In a recent column, Chris Hedges argued that his appeal to the Supreme Court will be “the last chance” to stop indefinite detention under the National Defense Authorization Act.
Sadly, history indicates his last stand will likely fail.
Hedges and his fellow plaintiffs put their faith in a branch of the federal government to limit the powers of the federal government.
This almost never happens.
Surprisingly, Hedges won a victory in round one against indefinite detention when district Judge Katherine Forrest granted a permanent injunction on enforcement of section 1021(b)(2) of the NDAA. The judge ruled that overbroad language allowed for detention of those engaging in constitutionally protected free speech. She also said detention provisions deny prospective detainees basic due process rights. But he Obama administration rushed to protect its detention powers and appealed the ruling. An appeals court restored the government’s alleged power to detain people until the end of an endless war, setting up the final battle at the Supreme Court.
Hedges points out that the Supreme Court may not even hear the case. The court gets some 8,000 case requests each year. Out of those, it only hears between 80 and 100. But even if the Court takes the case, it still remains unlikely it will smack down federal detention powers.
Between the founding and 2002, the court ruled only 158 federal acts unconstitutional in whole or in part. Considering the amount of legislation passed by Congress through the history of the republic, that doesn’t offer Hedges much hope.
Simply put, we cannot count on federal employees to protect us from overreaching federal power. It’s a little like letting a Dallas Cowboys player referee a football game between the Cowboys and the New York Giants.
But Hedges need not despair. The Supreme Court does not represent the last chance to stop federal kidnapping. In fact, the battle against indefinite detention has only just begun.
James Madison gave us the blueprint for stopping unconstitutional exercises of federal power in Federalist 46. Madison said, “the means of opposition to it are powerful and at hand.” He went on to point out that “the disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State,very serious impediments.” And when a number of states resist “unwarrantable measures” of the federal government, Madison said it, “would present obstructions which the federal government would hardly be willing to encounter.”