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Comment by rayiner | Hacker News Reader

Violating the Constitution is not a criminal offense, for obvious reasons. When the FEC tried to enforce McCain Feingold in Citizens United, and parts of the law were declared unconstitutional, should the people at the FEC who engaged in the enforcement action have been criminally charged, tried, and punished?

Also, the federal courts aren't in the Justice Department, which is a division of the executive branch. They're part of the judiciary, which is a separate co-equal branch.

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The NRA just recently sued the NSA for effectively creating a gun registry. There must be numerous similar laws that the NSA must know they are willfully violating, and are relying simply on getting away with it through not getting caught.

> should the people at the FEC who engaged in the enforcement action have been criminally charged, tried, and punished?

Ideally, yes! We would have far fewer "good Germans" for the internet to Godwin about.

Pragmatically, no, anyone other than a judge or lawyer cannot be expected to know what is constitutional or not.

And at least as importantly, people outside the judicial branch aren't legally empowered to determine the constitutionality of laws. Allowing the executive branch and its employees to treat laws as unconstitutional, all on their own, would open up a ridiculously large can of worms.

Or if it were allowed, they'd have to be criminally liable for not enforcing a constitutional law in addition to being criminally liable for enforcing an unconstitutional law so it would be twice as ridiculous to expect anyone to be capable of doing their jobs.

Maybe it would, but everyone punting the issue of "is it Constitutional?" to the judicial branch is also a violation of ethics. What if they mess up once?

The Legislature should not pass laws without sincerely believing they are Constitutional, and the Executive should not sign laws without believing they are Constitutional. Bush 43 violated this -- he thought McCain-Feingold was unconstitutional but punted the hard unpopular decision to Someone Else.

I would agree that the legislative and executive branches do have some responsibility to write and sign laws they actually believe are constitutional. Just punting that to the courts does seem like a cop out.

I was talking more about laws that have already been written and signed since we were talking about the actions of the FEC in the context of McCain-Feingold. Absent extreme cases (like death camps or something), I don't think the FEC or its employees would have any legal right (or responsibility) to decide for themselves that McCain-Feingold was unconstitutional. Giving them that power and responsibility is the can of worms I was talking about.

We have a remedy for federal constitutional violations, which is a Bivens action for damages: http://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Age.... However, generally agents of the government are insulated from liability for Constitutional violations "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." See: http://en.wikipedia.org/wiki/Qualified_immunity.

With regard to NSA spying, there's nothing that's a clear violation of Constitutional law. The basic premise of the program, as we know it, collecting metadata and collecting calls between foreigners, is very likely Constitutionally sound based on existing precedent. If certain parts do turn out to be unconstitutional, it will be things like minimization procedures not being good enough at filtering out calls from U.S. citizens. And that's not a violation of "clearly established law." Coming down on the wrong side of an issue that judges and law professors can debate about at length isn't something that should give rise to Bivens liability.

I dunno. I would like people to be able to have a clear idea of what will get them in trouble before they get held accountable. Otherwise, we end up with unpopularity being a capital offence.

That Citizens United overturned previous precedents meant that the FEC employees could not have reasonably determined that their actions were in violation of the Constitution. Holding them accountable is to give the courts an ability to pass ex post facto legislation that even Congress is forbidden from doing. Such has no place in our system of laws.

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