August 18, 2009

Federal Judiciary's Unprecedented Power Trip

There is a very interesting article at Slate documenting the creeping power of the federal judiciary.
"When a federal judge ordered 17 Chinese Uighurs, detained at Guantanamo Bay, released into the United States last October, he took to its logical conclusion the judiciary's increasingly bold effort to supervise the president and Congress. Justifying his ruling in the face of Congress' exclusive constitutional power over when, which, and how foreign nationals may enter the United States, Judge Ricardo Urbina reasoned that "our system of checks and balances is designed to preserve the fundamental right of liberty." He saw his order as necessary to that end. But if he's right, then the judiciary itself is the unchecked branch of government. And while judges have expanded their power before in our history, never have the claims to supremacy of some of them been so extreme. ...

The problem with this view is obvious. If there is no aspect of government over which the courts do not have the final say, then under the guise of saying "what the law is," as the 1803 case Marbury v. Madison put it, judges become the little kings they so often remind the president he is not. This is especially the case today because a number of the traditional constraints on judicial power have been severely eroded. ...

What will check the judiciary's contemporary expansion? We can hope that the other two branches will realize that, however expedient it is to have the courts decide politically difficult issues, in time judicial supervision will make it impossible for them to perform their own constitutional duties—such as protecting the population from future attacks. Similarly, the courts may discover that ultimate power carries ultimate responsibility. That should be a daunting prospect for a branch that lacks the legitimate power of the purse or sword. In the meantime, anyone who cares about limited government, and the individual liberty it is designed to protect, should ask themselves who now checks and balances the judges."

Be sure to read the whole thing.

Links to this post:

Create a Link

<< Home