The Founding fathers of this longest running uninterrupted democratic republic in the world, The United States of America, understood that each of the three branches of our government left unchecked would try to be the sole driving force of this nation. Thus they gave us a system of checks and balances in our Constitution. The President is the Commander in Chief of our Armed Services, yet he needs the consent of Congress to go to war. Congress can pass bills with a majority vote of both houses, but the President can veto the bill if he doesn‘t agree with it. If the President vetoes a bill, the Congress can override his veto. Congress makes the laws and the President enforces the laws. The President negotiates treaties and the Senate ratifies treaties. The President appoints Federal Judges, Justices of the Supreme Court, Ambassadors, and other federal officials and the Senate must give its consent. The House of Representatives votes to impeach a President or the federal judiciary and the Senate tries the case. The Chief Justice of the Supreme Court presides and a two thirds Senate present must vote to convict.
If we are to literally interpret the Constitution we would find that the Judicial Branch was sort of left out of the checks and balances and was playing a minor role when the Constitution and subsequently the Bill of Rights were adopted. No where in the constitution does it say that the Judiciary can declare a law to be unconstitutional (judicial review). However, in the very early nineteenth century, the Court’s power of judicial review, as it was applied to the constitution, came to be. Under the Constitution, the judiciary’s power did extend to cases of law arising under the constitution, and just about all other activity occurring between states, the federal governments and the states, citizens of different states, between states and their citizens, foreign states and citizens of foreign states and so on.
The Judiciary did receive more power indirectly when the Bill of Rights was adopted. Citizens were now protected and became an additional check and balance to the governing of the nation. The Judiciary is where the Citizenry go to for redress against their State or the Federal government. It was not until, 1803, when Chief Justice John Marshall invoked the power of judicial review and the authority of the Supreme Court to declare a law or actions by a State or the Federal Government unconstitutional, that the Judicial Branch became an equal player in the checks and balances triad. It would appear that judicial review is the most powerful tool of the Court. Well not so fast!
A new tool used by Federal Judges in lower courts, or as the Constitution puts it – inferior courts, is to make rulings that actually through precedent change the law. Here is a case where the checks and balances have failed. A bold approach would dictate that the Executive Branch ignore the new ruling as being outside the domain of the ruling judge, and that the Congress should censure or impeach any Federal Judge who attempts to make law. The heavily partisan nature of our lawmakers lends itself to their inability to take back their right as the sole Federal law making body in the country. The Executive Branch is also at fault by not decreeing that law made by a sitting judge is not constitutional and will not be enforced (no law making without representation).
Unless these actions of the Executive and Congress take place, the checks and balances are gone. It appears that neither the Congress nor the Executive Branch have the power or desire to hold the judiciary in check. Are the “checks and balances” protection built into the Constitution broken and in need of being fixed?
Of course, the Congress and States jointly can change the Constitution, while the Executive and the Judicial Branches have no direct role in amending the Constitution. Do the Congress and the States really need to exercise this gargantuan constitutional effort required to amend the Constitution just to offset some new law made by a judge through precedent or can they just ignore the judges ruling and make him or her go back and do it again and keep doing it until the judge is no longer making law. If the judge does not want to comply, there is always that impeachment thing.
Underlying all, the 1950 U.S. Supreme Court’s FERES DOCTRINE holds the the federal government harmless for no matter the cause, injuries to active duty personnel.[1] On 26 February 1953 was the DOD Secretary’s NO non-consensual, human experiment’s Memo.[2] Thereby an after order disobeyed dereliction of duty demonstrated by the GAO and U.S. Senate in [3] & [7]! In 1988 the U.S. Congress’s Veteran’s Judicial Review Act created the U.S. Court of Veterans Appeals (COVA). This is a U.S. Congressional no teeth inferior LEGISLATIVE, NOT a Judicial Branch Court. It can not hold the DOD & DVA responsible for the underlying facts of a case. Its Chief Judge describes veterans captured within an out of control, DVA health care process. Lost is a before military service right to a facts of the case reviewing and precedence setting, superior Judicial Branch Court. All veterans are captured within the “freely ignored” “Constitution, statutes and regulations” Executive Branch. To date the DOD Secretary’s disobeyed order, the GAO, Veterans Court Chief Judge and U.S. Senate noted violations have not been corrected! Now gone for both active U.S. Service Personnel and U.S. Veterans are the check and balances between our branches of government, i.e., the Legislative (U.S. House and Senate), the Executive (e.g., Departments of Defense [DOD] and Veterans Affairs [DVA]) and the Judicial.
Despite the efforts of some, in 2009 it is fifteen (15) years later without the U.S. Congress’s then known DOD violations corrected; REFERENCES [3] thru [7]: A. In Sept. 1994 there was the U.S. General Accounting Office (GAO) Military “Human Experimentation” “Testimony” on injured DOD personnel.[3] B. In Oct. 1994 the Chief Judge of Congress’s 1988 established inferior U.S. Court of Veterans Appeals stated that the, “Constitution, statutes and regulations” are “policy freely ignored” by both the Secretary of the Department of Veterans Affairs (DVA) and “The Veterans Health Administration” (VHA). Also there is the, “The” Veterans Appeals “court may not review the schedule of ratings for disabilities or the policies underlying the schedule.”[4] That is the herein “STATE OF COURT” transcript PARAGRAPH 9 with Congress’s law of the land, no allowed Court review U.S. CODE, TITLE 38, SECTIONS (§) 511 and § 7252. Decisions of the Secretary; finality; [5] & [6]. and C. The 54 page Dec. 94 U.S. Senate’s “hundreds of thousands” of military guinea pigs acknowledgment plus its, “The Feres Doctrine should not be applied for military personnel who are harmed by inappropriate human experimentation when informed consent has not been given.”[7] The established DOD experimentation caused issues can not be addressed by COVA or by any other U.S. Court! Accordingly, do not these DOD & DVA violations now continue?
REFERENCES (Emphasis added throughout) with comments:
[1] The U.S. Supreme Court decided in 1950, in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152, that the federal government could not be held liable under the statute known as the Federal Tort Claims Act (28 U.S.C.A. Sections 1291, 1346(b), (c), 1402(b), 2401(b), 2402, 2671-80) for injuries to members of the armed forces arising from activities incident to military service. A doctrine that bars claims against the federal by members of the armed forces and their families for injuries arising from or in the course of activities incident to military service. Sourse:
FeresDoctrine
[2] 26 February 1953, DOD Secretary’s NO non-consensual, human experiment’s Memo. Pages 343-345 of “The Nazi Doctors and the Nuremberg Code; Human Rights in Human Experimentation” by George J. Annas and Michael A. Grodin. (Oxford University Press, 1992).
[3] September 28, 1994 U.S. General Accounting Office (GAO) Military “Human Experimentation” “Testimony”. GAO/T-NSIAD-94-266
[4] “STATE OF COURT, CHIEF JUDGE FRANK Q. NEBEKER, STATE OF THE COURT, FOR PRESENTATION TO THE UNITED STATES COURT OF VETERANS APPEALS THIRD JUDICIAL CONFERENCE, OCTOBER 17-18, 1994 {as it appears in Veterans Appeals Reporter}”
——————–PARAGRAPH 9 of 16 in “STATE OF COURT” TRANSCRIPT records DVA laymen ignoring medical opinion without veteran recourse.—————————–
“I believe my message is clear. There is, I suggest, no system with judicial review which has within it a component part free to function in its own way, in its own time and with one message to those it disappoints — take an appeal. That is, I am afraid, what we have today in many of the Department’s Agencies of Original Jurisdiction — that is AOJs — around the country. Neither the Court, through the Board, the Board, nor the General Counsel has direct and meaningful control over the Agencies of Original Jurisdiction. Indeed, it is also clear that the VHA — the Veterans Health Administration — ignores specific directives to provide medical opinions as directed. And this is resulting in unconscionable delays. Let us examine judicial review. Remember, the Court and the Board do not make policy, the Secretary and Congress do. The Court simply identifies error made below by a failure to adhere, in individual cases, to the Constitution, statutes, and regulations which themselves reflect policy — policy freely ignored by many initial adjudicators whose attitude is, “I haven’t been told by my boss to change. If you don’t like it — appeal it.” The complete 16 paragraph “STATE OF COURT” transcript is available on request. Previously at, and now missing from the Chief Judges and state_of_court sites: http://www.goodnet.com/~heads/nebeker & http://www.firebase.net/state_of_court_brief.htm The legal-dictionary source “http://legal-dictionary.thefreedictionary.com/federal+court”>Federal Courts notes in part: “The court may not review the schedule of ratings for disabilities or the policies underlying the schedule.”
The top medically ignorant “boss” is Congress’s confirmed “Secretary” of the DVA.
AND THE CONGRESS’S “policy freely ignored” UNITED STATES CODE law of the land, take away from Veterans:
[5] UNITED STATES CODE, TITLE 38 > PART I > CHAPTER 5 > SUBCHAPTER I > § 511. Decisions of the Secretary; finality
http://www.law.cornell.edu/uscode/html/usc…11—-000-.html
“(a) The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), THE DECISION OF THE SECRETARY AS TO ANY SUCH QUESTION SHALL BE FINAL AND CONCLUSIVE AND MAY NOT BE REVIEWED BY ANY OTHER OFFICIAL OR BY ANY COURT, whether by an action in the nature of mandamus or otherwise.”
THEREFORE, NO COURT REVIEW OF THE MEDICALLY UNTRAINED DVA laymen and “Secretary” “schedule of ratings for disabilities” decisions as proven by:
[6] UNITED STATES CODE, TITLE 38 PART V > CHAPTER 72 > SUBCHAPTER I > § 7252. Jurisdiction; finality of decisions
“(b) Review in the Court shall be on the record of proceedings before the Secretary and the Board. The extent of the review shall be limited to the scope provided in section 7261 of this title. THE COURT MAY NOT REVIEW THE SCHEDULE OF RATINGS FOR DISABILITIES adopted under section 1155 of this title or any action of the Secretary in adopting or revising that schedule.”
[7] December 8, 1994 REPORT 103-97 “Is Military Research Hazardous to Veterans’ Health? Lessons Spanning Half a Century.” Hearings Before the U.S. Senate Committee on Veterans’ Affairs, 103rd Congress 2nd Session. With NOTES 1 to 170.