
Government Succeeds in Stalling Again, but Jewel V. NSA Goes On - DiabloD3
https://www.eff.org/deeplinks/2015/12/government-succeeds-stalling-again-jewel-v-nsa-goes
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themartorana
It's funny, my first passing thought was collusion. It's meritless and
baseless, but I assume it stems from my finding it frustrating that the courts
allow a thing to continue _before_ they rule on its Constitutionality. It
would seem to me that stopping unconstitutional behavior by the executive
branch should be the most important thing before the court, and something that
should not drag out for a decade. So why _does_ the court allow a program that
may be violating millions of peoples' constitutional rights to continue, all
the while agreeing with and ruling in favor of government stall tactics?

It's amazing to me that the court _agreed_ with the executive that they had no
right to judge on executive constitutionality! I get that it's procedural, but
is it true that there has to be a ruling on something from a lower court
before a higher court can even consider it? (And is it weird that they can
rule on the procedure of a thing but not a thing?)

~~~
rayiner
The court respecting its proper role in our tripartite system of government is
also an important Constitutional concern. The framers gave primacy to the
President and Congress when it came to issues of national security and
defense.[1] It's not even clear the framers intended for the government's
national security activities to be subject to any form of judicial review,
much less that they intended the courts to be empowered to enjoin such
activities before even deciding their Constitutionality.

[1] With good reason. The U.S. at the time of the founding was a fledgling
country, threatened by European powers as well as domestic insurrection. There
was great concern that a government with three branches would not be able to
cooperate to respond effectively to foreign and domestic threats.

~~~
simoncion
> It's not even clear the framers intended for the government's national
> security activities to be subject to any form of judicial review...

It seems _very_ clear to me that The Framers would have expected that actions
taken by the President or authorized by Congress in the name of national
security concerns that are unconstitutional -or otherwise illegal- _should_ be
subject to Judicial review and subsequent termination.

I mean, the alternative is to let the Executive and Legislative have immunity
from consequence and freedom from scrutiny, just so long as they make the
claim that their actions are for "national security". This would make The
Constitution _absolutely_ moot.

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gdwatson
It's not clear that they intended judicial review at all.

Keep in mind that the framers didn't assume permanent political parties,
without which Congress and the president would be better able to check each
other. And the system lacked any real federal law enforcement, leaving state
nullification of federal law a practical possibility even if legally
controversial.

Judicial review is more important for us than it was for them because we lack
so many of those counterweights. But a powerful judiciary introduces its own
set of problems.

~~~
simoncion
> It's not clear that they intended judicial review at all.

In 1796 [0] the Supreme Court chose to hear a case [1] challenging the
constitutionality of an act of Congress. This was Judicial review of
Legislative power. _Alexander Hamilton_ [2] argued on behalf of the US
Government.

I respectfully disagree with your opinion.

[0] _219_ years ago, and only _twenty_ years after the founding of the
country.

[1]
[https://en.wikipedia.org/wiki/Hylton_v._United_States](https://en.wikipedia.org/wiki/Hylton_v._United_States)

[2] A Founding Father

~~~
gdwatson
On further reading it looks like most of the convention delegates favored the
concept, though of course there are always dissenters. I stand corrected.

But I stand by my point about the loss of other balances within and against
federal power.

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diafygi
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