The Loser Must Acquiesce

The rule of law requires that when a decision is made by the appropriate authorities, everyone go along with it.

I was, and remain, a strong proponent of same-sex marriage.  I thought, and still think, that Proposition 8 was a betrayal of the promise of equal protection, due process, and fair play by the state of California.  A majority — not a large majority, but a majority all the same — of the voters here saw it differently, and Proposition 8 became part of the state’s Constitution.  I must acquiesce in this result, and confine my response to political action (which mainly takes the form of using this blog as a forum wherein, from time to time, I address the issues and attempt to persuade others to come over to my point of view).

When my client loses in court, she and I have to confront the appropriate alternatives.  We can appeal, or we can go along with the result.  What we can’t do is defy the court’s order imposing a course of action which we would rather not undertake.  To do so would be to demonstrate contempt for the court.

Magna Charta stands out as a singular moment in Anglo-American legal history because it represents the overt supplication of the will of the King to the rule of law.  Even the King is not above the law after Magna Charta.  The Declaration of Independence and the Constitution are predicated upon the idea that the government of the United States, the political heir to the King, is subject to the rule of law.

And thus it is with great distaste that I see that the Obama Administration has re-imposed a ban on offshore oil drilling, even after a court of competent jurisdiction ruled that such a ban was legally invalid.  The Administration will no doubt defend itself from accusations of contempt of court by protesting that the original ruling invalidating the oil drilling bad was based upon a lack of competent expert evidence, and now the new ban enjoys such support.  However, at least in spirit, this appears to be nothing more than simple defiance of a court order the Administration did not like, re-imposition of a regulation that had already been invalidated by the Court.

Oil drillers are not popular right about now, and deservedly so.  There is room to think that a moratorium on offshore drilling is wise, to permit development and testing of technology to handle catastrophic accidents like the Deepwater Horizion spill.  Oil drills are, neertheless, a vital segment of our economy, one upon which a substantial amount of our infrastructure and thus nearly all of the rest of the economy, depends.  There is much room to both question or praise the wisdom of an oil drilling ban, even a temporary one.  This ban, however, is only the appearance of decisive action by the Administration after the Deepwater Horizon oil spill, however — it is the Administration decisively nailing shut the door of the barn, many weeks after the horses have all escaped. 

But even if you think that the moratorium on oil drilling was a good idea and will have beneficial effects, the issue here is not whether it’s good policy or not.  We’re past that.  It’s about whether the Administration takes seriously the concept of the rule of law and divided government.  On the face of it, this suggests that the Administration considers the courts to be an obstacle to good government rather than a safeguard of freedom.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.