plaintiffs’ request for preliminary injunctive relief on three bases: first, that plaintiffs lack standing; second, that even if they have standing, they have failed to demonstrate an imminent threat requiring preliminary relief; and finally, through a series of arguments that counter plaintiffs’ substantive constitutional challenges, that Section 1021 of the NDAA is simply an “affirmation” or “reaffirmation” of the authority conferred by the 2001 Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (Sept. 18, 2011) (the “AUMF”), passed in the wake of September 11, 2001.

In essence, the Government argues that as an “affirmation” of the AUMF, § 1021 of the NDAA does nothing new; and therefore, since the type of activities in which plaintiffs are engaged were not subject to legal action under the AUMF, there is no reasonable basis for plaintiffs to assert that § 1021 could suddenly subject them to governmental action now. (from here)

The judge rejected the government’s argument. That rejection began with the assertion that NDAA is nothing new. The judge expressed a particular concern.

Even if, however, § 1021 does convey some authority not provided under the AUMF, the equities nonetheless tip strongly in favor of enjoining its enforcement. The Government was given a number of opportunities at the hearing and in its briefs to state unambiguously that the type of expressive and associational activities engaged in by plaintiffs–or others–are not within § 1021. It did not. This Court therefore must credit the chilling impact on First Amendment rights as reasonable–and real. (from here)

Here is an example from the judge’s decision.

For instance, Hedges has testified that he is currently concerned about associating with certain individuals and in fact has now removed himself from certain situations in the course of his professional activities because of that concern. In addition, given his prior journalistic activities relating to certain organizations such as al-Qaeda and the Taliban, as well as others that are denominated terrorist organizations by the U.S. State Department (e.g., associating with these individuals in these groups as part of his investigative work, reporting on the groups in the press), he has a realistic fear that those activities will subject him to detention under § 1021. That fear cannot be said to be ill-founded when, at the injunction hearing itself, the Government was unwilling to commit that such conduct does not fall within § 1021’s ambit. (from here)

Anyway, since the government’s main argument is that the plaintiffs lack standing, much of the judge’s decision revolves around that subject. Hence, if the case is thrown out on appeal, in all likelihood the appeals court will have decided the plaintiffs lack standing, but I hope that is not the case. In a case like this, I do not think the court should make it inordinately difficult to establish standing.

Consider the opportunities for abuse provided by indefinite military detention. Because the Founders abhorred the idea, Article 1, Section 9, Clause 2 of the Constitution states the following.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. (from here)

Are we experiencing a Rebellion or an Invasion? No, but our government still proposes to detain Americans without trial, effectively suspending the 5th Amendment. Undoubtedly, the government would have preferred that the first test of this law had been in its use against legitimate enemies. That would have given government attorneys the opportunity to use the fear and disgust we feel toward those enemies as justification, enabling the establishment of a precedent. Once established, that precedent would have become ever more difficult to overturn. Thus, we should be thankful we can test the constitutionality of this law in court before our government attempts to apply it.

• Judge Blocks Portion of NDAA at truthdig.com
• Military Detention Law Blocked by New York Judge at Bloomberg
• Federal court enjoins NDAA at Salon.com

It seems that at least some of our judges do not think our government has the right to detain someone just on a vague suspicion that includes the word “terrorist”.

So it is that Delegate Bob Marshall wants to thank you.

Thank You for Joining Me in the Fight For Liberty!

Dear Fellow Patriot,

I am delighted to report that yesterday afternoon a judge in New York issued a preliminary injunction barring the federal government from indefinitely detaining American citizens without trial, just for being considered a “covered person” under a deliberately vague law that President Obama signed December 31, 2011.  The challenge had been filed by Chris Hedges, an internationally known journalist.

As you may know, during the last legislative term, I was the chief patron of a law that was overwhelmingly passed by the General Assembly prohibiting employees of Virginia agencies from participating in detentions under the 2012 National Defense Authorization Act (“NDAA”).  To pass that law we had to stand against an attack by high officials in the Bush Administration like former head of Homeland Security Michael Chertoff who now has a lucrative career peddling fear and selling security services to governments, including going on television lobbying demanding the government buy full body scanners.

Virginia’s law was the first law in the nation where a state stood up to this unconstitutional law and refused to participate.  The law we passed in Virginia has led to state legislators in other states taking similar action.  It has even helped force Congress to take a second look at this terrible law.

Then, on April 16, I led a diverse group of 19 elected officials, both conservative and liberal organizations, and individuals in submitting the only  “friend of the court” brief in the New York litigation urging that the preliminary injunction be issued.  You may read the brief here.

District Court Judge Katharine Forest noted in her decision that, “There is a strong public opinion in protecting rights guaranteed by the First Amendment.”  Indeed!   She refused to accept the Government’s argument that the new law added no new powers to detain U.S. Citizens, and she would not entrust the government with such a power.

This is a most gratifying development, as it demonstrates the legitimacy and credibility of the Constitutional position which I advanced before the General Assembly.

Our Virginia NDAA law did not come easily, and we had the support of thousands of I would like to thank every citizen and organization that joined me in leading the fight against the unconstitutional detention of American citizens in Virginia.

I would also like to thank the Members of the legislature in both parties who stood up in a bi-partisan manner for a principle that goes back to the very founding of our nation.  It is truly rewarding to see the Commonwealth of Virginia take the lead and set the example for our sister states and to remind the federal government that we the people are sovereign.

The battle is far from over, but we are heartened by these encouraging, new developments.

Gratefully,

Bob Marshall
Republican Candidate for U.S. Senate
http://bobmarshall2012.com
Donate Today to Help Bob Win!

Who was David Starr Jordan? He was a political activist that I suppose did more good than harm. Although I don’t know how much we would have agreed, I do like his observation on the relationship between wisdom and virtue. It makes clear that whereas wisdom requires understanding, virtue requires courage and perseverance.

In our era I fear we have too little understanding of either wisdom or virtue. The understanding required for wisdom involves religious instruction, and that is now rare. The courage and perseverance needed to be virtuous too many have set aside as something other people do. Instead, we substitute momentary pleasure for virtue. So even as we speak our society is teetering, threatening to collapse into rubble.

Perhaps that is why Judge Napolitano wrote What if government rejects the Constitution?

What if the government never took the Constitution seriously? What if the same generation – in some cases, the same individuals – who wrote in the First Amendment, “Congress shall make no law … abridging the freedom of speech,” also enacted the Alien and Sedition Acts, which made it a crime to criticize the government? What if the feds don’t regard the Constitution as the supreme law of the land?

What if the government regards the Constitution as merely a guideline to be referred to from time to time, or a myth to be foisted upon the voters, but not as a historic delegation of power that lawfully limits the federal government? What if Congress knows that most of what it regulates puts it outside the confines of the Constitution, but it does whatever it can get away with? What if the feds don’t think that the Constitution was written to keep them off the people’s backs? (continued here)

Napolitano asks many questions, but his editorial does not suggest a solution.  So what is the solution? We The People have to work to understand the choice we are making. We must gain the wisdom to understand the distinctions between the alternatives, and we must choose courageously and persevere in our choice.

In his latest book, Ameritopia, Mark R. Levin considers what the Founding Fathers understood about government. By reviewing what they had read before the American Revolution, Levin helps us to understand the choice we must make today. Here is an excerpt.

Montesquieu wrote of the nature of governments. “There are three kinds of governments: the republican, the monarchical, the despotic. To discover the nature of each, the idea of them held by the least educated of men is sufficient. I assume three definitions, or rather three facts: one, republican government is that in which the people as a body, or only a part of the people, have sovereign power; monarchical government is that in which one alone governs, but by fixed and established laws; whereas, in despotic government, one alone, without law and without rule, draws everyone along by his will and caprices” (1, 1, 2). In republican government, Montesquieu explains, the people must be able to vote in elections. “A people having sovereign power should do for itself all that it can do well, and what it cannot do, it must do through ministers. Ministers do not belong to the people unless the people name them; therefore, it is a fundamental maxim of this government that the people should their ministers, that is, their magistrates” (1, 2, 1).

Montesquieu points out, “There is this difference between the nature of the government and its principle: its nature is that which makes it what it is, and its principle, that which makes it act. The one is its particular structure, and the other the human passions which set it in motion” (1, 3, 1). He explains, “There need not be much integrity for a monarchical or despotic government to maintain or sustain itself. The force of laws in one and the prince’s ever-raised arm in the other can rule or contain the whole.” As for republican government, Montesquieu asserts that “in a popular state there must be an additional spring, which is Virtue. What I say is confirmed by the entire body of history and is quite in conformity with the nature of things. For it is clear that less virtue is needed in a monarchy, where the one who sees to the execution of the laws feels that he is subject to them himself and that he will bear their weight….But in a popular government when the laws have ceased to be executed, as this can come only from the corruption of the republic, the state is already lost” (1, 3, 3). In a despotic government, “virtue is not at all necessary to it” (1, 3, 8).

In fact, from another translation, I found that Montesquieu put it succinctly this way.

As virtue is necessary in a republic, and in a monarchy honor, so fear is necessary in a despotic government: with regard to virtue, there is no occasion for it, and honor would be extremely dangerous. (from here: 1, 3, 8).

Is our republic already irreversibly corrupt? Because instruction in religion is not permitted, virtue is not something we can readily learn about in the public school system. Nonetheless, if our republic is to continue – and for sake of our immortal souls — we must learn that which enabled the people who founded this nation to be virtuous.

Apoplectic Left

April 2, 2012

Dear Fellow Virginians,

There are many things that I would like to address regarding the health care case.  Today, I’ll address two unrelated aspects of the case.  First, the apoplexy of the left regarding the performance of their legal team; and second, a different perspective on the consequences for the Supreme Court itself if it upholds the mandate as constitutional.

Apoplectic

While the limited-government, constitutionalist side of this week’s legal conflict is happier today than we were last week, as you might expect, the opposite is true on the big government side.

Mere ‘unhappiness’ doesn’t seem to properly describe their reaction… I definitely think ‘apoplectic’ describes it better.

The professional and unprofessional left has been dumping on their lawyers – especially Solicitor General Verilli.  Blame for their bad week is being dumped overwhelmingly, nearly exclusively, on the federal government’s alleged poor legal performance.

That’s flat out baloney.

The best lawyer in the world can’t win a lousy case.  Put differently, it’s tough to win a hand of poker when you’re dealt a 2, 3, 4, 5, and 7.

From the very beginning of this case on March 23, 2010, the professoriate, media, and political left established completely unreasonable expectations regarding the outcome.  As recently as this past week – after the hearings – I did a media appearance with Democratic Attorney General Doug Gansler of Maryland.  With a straight face he declared ‘this case should be 9-0.’  Of course I agreed, but acknowledged that his 9-0 was probably different from mine…

I have never expressed more confidence than to say that I am cautiously optimistic that the individual mandate will be found unconstitutional.  Though my optimism has increased since I attended the hearings last week…

Now that the liberal professoriate etc. has spent two years convincing themselves that they should never lose, their reaction to the possibility of actually losing has been explosive and nasty.  While taking the usual shots at those of us that have led the efforts to protect the U.S. Constitution from this federal health care law, they have also turned viciously on their own.

Bearing the brunt of the assault is Solicitor General Verilli (SG) – the lawyer for the federal government tasked with defending the constitutionality of the individual mandate.  He was definitely outshone by Paul Clement for the states, but frankly, anyone would be outshone by Paul – he’s that good.

But the SG’s main problem was not Paul Clement, it was his own case.  Remember what I said above about winning a poker hand starting with a 2, 3, 4, 5, and 7?  That was what the SG was called on to do in this case.

How bad is it?  Mother Jones is one of the most reliable far left blogs out there, and here’s what they had to say:

“Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.”

And after all of their teeth gnashing and rending of garments, they concluded: “If the law is upheld, it will be in spite of Verrilli’s performance, not because of it.”

Now, as a general matter, I am not one to defend my opponent’s lawyer, but the obstinate refusal of the insular left to accept that they had a bad case from the beginning, i.e., that the law was wholly unprecedented and likely unconstitutional, is almost breathtaking.  Their cruel willingness to rhetorically put the SG’s head on a post just to avoid blaming those that actually brought America this unconstitutional monstrosity (and to avoid admitting that they were wrong themselves), is sad and pathetic.

It is still not clear whether the mandate will be found unconstitutional or not, but this chapter in the left’s vicious cannibalism should serve as a lesson to America of how close-minded and insular the left really is.  And more than that, it’s a lesson of just how committed to government control of everything they really are, as they simply won’t allow that any other course is even worth contemplating.

Wow.  Ouch.

Marbury vs. Madison and this Case

For those of you that don’t remember Marbury vs. Madison, don’t worry, you didn’t miss something in the newspaper, Marbury was decided in 1803.  It is considered the landmark case in the history of the Supreme Court, as it is the case that definitively established the concept of what’s called “judicial review.”  Judicial review simply means that the courts are the final decider of what the law is, including the Constitution.

The Supreme Court declaring itself as the final arbiter of the Constitution was a controversial position at the time – even though it was a unanimous decision (4-0).  It has historically been seen as a very clever maneuver by Chief Justice Marshall to solidify the Court’s position and power.

The reason I bring it up now, is that it has occurred to me that a certain degree of the Court’s own power is at stake in the health care case.

How?

Well, I’ll tell you…

If the Court rules that the mandate is constitutional, then Congress in particular — and to a lesser extent, the Office of the President — will suddenly be a lot more powerful in our constitutional system.  Put differently, the balance of power between the three branches of our federal government will noticeably shift.

Congress will gain the most power among the three branches, the Presidency will gain, too, but not nearly as much as the Congress.  Those gains in authority will come entirely at the expense of the Courts.

Why?

Well, I’ll tell you that, too…

If Congress’ power under the Commerce Clause is so broad that Congress (with the concurrence of the president) can order citizens into commerce in order to regulate those citizens, that would represent a massive increase in the recognized breadth of the Commerce Clause, and therefore of the power of Congress and the president.

Remember Justice Kennedy’s first question to the SG on Tuesday: “Can you order people into commerce in order to regulate them?”  For the mandate to be constitutional, the answer to that question would have to be ‘yes.’  And reflecting a different comment by Justice Kennedy, this would represent a fundamental shift in the relationship between the government and the citizens – massively increasing the power of government at the expense of citizens’ liberty.

So, one consequence of a finding by the Supreme Court that the mandate is constitutional will be that the Court will have much less need to review federal legislation in order to judge such legislation’s constitutionality.  The reason for this is that the legal theory supporting a finding that the mandate is constitutional is so sweeping, that there won’t be nearly as many questions in the future as to whether or not a particular piece of federal legislation is constitutional or not, as so much of it will fit comfortably within the new outer limits of the Commerce Clause.

Put another way, if the mandate is constitutional, the outer boundary of Congress’ power would be so broad, that it would be ridiculously simple to draft laws that fit easily within that boundary, even though such laws might appear to be very far-reaching by any previous constitutional standards.  And because so much more federal power would fit within the new outer boundary of the Commerce Clause, there just wouldn’t be as much cause for the Court to review federal laws for constitutionality as in the past, as it would almost be hard to draft a law that was a close call by the potential ‘new’ outer limit of commerce clause power.

Those are my health care litigation thoughts for the day!  I hope you had a great weekend.

Happy Holy Week!

Sincerely,

Ken Cuccinelli, II
Attorney General of Virginia

I have only one small point of disagreement. Initially, Congress will grow more powerful, but the devil resides in the details. When Congress passed the Affordable Health Care Act, they left a great deal of discretion to the Executive Branch. Therefore, the implementation of the health care will allow the Executive Branch to pick arbitrarily winners and losers. That includes which congressional districts win and which congressional districts lose.

In addition, because of its rabid partisanship, Congress is not defending its powers. With the appointment of Czars, our president can even bypass congressional approval of his appointments.

Congress is committing suicide and taking our freedom with it.

Reblogged from altruistico:

I found this post via My Blog (here), and I think it provides an excellent explanation of why Christians must involve themselves in politics. How we do it is up to each of us. What we must remember is that God gave us each gifts, and He expects us to seek His guidance to use those gifts.