Obama’s Justice Department says that citizens cannot challenge the constitutionality of a law without the government’s consent. No, really:
The Justice Department also argues that the court doesn’t have the right to determine the constitutionality of the law in this case because of “sovereign immunity,” a long-standing legal principle that exempts the government from lawsuits unless the government consents.
Orin Kerr, a professor at George Washington University Law School and former computer-crime attorney at the Justice Department, said sovereign immunity usually is applied in lawsuits against the government that seek monetary damages, not in cases disputing the constitutionality of a law.
“I would say this is a puzzling argument,” he said. “There has to be a way to challenge the constitutionality of the law.”
The Justice Department declined to comment on the matter of sovereign immunity.
I that in this case declining to comment indicates a recognition that they haven’t a leg to stand on.
POSTSCRIPT: The administration’s argument arises in a case involving a progressive telephone company (a phrase that I previously would not have thought meaningful), that, for ideological reasons, doesn’t want to comply with a National Security Letter. The company is a peculiar civil-liberty crusader, though. They once tried to have the broadcast license for Fox News revoked.