Wikipedia:Reference desk/Archives/Humanities/2018 January 10

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January 10

Taking the government to court

Recently, I’ve read in the news about a health insurer that decides to take the national government to court. My guess is that someone will represent the government in court, maybe the president, but isn’t the government who makes the laws/rules? Not only that, a government can actually challenge another government in the international court, but who enforces the ruling if one government is at a loss and breaks friendly ties with the other country? Or whoever is the superpower (USA) is free from all of this? 140.254.70.33 (talk) 16:53, 10 January 2018 (UTC)

Yes, the government makes the rules/laws, and that's the reason that seperation of powers is so important in order to have a government that is properly accountable. Judges are not supposed to make laws, they apply the laws that the legislative branch of the government writes. And even though legislators may change the law, they generally cannot change it retroactively, i.e. a judge rules according to the laws that existed when the dispute arose, or when the injustice supposedly occured.

When it comes to international government disputes, that is another and quite complicated subject, but basically countries are only accountable to what they themselves bind themselves to. It's a sort of honor system. So for example Iran has signed the Treaty on the Non-Proliferation of Nuclear Weapons, and that's why it is subject to restrictions and sanctions for failing to comply with the treaty. However, India and Pakistan have never signed the treaty, and North Korea withdrew itself, and so those countries cannot be formally held accountable for ignoring the prohibition on developing nuclear weapons. Of course, countries can always use threats of war and unilateral economic sanctions to pressure other countries, but that is not international law, that's just politics. - Lindert (talk) 17:12, 10 January 2018 (UTC)

There's usually a separation between the legislative branch (parliament, congress, legislature) and the executive branch (government). Although in parliamentary systems the government is comprised of certain members drawn from the parliament, the two branches are still quite separate, and that's why although it's governments - for the most part - who decide what laws will be introduced into the parliament, they often have less control over the passage of those laws than they would like. Sometimes they have to compromise and accept amendments to their laws, or risk not having them passed at all. Governments are no different from individuals when it comes to sometimes acting in breach of the law, and that's why parliaments and the courts are there to hold them accountable. Any citizen or organisation can institute an action in the courts against the government, and the government either has to defend itself or come to an accommodation with the entity suing them (e.g. change their policy/practice, or pay $$). -- Jack of Oz ^{[pleasantries]} 20:37, 10 January 2018 (UTC)

If the United States government is a party to a lawsuit, their case is argued before the courts by the Solicitor General of the United States or by a member of his office. --Jayron32 17:35, 10 January 2018 (UTC)

Note though that in very rare circumstances, the government and therefore the Solicitor General or whoever it is may be arguing in favour of those bringing the case against the government probably because of some constitutional issue. United States v. Windsor [1] [2] is one such example. In such cases, one or more parties take up the role of arguing against those bring the case. Nil Einne (talk) 16:28, 11 January 2018 (UTC)

Actually I should clarify. The Supreme Court case was, as evidenced by the name, a case by the US government against the other party. This is because the government had already lost the earlier case so the government was appealing that decision. The original case which lead up to it was against the government. Nil Einne (talk) 17:15, 11 January 2018 (UTC)

Perhaps you're referring to Sovereign immunity? That article gives a rundown on the concept. Eliyohub (talk) 09:47, 11 January 2018 (UTC)

All countries have some legal framework, usually called constitution, which define the nature and extent of government, society and culture. The definitions are however often very vague on purpose, to establish some flexibility for governments. Additionally these constitutional laws are usually guarded by a judicial institution that acts very formal and bureaucratic and often also political corrupt in obvious favor for national and/or political interests.

Its not regarded as a perfect legal system, some claim not even designed as such, this is a wide spread misunderstanding, but the best possible for this country/nation. That is because the international scenario is often anarchistic by nature. Foreign governments, especially superpowers often simply act against international laws, simply because they can and because it gives them an important advantage. To enable some reaction or "Tit for tat" every government has to reserve its ability to act or react anarchistic as well to not grant some foreign government that advantage exclusively. In a sense it may look dirty, bad and lawless but there is no better version of "the game" available. --Kharon (talk) 14:26, 11 January 2018 (UTC)

The United States federal government has sovereign immunity - which means that it can't be sued unless it consents to being sued. Therefore, Congress has passed a number of laws which waive sovereign immunity under certain situations; for example, the Federal Tort Claims Act permits individuals to sue the federal government for torts. NorthBySouthBaranof (talk) 16:31, 11 January 2018 (UTC)

One option sometimes used and allowed when sovereign immunity prevents the federal (or for that matter state) government being party to a lawsuit is to instead name the executive officers or officials considered responsible for whatever it being challenged. See for example [3] which has some discussion of this practice. Our article also refers to it here Sovereign immunity in the United States#Suits filed against state officials under the "stripping doctrine". Note that although it refers to "state", many of those references seem to actually be using the term in the manner of State (polity) rather than Federated state. It particularly notes that Ex parte Young applies to federal statutes as well. This is also noted in the earlier source as well as [4].

That said both external refs note that the waivers and modern judicial interpretation mean the practice is a lot less common with cases (effectively) against the US government than those (effectively) against governments of US states. Although they still occur, [5] relates at least one such case (it relates to the DOMA issue I mentioned).

It also argues that this an unnecessary legal fiction (also mentioned by some of the other sources) which creates additional problems related to what I mentioned above. If the executive government and therefore the officials do not wish to defend the case, do others have standing to defend it considering that it's the technically the officials and not the government that is being sued? (There is an explanation for why they don't feel this is as much of an issue if the government itself is sued.)

BTW it also mentions the waiver which allowed Windsor to be a case against the government. There are some more opinions and sovereign immunity and the interaction with suing officials/officers here [6] [7].

Nil Einne (talk) 06:02, 12 January 2018 (UTC)