“Obamacare” Not the Only Show to Watch at the Supreme Court

This week’s deluge of coverage concerning the constitutionality of the 2010 health care law has overshadowed a case heard last week that is, perhaps, even more important to the long-term vigor of our democracy. On March 21st the Court heard oral argument on Steven Howards’ suit against the Secret Service agents who arrested him after he told Vice President Cheney in 2006 that he thought our country’s actions in Iraq were “disgusting.”

The facts, to a large degree, are not in dispute. Howards confronted Cheney in an outdoor shopping plaza in Colorado after dropping his eight-year-old son off at a piano lesson. He tapped Cheney on the shoulder to get his attention, expressed his opinion and walked away. Cheney’s Secret Service detail did not intervene, evidently perceiving no threat.

After picking up his boy ten minutes later, Howards was back in the area looking concerned because he had become separated from his son. A Secret Service agent noticed this, stopped him and stated he wanted to ask Howards a few questions about what had transpired earlier. Howards refused and responded that they should “keep Cheney out of public places” if they didn’t want people to challenge him over the Bush administration’s policies. Howards said, “The Secret Service agent got furious,” arrested him and he was taken to jail.

All charges were dropped within a week, but that was not enough for Howards. As reported by NPR last week, “The more I thought about it, the madder I got. My picture was in the paper. I was depicted as a criminal… The issue is that this is retaliation for what I said to the vice president. It wasn’t based on any threat or impropriety.”

The case has been muddied somewhat by the Secret Service agents pointing fingers at each other over the contradictory reports they filed about the incident. While this is an amusing and intriguing example of the “falling out among thieves” motif, it is not what concerns me in this instance. The constitutional implications do.

A Federal Appeals Court ruled that the agents had reason to take Howards into custody, but that Howards presented sufficient evidence to support his charge of retaliatory arrest. Now it is up to the Supreme Court to decide if someone can be legitimately arrested for telling the vice president that the policies he supports are “disgusting” even if he does not present a physical threat to that official.

What I find most distressing is the Obama administration’s defense of the Secret Service agents. Obama’s Justice Department argued last week that agents should be immune from lawsuits of this nature because those in charge of protecting the president and vice president must make split-second decisions, and should not have to worry that they might be sued if they make the wrong judgment. This argument doesn’t apply here. As Howards put it: “If there would have been some threat to the vice president, I would have been down in the pavement when the interaction occurred, not arrested 10 minutes later.”

The Obama administration’s argument continues its pattern of following Bush administration precedents in cases that involve curtailing a person’s civil liberties or human rights. While the Bush administration’s disregard for these principles could be dismissed as aberrant, the Obama administration’s echoing of the same policies serves to transform such authoritarian actions into standard operating procedure. This makes the Obama administration’s legal stance more dangerous to the vitality of our democracy than the Bush administration’s initial actions. If we can’t express our disagreement with our elected officials to their faces without chancing arrest, our rights will be severely limited.

At first glance it seems hard to imagine that the Supreme Court would hold that Secret Service agents must be immune from lawsuits like Howards’ in order to protect their ability to make 10-minute-long “split-second” decisions. You might expect that someone who pronounced such an absurdity would be laughed out of court. But remember a majority of this Court is composed of the same set of dissemblers who have recently held that corporations are people and that money is constitutionally protected speech.

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