November 8, 2016

Election day pessoptimism

By James S. Burling Vice President for Litigation

We’ve all seen the images of election day euphoria from places scattered around the globe. Citizens in nations freed from the yoke of oppression lining up for hours to cast their first (and hopefully not last) votes. People celebrating in the streets as a hated dictator is forever banished from the political scene (and perhaps not replaced with another.) Hope abounds that democracy will lead to better and freer lives.

Image result for morning in america
What kind of morning will it be in America tomorrow?

There’s no euphoria this morning in America. Sure, there are some fervent supporters of our candidates. People think that this candidate will clean out the Augean stables or that candidate will at least make the mess more tolerable. But overall there is a stink to this year’s political process that is hard to mask. This is not our finest hour. Both major candidates are deeply flawed individuals whose fitness for office is far from obvious. One candidate wants to extend the lawlessness of the present administration, the other candidate doesn’t understand what the law is. One candidate is ethically challenged, the other candidate is trapped by an ethic of hubris. One candidate will win; whether the people will win is another matter altogether.

But there is hope — real hope — that no matter who wins the contest for the head of the executive branch, the other branches will keep the nation on course, more or less. And, no matter who wins, we will be working within these two branches in every way we can. For over 43 years, through Democratic and Republican administrations alike, we have sued the federal establishment when it steps on the rights of ordinary Americans. We have testified in Congress to shed light on the worst abuses of the bureaucracies of power. In recent years, we have had a very target-rich environment. We expect nothing less tomorrow.

These are times for pessoptimism — optimism splashed with a bracing bucket of cold water. If were going to see through the next four years and maintain or economic and individual freedoms, we’re going to have to sue the government, just as we always have but more often and with more firepower. Our struggles will be long and hard-fought, but we will win because this nation’s DNA for liberty cannot be engineered away by executive order.

The courts are the greatest bulwark today against oppressions of the administrative state. And this will remain the case no matter who gets elected and who appoints the judges. Remember, some of our biggest victories in cases like Sackett and Hawkes were unanimous. The courts don’t like the fear and loathing engendered by bureaucratic potentates any more than we do and any more than the voter in the street does.

So, today we vote. Tomorrow we see who won. And the day after tomorrow, we sue.

 

What to read next