The dislocation of judicial discernment

Jed Gladstein

Federal trial court judges are supposed to be the first line of defense against the subversion of America’s constitutional values. But when their ability to judge in a discerning manner is dislocated, those judges become co-conspirators in subversion.

No honest and thoughtful person believes that the ACORN apparatus is entitled to public funding. It is a socially subversive organization, and it undermines common sense to think otherwise. Yet, Federal District Court Judge Nina Gershon has now ruled that Congress must fund ACORN for services to be rendered under previously signed federal contracts.

According to the New York Times, Judge Gershon’s decision is based on the notion that ACORN was “singled out by Congress for punishment” without “any judicial, or even administrative, process adjudicating guilt.” The judge’s decision thus clothes itself in the garb of Fifth Amendment “due process,” and in doing so attempts to trump the legislative power vouchsafed to Congress under Article I of the Constitution.

Some in the conservative community see a silver lining in Judge Gershon’s ruling, opining that it would be a good thing if “more judges block() acts of Congress.” Given the wastrel ways of Congress today, it is hard to blame them for entertaining such ideas. But you do not mend one broken branch of government by breaking another branch, and Judge Gershon’s ruling oversteps the constitutional limits of judicial authority by trashing the separation of powers embodied in the Constitution.

Apparently, Judge Gershon believes that the Congressional ban is “punitive” and therefore unconstitutional unless ACORN is first afforded due process rights to a fair hearing. But if the federal courts were to adopt Judge Gershon’s line of reasoning, Congress would never be able to legislate.

For example, every time Congress passes a law that imposes a tax on the American people, it is "punitive" by definition, since the Supreme Court long ago recognized that the power to tax is the power to destroy. But do the American people get due process rights to a fair hearing before Congress passes such laws? Certainly not! What they get is the right to vote for different legislators at the next election.

In the same way, the Cap & Tax bill recently passed by the House of Representatives would result in an increase in energy costs to the American people of almost $2,000.00 per family per year. Did the American people get due process rights to a fair hearing before the House of Representatives passed that monstrosity? Absolutely not!

Barely a week ago, Mr. Obama’s EPA announced a CO2 “endangerment finding” that threatens massive economic costs to the American economy and the American people. Did the American people get due process rights to a fair hearing before that finding was made? On the contrary! The EPA announcement flies in the face of evidence that the CO2 global warming hysteria is based on a pseudo-scientific fraud.

So, if Congress can impose taxes, regulate the economy down to the smallest detail, tell the American people to buy health insurance on pain of imprisonment, and generally get away with interfering in the lives of ordinary Americans in almost every way imaginable, why can’t it defund ACORN? The claim of a “punitive” intent and the lack of “due process” doesn’t suffice to explain Judge Gershon’s ruling. The only thing that does that is the dislocation of judicial discernment.

Jed Gladstein is an attorney, author and educator.

http://www.americanthinker.com/blog/2009/12/the_dislocation_of_judicial_di.html