The Eastern New Mexico News - Serving Clovis, Portales and the Surrounding Communities

Judicial branch slow to rein in executive branch


Our constitutional scheme, with three branches of government and government further divided by having local, state and national levels, is the best scheme yet devised for protecting the people’s liberties by empowering different branches of government to limit one another’s power.

But it doesn’t always work perfectly.

It is during times of war and national crisis that the judicial branch should be most suspicious of and eager to limit the power of the executive branch. Government agencies are most tempted to abuse their power during crises, and they have a plausible cover to justify overstretch. Yet just when they should be most flinty-eyed, the courts tend to be deferential to executive power.

This pattern appeared yet again Monday. The Supreme Court refused to consider whether the government acted properly when it withheld the names and other details surrounding hundreds of foreigners it detained and kept incarcerated secretly following the Sept. 11, 2001, terror attacks.

The lawsuit, filed by the Center for National Security Studies and 23 news and media organizations, sought at least the names of those detained. The trial court ordered the government to have courts review the secrecy decisions on a case-by-case basis, but the First Circuit appeals court reversed that decision and decided the blanket secrecy decision was hunky-dory. By refusing to take the case, the Supreme Court in effect endorsed that decision.

As Robert Levy, a constitutional law scholar at the Cato Institute, said, “You can be deferential without giving the executive branch carte blanche to invoke national security to authorize a blanket decision to detain people in secret. The lawsuit didn’t demand that all the names be made public, just that courts have an opportunity to review the decisions.”

The Supreme Court last week did decide to take the case of Yaser Esam Hamdi, the “Louisiana Taliban” found in Afghanistan, later discovered to be a U.S. citizen and held incommunicado with no charges filed and no access to a lawyer or family ever since. If the court decides to rein in executive power rather than affirm it in that, all may not be lost. Nonetheless, Monday’s decision is regrettable.


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