Feds Override Montana State Law

[Arawyn]

Well if the argument is that my opinion has no force of law then I think we're in agreement.

I thought the core of the argument was whether decisions made by SCOTUS could actually be defined as unConstitutional, LOL.

Well I define them as unconstitutional if they don't follow the Constitution. Case law is not a part of the Constitution, so if it violates the Constitution I don't see why it can't be defined as unconstitutional. Though once again, I do understand that my opinion has no force of law.

But they cite a reason, no matter how dumb or illogical (sometimes) to tie it to the Constitution.

IMO, calling their decisions unConstitutional dilutes the term.

 

[Kevin_Kennedy]

I think you are missing the subtlety on that one......John Marshall made his decision......BUT Andrew Jackson was going to find away to make it work, through legislation, IOW, working AROUND the decision.

And like Crimson said earlier, the Constitution doesn't deny the right to drugs.........but yet........

Yet if the Supreme Court's decision were the end-all of constitutional debate then Andrew Jackson would not have been able to end the Bank.

I am aware the Constitution doesn't deny the right to drugs, and that's why I support the states being allowed to legalize drugs if they wish.

No, the issue is, especially in their decisions, or reading cases is finding what their (SCOTUS) issue is and finding a way to circumvent their decision. Which, IMO, should be the true indicator of checks and balances. For example, I can't count the decisons upon which SCOTUS said a law was either too broad (then come legislation narrowing it, nullifying the decision) or where they said it was too narrow (then legislation then broadens it, nullifying).

Well I think we've gotten off on a side issue focusing on the checks and balances aspect of the government. The point is that the states have an equal right to decide the constitutionality of a law, otherwise the federal government is simply going to interpret the Constitution in their favor. This was Jefferson's argument in the Kentucky Resolutions, and the entire premise behind nullification.

 

[Kevin_Kennedy]

I thought the core of the argument was whether decisions made by SCOTUS could actually be defined as unConstitutional, LOL.

Well I define them as unconstitutional if they don't follow the Constitution. Case law is not a part of the Constitution, so if it violates the Constitution I don't see why it can't be defined as unconstitutional. Though once again, I do understand that my opinion has no force of law.

But they cite a reason, no matter how dumb or illogical (sometimes) to tie it to the Constitution.

IMO, calling their decisions unConstitutional dilutes the term.

If their reason twists or stretches what the Constitution says or intended then I don't see how it dilutes the term to call it unconstitutional.

 

[Arawyn]

Yet if the Supreme Court's decision were the end-all of constitutional debate then Andrew Jackson would not have been able to end the Bank.

I am aware the Constitution doesn't deny the right to drugs, and that's why I support the states being allowed to legalize drugs if they wish.

No, the issue is, especially in their decisions, or reading cases is finding what their (SCOTUS) issue is and finding a way to circumvent their decision. Which, IMO, should be the true indicator of checks and balances. For example, I can't count the decisons upon which SCOTUS said a law was either too broad (then come legislation narrowing it, nullifying the decision) or where they said it was too narrow (then legislation then broadens it, nullifying).

Well I think we've gotten off on a side issue focusing on the checks and balances aspect of the government. The point is that the states have an equal right to decide the constitutionality of a law, otherwise the federal government is simply going to interpret the Constitution in their favor. This was Jefferson's argument in the Kentucky Resolutions, and the entire premise behind nullification.

But IMO the points are entertwined to a degree. SCOTUS does have, under Constitution, final determination of Constitutionality......but other branches can and will still work try to work around the decision.

States have this same option as does fed legislative/executive branches. Nullification from one state means nothing. Nullification, to be effective will require enough states as the Constitution would require for an amendment.

Nullification is toothless, currently. To be honest, from what I've read about Washington and Hamilton, it was an toothless appeasement thrown in.

 

[Arawyn]

Well I define them as unconstitutional if they don't follow the Constitution. Case law is not a part of the Constitution, so if it violates the Constitution I don't see why it can't be defined as unconstitutional. Though once again, I do understand that my opinion has no force of law.

But they cite a reason, no matter how dumb or illogical (sometimes) to tie it to the Constitution.

IMO, calling their decisions unConstitutional dilutes the term.

If their reason twists or stretches what the Constitution says or intended then I don't see how it dilutes the term to call it unconstitutional.

Because unConstitutional has power........the term does. But once ruled as Constitutional.....by the "third branch" the terminology must shift. It's getting late and my powers of speaking/typing coherently are drastically reduced. So I bid you adieu.

 

[CrimsonWhite]

No, the issue is, especially in their decisions, or reading cases is finding what their (SCOTUS) issue is and finding a way to circumvent their decision. Which, IMO, should be the true indicator of checks and balances. For example, I can't count the decisons upon which SCOTUS said a law was either too broad (then come legislation narrowing it, nullifying the decision) or where they said it was too narrow (then legislation then broadens it, nullifying).

Well I think we've gotten off on a side issue focusing on the checks and balances aspect of the government. The point is that the states have an equal right to decide the constitutionality of a law, otherwise the federal government is simply going to interpret the Constitution in their favor. This was Jefferson's argument in the Kentucky Resolutions, and the entire premise behind nullification.

********

Nullification is toothless, currently. To be honest, from what I've read about Washington and Hamilton, it was an toothless appeasement thrown in.

It wasn't thrown in. It is a percieved power of the States.

 

[Kevin_Kennedy]

No, the issue is, especially in their decisions, or reading cases is finding what their (SCOTUS) issue is and finding a way to circumvent their decision. Which, IMO, should be the true indicator of checks and balances. For example, I can't count the decisons upon which SCOTUS said a law was either too broad (then come legislation narrowing it, nullifying the decision) or where they said it was too narrow (then legislation then broadens it, nullifying).

Well I think we've gotten off on a side issue focusing on the checks and balances aspect of the government. The point is that the states have an equal right to decide the constitutionality of a law, otherwise the federal government is simply going to interpret the Constitution in their favor. This was Jefferson's argument in the Kentucky Resolutions, and the entire premise behind nullification.

But IMO the points are entertwined to a degree. SCOTUS does have, under Constitution, final determination of Constitutionality......but other branches can and will still work try to work around the decision.

States have this same option as does fed legislative/executive branches. Nullification from one state means nothing. Nullification, to be effective will require enough states as the Constitution would require for an amendment.

Nullification is toothless, currently. To be honest, from what I've read about Washington and Hamilton, it was an toothless appeasement thrown in.

Nullification from one state is the same as nullification from many states, and in the case of Montana other states are in the process or have enacted similar legislation. If one state nullifies a law then that law no longer applies to that state, but to every other state that hasn't nullified it. If more than one state nullifies the law then the federal government may assume that the law is pointless and rescind it, but nullification itself is as effective for one state as it is for many.

Nullification is toothless currently. However, that's only because nullification is often thrown in with secession which is traced back to slavery. Of course, anyone who looks at the issues can see that they're three separate and distinct issues. Nullification has not been removed as a right of the states, however. So it remains as legal today as it was before the Civil War. It's simply unpopular.

 

[Kevin_Kennedy]

Well I think we've gotten off on a side issue focusing on the checks and balances aspect of the government. The point is that the states have an equal right to decide the constitutionality of a law, otherwise the federal government is simply going to interpret the Constitution in their favor. This was Jefferson's argument in the Kentucky Resolutions, and the entire premise behind nullification.

********

Nullification is toothless, currently. To be honest, from what I've read about Washington and Hamilton, it was an toothless appeasement thrown in.

It wasn't thrown in. It is a percieved power of the States.

This is correct.

 

[CrimsonWhite]

********

Nullification is toothless, currently. To be honest, from what I've read about Washington and Hamilton, it was an toothless appeasement thrown in.

It wasn't thrown in. It is a percieved power of the States.

This is correct.

Emphasis on perceieved. Usually strict constitutionalists are sour on percieved powers.

 

[Kevin_Kennedy]

It wasn't thrown in. It is a percieved power of the States.

This is correct.

Emphasis on perceieved. Usually strict constitutionalists are sour on percieved powers.

Well I should say "mostly correct" in that case.

 

[lawbuff]

Furthermore, you keep forgetting about the Supremacy Clause. The states cannot pass laws that contradict federal law. Simple as that. Case closed.

I am by no means an authority on federal preemption, but this is one case I do have in my notes on it. The field can be occupied a few ways, as the case points out. In this case state law prevailed:

See: SPRIETSMA V. MERCURY MARINE (can't paste URL's yet)

Held: The FBSA does not pre-empt state common-law claims such as petitioner’s. Pp. 3—18.

Also see: Pennsylvania v. Nelson, 1956. It concerned Sedition acts of Pennsylvania. Here though the SC ruled the federal law preempted PA's.

 

[jillian]

Furthermore, you keep forgetting about the Supremacy Clause. The states cannot pass laws that contradict federal law. Simple as that. Case closed.

I am by no means an authority on federal preemption, but this is one case I do have in my notes on it. The field can be occupied a few ways, as the case points out. In this case state law prevailed:

See: SPRIETSMA V. MERCURY MARINE (can't paste URL's yet)

Held: The FBSA does not pre-empt state common-law claims such as petitioner’s. Pp. 3—18.

Also see: Pennsylvania v. Nelson, 1956. It concerned Sedition acts of Pennsylvania. Here though the SC ruled the federal law preempted PA's.

Whether a law is pre-empted by a Federal Law is determined on a case by case basis. The analysis includes a determination as to whether the State Law contradicts or merely supplements the Federal Law. That is why there was no pre-emption in Sprietsma

In that case, the Court stated:

b) The FBSA does not expressly pre-empt petitioner’s common-law tort claims. Section 10’s express pre-emption clause–which applies to “a [state or local] law or regulation”–is most naturally read as not encompassing common-law claims for two reasons. First, the article “a” implies a discreteness that is not present in common law. Second, because “a word is known by the company it keeps,” Gustafson v. Alloyd Co., 513 U.S. 561, 575, the terms “law” and “regulation” used together indicate that Congress only pre-empted positive enactments. The Act’s saving clause buttresses this conclusion. It assumes that there are some significant number of common-law liability cases to save, and §10’s language permits a narrow reading excluding common-law actions. See Geier v. American Honda Motor Co., 529 U.S. 861, 868. And the contrast between its general reference to “liability at common law” and §10’s more specific and detailed description of what is pre-empted–including an exception for state regulations addressing “uniquely hazardous conditions”–indicates that §10 was drafted to pre-empt performance standards and equipment requirements imposed by statute or regulation. This interpretation does not produce anomalous results. It would have been perfectly rational for Congress not to pre-empt common-law claims, which necessarily perform an important remedial role in compensating accident victims. Pp. 10—12.

(c) The Coast Guard’s 1990 decision not to regulate propeller guards also does not pre-empt petitioner’s claims. That decision left applicable propeller guard law exactly the same as it had been before the subcommittee began its investigation. A Coast Guard decision not to regulate a particular aspect of boating safety is fully consistent with an intent to preserve state regulatory authority pending adoption of specific federal standards. The Coast Guard’s explanation for its propeller guard decision reveals only that the available data did not meet the FBSA’s stringent criteria for federal regulation. The Coast Guard did not take the further step of deciding that, as a matter of policy, the States and their political subdivisions should not impose some version of propeller guard regulation, and it did not reject propeller guards as unsafe. Although undoubtedly intentional and carefully considered, the 1990 decision does not convey an authoritative message of a federal policy against propeller guards, and nothing in the Coast Guard’s recent regulatory activities alters this conclusion. Geier v. American Honda Motor Co., 529 U.S. 861, distinguished. Pp. 12—16.

SPRIETSMA V. MERCURY MARINE