Larry Klayman
November 2, 2015
Judiciary fronting for tyrannical government
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By Larry Klayman

The federal courts are increasingly leaving the American people defenseless against government tyranny. Over 38 years as a lawyer and federal prosecutor, I have watched the judiciary abandon the checks and balances that once made our Constitution function.

Many Americans still expect that our courts will step in and right the wrongs, even against a political stampede. But, sadly, with few exceptions like D.C. federal judges Royce C. Lamberth, who during the Clinton administration found that "Slick Willy" had committed a crime, and Richard J. Leon, who is about to again enjoin President Obama and his NSA from illegal mass surveillance on the entire citizenry, it is now a quaint notion that our courts can be trusted to enforce the law and fulfill every judge's oath to support and defend the Constitution.

The legal notion of standing is a key part of the decay. The Executive Branch has grown increasingly brazen in violating the law and the Constitution. For example, our so-called government, currently and generally represented by the "yes-men" of the Obama Justice Department in its Federal Programs Branch, then objects that no one can bring a lawsuit to challenge its illegal behavior.

But standing is a fiction invented by compromised judges who would rather put their heads in the sand than do their jobs. To take a strong stand and actually adjudicate politically charged issues could cost them a higher appointment some day, as both Democrats and Republicans in the Senate are adept at tying up judicial and other executive branch nominations.

In this regard, appellate opinions recite in lofty terms an Article III requirement. But neither the word nor the concept appears in the Constitution. Legislation governing the courts doesn't mention standing. Over time, abuses have created ever-growing barriers. Even conscientious lower-court judges choose to follow ambiguous or even bad precedents.

Recently, my lawsuit against the Corker Bill – which turned the treaty ratification provisions of the Constitution on its head concerning Obama's disastrous Iran nuclear treaty – was dismissed for lack of standing. Congress violated the Constitution by changing the ratification of requirement of a two-thirds vote in the Senate. No treaty is valid unless ratified by two-thirds of the U.S. Senate. The Constitution does not give a president any other power to create international agreements. The Corker Bill is unconstitutional because it overturns Article II, Sec. 2, Par. 2. A copy of our lawsuit is at FreedomWatchUSA.org.

Incredibly, Congress just went through a charade of voting whether to approve or disapprove Obama's treaty of surrender to the Islamic Republic of Iran. Without ratification by two-thirds of U.S. senators, the treaty is void. Yet, our entire Congress ignored the Constitution. And, in the case of Sen. Marco Rubio, who claims to be a champion of a strong Reaganesque foreign policy and raised tons of money claiming that he would block the treaty, he failed to show up to vote. (Presidential candidate Jeb Bush's recent attacks on Rubio's voting record are more than justified!)

In this regard, the Honorable Kenneth Marra, in the U.S. District Court for the Southern District of Florida, dismissed my lawsuit against Rubio and my other Florida representatives – I am a Florida citizen having myself run for office there – for voting without my proxy for the unconstitutional Corker Bill, finding that the loss of my constitutional protections, the danger to me as a Florida citizen and an American from Iranian nuclear weapons is not concrete enough.

Judge Marra dismissed my lawsuit, stating: "The Supreme Court has also held that, based upon co-extensive prudential standing principles, an alleged injury that is 'a generalized grievance shared in substantially equal measure by all or a large class of citizens' does not constitute a specific injury-in-fact that warrants the exercise of a federal court's subject matter jurisdiction. Warth v. Seldin, 422 U.S. 490, 499 (1975)."

In other words, the more widely important an issue is, the more it affects many people throughout the country, the more the federal courts will strive to avoid getting involved. Yet, curiously, that principle never blocks lawsuits promoting a liberal environmental agenda.

Judge Marra also recited, "Federal courts are courts of limited jurisdiction." But they are limited in deference to state courts under the 10th Amendment. Limited jurisdiction does not mean refusing to enforce actual federal laws or the Constitution.

More than a hundred lawsuits challenged whether Obama is a natural born citizen, eligible to run for and be president. Not one of those lawsuits, several of which I filed in Florida, ever reached a decision on its merits. All were dismissed on standing, most without the courts even explaining their decision, as they had no bases to dismiss the cases since Florida's elections laws allow for such a challenge for fraud and misconduct by candidates for federal or state offices.

Originally, judges invented a pragmatic test with regard to a citizen's standing to sue. As Baker v. Carr, 369 U.S. 186, 205 (1962) explained:

"Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult U.S. Constitutional questions? This is the gist of the question of standing."

The only legitimate purpose is to make sure that two parties do not bring a frivolous lawsuit in which actually they agree.

Yet standing depends upon where you sit. In Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), the Supreme Court allowed plaintiffs to force the EPA to regulate carbon dioxide to prevent global warming. Their standing was that a hundred years from now some coastline could disappear if sea levels rise, assuming that computer models without empirical evidence are accurate, assuming that plants don't consume the carbon dioxide, assuming that world climate doesn't adjust in ways we don't understand, and assuming that sea levels do rise instead of evaporation causing more snow at the poles.

But "standing cannot be predicated upon an injury the plaintiff suffers in some indefinite way in common with people generally." Mass. v. Mellon, 262 U.S. 447, 488 (1923). Yet the rules are suspended if the goal is expanding the size and reach of government. Global warming would affect all humanity. This should be the poster child for lacking standing.

By contrast, Sheriff Joe Arpaio's lawsuit against Obama's executive order amnesty was dismissed on standing, and we will soon be on appeal to the U.S. Supreme Court. We documented $9,293,619.96 in hard costs from illegal aliens in Arpaio's jails in 2014 resulting from Obama's 2012 deferred action for "dreamers." Arpaio's harm is grounded in real-world, empirical experience. Yet the federal appeals court in Washington, D.C., said that was too speculative, although global warming is not.

If we had responsible elected officials, Congress does have authority to correct these abuses and double standards. The Congress can regulate the courts under Article I, Section 8, and Article III, Section 1, and could remedy and overturn this nonsense. But will we have to wait until we elect a Congress who takes our Constitution seriously? Given the current state of affairs with gutless, do-nothing and hypocritical senators and congressmen like Marco Rubio and my representative, Patrick Murphy from Palm Beach County, that is likely to be never! And, that is why – absent more judges in addition to those few like Lamberth and Leon who will protect the citizenry from government tyranny – we are headed for revolution, 1776-style. Our Founding Fathers pledged their sacred fortunes and lives to restore our God given freedoms, and we now, 230 years later, have no choice but to do the same.

© Larry Klayman

 

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Larry Klayman

Larry Klayman, founder of Judicial Watch and Freedom Watch, is known for his strong public interest advocacy in furtherance of ethics in government and individual freedoms and liberties... (more)

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