Sunday, January 30

"The law doesn't mean what it says--unless we want it to"

If you don't live in Illinois, the race for the office of mayor of Chicago probably hasn't been on your radar. Let me update you:

Rahm Emmanuel, the former chief of staff for Obama, wants the position. Tiny, tiny problem: He's been living in Washington for the past two years--and as it happens, Chicago has a thing called an "ordinance" on its books that says you can't be mayor unless you've lived in Chicago for the past 12 months.

The state court of appeals ruled that the ordinance meant what it said, and thus that he was not eligible to hold the office. However, the case was instantly taken up by the state's supreme court, which reversed the court of appeals and put him back on the ballot.

Now, I have no idea whether Rahm is the worst candidate or the best, but that's beside the point. Either the city ordinance is valid-- in which case one would expect it to be enforced uniformly--or it's not.

By saying, in effect, that the longstanding city ordinance doesn't mean what it says, and doesn't bar him from serving as mayor, the IL supreme court has said in effect, Cities and towns may write what they think is a very clear and plain law, but no matter how short or clear or simple it is, we can overrule it by our decree if we don't like its effects in a particular case. But if, in some other case, we like its effects, we'll rule that it's valid and means what it clearly says.

Does this surprise or shock you? Silly person! How could you expect anything else? After all, consider that the federal courts have ruled that no U.S. citizen has the legal standing to even bring a lawsuit to examine the question of whether Obama meets the Constitutional requirement to be president.

If the courts say no U.S. citizen has legal standing to sue to get the facts out on so fundamental and obviously crucial an issue, how can it be claimed that the rule of law has any meaning?

So now that the concepts of "rule of law" and "conforming to Constitutional provisions" have been thoroughly discredited, if some level of government passes a law taking away something you really care about--your right to free speech or self-defense or whatever--and you were confident the Courts would rule against it, don't bother complaining to me.

Post-script: It's worth noting that Emanuel is a heavy favorite to win. What does that say about how most Chicagoans view the concept of "equal enforcement of the law for all"?

Oh, they probably didn't hear anything about the court's ruling.

4 Comments:

Blogger smrstrauss said...

Re: "no U.S. citizen has legal standing to sue to get the facts out on so fundamental and obviously crucial an issue, how can it be claimed that the rule of law has any meaning?"

That is the law. When seventy cases have been ruled that way, it is certain to be the law. If you do not like the law, petition Congress to change it.

Actually, it is not A law, though legislation by Congress could overturn it. It is the Federal legal definition of eligibility to sue on a matter, that has been ruled on by the US Supreme Court. It stems from tort lawsuits in which people who actually have been affected by a wrong can sue, and those who have not cannot.

Some of the first cases were lawsuits against the Vietnam War, in which opponents of the war tried to get the courts to stop it. The courts ruled that the opponents of the war had no standing to sue.

3:07 PM  
Blogger sf said...

Let me see if I'm understanding you here: You say "That is the law," apparently referring to the conclusion of a number of courts that no citizen has standing to sue on this question.

Your next statement seems to reinforce this conclusion, as you write "If you do not like the law, petition congress to change it."

I wasn't aware that congress had ever addressed this issue in the first place. Would you mind providing the CFR cite for this?

Ah, wait...I see in your next paragraph that "Actually it is not A law, though legislation by Congress could overturn it."

I'm sorry...I thought you said definitively, three sentences earlier, that "That IS the law." If it actually isn't, then did you mean that it's *case law* instead of a statute?

If so, can you tell us how Congress would go about overturning *case law*?

Ah, you cleared up part of this in the next sentence: "It is the Federal legal definition of eligibility to sue on a matter..." and "...stems from [cases] in which people who actually have been affected by a wrong can sue, and those who have not cannot."

Got it. And we agree. So please tell us: *if* a political party nominates a candidate who does not meet the Constitutional requirements to hold the office, and that candidate nevertheless wins the election, how is it that not a single citizen of the United States is affected by this breach of the Constitution?

Because if not a single U.S. citizen has legal standing, who else could possibly be deemed to have legal standing to sue?

If no one else has standing, would that not make the Constitutional requirement to be a natural-born citizen a nullity? As I understand it, the courts have never been willing to assert that legislatures--or the Founders--would enact provisions that they intended to have no legal effect.

Do you agree that the Constitution is still the "supreme law of the land"?

Let me emphasize that I'm just an ordinary citizen, so I would appreciate any case law you can cite which would dispose of the assertion that not a single U.S. citizen has legal standing to sue on this matter.

In any case, thanks for a well-reasoned comment.

11:37 PM  
Blogger smrstrauss said...

Re: "congress had ever addressed this issue in the first place. Would you mind providing the CFR cite for this?"

No Congress has never addressed it. And it is entirely case law.

But Congress has the power to define who has standing to sue. It can overcome case law with a real law. You, and every citizen have the right to petition Congress. You would have to pass the law through both branches of Congress and get the signature of the president. Good luck.

Unless and until that happens, the case law IS the law, and the courts will continue to act the way that they have in the past.

Ironically, there is a solution which everyone seems to have forgotten, which is to get someone who does have standing to sue to sue. That would be McCain. Of course, he does not believe in the birthers' position. That in itself is significant.

7:28 AM  
Blogger sf said...

Thanks again for a well-reasoned comment. And again, sorry for the delay in my checking the comment queue to get it posted.

I think the reason our positions on this question are so diametrically opposed is that I was under the impression that *except in the case of suing a sovereign state*, anyone who had been *damaged* by the act of another could bring suit to recover for his injuries. If I'm not mistaken this is a crucial component of the entire concept of "rule of law."

You've admitted that the question of who has standing to sue on the matter of possible ineligibility to hold the office of president is based on case law rather than statute. Accordingly, do you know of any case that specifically addressed this question?

You imply that only Mr. McCain has standing to sue on this. But if a person constitutionally ineligible to hold the office wins election, wouldn't every citizen who was harmed by any act signed into law by the ineligible candidate have a cause of action?

In other words, though I'm just an ordinary person, it's hard to imagine that the Founders would have set up a system with a clear Constitutional requirement, only to add "...but should this provision be violated, the only person who can sue is the losing candidate!"

If only the loser had standing, the obvious choice of someone bent on violating the Constitutional requirement would be to see to it that the loser had a fatal accident--a result no one could wish.

Again, they tell me the courts view a "nullity"--a provision later alleged by challengers to have been *intended* to have zero effect--with great skepticism. But for your interpretation to prevail, it seems that what would obtain.

Unless, of course, you claim that *no American citizen is damaged* if an ineligible person steps into the nation's highest office.

11:26 AM  

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