4 ms·

Great big IANAL here, but isn't due process something only the judicial branch can do? Do the police (i mean, the executive branch) get to strip liberties all w

by jfoutz 12y ago

Great big IANAL here, but isn't due process something only the judicial branch can do? Do the police (i mean, the executive branch) get to strip liberties all willy nilly, and then you have to go to court to get those liberties restored? AFAIK, it's not a judge that orders the addition to the no fly list, it's someone in the executive branch.

lmkg 12y ago
Due process is a guarantee made to citizens. The form it takes or method it is delivered by is not overly specific, and there is nothing about it that mandates it be scoped to one particular branch of government. If it's the executive branch handing down restrictions of liberty, well then I guess it's the executive branch that is responsible for ensuring due process.
- nickff 12y ago
  The courts always have a role to play when another branch has overstepped its powers, such as is the case here.[1] The administration must not abridge any rights, but it does so frequently (and is not held 'responsible' in any meaningful way), when this is the case, the judicial branch is responsible to ensure that the person affected does not suffer for it. [1] http://en.wikipedia.org/wiki/Due_Process_Clause#Procedural_due_process http://en.wikipedia.org/wiki/Due_Process_Clause#Procedural_d...
- deleted 12y ago
  [deleted]
the_watcher 12y ago
Due process encompasses everything involved in the enforcing of the laws and regulations - from how evidence is collected to having your Miranda rights read to receiving notice. And yes, should the police strip you of your due process rights, your only recourse is to go to court (or flee the police, which opens you up to other problems). You'd likely get compensation for it though, and the police would be severely punished as a deterrent to future abuses. To your last point, this is likely an issue - can a non-judicial, unelected, non-executive branch agency (I'm a little unsure of if there are agencies that aren't technically executive for Constitutional purposes, but I think most would agree that the FAA doesn't seem like an executive agency) add someone to a no-fly list? Is it civil? Criminal? Or simply regulatory (the agency could try and argue that it isn't being punitive, it just set up eligibility criteria that those on the list did not meet - a really tenuous argument, but it would be logically consistent and open up comparisons to things like qualifying for aid and slippery slope arguments about due process invalidating all those eligibility criteria).
- smsm42 12y ago
  >>> the police would be severely punished That seems to be overly optimistic. While compensation lawsuits for police misconduct are frequently successful, firing a bad cop is very hard and prosecuting is even harder, due to the enormous strength of the police unions and the notorious "blue wall" which frequently blocks all attempts for investigation.
  - the_watcher 12y ago
    Sorry, didn't mean to imply that this is what happens. Just that by design, it's what should happen (I was addressing a specific comment who posed a hypothetical). Your recourse to having your rights forcibly removed by police is to take it to court, where punishment will ideally be administered to fit the violation.

by jfoutz 12y ago

lmkg 12y ago

Due process is a guarantee made to citizens. The form it takes or method it is delivered by is not overly specific, and there is nothing about it that mandates it be scoped to one particular branch of government. If it's the executive branch handing down restrictions of liberty, well then I guess it's the executive branch that is responsible for ensuring due process.

nickff 12y ago
The courts always have a role to play when another branch has overstepped its powers, such as is the case here.[1] The administration must not abridge any rights, but it does so frequently (and is not held 'responsible' in any meaningful way), when this is the case, the judicial branch is responsible to ensure that the person affected does not suffer for it. [1] http://en.wikipedia.org/wiki/Due_Process_Clause#Procedural_due_process http://en.wikipedia.org/wiki/Due_Process_Clause#Procedural_d...
deleted 12y ago
[deleted]

the_watcher 12y ago

Due process encompasses everything involved in the enforcing of the laws and regulations - from how evidence is collected to having your Miranda rights read to receiving notice. And yes, should the police strip you of your due process rights, your only recourse is to go to court (or flee the police, which opens you up to other problems). You'd likely get compensation for it though, and the police would be severely punished as a deterrent to future abuses. To your last point, this is likely an issue - can a non-judicial, unelected, non-executive branch agency (I'm a little unsure of if there are agencies that aren't technically executive for Constitutional purposes, but I think most would agree that the FAA doesn't seem like an executive agency) add someone to a no-fly list? Is it civil? Criminal? Or simply regulatory (the agency could try and argue that it isn't being punitive, it just set up eligibility criteria that those on the list did not meet - a really tenuous argument, but it would be logically consistent and open up comparisons to things like qualifying for aid and slippery slope arguments about due process invalidating all those eligibility criteria).

smsm42 12y ago
>>> the police would be severely punished That seems to be overly optimistic. While compensation lawsuits for police misconduct are frequently successful, firing a bad cop is very hard and prosecuting is even harder, due to the enormous strength of the police unions and the notorious "blue wall" which frequently blocks all attempts for investigation.
- the_watcher 12y ago
  Sorry, didn't mean to imply that this is what happens. Just that by design, it's what should happen (I was addressing a specific comment who posed a hypothetical). Your recourse to having your rights forcibly removed by police is to take it to court, where punishment will ideally be administered to fit the violation.