doom doom doom doom....

I've been wondering this for a while, but now I'm sure it's true: The current administration and the party in power is the most radical in the history of the US. Seriously. Or at least since the writing of the Constitution.

You might have heard about the Real ID act - that for all intents and purposes created a national ID card. This is attached to an important Defense bill so it's almost certain to pass.

There is a curious part of the act that uses an obscure part of the Constitution to declare that the Department of Homeland Security may do certain things that are completely outside the purvue of the US court system. If this part of the act is allowed to stand, it means that congress can pass any law it wants and (with a few exceptions) declare that the US court system (including the Supreme Court) may not rule on the law's constitutionality. So that whole part of our system of government that says that the judicial branch is part of a system of checks and balances - we're gonna throw that away....

[link]

(the link includes the relevant text of the bill.)

So if judicial review is the basic mechanism that enables the Federal court system—from the Supreme Court on down—to rule on the constitutionality of laws and government actions, then how could it be possible for Congress to pass a law that includes language prohibiting judicial review for the law in question? In other words, if Congress could somehow exempt a law from judicial review, then the principle of judicial review would be completely gutted because they could just exempt from judicial review any law they wanted to, even if that law is blatantly unconstitutional or it violates basic human rights. Surely this isn't possible?

Opponents of the concept of judicial review appeal to an obscure and cryptic article of the Constitution, the (in)famous Article 3, Section 2 (A3S2 for short), which states:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

That last sentence is the kicker, because it looks for all the world like language that would enable Congress to wave a magic A3S2 wand over any piece of legislation no matter how outrageous and have it be completely exempt from review by the courts. The implications for the system of checks and balances if Congress actually invokes this provision are about as profound as it gets, which is why no Congress in American history has ever opted to open that particular can of worms... until now.

You can read more on the tinfoil hat implications of this here if you're interested, but I'll sum it up for you: Congress has crafted a completely unprecedented provision that guts the principle of judicial review by granting the DHS secretary complete and total immunity from the courts when it comes to the construction of "barriers and roads" in this one specific geographical region, and they've buried this provision inside a national ID card act which is itself attached to a large military appropriations bill that no Congressperson in their right mind would vote against (money for the troops and all that).

You might have heard about the Real ID act - that for all intents and purposes created a national ID card. This is attached to an important Defense bill so it's almost certain to pass.

I thought it already had, and was just waiting for Dubya's signature.

Regardless, it will be law.

I ordered a copy of my birth certificate from Pennsylvania yesterday because I'm expecting a huge upkick in fees for that sort of thing once people realize they can't find theirs and need replacements.

You know, for people who are pegged as end-times obsessed, they seem to be missing where their actions are likely to fall on a biblical, eschatological scale.

That stuff is scary.

FWIW, the Times editorial pages, and also my law-student flatmate, have weighed in recently on the case called Marbury v. Madison, from back in like 1801, which is when the Supreme Court stood up and said, "Hello, yes, this is mine." They wrote into that decision (which was about something totally irrelevant) that the judiciary branch was the one that would say what is and what is not constitutional, basically as a huge land-grab.

That's 200 years of precedent, and courts like precedents. The only way I can see the court being seriously overturned is if (a) court members themselves accept fraudulent arguments or (b) the court makes a decision and is ignored, sparking a consitutional crisis and a fair amount of rioting.

Um, what Nutty said. Judges don't like to be told they don't have authority to rule on something. And I don't see any sane judge chucking Marbury in view of a federal statute that says the court can't decide the constitutionality of that statute.

However, having said that, I won't argue that all judges are sane.

There was an article in Salon about the filibuster thing that said that the President of the Senate could declare that the filibuster was unconstitutional and there was nothing that could be done about it.

Or that was the gist. Let me go find the article.

It's here.

Headline from my company's news archives:

VIRTUAL REALITY; LACK OF FUNDING