The Devil's in the details

I noted recently that the appropriations bill just passed included a rather frightening provision for establishment of a national ID card, the RealID program. What I didn't realize was that the same bill contained an even more alarming (and potentially dangerous) innovation -- an attempt to make itself immune from judicial review. As Digby points out,

The right has held for decades that judicial review has no constitutional foundation. Because of various rulings over the past 50 years on civil and individual rights with which they disagree, they have developed the dogma that the courts do not have the right to determine if a law is unconstitutional, despite more than 200 years of acceptance of Marbury vs Madison and the debate that came before. This is what Pat Robertson is talking about when he says, "if you look over the course of a hundred years, I think the gradual erosion of the consensus that's held our country together is probably more serious than a few bearded terrorists who fly into buildings." (It's actually the last 200 years he's trying to overturn, but what's a century or two?)

These hubristic legislators just can't get enough of their conviction that the framers of the Constitution always meant to exclude them from the balance of powers among the branches of government, and they're really running with it these days.

As far as I've been able to ascertain, nobody has ever actually passed and signed a bill that would explicitly exempt legislation from judicial review. This is unprecedented and if it happens it should trigger a constitutional crisis. If congress can pass any laws it wants and declare them exempt from judicial review --- as with the Real ID bill -- and also peremptorily "bar judicially ordered compensation or injunction or other remedy for damages" then our system of checks and balances has been gutted. There will be nothing to stop a majority, particularly if it ends the filibuster, from passing any laws it chooses with a simple majority and exempting all of them from judicial review for constitutionality. In other words, the constitution says what the majority says it says.

In all honesty, the idea of laws being free from court challenge is quite scary, but when you add to that the arbitrary acts of the Department of Homeland Security (particularly in light of recent abuses carried out in the name of the War on Terror), then I'm really not sleeping well...

[and that's without considering the even more alarming issues suggested by Digby's piece.]

(via Hullabaloo)