Monday, November 27, 2006

Greening the courts

This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.
— Thomas Jefferson to Edward Livingston, 1825.
When the judiciary takes upon itself the role of exercising a will upon the law instead of passing a judgment upon it, it attempts to invest itself with an authority that it cannot even pretend has been given it by anyone or any body of associated persons or government but itself. In such a position without restraint except by itself, its administration of justice cannot be regarded as anything but capricious, and a poor defense for liberties if it can impose upon the citizenry the enforcement of the law that it pretends to check on the part of the executive. From the Associated Press:
The Supreme Court hears arguments this week in a case that could determine whether the Bush administration must change course in how it deals with the threat of global warming.

A dozen states as well as environmental groups and large cities are trying to convince the court that the Environmental Protection Agency must regulate, as a matter of public health, the amount of carbon dioxide that comes from vehicles.
The question of interpretation of a law is by itself appropriate to the Supreme Court's function as a necessary predicate of its responsibility to protect the liberties of a free people from encroachment by the law as determined by the Constitution, but it is not asked to test the bounds of the law's admissibility under this condition; it is asked instead and is apparently taking upon itself the question of legislating and enforcing (and, not incidentally, expanding) the law's bounds, and from that rewriting ad lib the conditions under which the law may be judged, an authority it has never been granted except by itself. It is entirely possible that the Court has accepted the case to establish a precedent for recusing its judgment on precise questions of legislative or executive jurisdiction, but its history of barely bridled opportunism is a poor friend to this hope.

Of course, as Mr. Bumble observed, the law is a ass… and three branches of asses will just as surely soil the stable as one.

Update: The Cato Institute's amicus brief argues both that the courts are not empowered to address generalized and unredressable claims of injury — that is, outside the meum and teum of their intended jurisdiction — and that the EPA's functions can only be delegated by the legislative branch. Furthermore, I should add, there is nothing in the Constitution of the United States that allows the judiciary to compel action by any other branch.