Hyphoid Logic: Steps Toward Dictatorship: Hein vs. Freedom from Religion

A very important decision has been handed down by the US Supreme Court in the matter of Hein (Office of Faith-Based Initiatives) v. Freedom from Religion Foundation. An article about the decision written by the Associated Press is available, and the decision in its entirety can also be seen courtesy of SCOTUSblog. There's a lot of chatter going on about it, most of it focused on the fact that the case was brought by "atheists and agnostics" and that it seems to weaken the Establishment Clause separating church and state in the US. I agree that those things are important, but it seems to me that something more fundamental is at play in the opinion issued by Justice Alito and joined by four other justices in this 5-4 decision.

In reading Alito's opinion, I note something I find extremely disturbing. What it says is essentially that while the legislative branch of government can be sued by taxpayers over decisions of how taxpayer money is distributed, the executive branch cannot be so long as the allocation isn't one that has been specifically approved by Congress. In other words, the President is free to spend money however he wants so long as it comes out of general funds that haven't been specifically targeted in a federal budget item. Alito justifies this by essentially saying that the federal budget is too complex to allow for US citizens to bring suit over presidential spending (a standard that doesn't appear to apply to Congressional spending in his opinion), and that if a president did something particularly egregious with these funds that Congress could simply step in and stop him/her.

What we're seeing here is a further "strengthening" of the executive branch, a goal which Dubya has never kept secret. Checks on the executive branch were instituted during the Nixon era, and it has been a stated goal of the current administration to reverse these. The reason that these checks were instituted was largely that Nixon's administration loved to operate in secrecy, a trait that our current bunch shares in spades. That in itself negates a good portion of Alito's justification insofar as Congress being able to quickly step in. As we've seen illustrated recently in the establishment of secret overseas prisons and the ongoing fight with Dick Cheney to provide documents to the National Archives, an executive branch can be difficult, if not impossible, to pin down on how money is being spent when it appropriates the funds outside of initial congressional oversight. Alito is wrong in his opinion, and I don't think it's a mistake that leads to this unsupported assertion of rapid legislative intervention.

What has happened here is that ShrubCo has essentially been given a free pass by the judicial branch of government. If Americans can no longer bring suit against the executive branch without being able to prove that they have been injured personally in some way, then there is no longer any real check against executive excess of almost every kind imaginable. The bit about the complexity of the federal budget is only a dodge; it isn't the role of the court to decide what is too complex and what isn't, only what is Constitutional. There is nothing in the Constitution, as far as I know, that shields the president and his cabinet from law suits in some special way, and certainly I can't recall any marker of what is and isn't too complicated to allow a citizen their right to bring suit. This is nonsense, and in fact is blatant activism coming from a so-called originalist justice.

In fact, this decision is just another instance of the erosion of governmental checks and balances. By this way of thinking, it would be possible for the president to use an executive order to nullify Congress' ability to impeach or to waive elections in a time of emergency and disallow any legal action by citizens to counter such decisions. In such an instance, members of congress could certainly go to the Supreme Court but, as we're seeing now, that doesn't help at all when a majority of justices are in ideological agreement with the idea of an unchecked executive branch (even if they don't come right out and say so). The Supreme Court is free to come up with any novel interpretation they wish, and then all that's left to Americans is the ability to vote... an institution already on shaky ground and which is readily manipulated in the "court" of public opinion.

We're sliding toward dictatorship in this country. Two branches of government have already been co-opted and the third is being made impotent systematically by them. Personally, I would very much like to hear something from what currently passes for a political opposition party in this country, but I doubt we'll hear anything resembling a plan to address these changes, even if the opposition does come into power in the executive branch in 2008. We really do need a third party, at the very least, with a mandate to counter the erosion of Constitutional government. There also needs to be some way of addressing subversion by the Supreme Court, because it looks very much like that's what's going on, at least judging by the kind of reasoning in which Alito engages in his opinion.

I find it sadly ironic that an administration so fond of its rhetoric about exporting democracy has no problem at all with importing dictatorship at the same time.