Thursday, May 12, 2005

Does the Real ID act contain a Constitution-busting Trojan horse?

Opponents of the concept of judicial review appeal to an obscure and cryptic article of the Constitution, the (in)famous Article 3, Section 2 (A3S2 for short), which states:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

That last sentence is the kicker, because it looks for all the world like language that would enable Congress to wave a magic A3S2 wand over any piece of legislation no matter how outrageous and have it be completely exempt from review by the courts. The implications for the system of checks and balances if Congress actually invokes this provision are about as profound as it gets, which is why no Congress in American history has ever opted to open that particular can of worms... until now.
You can read more on the tinfoil hat implications of this here if you're interested, but I'll sum it up for you: Congress has crafted a completely unprecedented provision that guts the principle of judicial review by granting the DHS secretary complete and total immunity from the courts when it comes to the construction of "barriers and roads" in this one specific geographical region, and they've buried this provision inside a national ID card act which is itself attached to a large military appropriations bill that no Congressperson in their right mind would vote against (money for the troops and all that).

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