How does [arbitrary attorney] have standing? As I understand it, Judge Sullivan has a conflict with the executive branch and appointed an attorney to plead his case. But how can one delegate power one doesn’t have? Either the power is delegated and this is a member of the judicial branch challenging the executive branch’s use of its authority or it is not a delegation, in which case it is a random attorney with a general grievance. If a random attorney at the direction of a judge has standing to challenge actions within executive branch jurisdiction, why didn’t a judge prosecute the banks guilty of criminal fraud leading to the 2008 financial crisis when Obama ordered the DOJ to not prosecute? Edit: Just realized a third option, that there exists, as in Superman comics, an unelected bizarro executive branch that can be summoned by the judiciary to battle the elected executive branch for supremacy and the one who determines the winner is... the judicial branch. Edit 2: (In response to people claiming that this is just how things work) Frank v. Gaos affirmed that standing is required at all stages of a case. Courts do not give advisory opinions. Courts do not entertain oral argument between one side that has standing and some arbitrarily selected neutral observer. Maybe answerers are confused and think that a traditional appeal, where a judge sends it to a higher court has a case and controversy due to a judge wanting the opinion of the higher court rather than the parties themselves having real injury in fact. That is not the reasoning applied by the Supreme Court when it comes to determining standing. So, I would like someone to reconcile (if possible) the traditional requirements for standing with the facts in the Flynn case before I select an answer.
If a random attorney at the direction of a judge has standing to challenge actions within executive branch jurisdiction, why didn’t a judge prosecute the banks guilty of criminal fraud leading to the 2008 financial crisis when Obama ordered the DOJ to not prosecute? This is a misunderstanding of the issue. Judge Sullivan is not &quot;prosecuting&quot; Mr. Flynn. Judges do not have the power to prosecute people. Instead, Sullivan (argues that he) is trying to decide whether or not to grant the government's motion to dismiss. Normally, this is a very open and shut question: If the government doesn't want to prosecute someone, then it would make no sense to try and keep the case in court, so it's typical for these dismissals to be rubber stamped. The complication in this particular case is that Mr. Flynn has already pleaded guilty. Because he was in federal court, on a federal charge, pleading guilty is a rather involved process. His plea included very explicit statements under oath about the specific conduct he allegedly committed, and that conduct directly matches up with specific required elements of the alleged crime. After Mr. Flynn had already made those statements under oath, the government told Judge Sullivan that it did not believe it had enough evidence to prove the case beyond a reasonable doubt. Judge Sullivan now wants to hold a hearing to determine whether he can or should believe the government, and if not, what if anything he can or should do about it. Finally, the DC Circuit issued a writ of mandamus ordering Judge Sullivan to immediately grant the dismissal. Sullivan is now appealing that order. In this sense, then, the dispute is not directly about Mr. Flynn's case, but rather about the level of discretion to which Judge Sullivan is entitled in performing his official duties. By issuing the writ, the DC Circuit necessarily determined that Judge Sullivan was not legally entitled to hold the hearing which he wanted to hold. That is what the en banc re-hearing is about.
This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer.
&quot;Seila Law&quot; is a law firm, not a law. They were a party in a recent SCOTUS decision, Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S ___, which involved the Consumer Financial Protection Bureau created by Congress, under the Dodd-Frank Wall Street Reform and Consumer Protection Act. The court held that the structure of that law (regarding appoinntment and firing of the director) is unconstitutional: The CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers. More specifically, Article II vests the entire “executive Power” in the President alone, but the Constitution presumes that lesser executive officers will assist the President in discharging his duties. The President’s executive power generally includes the power to supervise — and, if necessary, remove — those who exercise the President’s authority on his behalf. The President’s removal power has long been confirmed by history and precedent. The law in question addresses a single position, director of CFPB, not all government agencies. &quot;Agency&quot; is defined in 18 USC 6 as includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense. &quot;Department&quot; is then defined as one of the executive departments enumerated in section 1 of Title 5, unless the context shows that such term was intended to describe the executive, legislative, or judicial branches of the government. POTUS firing power is about the executive branch, not the judicial or legislative branches, so it depends on what you mean by &quot;agency&quot;. You can infer possible outcomes based on this ruling, but what they literally said is that particular law is unconstitutional.
There is a special type of law enforcement officer, called a &quot;bailiff&quot; who is charged with maintaining order in a courtroom, and often, a bailiff is a direct subordinate of a judge who must follow the judge's orders. Judges can also issue special kinds of court orders, called &quot;writs&quot; which are a direction to a law enforcement agency generally to take certain action. But, in these cases, the law enforcement agency is effectively an &quot;independent contractor&quot; in relationship to the judge with considerable discretion regarding precisely how and when a writ is carried out. Somebody in the law enforcement agency to which a writ is directed is required to take action, but no individual law enforcement officer is personally compelled to comply with this order. The quote in question is not a statement about the legal authority of a judge, however. It is a statement of &quot;realpolitik&quot;. The judge can't physically force or threaten law enforcement to do what they are told to do by a judge. The cops have the guns, not the judges. Instead, the judge relies upon law enforcement obeying the judge's orders because that is what law enforcement officers do. It's right in the job title. But, if law enforcement chose to ignore judges, in general, there is very little that judges could do about that (and in some countries, law enforcement does routinely ignore judicial directions). Some forms of executive branch authority to defy judicial orders is even legally codified, most starkly in the case of the pardon power.
Lawyers neither try nor judge cases; they advise and argue them. Criminal cases in jurisdictions based on British law (which seems to be what you are asking about) are tried by prosecution and defence both putting their best arguments to the court (either a judge or a jury) who then reaches a verdict. There is no reason why the prosecuting lawyer should not be a police officer (assuming he is properly qualified), though in reality 'prosecuting advocate' is a full-time job, so the officer would need to transfer to the District Attorney's office or something similar. Actually, such an officer would be wasted by a transfer to advocacy. Somebody who knows not only what evidence is inadmissible and the leading cases on permitted searches but also where the local crime blackspots are and which officers, likely to fall apart on creoss-examination, should not be put up as the only witness is valuable enough that the authorities (whoever they may be) will make considerable efforts to use these talents to best effect.
Maybe, probably not. The leading case would appear to be Raines v. Byrd, 521 US 811, where 6 congressmen sued over a line-item veto law (later held to be unconstitutional). The court notes the established legal fact that To meet the standing requirements of Article III, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief". where that court added the italics; and the alleged injury must be legally and judicially cognizable. This requires, among other things, that the plaintiff have suffered "an invasion of a legally protected interest which is . . . concrete and particularized" In this case, the court find that "appellees have not been singled out for specially unfavorable treatment as opposed to other Members of their respective bodies", and they are claiming institutional injury, arising "solely because they are Members of Congress...If one of the Members were to retire tomorrow, he would no longer have a claim; the claim would be possessed by his successor instead". The court did, however, uphold standing in one legislative case, Coleman v. Miller, 307 U.S. 433, where there was an issue over whether the legislature had ratified a constitutional amendment when the Lt. Governor of Kansas cast a tie-breaking vote on the question (the allegation was that this was improper). The court held that the legislators "have a plain, direct and adequate interest in maintaining the effectiveness of their votes", finding that their votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to de- feat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes. The Raines court finds that legislators "have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified" – but that was not the case in Raines (the line-item veto act had clearly passed). Applied to the Oprah hypothetical, senatorial vote would arguably have been completely nullified by the proposed process: that is the argument made in the present complaint, para 33-34. The end of sect. III of the Raines opinion gives extensive historical analysis of the fact that branches of government do not generally have standing to sue each other, closing with the note that Our regime contemplates a more restricted role for Article III courts, well expressed by Justice Powell in his concurring opinion in United States v. Richardson, 418 U. S. 166 (1974): "The irreplaceable value of the power articulated by Mr. Chief Justice Marshall [in Marbury v. Madison, 1 Cranch 137 (1803),] lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous general supervision of the operations of government, that has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests. There is a very narrow window through which the Senate might have standing to sue POTUS and otherwise, the answer is "no". The Oprah case is distinguished from Raines in that there is no political recourse to simply ignoring the appointments clause, except impeachment, and the courts might see such an action as equivalent to vote-nullification.
You are correct. A judge may only issue a warrant when it is supported by an affidavit, in which the officer seeking the warrant swears under oath to the facts supporting the warrant. Lying on the affidavit would constitute perjury. But judges very frequently just rubber-stamp the warrants without meaningfully reviewing the affidavits, so the primary form of oversight would be the defendant's Fourth Amendment challenge asserting that the warrant wasn't supported by probable cause. If a judge does review the warrant application and finds the officer's statements not to be credible, he can refuse to sign the warrant, and he is free to also carry that credibility determination to subsequent warrants sought by the same officer or other officers in his department.
Many laws control the conduct of the executive branch &quot;Attempting to control the conduct of the executive branch&quot; doesn't imply a violation of the constitutional separation of powers. Congress has many laws that control the executive. 35 USC 101 tells the Patent and Trademark Office what subject matter is patentable. 15 USC 1052 tells the Patent and Trademark Office that it must provide registration unless a trademark falls into one of several categories. There are many many more. This power comes from Article 1, Section 8 The power to enact laws that tell the executive branch what to do stems from Article 1, Section 8 of the Constitution, which gives congress the power &quot;to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.&quot; Example of intrusion on Executive authority But, when a statute intrudes on the authority conferred on the Executive by the Constitution, it is not constitutional. An example where Congress intruded on Executive authority is Zivotofsky v. Kerry, 576 U.S. ___ (2015). The court held that &quot;the power to recognize foreign states resides in the President alone&quot;, and that &quot;if Congress could alter the President’s statements on matters of recognition or force him to contradict them, Congress in effect would exercise the recognition power. An exclusive Presidential power disables the Congress from acting upon the subject.&quot; (Citing Youngstown Sheet &amp; Tube Co. v. Sawyer, 343 U.S. 579 (1952), an important separation of powers case that went the other way: the Executive issued an order that infringed on the law-making powers vested in Congress.) Executive acknowledges that Congress can control how vacancies are filled There is a case before the Supreme Court in October term 2016, where the Executive is defending its interpretation of a statute that concerns how particular executive employees are hired, fired, or directed: National Labor Relations Board v. SW General, Inc.. The Executive is not challenging the constitutionality of the statute, though. The Executive even argues, basically, &quot;If Congress wanted to control us, it has the ability to and knows how to control us.. it just didn't in this case.&quot; No bills of attainder United States v. Lovett 328 U.S. 303 (1946) is another case where Congress went too far. The background here was that Congress passed a law that said &quot;no salary or other compensation shall be paid to certain employees of the Government (specified by name)&quot;. The court held that: &quot;Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial, are bills of attainder prohibited by the Constitution.&quot; This principle was refined in Nixon v. Administrator of General Services, 433 U.S. 425 (1977). The court upheld an act that directed &quot;the Administrator of GSA to take custody of appellant's Presidential materials&quot;. Even given this specific direction to take a particular action, the court found that &quot;the Act does not, on its face, violate the principle of separation of powers.&quot;