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June 25, 2008
Convergence Zone
As any constitutional lawyer knows, there are several legal 'doctrines' that the courts have used in years past to avoid making a decision on a controversial case involving the various branches of government. In some circumstances, the courts will say that they should not interfere with a dispute between the executive branch and the legislative branch of government, labeling the matter a 'political question.' The case then is never decided upon the merits, in the legal arena, with both branches of government left wrestling over how to resolve the conflict.
The dispute over Harriet Miers' and Joshua Bolton's violation of a subpoena to appear before Congress and answer questions is shaping up to be a case where the doctrine will again be used. You may recall that Congress subpoenaed Miers and Bolton to answer questions about the White House role in dismissing members of the DOJ (US attorneys) in 2006. Bush has claimed that the two aides are shielded from testifying by his edict of executive privilege. In response, Congress sued to enforce the subpoenas. The US District Judge hearing the case has squirmed in his seat, commenting in such a way that leads me to believe that he may take the easy way out and claim the case presents a political question.
Then again, I would not be surprised if this case ends up being decided on the merits. Don't get me wrong, this case screams for an application of the doctrine, and under certain circumstances, I have every reason to believe that it would be invoked, but at the present time, I am not sure that it can be without severely damaging the judicial branch of government, or conservative judicial philosophy. Here's why.
The case is being heard at the very time that the DOJ is under fire for violating the law on its hiring practices. Hiring and firing was based on political reasons. The DOJ. The same DOJ who, in this case, is accused of firing US attorneys for political reasons. The political environment is not favorable for dismissing this claim right now.
Think back to that time in your early education, and recall the 'noble theory' of having three branches of government: Congress makes the laws; the Judiciary interprets the laws; and the Executive Branch enforces the laws. The order of the description may change but what happens when the Executive Branch does not enforce the law, but breaks it instead? That question is what gave rise to the special prosecutor statutes. Here, the stated justification for the subpoena is not to investigate 'law breaking activities', which is one reason I see this as being labeled a political question, but to find out what happened. Regardless, I do not think the Courts would let the Executive Branch off if this is perceived as an investigation into a possible violation of law.
Balancing all of this is the conservative 'battle cry' for strict interpretation of the Constitution. Judge John Bates, who is hearing this case, is a Bush appointee, and while I know nothing of Judge Bates' views on Constitutional interpretation, I am guessing he is on the conservative side. Hmmm, wonder where he will find a legal foundation for the political question doctrine if he uses it, because it sure isn't in the Constitution or in any statute.
All of this suggests a very interesting convergence of ideologies, and a very amusing story to keep an eye on.
Posted by r.johnson at June 25, 2008 11:38 AM