Thursday, October 07, 2010

More about the Suit Against Arizona and Governor Brewer

I got a great response to my below post from my old friend Lou. He and I served together in Monterey, California, and on Crete, Greece, longer ago than either of us would like to acknowledge publicly. 
Lou writes that,
...Title 28 USCS sec 1331 vests jurisdiction in the district courts over matters involving questions of federal law. The Supreme Court very rarely exercises its original jurisdiction..
which I understand to mean that the Supreme Court sometimes delegates this responsibility to lower courts.  (Lou, please correct me if I've misunderstood you.) Delegation is often necessary, and in many cases marks the difference between success and failure, especially in the case of military leaders, who must entrust some tasks to those under their authority.  There are many situations however, especially in the case of commanders, where responsibilities are neither legal nor appropriate to delegate to lower authorities.

I think there are parallels - instances where delegation is inappropriate - in civil institutions.  The declaration of war, for instance, is a power set aside for Congress, but the last time it was exercised was WWII.  Since then, Congress has skipped out on that responsibility, and presidents have been all too eager to take it upon themselves to exercise it.  We have engaged in many military campaigns that were war in all but name, some of which even exceeded the time limit allotted for military action established by the War Powers Act.  The justification, of course, is that, by funding the military actions, Congress meets the spirit of the law, if not the letter.

The problem with this is that passing on constitutional duties is just as wrong and just as dangerous for presidents, Congress, and the Supreme Court as it would be for the military.  Constitutional responsibilities should reside where that documents' authors intended them to reside until a duly ratified amendment places them somewhere else.  Otherwise, where does delegation end?  Should the Senate delegate its responsibility for being the house in which tax bills are initiated?  Should presidents and other elected officials delegate to lesser offices the responsibility to support and defend the constitution?  And if entities can decide not to fulfill Constitutional responsibilities, what's to stop them from taking on powers to which they are not entitled? 

(Yes, I know that all these things are happening already.  Those are rhetorical questions.)

Here's what Joe Wolverton II, writing in the 2 August, 2010, New American, had to say about it: (If you're reading this on my blog, click on the title of the post to see the whole article.)
It appears that it was the intent of our Founding Fathers to safeguard the sovereignty of the states and likewise to uphold the dignity such sovereignty merits. In furtherance of this aim, they enacted Article III, Section 2 of the Constitution wherein the Supreme Court is awarded original jurisdiction for adjudicating in all matters in which a state is named as a party.
Does delegating the case to a lower court uphold the dignity merited by the sovereign state?  I don't think it does, but at a time when the sovereignty of the states is being challenged by the Federal Government, maybe that is partly the intent of letting this case be heard in a lower court.  If so, that helps me make my case against the delegation of constitutional responsibilities.  Wolverton continues:
Armed with this knowledge, the lawyers for the state of Arizona may well be within their rights to demand that the case filed against their clients by the Justice Department be removed to the Supreme Court and that the ruling handed down by Judge Bolton be summarily vacated for lack of jurisdiction.
Lou, thanks for writing; I appreciate your taking the time to tell me about Title 28 USCS sec 1331 and it's always good to hear from you.

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