The Court as a Last Resort
“Only the Supreme Court has limited the executive sweep of power…” Arlen Specter said at the hearing for the nomination to the post of Deputy Attorney General.
He stated several instances in which the President has blocked the oversight of the Legislative Branch into the doings of the Executive Branch – even in cases of suspected criminal activity and the abuse of power.
He could surmise that only the courts have been able to exercise oversight where the Congress had not been able to.
Only after a threat to take a matter to court, rarely but occasionally by some part of Congress, or in the face of a court decision had the stalemate been broken.
It might appear then, that Congress should take all matters to court when there is no response from the Executive Branch. However, there are reasons why this is so rarely done.
Once something becomes a lawsuit, it tends to drag out across appeals and proceedings. If a court decision is the only thing that can enforce oversight and accountability, then there is a risk that while the matter is being dragged through the judicial process, people and data of importance might disappear or “expire.”
Furthermore, as time passes and other issues arise, political benefits, public interest and back-up and time to spend on the matter typically all decrease.
Additionally, even the highest judicial authority – the Supreme Court – is subjected to some degree of political influence. As a collection of humans, its decisions are influenced by the ideological beliefs of its members.
As I pointed out in The Silent Coup, both Supreme Court Justices appointed by this Administration, were criticized at the time of their nomination precisely for past actions indicating that they had views of constitutional interpretation favorable or supportive of the theory of the “Unitary Executive.”
Lastly, neither branch wants a matter to end up before a court if they feel uncertain about what the outcome – after all appeals – will be.
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