Eric Mink takes issue with the Supreme Court on Padilla
President George Bush is playing games with the Constitution, and a majority of the justices on the Supreme Court either don’t realize it, don’t care or don’t take the situation seriously.
That’s a serious charge against the Court. It’s also not true.
On Monday, the court refused to accept an appeal filed by Jose Padilla, an American citizen from Chicago whom the government claims is a terrorist. Padilla’s complaint, essentially, is that for the last four years the United States government has defied the Constitution, disregarded the rule of law and acted pretty much like a tin-horn Third World dictatorship.
The court, by a vote of 6 to 3, declined to hear his case, noting — again, in essence — that the Bush administration finally had begun to handle Padilla’s case in accordance with the law. Therefore, there no longer was any reason to review the government’s previous four years of bad behavior.
Padilla’s complaint is that, as an American citizen, he is entitled to a trial in a civilian criminal court, with all of the civil rights guaranteed to criminal defendants under the Constitution. The government claims he is an enemy combatant not entitled to the protections of the fourth and fifth amendments. The only appellate court to rule on the issue agreed with the government. However, before the Supreme Court could hear the case, the government gave Padilla what he said he wanted - it transferred his case to the civilian justice system. That makes his appeal of the original Circuit Court decision moot.
Mink and many of his cohorts in the media don’t get that last point.
Here, then, is the meaning of Monday’s Supreme Court action:
The president of the United States can have you, an American citizen, snatched off the street. He can declare you to be an enemy combatant and have you thrown into a military prison. He can publicly denounce you as a criminal but not charge you with any crime. He can deny you access to a lawyer and keep you locked up without ever presenting evidence against you to a judge or jury. And he can keep you imprisoned for as long as he wants — unless and until a legal appeal manages to wend its way through the multiple layers of the judicial system to the doorstep of the Supreme Court.
Boiled down to its essence, that is essentially true. The government can do any number of things to you, and doesn’t have to stop until ordered to do so by the courts. But the courts can only act in response to a case or controversy. If there is no dispute, the courts are powerless to act. This has been the clear law of the land since the republic was established (see, e.g. the discussion in Muskrat v. U.S.). That is why the Supreme Court had no choice but to take no action in the Padilla case. The Supreme Court exists to adjudicate disputes, not to punish the executive branch for bad behavior, unless the bad behavior itself is criminal. And that is how it should be. Limiting the Court’s authority to issues in dispute prevents a corrupt court from becoming a Star Chamber. It also has the effect of preventing an uncorrupted court from checking executive action in certain cases.
Does this mean the administration can act unconstitutionally without recourse if they just back down before the Court gets the case? Of course not. The ultimate power to punish the executive branch lies with the Congress. They could bring articles of impeachment. They could use their investigatory power. They could pass legislation enabling defendants like Padilla to bypass the intermediate appellate court and go straight to the Supremes. Or they could clarify the law by passing a statute declaring that citizens are to be charged in all instances in civilian courts.
The Court did the right thing Monday. Not because the administration says Padilla is a terrorist. Not because the administration says we are at war. Not because a wartime President has unlimited power (he doesn’t). But because the checks and balances of the Constitution are vital even as they are messy. It is important that the government not deprive its citizens of their right to counsel and right to a fair trial. It is just as important that the powers of each branch be limited.
