LEGAL SITH VS LEGAL JEDI
Legal Sith vs. Legal Jedi is a quiet revolution within American Law that is taking place with the emergence of the conflict between the developing Legal Sith vs Legal Jedi traditionalists (of the Old Republic). To be honest, far too many lawyers use the power of the law with the capability of a storm trooper firing a laser blaster. Legal Jedi’s believe in the rule of law with a system of checks and balances limited by individual rights provided for in the Constitution. Further in the supremacy of precedent from the U.S. Supreme Court controlling similar cases before the lower courts where individual rights are protected by application of the Consitution. Legal Siths believe in the supremacy of our corporate overlords’ (ie Koch Brothers,et al.) power and in the concentration of all governmental power in the American Presidency making him a defacto “King” unrestrained by legal commands of statutory law.
One of the iconic struggles in cinema, the central struggle in the Star Wars movies, is as to whether the Jedi’s or the Sith’s use of the Force is in service to the Force’s true nature? While far less operatic, the true nature of American law is in the midst of a quiet struggle between competing understandings brought forth by the emergence of adherents of the Unitary Executive Doctrine. Adherents being appointed in droves to the Federal bench by Neo-Conservative Presidents. Appointments of adherents to this doctrine were first made in numbers by President George W. Bush and are now being made by President Trump. Currently two members of the U.S. Supreme Court (Alito and Gorsuch) are indentified as proponents of the Unitary Executive Doctrine. With two of the eleven regional federal courts of appeal under the apparent control of Legal Siths.
The traditionalists (aka Legal Jedi, since I’m labeling) rely upon concepts of ordered liberty founded upon the belief that we are a nation of laws, with certain individual and fundamental constitutional rights that may not be infringed upon and that we have enlisted checks and balances between the branches of government as the surest protection to our liberty.
An emerging Neo-Conservative doctrine of the “Unitary Executive” (aka Legal Sith, since I’m labeling) was most publicly expressed by the “Torture Memo” penned by John Yoo of President George W. Bush’s Office of Legal Counsel. The memo stated that President Bush had the ability to abrogate American law and international treaty obligations to define torture in way that enabled American Intelligence agencies to abuse prisoners as they pleased, no matter how brutally, and that those acts would not constitute torture and thus no violation of the law. It was not until pictures were published of low-ranking soldiers engaged in much more limited brutality at Abu Ghraib that minor limits were placed upon the American torture of prisoners.
The Unitary Executive doctrine is struggling to redefine the concepts of American law throughout the country with two federal circuit courts of appeal under the apparent dominion of the the Legal Siths. Federal judges that routinely ignore on-point and controlling precedent of the U.S.Supreme Court and/or specific commands of federal statutes that run contrary to this doctrine’s belief in the supremacy of corporate power and the consolidation of government power in the American Presidency.
The Cliff Note version of the Unitary Executive Doctrine is that Article II of the American Constitution states, “The executive Power shall be vested in a President of the United States of America.” The President is only limited by our Constitution and that Congress has “no power to restrict any executive power by enacting a statutory change in the law.” This establishes what critics have called the “Imperial Presidency” The Boston Globe reported that “adherents have invoked it to argue for giving the president increased powers, including authority to withhold information from Congress; to take secret actions without telling Congress; and to take control of independent agencies.” The President as King.
DICK CHENEY AND FEDERALIST SOCIETY
The most politically prominent proponent of the Unitary Executive Doctrine was former Vice-President Dick Cheney, but proponents now exist throughout the corporate world and within the federal government and judiciary. [Cheney’s role] U.S. Supreme Court Justice Samuel Alito was questioned about his adherence to this doctrine during his Senate confirmation hearing where Senator Durbin (D-Il) described it as “marginal theory at best.” Justice Alito at past Federalist Society speeches admitted that he is a strong supporter of the theory of the unitary executive and believes that the Constitution gives the president not just some executive power, but the executive power. Justice Neil Gorsuch has also been identified as a Unitary Executive Adherent. Most notably when he was on the Tenth Circuit U.S. Court of Appeals and authored a vehement dissent that a corporate trucking company’s decision to endanger the life of one of their truck drivers prevailed over federal law and that the truck driver should have been fired for escaping a life threatening situation when he was ordered by the trucking company to stay put, at great risk of death. [Guardian Article]
After the torturing at Abu Ghraib was made public, Congress passed additional legislation signed by President Bush (II) with a Presidential signing statement asserting that his powers give him the right to override the law when he sees fit, stating: “The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.”
President Bush (II) made over three hundred appointments to the federal court. Many of these appointees were drawn from the ranks of the Federalist Society and/or were adhered to the Unitary Executive Doctrine. Justice Samuel Alito has now been tasked with an administrative oversight role over the Fifth Circuit before that he supervised the Eighth Circuit of the United States Court of Appeals until he was replaced in that responsibility by Justice Neil Gorsuch. The Eighth Circuit has jurisdiction over Missouri and six other states. President Bush (II) appointed five of the eleven active judges on the Eighth Circuit. President Trump has made three additional appointments of active judges to serve on the Eighth Circuit U.S. Court of Appeals. President Trump has made a record 12 judicial appointments of federal appeals court judges in his first year in office. Federal Courts of Appeal each preside over district courts for several states and are one level below the United States Supreme Court in the judiciary. The United States Supreme Court has reduced the number of cases it hears each year since 1988 and is presently hearing sixty or so cases a year, making the appeals courts largely independent of oversight.
I have long argued that two out of the eleven regional U.S. Circuit Courts of Appeal have gone rogue, ignoring the on-point precedent of the U.S. Supreme Court. The Eighth Circuit is one of those, rendering rulings that have established my fellow Eighth Circuit citizens as “lesser Americans” in the eyes of the law, a status I find offensive to dignity of every American.
Except during judicial confirmations, Congress has long abandoned its oversight role over federal courts. The Unitary Executive doctrine will continue to emerge in conflicts with traditional American law until Congress requires the Supreme Court to resolve conflicts between the federal circuits and defend its own legal precedent from rogue courts or the Legal Siths gain absolute control of the federal judiciary.
/s/ Stephen Wyse
Civil Rights Attorney (aka Legal Jedi)