Combating the Ramifications of the USA PATRIOT Act: The Standing Doctrine and the Judiciary’s True Role in the Separation of Powers Scheme


History has told that when the United States is in a state of war, laws—especially laws pertaining to individual liberty interests—will bend. During the Civil War, President Abraham Lincoln ordered a blockade of the southern ports and suspended the right of habeus corpus. Then again, during World War II, the United States Government sacrificed the freedom of many American citizens by ordering the internment of Japanese Americans on the West Coast. And most recently, during the war on terrorism, several American citizens were indefinitely detained by the military as “enemy combatants” without due process of the law. However, national security and individual liberty interests are not mutually exclusive. The United States must balance both individual liberty interest and security interest appropriately. It is a well-founded proposition that if the Federal Government cannot secure our nation, our individual liberties will mean very little; however, the preservation of the individual liberties of all United States citizens is vital to having a nation worth securing. The three separate branches of government were developed as a check and balance for one another so that individual interests of Americans are not sacrificed by the actions of any one individual branch. And it is within the judiciary’s duty to ensure that federal power is never “‘condense[d] . . . into a single branch of government.’” This Article contends that, in light of the recent actions of the Federal Government in the post-9/11 era, it is the duty of the judiciary—as vested within their constitutional powers—to serve as the necessary check on the executive and legislative branch when these two branches enact legislation, like the USA PATRIOT Act, that infringes on Americans’ individual liberty interest found in the Bill of Rights. This is because it is within the judiciary’s power to bring a balance as to what is necessary for national security, and also to protect the individual liberty interest of Americans against an overreaching Federal Government. Part II of this article will outline the United States Separation of Powers Scheme as set forth by the Framers; and will examine the nature of the judiciary’s power within that scheme and the standing requirement which must be met in order for the judiciary to hear a “case” or “controversy” concerning a constitutional issue. Part III will examine the nature of a “new” concrete injury that is manifested by way of certain legislation, specifically the USA PATRIOT Act. Part IV will examine why this “new” injury is grounds enough for standing; discussing the role of the judiciary within the separation of powers scheme and as the protector of individual rights, especially those found in the Bill of Rights. I will then conclude with my concerns over the state of American’s individual liberty interest and why it is necessary that the judiciary acts as the protector of Americans’ Constitutional Rights.


Constitutional Law

Date of this Version

January 2007