Re: The insolence of Office; Hoisting them on their own Petards

Jon Beaver wrote:

> On Wed, 08 Oct 2003 00:04:39 GMT, Ken Smith <[EMAIL PROTECTED]>
> wrote:
> >Jon Beaver wrote:
> >> On 6 Oct 2003 23:27:28 -0000,
> >> [EMAIL PROTECTED] wrote:
> >>
> >> >Anyone know of any legal treatises or books on how to successfully sue, defeat
> >> >or otherwise cause problems for evil state agencies. Most of us have dealt
> >> >with some pinhead bureaurat in the wrong at one time or another. Most people
> >> >just cave. I want to teach myself to fight them. I imagine this falls under
> >> >the category of exceptions to immunity, defeating corrupt summary judgements
> >> >and so on. Any tips appreciated. I am referring to instances in which a 
> >> >bureaucrat
> >> >decides to lie thereby sending you up a false road, discriminate by denying
> >> >you actions that are available to others, etc.
> >>
> >> You are asking how the judicial functions of the government can be
> >> used against its executive functions.  That's not a direct answer to
> >> your question, but it may cause you to refine your thinking.
> >
> >  He's just asking about how us ordinary citizens can fight bureaucratic
> >sloth, indolence, and/or willful misconduct.  It's not a fuzzy question at
> >all but rather, a generic request for a range of ideas as to how to attack
> >the problem.
>
> Unfortunately, he didn't identify a "problem."

  He shouldn't have to at this stage.  If he understands how "the system"
is supposed to work, he can start thinking in terms of whether remedies
are available.

>  Until he does, we
> don't know whether it's a mere figment of his faulty perception,
> whether it's remediable through the courts, or whether he has standing
> to complain.

  We shouldn't be the ones making that decision; I'd much prefer that he
consult a local attorney on that score.  But he needs enough background
to even begin to ask the right questions.

>  But more fundamentally, if the question is whether there
> is, or ought to be, any legitimate mechanism to "sue, defeat or
> otherwise cause problems for evil state agencies" that does not FIRST
> involve a mechanism for determining WHETHER they are "evil," to be
> decided by someone other than the person "causing the problems," the
> answer is NO.

  In most cases, the suit *IS* the mechanism for determining whether the
oficial exceeded his lawful authority.  Would you prefer that the individual
be required to use deadly force to settle the matter?

> Also, remember that, fundamentally, government officials who make
> decisions they are required to make are doing their job, even if it's
> a "wrong" decision.

  As long as the government agent stays within the confines of his lawful
authority, and no remedies are provided under law, that ought to be the
end of the matter.  That having been said, the federal and state constitu-
tions are absolute limits on that official's authority, as are federal or state
laws constraining his actions. Any person violating those strictures strays
beyond the bounds of his agency, and cannot be said to be acting under
law.

> The remedy for "wrong" decisions is political,
> for the ballot box, not the courts.

  But if the "wrong" decision only affects a single individual, resort to the
ballot box is not a viable option.  Don't you think we should just settle it
in the Marine way -- blowing up the official and skragging his family? :)

> The exceptions for
> constitutionally guaranteed personal rights shouldn't make us forget
> this.

  I'll tell you what: Ensure that I have the right to vindicate my "constitu-
tionally guaranteed personal rights" in a federal court, and we'll talk --
unless and until I have the right to challenge the legality of a government
search before a independent and disinterested tribunal (one's superiors
just doesn't cut it!), I have no more constitutionally guaranteed personal
rights than the average Iraqi did under Saddam Hussein.  Hell, I don't
even have a right to challenge the constitutionality of a statute affecting
me in federal court -- and you see absolutely nothing wrong with it.