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I suppose that the plaintiffs in Doe v. Bushdreamed of waking up one sunny day to read something like this in the morning paper: “A swift series of federal court decisions has established that the looming military action in Iraq violates the U.S. Constitution. On Feb. 27, U.S. District Judge Joseph Tauro in Massachusetts issued a restraining order holding that the U.S. armed forces must immediately evacuate from all foreign bases where they are now preparing a possible Iraq invasion, and must also cease any related training within the territorial United States and its possessions. “The judge held President George W. Bush, Secretary of Defense Donald Rumsfeld, and other civilian and military leaders in contempt of court for their stated intent to invade Iraq despite the restraining order. The U.S. Court of Appeals in Boston upheld Judge Tauro’s decision in a one-sentence order resulting from an emergency appeal, and the U.S. Supreme Court this morning declined to hear the case. “Federal marshals have begun roundups at military bases throughout the country and abroad implementing Judge Tauro’s order.” That’s right, the plaintiffs in the case took war to court. And — what did they expect? — they lost. Judge Tauro’s Feb. 27 opinion took all of six pages to give the constitutional green light to military action in Iraq. There’s an important reminder here. As America entrenches itself in two wars and counting, the courts are less and less likely to involve themselves in issues that matter more and more to the people. Not because the courts lack spine, mind you — it’s because they lack legal leeway. But whatever the reason, it’s a formula that stands on its head how Americans have come to view courts — as the legislatures of last resort. Even way back when, Alexis de Tocqueville noted, “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.” And today, if you don’t like affirmative action, or abortion, or underfunded schools, or overcrowded prisons, you can always try knocking on the courthouse door. Sometimes they’ll let you in. But with war and peace and such, they probably won’t. ‘NO GO’ ZONE Look at the case in Judge Tauro’s courtroom. The plaintiffs — soldiers, families of soldiers, and members of Congress — argued that President Bush may not invade Iraq unless and until Congress officially declares war on Iraq. Hizzoner demurred. It’s a political question, he held, and then added, “[A] federal court may judge the war policies of the political branches only when the actions taken by Congress and those taken by the Executive manifest clear, resolute conflict.” But there’s not enough conflict over this conflict. The president wants to invade Iraq, and Congress passed a bill telling him he can go ahead. Next case. Saying the dispute raised a political question didn’t mean there was no law for the judge to look at. Public Law 107-243, the Authorization for Use of Military Force Against Iraq Resolution, says, “The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate” to neutralize Iraq and enforce United Nations resolutions. It was passed by the House on Oct. 10, by the Senate on Oct. 11, and signed by the president on Oct. 16. So Judge Tauro’s legal reasoning was solid. But it was also pretty much beside the point. It hardly matters what the plaintiffs argued. The result would have been the same no matter who they were, and no matter what they claimed. No judge is going to order the U.S. armed forces to stand down. And Iraq is not the only area where judges are constrained. The war on terror hasn’t ended yet. We’ve heard the list so many times now that the severe countermeasures taken in the name of preventing future Sept. 11′s start to sound mundane: authorizing military tribunals, detaining citizens without trial as enemy combatants, stretching criminal procedure to hold still others. As with the resolution authorizing war in Iraq, there’s law on this, too. The tribunals come with a signed executive order. The enemy-combatant detentions rely on Supreme Court precedent. And the material witness statute is, well, a statute. Some plaintiffs in the war on terror have had moderate success with their court challenges. But don’t pin too many hopes here. If a trial judge slams the Justice Department for abusing the material witness statute, fine. Next time, the feds might swoop in, call the captured “enemy combatants,” and sweep them off to military brigs. When the feds raise the specter of national security, precedent and judicial caution combine to make judges back off. THOSE PEOPLE One of the newer legal weapons in the anti-terror arsenal is the National Security Entry-Exit System. That’s the program the government has used to round up men in America from a dozen or so mainly Middle Eastern countries. For those affected, if everything goes well, they stand in line for a day, give their name, dip their fingers in ink, answer some questions, get scrutinized like criminals, and they’re done. If it doesn’t go well, they’re arrested and most likely deported — either because they’re terrorists, because they’re here illegally, or because the government thinks they are. Again, there’s plenty of law on this. The dates for the registration deadlines appear regularly in the Federal Register.The program itself comes from 8 C.F.R. 264.1(f), to be precise, which gives the attorney general the power to designate “that certain nonimmigrants of specific countries are required to be registered and fingerprinted upon arrival in the United States.” And that regulation comes from 8 U.S.C. 1305(b), which lets the attorney general, with 10-days notice, call in “the natives of any one or more foreign states, or any class or group thereof, who are within the United States and who are required to be registered under this subchapter, to notify the Attorney General of their current addresses and furnish such additional information as the Attorney General may require.” But should anyone try to challenge the program (or the regulation, or the statute) in court, they’ll bump up against the “plenary power” doctrine. That doctrine gives Congress and the executive branch free rein — with very minor exceptions — to decide how to treat foreign nationals in America. Stating that Congress has the power to exclude aliens as an aspect of national sovereignty, it leaves judges little room to maneuver even during peacetime. During war, suffice to say, there’s no reason to fear any judicial activism here. All of which means that the stories of olive-skinned men lining up to register — and getting arrested and jailed — might be perfectly depressing. But the government’s actions are all perfectly legal. A JUDGE’S PLACE We’ve heard again and again since Sept. 11 that “in times of war, the laws are silent.” Of course, they’re not silent. All these laws speak loud and clear. And so do the judges. It’s just that the only thing the law lets them say is, “Case dismissed.” Some would argue that this is a good thing — that, in war or peace, the courts shouldn’t be butting into affairs that are properly decided by the president or Congress. These critics have always had good reason to suspect the pervasive role of the courts in shaping public policy. Especially in the federal system, where judges are appointed and serve for life, it’s anti-democratic, they say. Maybe. It’s true that federal judges are not elected, they can’t be recalled, and they reach their decisions in secret away from public scrutiny. But there’s also a practical — and democratic — advantage to judicial review. Congress covers multiple issues in one ongoing rush of activity and focuses only so long on any given bill. Executive agencies — like the Justice Department — can operate with even less opportunity for public oversight than the courts. And the public, busy with its own pursuits, may be forgiven for not keeping close tabs on C-SPAN all day, every day. So what happens when judges enter the picture? At the least, they expose laws or regulations to a second (or third or fourth) set of eyeballs. And by focusing attention on one particular case, they provide a forum for a broader societal debate. Because when the public tunes into a court case or a Supreme Court decision, it’s not just paying attention (or paying attention at all) to the legalisms. It’s looking at the policy underlying the case. And it’s that public debate on policy that helps democracy stay vibrant. Just look at the Supreme Court’s recent decision to review affirmative action in higher education. The justices’ decision to take the case has prompted a flurry of discussion about the details of admissions programs that, until now, have been far from the front pages. Court attention can also be critical because of when it comes. Congress passes laws and then, all too often, forgets about them. The executive branch seeks public comment on its enforcement when rules are written and rarely thereafter. But the courts offer an opportunity for the public to reconsider a law’s effects. Take the immigrant registration program for one instance of an unexpected result. The law has triggered a flood of Pakistani nationals in the United States to flee to Canada. Did anyone suspect that would happen when the attorney general started the registration program? Probably not. Do we care? Maybe. Now that we see it, it might matter. Is there anything to do about it? Or about any of the heavy policy questions that Americans instinctively bring to the courthouse steps? If we can’t turn to anti-democratic judges to weigh issues of war and peace and terrorism, we’re stuck with grass-roots democracy — protesting, lobbying, and voting. For many Americans, those are levers of change that have grown rusty, as we have relied more and more on the courts. The Supreme Court wrote in Marbury v. Madisonthat it is “emphatically the duty of the Judicial Department to say what the law is.” Maybe it’s time for everyone else to speak up, too. Evan P. Schultz is associate opinion editor atLegal Times . His column, “Controversies & Cases,” appears regularly. He can be reached at [email protected].

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