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On The Law, And Bad Cases

By Greg L | 21 May 2012 | National Politics, Patriotism | 3 Comments

This isn’t a law blog, and I don’t pretend to be a lawyer.  That being said, the law isn’t some special area of expertise entirely beyond the understanding of non-attorneys, to be left exclusively to the attention of lawyers and judges while the rest of us poor and huddled masses cower in abject ignorance, praying that we’ll never have to deal with the law.  We do on a regular basis, if only to elect those people who will decide what laws are written, and who will select those who stand as judges.  If we’re ignorant, our chances of electing officials more competent and capable than ourselves diminish pretty quickly.

Two recent events make a discussion of the law rather timely.  First was the General Assembly’s decision to not appoint a gay activist to be a judge, and that topic has gotten quite a bit of attention on this site recently.  The other is the premature celebration of a judge’s decision in Hedges v. Obama by many conservatives who are so eager to see the NDAA get struck down they’ve overlooked how bad the reasoning actually is in that decision, something I’ve only talked about on other sites so far.

Before we get to the specifics of that case, let’s back up a moment to talk about process.  Govenment is chock full of processes, many which seem byzantine and some of which might at first glance seem downright ridiculous.  Why does it take so much to just get a bill passed in the General Assembly?  Doesn’t the complexity here just make it easier for lobbyists and insiders to game the system and harder for regular people to participate?  Sometimes it might seem that way.  Why does it take so long for a court case like the one challenging ObamaCare to get decided?  Wouldn’t a quicker resolution serve the public interest a lot better than years of uncertainty and millions of dollars in spending preparing for that law that will potentially be for nothing?  Perhaps, but there’s a good reason for all this.

Process protects liberty.  It slows decision-making down, imposing a series of successive and objective tests to make sure that the decisions are consistent with a defined standard.  In a legislative body that standard is pretty fungible and sways with current political opinion.  In the courts, as long as those there are dedicated to the practice of law rather than engaging in politics, the standards are quite well defined.  If a legislature is the embodiment of politics as an art form, the courts are the embodiment of philosophy as an engineering discipline, complete with verbal enterprise architecture and non-graphic traceability matrices that point to hundreds of years of judicial precedent and our founding documents.  When you start to grasp just how elaborate the judicial process is and why it’s that way you begin to see a structure of creativity and brilliance that makes Microsoft look quite unsophisticated and rather unrefined.

About the nearest corollary to the judicial process is the scientific process, as least until a bunch of scientists decided that process was an impediment to what they wanted to achieve and cooked the books so AlGore could win a Grammy, an Emmy, and a Nobel Prize.  A defined process.  Objective criteria.  Verifiable results.  All this laborious stuff ends up producing results that are utterly staggering in their potential to improve the world.  The justice system, with it’s own arcane and laborious processes, produces the same quality of results over time except those results are the protection of liberty and the rule of law.  If we subvert that process in any way, no matter how pure our intentions are, we will get the legal equivalent of AlGore who instead of trying to control our lives to “save the planet”, will control our lives for the purpose of achieving some perversion of justice that requires hyphenation.  ”Species/gender/social-justice” anyone?

So on to our case of Hedges v. Obama.  The first hurdle the plaintiffs in this case (which include such legal luminaries as Noam Chomsky and “US Day of Rage”) is to demonstrate they have the legal “standing” to bring the case.  To establish standing there are three tests: that the plaintiffs have suffered or will imminently suffer an injury; that the conduct the plaintiff’s want to stop did or will cause the injury; and finally that there’s actually something the courts can do that will remedy the injury.  It seems like the majority of cases conservatives find interesting (both in an affirmative and negative sense) get tossed out on a plantiff’s lack of standing, and that’s a good thing.  Bad cases make bad law and if you want to protect liberty and the rule of law you want those bad cases thrown out, even if you think you might like the results.   Who’d really want a federal precedent established based on the arguments of some random nutcase like Orly Taitz or Noam Chomsky?

In Hedges, Judge Katherine Forrest of the US District Court for the Southern District of New York found that the plaintiffs had standing and ruled the NDAA unconstitutional.  While the ruling about the NDAA is heartening, Forrest completely blew it on the standing issue and if the decision is allowed to stand the impacts would be incredibly destructive to our legal process.  On the standing issue, the judge summarizes the plaintiff’s argument in respect to standing as follows:

In support of their motion, plaintiffs assert that § 1021 already has impacted their associational and expressive activities–and would continue to impact them, and that § 1021 is vague to such an extent that it provokes fear that certain of their associational and expressive activities could subject them to indefinite or prolonged military detention.

Essentially, what Hodges is asserting is that because he is a journalist who meets with terrorists and other enemy combatants, he “fears” he will be subject to military detention by the US government.  Neither his complaint, nor any of the pleadings offered substantiate this fear, nor is there any evidence provided to support the allegation that Hodge’s activities have been impacted as a result of this law.  There simply is no demonstrable injury here, and there’s no evidence that there’s any imminent injury, either.

Back in 2008 illegal alien supporters and The Woodbridge Worker’s Committee filed suit against Prince William County in District Court alleging that the Rule of Law Resolution made them “fearful.”  The court threw the case out on standing, ruling that there was no injury nor any imminent injury for the court to remedy.  Under the standard Judge Forrest is applying here, that case would have gone to trial for a ruling on the merits, allowing Mexicans Without Borders/Woodbridge Workers Committee the opportunity to endlessly harass Prince William County into settling the suit.  Rarely do these entities actually win any cases on the merits, but dragging governmental entities through the courts with baseless lawsuits often works out to be a better strategy for them, as they can include as part of a settlement a hefty contribution by the defendants towards financing new lawsuits against other convenient targets.

Standing then establishes a critically important barrier to baseless lawsuits and frivolous litigation.  Lower the bar to the standing requirement and all sorts of people become professional plaintiffs, because as long as you can find a defendant with deep pockets your chances of a big, fat, personally-enriching settlement you can make a living.  Well, at least your attorney can, allowing that attorney to troll for another potential plaintiff to be a convenient excuse to file the next unfounded lawsuit and often becoming more wealthy than the plaintiffs.

Is it worth inviting that kind of disaster just to get rid of NDAA?  Not at all.

All it takes to get rid of the NDAA is one person who actually has standing as a plaintiff, and there are plenty of competent attorneys out there eager to find and represent that party.  NDAA is such a ridiculously unconstitutional overreach the chances of it surviving a well-formed case are vanishingly small — that is if this act survives long enough to make it to the next Congress which may well repeal it before any case could be brought.  It just needs the right case, where the standing of the plaintiffs is legally solid.

Just because we as conservatives might rejoice at the idea that a court declared Obama constitutionally unfit to be president, that ObamaCare is an unconstitutional overreach of federal power, or that the NDAA is thrown out for violating the Bill of Rights, we can only rejoice when that case is well formed, is ripe, and brought by plaintiffs that indeed have an unquestionable standing to bring the suit.  The ObamaCare suits fit that standard and will make for good law that won’t do damage to the legal system in the process.  Hodge does not fit those standards, would make for bad legal precedent, and would greatly harm the legal process.

The integrity of the legal process is more important than the outcome of any individual case.  Sometimes cases are wrongly decided, but at least with them there’s a chance to carefully revisit it at some point and make things right, and that usually happens.  It might take longer than we’d like, but the system eventually works and works far better than any other branch of government.  If the judicial process becomes corrupted there really is no real opportunity to go back and fix it, however.  Once the law of the jungle replaces the rule of law, there’s no going back, and liberty has lost perhaps its last nonviolent defender.  We make that legal process long and onerous in order to protect its integrity because it’s that important, and because armed revolution is nearly the only means to restore it once that integrity is lost.

So I’m not celebrating Hodges, and will actually celebrate when it gets tossed out.  I’ll celebrate even more when NDAA is thrown out.

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  1. Robert L. Duecaster said on 22 May 2012 at 3:27 pm:
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    Great post, Greg, and a great illustration for putative plaintiffs of any political persuasion of the old adage, “Be careful of what you ask for. You might get it.”

  2. Anonymous said on 22 May 2012 at 3:46 pm:
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    I sort of agree with what you are saying but you use “gay activist” and as far as I’ve seen provided no real proof of such an accusation.

    You obviously aren’t a scientist either so why not just say you chose “sides” based on your political leanings?

  3. pprados said on 25 May 2012 at 12:05 pm:
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    I appreciate you bringing the vagaries of standing law to the masses. Your concern about the reasoning behind the outcome is well founded.

    During the Rehnquist court, as liberal activist groups attempted to push the boundaries of judicial activism, standing was used to reign in and dismiss claims. There was an old case where environuts sued on behalf of whales. Apparently they did not learn their lesson, and tried again recently:


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