Intelligence Law School - Course 1: Lesson 3.4.5 Disputes of the Separation of Powers: Custom vs. Litigation [HTML-Only]

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3.4 The Articles

3.4.5 Disputes of the Separation of Powers: Custom vs. Litigation

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3.4.5 Disputes of the Separation of Powers: Custom vs. Litigation

That also does it for our discussion of the Articles generally.

Those are the 3 most important Articles.

And those are the basic powers of the 3 branches of the federal government.


Later courses won’t deal as much with issues related to these Articles as with the individual rights contained in the Amendments I’ll be discussing in a minute.

Questions pertaining to the powers of the three branches are almost never litigated.[1]

Instead, the separation-of-powers problems that arise in the intelligence context are handled almost exclusively through non-judicial interaction between Congress and the President.

This interaction isn’t governed primarily by judicial opinions; it’s governed by vague normative principles of comity and custom that have developed over more than two centuries of inter-branch friction.

This is why litigation over Articles I through III doesn’t consume much of the time of most in-house intelligence lawyers working inside the Community or the hotshots at DOJ who manage the litigation involving federal agencies.

Of course, it gets more nuanced and complicated than this in practice, but I’ll explain those issues when they arise during later discussions.

For now, that’s all I’m going to say about the Articles and the constitutional powers of the 3 branches of government.



[1] Constitutional issues regarding disputes over the powers of the different branches of government are not usually decided by the courts for a variety of reasons, most notably the doctrine of separation of powers and the political question doctrine. Instead, the dimensions of these powers are decided through custom in a perpetual tug of war between the two political branches with respect to the allocation of constitutional power provides the backdrop, which frames all actions taken in the intelligence context. Most of the legal issues arising out this titanic struggle are labeled “political questions” by the courts, making them non-justiciable. In addition, most non-political questions are thrown out of court on similar technicalities related to standing, ripeness, finality, or due to lack of evidence because of the State Secrets Doctrine and Executive Privilege, or because of a number of other procedural tricks used by the intelligence community to avoid judicial oversight and legal accountability. Even if you can bring a case under the Administrative Procedure Act, you can’t win any money. Remedies are limited to things like injunctive or declaratory relief. Bringing a successful case requires not only an exceptionally skilled attorney—because the deck is so thoroughly stacked against you—but it also requires TONS of that attorney’s time as well, and lawyers that good always charge by the hour. With no pay day at the end of the rainbow even in the unlikely event you’re able to win, you can see why even the most dedicated civil libertarians have been largely powerless to challenge even patently unconstitutional behavior by the agencies and employees of either DoD or the broader Intelligence Community since 9/11.


© 2012 David Alan Jordan. All rights reserved.