As the nation begins deliberating over the nomination of John G. Roberts, Jr to the Supreme Court there are some aspects of the conservative mind-set to consider.
But for the moment, here's a quote I offer for consideration. It's from a law suit that was filed against a government official claiming negligence in his supervision of an employee that died.
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When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion. For a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime. The focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.
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What that quote says, in effect, is that if a government agent is doing his/her job as directed and within the definition of that job, then it is to be assumed that official is well-intentioned and any negative consequences are the result of honest mistakes for which he should not be held liable (responsible). While this makes sense, it's actually a rather revolutionary thing to even consider whether a government official can be held accountable for how well or poorly he performs his duties by someone other than his superiors (which, in the case of elected officials, are the voters)--i.e. in a court of law.
I can't seem to find the date or case at the moment, but it wasn't until some time in the latter part of the 20th century that the principle of "government immunity" was challenged and found not to apply in all cases.
Note that I'm not talking here about people who commit criminal acts, intended to do harm to another or his property, and who just happen to be government officials (agents). What's of concern here is government officials acting in their capacity as government agents and violating the intent of their commission (what they are supposed to do).
The reason I'm bringing this up is because the question of whether government officials are immune from prosecution when they are carrying out their official functions is basic to the conservatives' antagonism towards the judiciary. When they talk about "judicial restraint" what they mean is that the courts should stop interfering with the acts of the executive. What they want is to go back to before the recent court decisions making government officials accountable and re-affirm the principle of immunity, which the representatives of foreign governments actually enjoy on our soil.
It's a really basic question. Does the power to govern lie with the people or with the individuals who have been designated or designated themselves to exercise control? If the former, then it seem logical to argue that the people should have some mechanism to demonstrate that power, other than by registering an occasional vote. Recently, the answer has been on the side of the people and the power of the people has been affirmed by the judicial branch--i.e. the courts.
Judge John G. Roberts, Jr. if you asked him, would tell you that he does not agree with this trend. The authority of government, which is, after all made necessary by the flawed nature of man, should not be challenged. In addition, given the difficulty of exercising authority to begin with, since flawed human nature is bound to resist being controlled, those who take on this onerous task should be immune from challenge. It's bad enough that they are liable to being removed at the ballot box or as a result of a political shift in the population.
As some of you may have noticed, I've been paying some attention to the performance (or non-performance) of some of our local law enforcement agents. This round started with a critique of a series of press releases from our local police which ended up as reports in the paper, touting their (non)achievements. In retort, there have been a number of commentaries by police union reps and spouses essentially espousing the position that it is unpatriotic to question the police, that they make all kinds of sacrifices for the community and should, therefor, be immune to being challenged. This is the conservative mantra in a nutshell.
While I understand the position that those who have been given authority want to be able to use it as they see fit (the hallowed principle of "discretion"), I just don't happen to agree with it. Unchallenged authority is always prone to excess and needs to be constantly watched. That's what's addressed by the quote, "the price of liberty is eternal vigilance." We don't have to fear attack from outside nearly as much as suppression from inside.
Anyway, one of the responses on the part of government, particularly on the local level, to the perceived loss of immunity ("need to be accountable" is the positive rendition) has been to come up with various strategies, usually involving "training" and "certification" which provide individual officials with "cover" for their actions. Individuals can't be held personally liable or accountable for their actions, regardless of how negative the results are for someone else, if their behavior was performed "under cover of law."
In other words, the purpose of programs like police agency accreditation is to shield the police from public accountability. So, the next time you read about police shooting an unarmed civilian and a hearing officer or review board finds that the shooter was not culpable, what it means is that the shooter was acting within the criteria set up by his supervisors, and probably signed off on by the legislative body that supervises them.
Sometimes it seems to me that everyone wants to have power and nobody wants to be held accountable for how they use it. On the local level, that's the reason behind the proliferation of "professional" managers and administrators, who have taken the place of persons elected to perform certain municipal and county tasks. To a large extent, these individuals act as insulators. They protect the permanent deliverers of public services from the wrath of dissatisfied citizens (who used to be able to throw the road commissioner or the sewer commissioner out if the service was inadequate) at the same time that he protects the elected "policy body" from the wrath of the electorate by removing all operational responsibility from them.
So, the next time an elected official in your town shrugs and says he only sets policy and has nothing to do with how they are carried out, that's what he's talking about. It's what makes being an elected official so frustrating. The electorate wants to hold you accountable for things over which you have no control and over which the bureaucracy doesn't want you to have control. 'Cause that's their bailiwick.
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Addendum --9/1/2005
What's the purpose of government?
If you think that the purpose of government is to control a population made up of unruly and anti-social individuals, then you'll be satisfied with having people locked up, sent off to war with other unruly nations, and otherwise left to their own devices and the vagaries of nature. That's what conservatives believe and that's what they deliver.
If, on the other hand, you think that the purpose of government is to co-ordinate services and community efforts in order to make them more effective and able to respond to the inevitable vagaries of nature, then it's Democrats that should be elected.
You see, it's the conservative prejudice which sees all human beings as basically flawed and deserving of all the bad things that befall them, which enables them to refer to social support as bribes and to prefer to rely on threats and punishment to get the desired results (the elimination of recalcitrant individuals).
God's punishment has been visited on the poor and undeserving residents of the Gulf Coast and those that survive are sure to be better for their experience. I actually heard George the Lesser say that this morning, though he left out the mention of God. He is, after all, a secular ruler.
What should one conclude from the above musings, other than that the abject failure of the Bush Administration to deliver adequate public services was to be expected?
Well, among other things, that if government functions are all and only directed at law breakers and recalcitrants, it makes sense that government officials should be immune from retaliatory prosecution.