The Structure limits the jurisdiction of federal judges to precise circumstances and controversies. They might not provide advisory opinions or intrude on government or legislative powers,…
besides when the opposite branches have exercised them in an unconstitutional method. Federal judges are umpires deciding issues about which litigants disagree. If the litigants come to an settlement, there is no such thing as a controversy. The case is over.
Many judges disapprove of this limitation on their energy. Not comfortable being umpires, they need to be commissioner of baseball. Thus courts have arrogated to themselves powers the Structure explicitly denies them. They’ve invented exceptions to present themselves jurisdiction over circumstances by which there is no such thing as a longer any controversy between the litigants.
It’s towards this constitutional background that we must always consider Choose Emmet Sullivan’s Tuesday order inviting friend-of-the-court briefs advising him whether or not to simply accept the prosecution’s movement to dismiss the case towards Mike Flynn—a movement to which the protection consents.
By inviting the irrelevant opinions of outsiders, Choose Sullivan is unconstitutionally encroaching on government energy. Solely the chief has the authority to prosecute or not. Implicit in that unique energy is the only discretion to resolve whether or not to drop a prosecution, even when, as on this case, the courtroom has accepted the defendant’s responsible plea. As soon as prosecutors have agreed with the defendant that the case needs to be dropped, the courtroom loses its constitutional authority to do something however formally enter an order ending the case, as a result of there is no such thing as a longer any controversy for it to resolve. There may be case regulation, and a judge-written procedural rule, supporting Choose Sullivan’s order, however that doesn’t make it constitutional.