The revelations about IRS targeting of tea party groups, despite repeated denials by the Administration, and of manipulation of talking points about Benghazi, again despite repeated denials by the Administration, raise the question of what institutions should be used to stop government – especially executive branch – wrongdoing. This is a complicated issue, but I thought I would discuss the issue a bit.
The original Constitution employed the following political checks – good faith on the part of the executive branch (including prosecuting executive wrongdoers) combined with the check of legislative impeachment. This might have made sense in the beginning, with a small government, but certainly it does not work adequately for a large government.
One additional check in the early days involved lawsuits by individuals against government officials for wrongdoing. For example, if a government official searched or seized your property, one could sue him for trespass or some other relevant tort. The individual could defend on the ground that his action was legally authorized. But if it was not, then one might have a tort suit against him for damages to be paid out of his pocket. This provided government officials with incentives to conform to the law.
Unfortunately, over time the movement for big government made up immunity for government officials that prevented them from having to pay damages so long as they had a reasonable basis in the law for their actions. Continue Reading →