On Executive Authority and Unconstitutional laws

Discussion in 'Law and Justice System' started by BenNatuf, Feb 26, 2011.

  1. BenNatuf
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    For those who believe the President MUST enforce all written laws until a court tells him otherwise, This thread is not about DOMA. I posted this as argument in another thread regarding the decision to not defend DOMA. I thought the subject of Executive authority in this area deserved a thread irregardless of DOMA, so this thread ain't about that, and it ain't about Obama. It's about the nature of Executive Authority and its limits.

    Courts reccognized a long time ago that the President enforcing laws which are anethema to the constitution would be a violation of his oathe. Yes, courts do determine the constitutionality of statutes... once they get to them. Prior to that the administration must enforce them, and in order to do that they must interpret them, and in the course of doing that, if they cannot reconcile them with the constitution they should ignore them.

    Consider an obvious contradiction.

    The Congress of the united states once again overrun by progressives in the spirit of early 20th century progressives like Wilson passes a law mandating the reduction of the killer gas CO2. As a part of the statute they declare the executive must take illegal immigrants when caught and provide them as slave labor to construct windmills and solar farms to facilitate saving the planet. (unlikely as that may be... they could)

    The new GOP President, a lover of freedom, liberty and individual rights, vetos. (as he can)

    The liberal fascist congress then overrides his veto (as they can)

    Is it now a law the President must enforce?

    Obviously NOT, it is clearly unconstitutional and the President is bound by oathe (which you'll find in the constitution) to defend the constitution, not legal nullities which are anethema to it.

    The finding in marbury is that ALL departments, agencies and courts MUST consider laws which are anethema to the constituion as void. IOW a law which is anethema to the constitution is not and never was actually a law as the constitution itself nullifies them, not the courts. It does not say the departments and agencies should enforce legal nullities until a court tells them not to... it says to consider them void. Period.

    Moving along, suppose some giant Krupp industries type corporation (GE perhaps) sues the federal government for the President's failure to enforce the law which harms their business by not providing them with slaves to construct windmills and solar farms making them more competitive with evil big coal. Should the President and AG now defend the law? If so, the giant corporation wins by default. Obviously the answer is no, the President and AG should defend the constitution.

    Suppose the district court rules in their favor because the district judge is an environmental whacko activists who cares more about propping up the green movement than he does the constitution (say Van Jones was appointed and thinks slave labor is every bit as good as prison labor - again, as unlikely as it seems its possible)

    Should the President aquiesce and enforce the law until the case moves on? Obviously not, his duty is to the constitution, not the courts.

    Suppose now the appelate court full of obamabots in the ninth circuit screws the pooch royally yet again and interprets the clause "except as punishment for crime" as justification for the statute and decides the law is a reasonable exercize of power under the clean air act to reduce the killer polutant CO2, completely ignoring the "cruel and inhuman" aspect and affirms the lower courts ruling.

    Should the President now throw in the towel and enforce the law? No, not if he's worth a shit.

    Now the case goes to the SCOTUS which is over run by O'Fascialist Obama appointees in the mold of Kagan and Sotomayor who find it a reasonable exercize of governmental authority deciding that the real cruel and inhuman thing to do would be to leave these poor undocumented workers at the mercy of evil big business coporate executives who will take advantage of them by paying them less than scale, and that nanny state government is the best place to ensure their happiness, productivity, and contributions to society. They, according to their activist penchants, put in requirements like "no chaining after the shift is done" and "lobster on fridays" to show how caring and benefficient we are.

    Should the President now enforce the law?

    Likely? No. Plausible? No. Possible under our system? Yes.

    Note that all departments are "bound by the instrument", not by the courts. And that it is not solely courts which are bound. In fact, in Marbury, the courts were upholding the Presidents decission to NOT ENFORCE the law.

    The Presidents duty is to the constitution, not the Courts. The courts duty is to the constitution, not the law. Courts do not make laws unconstitutional, the constitution does, as such an unconstituional law is void when its written.

    FindLaw | Cases and Codes
     
    Last edited: Feb 26, 2011
  2. BenNatuf
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    Surely, with all the people who constantly rail on about how the president has no authority to act on his belief of a laws unconstitutionality by not enforcing it someone can tell me why in the example provided the president would be required to take illegal aliens as slaves against his knowledge of its unconstitutionality.
     
    Last edited: Feb 26, 2011
  3. BenNatuf
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    OK, for all of you who argued Bush could not choose which laws or parts of laws he would enforce, in your mind you may replace the O'Fascialist congress with an evil GOP corporatist congress and replace the President with an enlightenned progressive seeking social justice. Also replace the Clean air act with an "energy resource act" and make the windmills and solar farms, coal mines and oil rigs. Instead of Kagan and Sotomayor use neanderthallike Scalia and Thomas, lastly, instead of Van Jones insert John Bolton.

    Did I hit on everything you hate so you can debate properly?
     
  4. Polk
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    You're confusing legal and ethical duty.
     
  5. BenNatuf
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    No I'm not. The President's legal duty is to uphold the constitution. The courts have consistantly upheld the presidents not enforcing laws he finds unconstitutional, in fact, in every case I know of where its been tested the courts have agreed the offending statute was unconstitutional. They have even upheld a President signing a law with unconstitutional provisions and refusing to enforce those unconstitutional provisions, again agreeing that the provisions were unconstitutional. Thats the way the sytem works.
     
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    Would you care to give examples?
     
  7. Leweman
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    Leweman Gold Member

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    The president doesnt get to interpret the constitution last I checked thats the Judicial Branch. Something Obviously unconstitutional does not exist untill they say it does.
     
  8. BenNatuf
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    Marbury v Madison
    Myers v United States

    Both were instances where the conngress had passed a law regarding the dismissal of presidential appointments and the President refused to obey it. In both instances the courts found that the laws were indeed unconstitutional. Andrew Jackson went so far as to defy the courts themselves and refused to obey a decission they made against him. There are miriad examples of president's using this power, and in almost every case the courts upheld the Presidents determination. marbury did more than declare the courts authority to deem laws unconstitutional in applying them, it also declared the executives authority in refusing to enforce them

    Void, as in never existed in the first place, not rescinded as in when we say so. And it applies to ALL departments, not just the courts.

    Is the presidents determination final?

    no.

    the courts get a bite of the apple, which the President may aquiesce to (in fact if they find the law constitutional and he deems it could be according to their application, he then should enforce it) or he may believe them wrong and stick to his guns. Then the congress gets a bite of the apple and can impeach, the people have the final say as they can refuse re-election to either the offending president or the offending congress. checks and ballances.
     
  9. BenNatuf
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    false. Courts do not make laws unconstitutional, the constitution does. The courts merely apply it. A law that is repugnant to the constitution is unconstituional when its written.

    Also the idea that courts "interpret" the law is bogus, what courts do is apply the law based on the interpretive arguments of the parties before them. The executive in enforcing the law must first interpret it to discern its meaning, and most court cases are not about the court interpreting anything, they are the courts adjudicating the executive branches interpretation.
     
  10. percysunshine
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    Al Capone got away with all sorts of stuff for years.
     

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