Do Judges or Courts MAKE laws?

[RetiredGySgt]

I have a couple people on another thread INSISTING that Courts not Congress make laws. Who agrees with that?

 

[Mac-7]

I have a couple people on another thread INSISTING that Courts not Congress make laws. Who agrees with that?

Yes

activist lib judges frequently make laws that democrats cannot get passed through the legislative process

 

[Lewdog]

Both do. When courts do it is called Case Law. When Congress or other bodies do it is called Statutory Law. Why you refuse to believe it is beyond me.

At NO POINT did I say Congress does not create laws. We were speaking about a specific one.

 

[fncceo]

I have a couple people on another thread INSISTING that Courts not Congress make laws. Who agrees with that?

Certainly not legally.

I can see how people can feel that why when precedents from the bench stray very far from the intent of the legislators.

However, any time a court does interpret legislation in opposition to the intent, the legislature is free to create new legislation.

This happens quite frequently.

 

[fncceo]

When courts do it is called Case Law.

Statute law takes legal precedence over both case and common law.

 

[Lewdog]

When courts do it is called Case Law.

Statute law takes legal precedence over both case and common law.

No they don't... Case Law is almost always created when it is found that a statutory law violates a person's Constitutional rights. Therefore, when the court overrules the statutory law as unconstitutional, the decision sets case law that prevents the same statutory law from being used again.

 

[fncceo]

When courts do it is called Case Law.

Statute law takes legal precedence over both case and common law.

No they don't... Case Law is almost always created when it is found that a statutory law violates a person's Constitutional rights. Therefore, when the court overrules the statutory law as unconstitutional, the decision sets case law that prevents the same statutory law from being used again.

A statute which has been deemed unconstitutional by a court of competent jurisdiction can no longer be enforced. That’s another example of common law superseding statutory law, though, there, the court is relying in large part on the Constitution in question (either the federal Constitution, or a state’s Constitution) for the rules of decision.

In this case, the Constitution is statute law and the court is using one statute law to strike down another.

 

[Daryl Hunt]

I have a couple people on another thread INSISTING that Courts not Congress make laws. Who agrees with that?

In this answer, no partisan politics allowed.

The courts can only rule on what is constitutional. If the law is unconstitutional then they can overturn that law which essential is to kick it back to the Legislators for correction. If there is no law that covers it, the Courts can do a bandaid on the problem. It's supposed to be a temporary solution but the problem we have is our Congress is so eaten up with being a bunch of dumbasses that the bandaid never gets replaced with a long term solution.

No, the Courts are not supposed to be making laws. But their bandaid fixes not being addressed by congress means that it appears that they have created a law. Same thing for an EO. The President can't make a law either but the bandaid of the EO just continues without being addressed by the real lawmakers.

We have had a Congress that only goes for the long balls and completely ignores the in base hitting. If it's not a homerun quality, it's not worth doing. It's like one of us saying, screw paying the lights when I can go buy a Ferrari with the same money it would take to pay for the lights for 6 months. Congress is more worried about getting donors and face time than actually taking care of the bunting and short drive to the infield. It's got to be a Homerun or nothing.

So, no, the Courts can't make laws anymore than the President can make laws but both can make either rulings or EO just to keep the doors open in futile hopes that Congress will get off it's dead ass and actually make a law that covers it.

 

[Lewdog]

When courts do it is called Case Law.

Statute law takes legal precedence over both case and common law.

No they don't... Case Law is almost always created when it is found that a statutory law violates a person's Constitutional rights. Therefore, when the court overrules the statutory law as unconstitutional, the decision sets case law that prevents the same statutory law from being used again.

A statute which has been deemed unconstitutional by a court of competent jurisdiction can no longer be enforced. That’s another example of common law superseding statutory law, though, there, the court is relying in large part on the Constitution in question (either the federal Constitution, or a state’s Constitution) for the rules of decision.

In this case, the Constitution is statute law and the court is using one statute law to strike down another.

Courts do not make Statutory Law. What you just posted said that the court struck down statutory law saying it was unconstitutional, and therefore could no longer be enforced.

FYI "Common Law" is another name for Case Law, NOT statutory law.

"Case Law, often used interchangeably with the term Common Law, refers to the precedents and authority set by previous court rulings, judicial decisions and administrative legal findings or rulings. This is one of the main categories of law, with constitutional law, statutory law and regulatory law. "

https://www.hg.org/case-law.html

 

[fncceo]

When courts do it is called Case Law.

Statute law takes legal precedence over both case and common law.

No they don't... Case Law is almost always created when it is found that a statutory law violates a person's Constitutional rights. Therefore, when the court overrules the statutory law as unconstitutional, the decision sets case law that prevents the same statutory law from being used again.

A statute which has been deemed unconstitutional by a court of competent jurisdiction can no longer be enforced. That’s another example of common law superseding statutory law, though, there, the court is relying in large part on the Constitution in question (either the federal Constitution, or a state’s Constitution) for the rules of decision.

In this case, the Constitution is statute law and the court is using one statute law to strike down another.

Courts do not make Statutory Law. What you just posted said that the court struck down statutory law saying it was unconstitutional, and therefore could no longer be enforced.

FYI "Common Law" is another name for Case Law, NOT statutory law.

"Case Law, often used interchangeably with the term Common Law, refers to the precedents and authority set by previous court rulings, judicial decisions and administrative legal findings or rulings. This is one of the main categories of law, with constitutional law, statutory law and regulatory law. "

https://www.hg.org/case-law.html

Yes, case law and common law are interchangeable terms. I never implied otherwise.

The Constitution (Federal or State) is statute law. If a judge strikes down any law as Unconstitutional, he (or she) is using a statute law to strike down another statute law in opposition to it. They aren't creating statute law, they are relying on previous statute law (i.e. The Constitution).

For any statute created by a legislature that would override any precept of The Constitution, that precept would have to be repealed from The Constitution.

 

[Lewdog]

When courts do it is called Case Law.

Statute law takes legal precedence over both case and common law.

No they don't... Case Law is almost always created when it is found that a statutory law violates a person's Constitutional rights. Therefore, when the court overrules the statutory law as unconstitutional, the decision sets case law that prevents the same statutory law from being used again.

A statute which has been deemed unconstitutional by a court of competent jurisdiction can no longer be enforced. That’s another example of common law superseding statutory law, though, there, the court is relying in large part on the Constitution in question (either the federal Constitution, or a state’s Constitution) for the rules of decision.

In this case, the Constitution is statute law and the court is using one statute law to strike down another.

Courts do not make Statutory Law. What you just posted said that the court struck down statutory law saying it was unconstitutional, and therefore could no longer be enforced.

FYI "Common Law" is another name for Case Law, NOT statutory law.

"Case Law, often used interchangeably with the term Common Law, refers to the precedents and authority set by previous court rulings, judicial decisions and administrative legal findings or rulings. This is one of the main categories of law, with constitutional law, statutory law and regulatory law. "

https://www.hg.org/case-law.html

Yes, case law and common law are interchangeable terms. I never implied otherwise.

The Constitution (Federal or State) is statute law. If a judge strikes down any law as Unconstitutional, he (or she) is using a statute law to strike down another statute law in opposition to it. They aren't creating statute law, they are relying on previous statute law (i.e. The Constitution).

For any statute created by a legislature that would override any precept of The Constitution, that precept would have to be repealed from The Constitution.

Whenever a court uses the Constitution to strike down a statutory law, they are creating CASE Law, not statutory law. No matter how garbled and complicated you try to make it, it is what it is.

Miranda Warnings were created by case law from Miranda v. Arizona. Terry Stops were created by Terry v Ohio. Laws requiring specific search warrants were created by Mapp v Ohio. All of these are CASE Law created by the courts.