Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Wednesday, October 05, 2005

Martial law ghosts: Chiming benefits of uniform federal enforcement

Sometimes a question signals a sea change.

Chief Justice Roberts raised an interesting question apparently signaling a desire to have federal laws uniformly enforced.

The Supreme Court appears to be leaning toward endorsing martial law.

* * *

Judge Roberts today said something that made me wonder about "uniformity of federal enforcement":
"If one state can say it's legal for doctors to prescribe morphine to make people feel better, or to prescribe steroids for bodybuilding, doesn't that undermine the uniformity of the federal law and make enforcement impossible?" Ref.
Reading the tea leaves from the US Supreme Court is like tracking animals in the Sahara desert: You can go for miles thinking you're right on their tail, only to realize the animals have vanished, then reappear behind you, ready to pounce.

Despite the hazard of eying hot drinks in warm political climates, it appears Chief Justice Roberts' question signals he may be leaning with President: Federal oversight and involvement is not only justified, but it must be imposed, even if it overrules local interests.

* * *

The instant case is the Oregon assisted suicide law. As it stands, states care allowed exceptions to Federal law. We have no idea how the justices will rule, or whether the rules will be narrowly applied.

What struck me was the contrast between how Roberts appeared before the Senate Judiciary Committee, and how he's questioning counsel.

Before the committee, he tended to signal that he would narrowly apply the laws, and defer to the entities that are exerting private rights.

Specifically, Roberts at his confirmation hearing signaled that he was surprised when the Supreme Court permitted local officials to seize land for private purposes. Consistent federal policy would imply that the constitution and laws of the land would be uniformly applied in a constitutional way.

Roberts comments about the land seizure in Connecticut gave some hope that local homeowners could rely on the Supreme Court to ensure private property rights are respected, despite lawful seizures at the state level.

* * *

All that goes out the window. Roberts line of questioning could be a devil's advocate, but it was unusual to hear an emphatic line of questioning asserting the importance of uniform federal enforcement.

This is unusual in that generally there are a number of cases decided at the Appeals level that create real inconsistencies, and then the Supreme Court takes the cases to resolve the discrepancy.

Roberts appears to be doing the opposite: Taking a single case, using it as a litmus test for what may be exceptions going forward, and then prospectively closing those exceptions to federal authority.

That the line of questioning, not simply the facts of the case, puts a premium on prospectively ensuring that there is uniformity of enforcement.

* * *

Roberts approach appears to contradict what he said before the Committee. His line of questioning, if blindly applied to all cases, would be tantamount to policymaking, and it is not a case-deciding role which Roberts asserted before the Judiciary Committee.

Roberts also presented suggestions that he valued the right to privacy. If we were to rely soley on Roberts questions before the court, we might conclude that he places a premium on uniformity of the law, which may override a personal decision and wish at the state level.

One cannot have both a privacy right and a federal imposition of federal enforcement of those laws which may contradict the local sentiment on what is appropriate for the legislature to enact.

* * *

We've seen in the Katrina disaster than federal authority can break down, especially when the Federal government, apparently by design has shifted the resources elsewhere.

See the pattern? Federal government breaks the laws by unlawfully invading another country, then leaves a power vacuum, and room for more lawlessness to break out.

What's the solution: The federal government wants to provide federal assistance in the form of the military.

This can be a dangerous positive feedback: Where one bad trend is used as justification to continue doing what doesn't work.

* * *

We saw in the wake of Katrina and Iraq, federal involvement and intrusion may make things worse, further fueling the calls for greater federal intrusions.

Ideally, the nation needs to move in the direction of constitutional solutions, not self-evident chaos to justify martial law.

It appears the Supreme Court may fail to rise above the nexus and attach its chain to the Chief Executives absurd slide toward martial law and federal tyranny.

* * *

Going one step further in the wake of Katrina, it would not be surprising to hear that the Supreme Court defer to the President should Bush call for the "grave importance" of having local "pockets of disgruntlement" assigned the label as terrorists, or threats to the nation's security.

The Youngstown decision are the criteria for lawful Chief Executive actions during a time of war. This President has already shown he will lie to the Congress to justify a foreign adventure.

It remains to be seen whether Bush will lie once again to the Congress to exaggerate a domestic issue "warranting" federal involvement.

* * *

Recall the local response to the Patriot Act: Calls by local officials to not enforce the Patriot Act.

Roberts may be signaling to the President he will endorse Federal punishment on those municipalities which refuse to assent to unconstitutional acts of Congress.

* * *

The Civil War was over states rights: The power of the local officials to make decisions. Roberts line of questioning appears to turn this upside down and place premium on uniformity, and throwing out the intrinsic nuances that make each state unique.

These Supreme Court questions are rumblings of a desire for discipline, and prospective efforts to ensure there are uniform laws that are both enforced and applied in a consistent matter going forward.

* * *

There are four trends which suggest the nation is moving towards martial law:

  • 1. The desire to clamp down on domestic dissension as the Chief Executive scrambles for scapegoats;

  • 2. Law enforcement incompetence at the local level, compounded by requirements in Iraq, streteching first responders and local law enforcement at the national level;

  • 3. Using active duty military personnel to fill in the gaps of local law enforcement and first responders; and

  • 4. Calls to include military in relief efforts and medical epidemics.

    * * *

    Ideally, prudence asserts discipline on the Executive, not tyranny on the people -- the source of sovereignty.

    However, based solely on Roberts questions, Roberts could assert the importance of enforcing those laws, however unconstitutional, merely for the sake of consistency, not prudence.

    Material law could be couched as a federal interest, thereby sidestepping the issue of constitutionality.

    We've seen how quickly local situations can spiral out of control, and how quickly the nation is to defer complicated planning and responses to the military. This is a convenient, but dangerous habit.

    It is foreseeable that the United States could go down the path to martial law with full support of the highest court.

    The United States needs to reconstitute its forces; bring home the National Guard from Iraq; ensure there are credible local forces in place to respond to problems; and permit local elected officials to make informed legislative decisions.

    This appears unlikely, and the ghosts of 1860 are stirring in time for Halloween.