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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, January 29, 2019

Constitutional Duty Without Courts

Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.
Justice Kennedy* saying this in his concurrence to Trump v. Hawaii (the travel ban case) is rightly sneered at but I hold to my remarks posted in response to a blog post. Ditto the reply, which seems to skip over the part where I'm not defending Kennedy and in fact added with emphasis that he was a bad messenger.  Why?  Well, a key part is that the message works a lot better when you do the job in clear cases.  I repeat:
Kennedy's concurrence matters to executive officials who give a shit.

The sanity in exile brigade -- see various former government officials on Twitter -- repeatedly cite how back in the day (pre-Trump Administration) some relevant agency had rules they followed that provided some limits and fair practices. Sham prevention.

The Constitution tends to be under-enforced especially since stuff isn't reviewed in the courts, it takes a long time when it is or some presumption of constitutionality often hides illicit behavior. Kennedy's preaching there is relevant.

But, judges also have a duty to deal with clear error.  Failed here.
Kennedy over the years has been pretentious in his civics lecturing, but the response upset about that ... was he upset when Brennan did it?  Judges repeatedly use separate opinions in particular to send messages.  "Talk is cheap."  Yeah.  Again, they "failed here."  Preaching about how officials have an independent responsibility that is and should be honored even when judges have a hands off policy works better when they do their jobs. It's a presumption of constitutionality.  It's a quid pro quo, so to speak. The concurrence itself leaves open further review of specific cases.

People inclined to follow his message know it already. Eh. I have repeatedly seen people focus on the courts alone to protect our rights as if a loss in court ends the matter, the rest just policy.  And, these remarks are partially meant for the general public in some fashion.  No one really is listening? Fine. Don't quote opinions of judges you like either then.

Anyway, it isn't black/white.  It is a continual complicated process and in our system there are loads of interrelated parts involved. The basic presumption of constitutionality principle entrusts democracy as a whole with its various parts (toss in the media, private organizations and so on) to protect our liberty as a whole.  We trust the responsibility of public personnell here, something to think about (over drinking beer or how you want to say "fu" to the man) at election time. The matter is especially such in special areas like presidential control of foreign policy or agencies.  Special red flags like animus [a Kennedy special] and violation of normal process are in place. And, other things, see various arguments over judicial review.

The core problem here is that TRUMP is the person ultimately involved here. Just look at the very caption.  That preaching is only so useful here, even if ultimately he isn't the one carrying out this policy. But, as the blog post referenced shows, that hasn't gone that well either.  It's like telling someone to be calm when they are yelling "fire" when the room is burning.

There is some truth there though.  This includes in local legislatures while the Supreme Court handles various constitutional things somewhat badly.

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* With Kavanaugh and all, one can imagine the general feeling about Kennedy in general at a liberal leaning blog, thus the overcompensation that leads to the unpleasant desire to defend the guy.  This is especially seen when people take potshots at his gay/lesbian jurisprudence, down to being mad that same sex marriage wasn't applied to the country at large quick enough and/or with a broad enough opinion. These types would have wanted Loving v. Virginia to be decided in the mid-1950s. 

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