The Extraordinary Writs
Politics / US Politics Mar 14, 2010 - 06:56 AM GMTBy: Charlie_Tarango
Most people have heard about and have a cursory knowledge of The Writ of Habeas Corpus. That is but one of many.
The “Extraordinary Writs” ( Habeas Corpus, Prohibition, Mandamus, Certiorari, Attachment, et al., ), are the most powerful force in American Jurisprudence – and no individual – not even the President of the United States – is more powerful.
Most probably think that “The Law” or “Justice” is slow and protracted. And they are right. Jurisprudential Power is slow and difficult in it’s Wield – and that is as it should – and must be. Such Power has to be wielded carefully – and that is best done slowly. The “System” is slow for a reason.
The Extraordinary Writs are quick and direct access to the Wielding of Jurisprudential Power. This is known as “Original Jurisdiction”, and is directly embodied in the Constitution. This Jurisdiction cannot be exercised “sua sponte” – this means that in order for the Court to invoke such Jurisdiction and hence its Authority – a Proper Petition must be presented. It is powerless absent the Petition.
The Extraordinary Writ allows anyone or any entity to gain immediate review of an issue directly by virtually any Court, at any level, and at any time – and use the Jurisprudential Power of that Court to force Anyone or any Entity to do a particular thing; stop them from doing something; take, attach or control ANY property of any kind; and to give any Individual Liberty, directly and without delay.
Think of the Extraordinary Writ as a magnifying lens by which Jurisprudential Power is focused.
There is a term in Law known as “Subject Matter Jurisdiction.” What that means and the way it operates is that basically both the Parties to an action and the Courts themselves, are constrained to operate in a limited sphere. Each action must proceed through the channels – and the Court themselves have clearly defined “Subject Matter Jurisdiction” - without which they cannot act. This also operates to prevent Courts from deciding or involving themselves in matters beyond their sphere.
What would otherwise take years, can be decided in months or weeks – even days. And any exercise of Jurisprudential Power through The Extraordinary Writ is generally NOT appealable. That’s why they are Summarily Denied 99 % of the Time even sometimes when they clearly should be granted – and of necessity so.
In simple layman’s terms:
The Extraordinary Writ gives a Court the Jurisprudential Power to do whatever it sees fit – Quickly and Decisively - and once it does, it as close to absolute as it gets – far more than the President or Congress.
I have seen firsthand the awesome power of The Extraordinary Writ – upon a proper Petition a Court can step in anywhere at any time to correct something – and they can and will under the right circumstances. Once you’ve seen the Majesty and Depth of the American Jurisprudential system through the lens of The Extraordinary Writ, you know that America’s Greatness comes from within – and is alive and well. And you can also see in fact and substance, the hollowness and abject ignorance of America’s detractors.
Framing the Issue
Much has been said and discussed regarding the “Financial Bailouts”.
There is a process in Law at all levels called and known as “Judicial Notice”. This mechanism allows a Court, either on its own, or though the motion of a party to the proceeding, to establish certain facts without adjudicating those facts. This is a critical function of the process. The core essence of all actions in all levels of the system is the Adjudication of the Facts and the Application of Law to those facts, either directly, or by review. Judicial Notice thus allows facts not reasonably subject to dispute to be easily established in any proceeding, without formal adjudication.
In a “SIGTARP” Report published in 2009, it has been determined that the total “Financial Bailouts” create a potential Nationalized Liability of approximately $ 24 Trillion Dollars. This Report, and the Determination of Potential Liability, are Judicially Noticeable under the Law. Similarly, on December 24th, 2009, action was taken to remove any “cap” on liability with reference to ‘Fannie Mae’ and ‘Freddie Mac’. This is likewise a Judicially Noticeable fact, as is the concomitant increase in potential liability far beyond $ 24 Trillion. Upwards of $ 30 Trillion in Liability is a sum, along with Interest, that cannot possibly be repaid within the Generation in which it is being incurred. This too is a Judicially Noticeable fact.
No Adjudication is required of the Salient Facts – they can all be Judicially Noticed.
The Vehicle
The Writ of Prohibition lies to restrain and/or enjoin an individual or entity from an act or acts, which includes particularly, those beyond Statutory and/or Constitutional Authority.
The United States Supreme Court has full Original Writ Jurisdiction. The US Supreme Court, as many others have general Rules and Practices which create exemptions to bringing matters directly to them under Original Jurisdiction, absent presentation to lower courts first. Such Rules and Practices generally require that such matters must be of “Great Public Importance” or an issue of such import affecting so many individuals, that lower Courts should be bypassed so that whatever the decision, it resolves the issue finally.
Finally, the great body of Jurisprudential Precedent of the United States Supreme Court, certainly on par with the very Statutes and Constitution itself, after 200 years, makes clear that the Supreme Court has looked to, and relied on many early writings of the Founders, including but not limited to, “The Federalist Papers”, in determining and defining the scope of both Executive and Legislative Power – and in divining the “intent” and “meaning” of the Constitution.
A Valid and Cogent claim can be made that the sum of liability of the order of $ 30 Trillion dollars that a future Generation must pay, firstly, is of such important and magnitude that it must be decided in an Omnibus Manner by Congress in Open and Public Debate. It can also be argued that in the absence of a Wartime situation, such a magnitude of Liability – in addition to all other normal federal liabilities – is in excess of the intent the Founders as embodied in the Constitution, to wit, Unconstitutional.
Similarly, the are many arguable procedural flaws in the Legislative Process itself. For example, it could be validly argued that such bills collectively constituted a raising of the National Debt beyond the legal limit, and that therefore, to the extent such bills would exceed that limit, they are ultra vires on their face. The decision to lift any cap on Fannie and Freddie is likewise susceptible to challenge for such infirmities – and others.
The Constitution and Common Law, together and individually, can overcome any statute or series of statutes that have been passed here in relation to these liabilities. The court on a Proper Petition can address all of these issues – and more. Most importantly they could, if they so choose, define the Parameters of Legislative and Executive Power to incur liabilities. That is indeed an important and timely question, that need be resolved with finality given the sums at issue and events underlying them.
The remedies the Court could employ are likewise broad. That is the beauty of The Extraordinary Writ – Courts have broad power to fashion an appropriate remedy that balances all interests – unlike virtually all other proceedings which have clearly defined recourse.
The Court for example, could find that such bills were Constitutional per se, but find that the procedural mechanisms were deficient and direct that Congress must re-enact such in an Omnibus Manner with Public Debate, along with a proper and simultaneous determination as to the National Debt Ceiling, such that the Onus of Responsibility was clearly defined. Such an onus is reasonable to ask of the Court given the magnitude of the Liabilities, and the Court may be inclined to do so.
The Court could also simply say that such is beyond the scope of the Constitution in the absence of Wartime exigencies. The Court could also find that these bills, though they may on their face be Constitutional per se, constitute an “Unlawful Taking” under the Constitution, as applied. Further, there is a strong argument that these actions constitute a plain violation of the Equal Protection Clause, as applied. “As Applied” is a critical legal concept that allows Courts to find that an underlying statute or act is Constitutional, but “as applied”, Unconstitutional.
Solid Procedural and Substantive legal bases exist to bring a Petition for Writ of Prohibition before the US Supreme Court to address these issues, as a matter of both Fact and Law.
Courage of Convictions
Jesse Livermore said that to be successful in Markets a Man must have the “Courage of his Convictions”. Timeless Wisdom – and applicable to Principled Jurisprudence as well. I am a Speculator and a Patriot. The former leastways as Jesse would define.
It is beyond my Charter to bring and Argue such a Petition. But I know there are great Scholars and Gentlemen of Jurisprudence in America, who do have the Talent and the Courage of Conviction, broad and deep on both counts. If I can see this, imagine what they can bring to bear on these issues.
I urge them to stand up now and bring a Petition for Writ of Prohibition before the United States Supreme Court. The Court may well and probably will, Summarily Deny it – but if for nothing more than posterity alone to the Next Generation, the Petition should be tendered. And we will never know if a Petition is not brought.
Whatever ones view - whether these actions are Right, Justified, or Necessary - one responsibility is clear:
The sheer Magnitude of these Liabilities – Reaching Across a Generation - and the nature by which they have been incurred, requires a more thorough inquiry into their validity under the Constitution and Laws of our Nation.
Prohibition Lies.
Bio
Carlos is American in his mid forties living in Mexico, Privately Managing Capital for select Clients.
He is a self-made Man who retired independently wealthy some 10 years ago, using that wealth to buy the most valuable commodity in the World: Time. With it he pursued his Vision of Mastering the Game commonly known as “Wall Street”. He is a Man who has the Vision to see what is possible and the Confidence to make it a reality.
Through the teachings and principles of the Great Jesse Livermore, Time, and his own Capital as Tuition, he has achieved that Vision, doubling Capital approximately every 3 years with no more than 20 % risk at any given time.
In addition to Observing the Game, Carlos is a Father, Writes, provides informal Political Perspectives to select Leaders here, is writing a book ”Ideology of Liberty”, and is working to implement a Project to amend the Constitution of Mexico through the Repeal of Article 117, Section 8.
This Repeal will shift political and economic power to the Governors of Mexico in order to prevent the fiscal and social disaster of Oil Depletion.
This article can be downloaded in PDF Format @ www.talentseekscapital.com
Carlos can be contacted @ tlggroup@hotmail.com
© 2010 Copyright Charlie Tarango - All Rights Reserved
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