Right. And the Executive Branch may request an opinion regarding legality of a law from the US Supreme Court? Correct?
That's at least how it works in many countries in Europe. When the President or the Government is not sure if a law follows the Constitution, they request the Supreme Court to rule on it. It's a non-binding request. The Highest Court may or may not care to investigate. The petition is to ask the Government to ask the Supreme Court to look into the matter.
There's no formal procedure for this. Remember, the US Constitution is now the oldest constitution still in use. When it was created, the concept of judicial review wasn't really a thing. It wasn't until 15 years later, in the court case Marbury v Madison, that the precedent for a court ruling a law unconstitutional was established. The Supreme Court just sort of gave themselves that power and everyone else agreed to let them. It was never written down anywhere. The European countries already had seen this when they were rewriting their constitutions, so they have the concept baked in to the legal system.
> And the Executive Branch may request an opinion regarding legality of a law from the US Supreme Court? Correct?
Not directly, no. Article III of the US Constitution only authorizes the federal courts to hear "cases and controversies." That means so-called "advisory" opinions are not allowed by any federal court, including the Supreme Court.
Thus, as far as I know, there is no procedure for either Congress or the Executive Branch to request an opinion on the constitutionality of a law from the Supreme Court. Instead, a plaintiff with standing must file suit alleging harm by the law. That's the "case or controversy" requirement.
Federal courts is a complicated and dry topic, so this is a broad (and somewhat inaccurate) description. If you'd like to learn more, I recommend the book "Federal Jurisdiction" by Erwin Chermerinsky.
Interesting. And thank you very much for taking your time to explain.
I'm a layman here, but that seems a bit awkward to me.
Let' say the Congress votes into the law and the President signs a bill suspending civil rights, let's say for blacks. The same purely hypothetical law would require to put them in the concentration camps.
Will the Supreme Court just sit on its hands wait and watch? Or am I missing something in the picture?
In your hypothetical, yes, the Supreme Court can do nothing to stop this law until one of the (many) people harmed by this law brings suit in federal court.
You're right, it is a bit awkward. And I'm sure we could debate the merits of whether such a system is a good thing as a matter of policy.
But the "case or controversy" requirement is written in the Constitution, so it is probably here to stay.
1. You can't petition the SCOTUS through the Executive branch, which is what whitehose.gov is.
2. If you want SCOTUS to do something, lobby Big Business or your representative to file suit directly with the SCOTUS with the US government as the named party and attempt to get a writ of certiorari granted with original jurisdiction.
3. Hope, pray or do whatever you think will help to get the Supreme Court to hold a hearing sua sponte. In such a case, SCOTUS takes it upon themselves to start what amounts to a bench trial. However I'm fairly certain that they cannot do this without setting a whole lot of new precedence which they aren't typically keen on doing
can executive branch "ask" the Supreme Court just to confirm legality of a law? I know that's the case in many other countries, where the other branches of the government may ask the supreme court to rule on legality of a law. Isn't it the same in the US?
The petition states: WE PETITION THE OBAMA ADMINISTRATION TO:
Request The Supreme Court to Rule on the Constitutionality of the Patriot Act.
Of course. And I'm not that naive to believe otherwise. But that's not the point. The point is to have the petition signed by 100k people and have the Government to say in open they are not willing to request the Supreme Court to rule on it.
They will have to say why.
They make our lives difficult, the point is to make theirs difficult too. Let them worry after we go through the process. Let them tell more lies. Let this resonate with the media and lawyers and so on. Let them piss of more people.
The enumerated powers of the executive does not allow the President to refers matters to SCOTUS. They can refer matters to Congress, committee, and agencies but not directly to the judiciary. This is [probably] one of the numerous checks to prevent cross branch manipulation since judges are often political appointees and not elected -- At the supreme court level they always are.
However, SCOTUS can issue subpoena which can force (albeit with no enforcement) the executive to produce documents[1]
The only instance in which I can imaging President Obama getting this before SCOTUS at, essentially, his own behest is to have DoJ bring suit against this program. Because it's a law from the Legislative branch he can challenge it's constitutionality...but I doubt that's a risk they want to take
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1: See the Arron Burr treason trial in which he asked for and was granted a subpoena duces tecum for Jefferson's private letters. This actually set a nice precedent as far as the NSA matter is concerned...This was under the Marshall court (for background, Marshall really really didn't like Jefferson) and in the majority opinion Marshall stated whether or not secrecy of content in a document impacts national safety is up for the Court not the President to decide. How accepted this is nowadays us not something I can answer.
Thank you very much for your reply. I think this answers it fully.
So, could I petition them to ask for opinion Congress Judiciary Committee?
I'm desperate for finding a way to make them state aloud that the Patriot Act is not breaking the Constitution.
The law is there. It is bad. Most probably unconstitutional. How do I petition them to make them state in some way constitutionality of the Patriot Act?
Whether they claim it is constitutional or not is not that important as imposing more political pressure on them. Let them lie more, make more people angry, etc.
Well here's the thing, the SCOTUS can say "Hey, that's illegal!" but they have no enforcement powers. Public Safety (read: police / military) is under the purview of the executive and legislature, which is the only real way to enforce things[1]. If they want, both other branches can effectively ignore anything that comes out of the judiciary. In this case, this particular activity was ruled unconstitutional (Fourth and Fifth Amendment protections) back in 2011.
No, it cannot - Federal Courts do not issue advisory opinions. To attain standing there must be a specific act that has taken place (or will imminently occur) that affects the interests of a party seeking to challenge the law. This is the so-called "case or controversy" requirement. See Chisholm v. Georgia, 2 U.S. 419 (1793).
The first question will be which American citizen was harmed, and what was the harm.
This will be extremely difficult to answer since all aspects of the program are top secret, so it is impossible to know whose data has been accessed.
In addition, merely accessing data at rest does not really do any harm. You'd really need a U.S. citizen who you can prove has been wrongfully arrested or harassed as a direct result of their data being accessed in this way.
Finally, there is a real risk that the Supreme Court (this one in particular) will defer to Congress, as it tends to do on matters of war and self-defense.
Simply put, the far, far better option here is to petition Congress. They will respond directly if the public pressure gets high enough.
> The first question will be which American citizen was harmed, and what was the harm.
A violation of Fourth or Fifth amendment rights constitutes a real harm done to a person as far as the courts are concerned.
>In addition, merely accessing data at rest does not really do any harm. You'd really need a U.S. citizen who you can prove has been wrongfully arrested or harassed as a direct result of their data being accessed in this way.
As far as I'm aware, this isn't a requirement...If you can prove the programs were overly broad, did in fact collect information on citizens illegally (which, by all accounts has already been established as of 2011) you're good.
>Simply put, the far, far better option here is to petition Congress. They will respond directly if the public pressure gets high enough.
Well, yes...But OP is specifically about the courts
16 comments
[ 2.7 ms ] story [ 50.1 ms ] threadThat's at least how it works in many countries in Europe. When the President or the Government is not sure if a law follows the Constitution, they request the Supreme Court to rule on it. It's a non-binding request. The Highest Court may or may not care to investigate. The petition is to ask the Government to ask the Supreme Court to look into the matter.
Not directly, no. Article III of the US Constitution only authorizes the federal courts to hear "cases and controversies." That means so-called "advisory" opinions are not allowed by any federal court, including the Supreme Court.
Thus, as far as I know, there is no procedure for either Congress or the Executive Branch to request an opinion on the constitutionality of a law from the Supreme Court. Instead, a plaintiff with standing must file suit alleging harm by the law. That's the "case or controversy" requirement.
Federal courts is a complicated and dry topic, so this is a broad (and somewhat inaccurate) description. If you'd like to learn more, I recommend the book "Federal Jurisdiction" by Erwin Chermerinsky.
I'm a layman here, but that seems a bit awkward to me.
Let' say the Congress votes into the law and the President signs a bill suspending civil rights, let's say for blacks. The same purely hypothetical law would require to put them in the concentration camps.
Will the Supreme Court just sit on its hands wait and watch? Or am I missing something in the picture?
Once again, thanks for your time.
You're right, it is a bit awkward. And I'm sure we could debate the merits of whether such a system is a good thing as a matter of policy.
But the "case or controversy" requirement is written in the Constitution, so it is probably here to stay.
1. You can't petition the SCOTUS through the Executive branch, which is what whitehose.gov is.
2. If you want SCOTUS to do something, lobby Big Business or your representative to file suit directly with the SCOTUS with the US government as the named party and attempt to get a writ of certiorari granted with original jurisdiction.
3. Hope, pray or do whatever you think will help to get the Supreme Court to hold a hearing sua sponte. In such a case, SCOTUS takes it upon themselves to start what amounts to a bench trial. However I'm fairly certain that they cannot do this without setting a whole lot of new precedence which they aren't typically keen on doing
The petition states: WE PETITION THE OBAMA ADMINISTRATION TO: Request The Supreme Court to Rule on the Constitutionality of the Patriot Act.
If the administration was by any way troubled by the widespread information gathering - they could just tune down and stop.
They will have to say why.
They make our lives difficult, the point is to make theirs difficult too. Let them worry after we go through the process. Let them tell more lies. Let this resonate with the media and lawyers and so on. Let them piss of more people.
However, SCOTUS can issue subpoena which can force (albeit with no enforcement) the executive to produce documents[1]
The only instance in which I can imaging President Obama getting this before SCOTUS at, essentially, his own behest is to have DoJ bring suit against this program. Because it's a law from the Legislative branch he can challenge it's constitutionality...but I doubt that's a risk they want to take
_____
1: See the Arron Burr treason trial in which he asked for and was granted a subpoena duces tecum for Jefferson's private letters. This actually set a nice precedent as far as the NSA matter is concerned...This was under the Marshall court (for background, Marshall really really didn't like Jefferson) and in the majority opinion Marshall stated whether or not secrecy of content in a document impacts national safety is up for the Court not the President to decide. How accepted this is nowadays us not something I can answer.
So, could I petition them to ask for opinion Congress Judiciary Committee?
I'm desperate for finding a way to make them state aloud that the Patriot Act is not breaking the Constitution.
The law is there. It is bad. Most probably unconstitutional. How do I petition them to make them state in some way constitutionality of the Patriot Act?
Whether they claim it is constitutional or not is not that important as imposing more political pressure on them. Let them lie more, make more people angry, etc.
Are am I naive here too? ;-)
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1: See desegregation in Little Rock.
https://en.wikipedia.org/wiki/Brown_v._Board_of_Education
https://en.wikipedia.org/wiki/Little_Rock_Nine
This will be extremely difficult to answer since all aspects of the program are top secret, so it is impossible to know whose data has been accessed.
In addition, merely accessing data at rest does not really do any harm. You'd really need a U.S. citizen who you can prove has been wrongfully arrested or harassed as a direct result of their data being accessed in this way.
Finally, there is a real risk that the Supreme Court (this one in particular) will defer to Congress, as it tends to do on matters of war and self-defense.
Simply put, the far, far better option here is to petition Congress. They will respond directly if the public pressure gets high enough.
A violation of Fourth or Fifth amendment rights constitutes a real harm done to a person as far as the courts are concerned.
>In addition, merely accessing data at rest does not really do any harm. You'd really need a U.S. citizen who you can prove has been wrongfully arrested or harassed as a direct result of their data being accessed in this way.
As far as I'm aware, this isn't a requirement...If you can prove the programs were overly broad, did in fact collect information on citizens illegally (which, by all accounts has already been established as of 2011) you're good.
>Simply put, the far, far better option here is to petition Congress. They will respond directly if the public pressure gets high enough.
Well, yes...But OP is specifically about the courts