Friday, December 22, 2017

Dangerous Myth

In Marbury v. Madison, Chief Justice Marshall warned

The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.

Over the decades, we have self-righteously quoted the first half of Marshall's statement without the second half. The theory that ours is a government of laws and not of people has become a cliche in recent decades, assumed without proof. It was incorporated into the Massachusetts constitution in 1780 and asserted approvingly by the Chief Justice of the US Supreme Court in 1803, its dominance evidently not to be questioned.

However, while quoting Marshall, Katrina vandenHeuvel in March 2013 wrote

First, the attorney general responded to Senator Rand Paul’s inquiry as to whether the president claimed the “power to authorize a lethal force, such as a drone strike, against a US citizen on US soil and without trial.” After noting that the United States has never done so and has no intention of doing so, Holder wrote that, speaking hypothetically, it is “possible to imagine” an extraordinary circumstance in which that power might become “necessary and appropriate.”

But the reassuring, self-satisfying idea that the USA has a government dominated by law is now being sorely tested, and will be increasingly the next few years. The results, so far, are less than persuasive. In a case (video from nine months ago) in which the Justice Department successfuly argued that the plaintiffs lacked standing to sue

A federal judge on Thursday dismissed a pair of lawsuits claiming that President Donald Trump’s failure to divest himself of his real estate empire and other business holdings violated the Constitution’s provision banning receipt of foreign “emoluments” while in public office.

U.S. District Court Judge George Daniels ruled that the two suits were fatally flawed because the plaintiffs failed to show injury directly related to the use of Trump’s properties by foreign officials and governments....

“As the only political branch with the power to consent to violations of the Foreign Emoluments Clause, Congress is the appropriate body to determine whether, and to what extent, Defendant’s conduct unlawfully infringes on that power,” the judge wrote. “If Congress determines that an infringement has occurred, it is up to Congress to decide whether to challenge or acquiesce to Defendant’s conduct. As such, this case presents a non-justiciable political question.”

One of the cases dismissed Thursday was filed by Citizens for Responsibility and Ethics in Washington, or CREW, along with a group of employees and owners of hospitality businesses like restaurant and hotels. The other suit, brought as a class action on behalf of members of the public, was filed by an individual New York attorney, William Weinstein.

This is rich:

“It is wholly speculative whether the Hospitality Plaintiffs’ loss of business is fairly traceable to Defendant’s ‘incentives’ or instead results from government officials’ independent desire to patronize Defendant’s businesses,” the judge wrote. “Even before Defendant took office, he had amassed wealth and fame and was competing against the Hospitality Plaintiffs in the restaurant and hotel business. It is only natural that interest in his properties has generally increased since he became President.”

Excuse me for being impertinent but.... why is it "only natural that interest in his properties has generally increased?" It would be "only natural" if the plaintiffs' loss of business were in fact traceable to President Trump's 'incentives.'  Daniels' reasoning is self-contradictory.

This Judge who leaned over backwards to rule in favor of the President of the United States of America was appointed to a court in New York City by Democratic mayor Koch, reappointed by Democratic mayor Dinkins, elected to the NYS Supreme Court, and appointed a federal judge by President Clinton.

Judge Daniels appears to be a Democrat, and he has struck a blow on behalf Donald J. Trump. He has added to the appearance of a nation of men and not of laws, that a guy can sell his office and set his nation up to be bribed because he is President of the United States of America, (formerly) leader of the free world, and a guy who knows where the bodies are buried.

Stalling is a valuable tactic when ruling in a government of men and not of laws.  The Administration evidently still has not imposed the relatively stringent sanctions against Russia legislated by Congress, previously a "co-equal" branch of the federal government. Shortly before the regime gave to legislators a list which The New York Times observed "appeared to be an attempt to mollify critics," Florida Senator Rubio had remarked "We passed the law. They should execute it. They say they are struggling to identify the companies to sanction. My answer is, sanction the ones you already know and keep adding to the list.” 

This is only going to get worse as the Mueller investigation proceeds, and as a decision ultimately must be made whether to prosecute President Trump for crimes revealed. Expect Donald Trump, much more subtly but as a soulless creature, to respond with "You and whose army?"

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