Justice Stephen Breyer: Is Burning Koran 'Shouting Fire In A Crowded Theater?'

[goldcatt]

I thought you ran off and took your toys and said you were 'ignoring' me because you were tired of getting made to look like the blithering idiot you are.

maybe if you ask liability nicely, he'll teach you how to have a linear and intelligent discussion.

until then, you're just everyone's *****.

trollboy...

keep practicing, though.

I dunno. Even Liability is a mere mortal. Attempting the impossible with the incoherent is asking a lot.

Mere mortal?

You were not supposed to tell.

Oooops!

I won't let it happen again, Superman. It's a bird...it's a plane....

 

[Liability]

So you claim. So says Marbury v. Madison. But the Constitution itself does not. IF I happen to agree that it is a reasonable IMPLIED power from the explicit grants given by the Constitution to the Judicial Branch, that doesn't necessarily mean that the power is exclusive to the judicial branch, however.

And defining the precise meaning of "speech" as used in the First is an interpretive power used to restrict legislation. The fox doesn't get to decide what kind of lock goes on the henhouse. That would be stupid - and the Framers were many things, but tree stump stupid wasn't among them.

Defining speech is not difficult at all. So, if I start by disagreeing with your initial premise, the rest of your argument kind of tails off to die a weak whimpering death on the outskirts of town.

Speech was understood in the day. It did not mean "the right to post glossies of beautiful naked women engaged in explicit sexual acts with other beautiful naked women." Not that there's anything wrong with that. Yet, somewhere along the line, the COURTS seem to have decided that "speech" does mean exactly that.

No.

Speech was understood to mean political speech. The First Amendment couldn't actually BE an "absolute" or we couldn't prevent idiots in the New York Times Company from publishing troop movements in times of war. And we couldn't sue each other for things like defamation and libel. But we can sue each other, so clearly free speech is not an absolute. IT WAS understood to be a big powerful ability against which governments could not defend themselves. Freedom of POLITICAL discussion. Can I say that President Obama is a freaking MORON? You bet I can. In the days before the Revolution here in the colonies, one could not say such stuff about the King, however, unless one wanted to get severely punished.

Not quite awake yet here, but I'll have a go at your main point here. You're missing the point of my argument. What physical act is protected "speech"?

The spoken word only? There are those who champion this point of view - mostly the strictest of strict constructionists. Otherwise referred to as "conservative".

The spoken word and the written word? There are those who believe this, with the freedom of press considered merely an extension of freedom of speech rather than a separate protection.

The spoken word, the written word, and symbolic acts? That is the currently accepted view and the reason book burnings are legal, but has not always been. And yes, it is a "liberal" interpretation.

What exactly is protected by the term "speech"? And who gets to decide? Congress, which is expressly prohibited from restricting speech? Or their counterbalance, the logical entity created to do so viewing the Framers' intent through their understanding of the contemporary Americanized British colonial common law system, the Courts?

First principles, my friend.

What physical act is speech? Gestures come immediately to mind. Symbolic speech is on its heels. The Courts have long considered it perfectly protected "speech" to burn an American flag. Yet now we see a Justice floating the moronic notion that burning a Qur'an is somehow not speech but action which is subject to limitations and punishments. The problem does not emanate from my failure to comprehend what is meant by speech.

The problem is that to achieve desired political agendas, some liberals and some jurists are more than willing to draw very arbitrary and meaningless "lines" -- at the expense of reason, logic and consistency.

I don't get why you repeat your refuted point. Yes, the First Amendment clearly DOES prohibit Congress from passing laws which violate freedom of speech. And yet, they have passed such laws and Courts of Law have -- in the interim -- upheld such clear violations.

Our Constitution is not a self-effectuating document.

 

[Liability]

I dunno. Even Liability is a mere mortal. Attempting the impossible with the incoherent is asking a lot.

Mere mortal?

You were not supposed to tell.

Oooops!

I won't let it happen again, Superman. It's a bird...it's a plane....

Ah. Give it no further thought. All mortals make mistake. Liberals tend to make more.

 

[jillian]

Mere mortal?

You were not supposed to tell.

Oooops!

I won't let it happen again, Superman. It's a bird...it's a plane....

Ah. Give it no further thought. All mortals make mistake. Liberals tend to make more.

i think that's arguable.

 

[goldcatt]

So you claim. So says Marbury v. Madison. But the Constitution itself does not. IF I happen to agree that it is a reasonable IMPLIED power from the explicit grants given by the Constitution to the Judicial Branch, that doesn't necessarily mean that the power is exclusive to the judicial branch, however.



Defining speech is not difficult at all. So, if I start by disagreeing with your initial premise, the rest of your argument kind of tails off to die a weak whimpering death on the outskirts of town.

Speech was understood in the day. It did not mean "the right to post glossies of beautiful naked women engaged in explicit sexual acts with other beautiful naked women." Not that there's anything wrong with that. Yet, somewhere along the line, the COURTS seem to have decided that "speech" does mean exactly that.

No.

Speech was understood to mean political speech. The First Amendment couldn't actually BE an "absolute" or we couldn't prevent idiots in the New York Times Company from publishing troop movements in times of war. And we couldn't sue each other for things like defamation and libel. But we can sue each other, so clearly free speech is not an absolute. IT WAS understood to be a big powerful ability against which governments could not defend themselves. Freedom of POLITICAL discussion. Can I say that President Obama is a freaking MORON? You bet I can. In the days before the Revolution here in the colonies, one could not say such stuff about the King, however, unless one wanted to get severely punished.

Not quite awake yet here, but I'll have a go at your main point here. You're missing the point of my argument. What physical act is protected "speech"?

The spoken word only? There are those who champion this point of view - mostly the strictest of strict constructionists. Otherwise referred to as "conservative".

The spoken word and the written word? There are those who believe this, with the freedom of press considered merely an extension of freedom of speech rather than a separate protection.

The spoken word, the written word, and symbolic acts? That is the currently accepted view and the reason book burnings are legal, but has not always been. And yes, it is a "liberal" interpretation.

What exactly is protected by the term "speech"? And who gets to decide? Congress, which is expressly prohibited from restricting speech? Or their counterbalance, the logical entity created to do so viewing the Framers' intent through their understanding of the contemporary Americanized British colonial common law system, the Courts?

First principles, my friend.

What physical act is speech? Gestures come immediately to mind. Symbolic speech is on its heels. The Courts have long considered it perfectly protected "speech" to burn an American flag. Yet now we see a Justice floating the moronic notion that burning a Qur'an is somehow not speech but action which is subject to limitations and punishments. The problem does not emanate from my failure to comprehend what is meant by speech.

The problem is that to achieve desired political agendas, some liberals and some jurists are more than willing to draw very arbitrary and meaningless "lines" -- at the expense of reason, logic and consistency.

I don't get why you repeat your refuted point. Yes, the First Amendment clearly DOES prohibit Congress from passing laws which violate freedom of speech. And yet, they have passed such laws and Courts of Law have -- in the interim -- upheld such clear violations.

Our Constitution is not a self-effectuating document.

Are those lines arbitrary and meaningless? Or when you go back to first principles instead of getting bogged down in details, do they make sense even if you personally disagree with the analysis?

The fact that Marbury exists, is fully accepted and obeyed without challenge by the countering branches of government and has been such for more than 200 years is telling. So is the history of the legal system in which the Framers were immersed - some things would have been understood without, as they thought, need to explain. One of those being the basic function of the Courts which within the common law system had not changed for hundreds of years. What rationale do you offer in support of your claims that the Legislature was expected to set the boundaries of its own restrictions? And more important, wouldn't that render the restrictions themselves meaningless?

 

[Liability]

Not quite awake yet here, but I'll have a go at your main point here. You're missing the point of my argument. What physical act is protected "speech"?

The spoken word only? There are those who champion this point of view - mostly the strictest of strict constructionists. Otherwise referred to as "conservative".

The spoken word and the written word? There are those who believe this, with the freedom of press considered merely an extension of freedom of speech rather than a separate protection.

The spoken word, the written word, and symbolic acts? That is the currently accepted view and the reason book burnings are legal, but has not always been. And yes, it is a "liberal" interpretation.

What exactly is protected by the term "speech"? And who gets to decide? Congress, which is expressly prohibited from restricting speech? Or their counterbalance, the logical entity created to do so viewing the Framers' intent through their understanding of the contemporary Americanized British colonial common law system, the Courts?

First principles, my friend.

What physical act is speech? Gestures come immediately to mind. Symbolic speech is on its heels. The Courts have long considered it perfectly protected "speech" to burn an American flag. Yet now we see a Justice floating the moronic notion that burning a Qur'an is somehow not speech but action which is subject to limitations and punishments. The problem does not emanate from my failure to comprehend what is meant by speech.

The problem is that to achieve desired political agendas, some liberals and some jurists are more than willing to draw very arbitrary and meaningless "lines" -- at the expense of reason, logic and consistency.

I don't get why you repeat your refuted point. Yes, the First Amendment clearly DOES prohibit Congress from passing laws which violate freedom of speech. And yet, they have passed such laws and Courts of Law have -- in the interim -- upheld such clear violations.

Our Constitution is not a self-effectuating document.

Are those lines arbitrary and meaningless? Or when you go back to first principles instead of getting bogged down in details, do they make sense even if you personally disagree with the analysis?

The fact that Marbury exists, is fully accepted and obeyed without challenge by the countering branches of government and has been such for more than 200 years is telling. So is the history of the legal system in which the Framers were immersed - some things would have been understood without, as they thought, need to explain. One of those being the basic function of the Courts which within the common law system had not changed for hundreds of years. What rationale do you offer in support of your claims that the Legislature was expected to set the boundaries of its own restrictions? And more important, wouldn't that render the restrictions themselves meaningless?

If one draws a line arbitrarily to protect one's political agenda preference, it is not "meaningless," it's just arbitrary and it is probable that it will be found to be invalid in terms of logic if one bothers to analyze it logically.

Marbury v. Madison provides for a grant of power to the Judicial branch FROM the Judicial branch. That grant of power is not found in the text of the Constitution. But, as I suggested before, it is a reasonably implied power from the grants of power which were given to the Judicial branch (and based on the common law of the day).

I did not say (as you claim) that the legislature is expected to set the boundaries of its own restrictions? The Constitution already does. What's needed is fidelity to the Constitution. Why the hell shouldn't Congress determine for itself, at the very outset of some legislative proposal, whether or not they have the Constitutional authority to do what they are contemplating? Why would the President who also takes an oath to uphold the Constitution decide for himself whether or not an Act transgresses the bounds of the Constitution? And if he vetoes it on that basis, why should he not refuse to enforce the unConstitutional Law (assuming his veto gets overridden) without having to await permission from the Judicial branch? The courts may very well have an implied power of judicial review, but who the hell says that it is theirs and theirs alone?

 

[Liability]

Oooops!

I won't let it happen again, Superman. It's a bird...it's a plane....

Ah. Give it no further thought. All mortals make mistake. Liberals tend to make more.

i think that's arguable.

See??

Another liberal's mistake!

 

[goldcatt]

What physical act is speech? Gestures come immediately to mind. Symbolic speech is on its heels. The Courts have long considered it perfectly protected "speech" to burn an American flag. Yet now we see a Justice floating the moronic notion that burning a Qur'an is somehow not speech but action which is subject to limitations and punishments. The problem does not emanate from my failure to comprehend what is meant by speech.

The problem is that to achieve desired political agendas, some liberals and some jurists are more than willing to draw very arbitrary and meaningless "lines" -- at the expense of reason, logic and consistency.

I don't get why you repeat your refuted point. Yes, the First Amendment clearly DOES prohibit Congress from passing laws which violate freedom of speech. And yet, they have passed such laws and Courts of Law have -- in the interim -- upheld such clear violations.

Our Constitution is not a self-effectuating document.

Are those lines arbitrary and meaningless? Or when you go back to first principles instead of getting bogged down in details, do they make sense even if you personally disagree with the analysis?

The fact that Marbury exists, is fully accepted and obeyed without challenge by the countering branches of government and has been such for more than 200 years is telling. So is the history of the legal system in which the Framers were immersed - some things would have been understood without, as they thought, need to explain. One of those being the basic function of the Courts which within the common law system had not changed for hundreds of years. What rationale do you offer in support of your claims that the Legislature was expected to set the boundaries of its own restrictions? And more important, wouldn't that render the restrictions themselves meaningless?

If one draws a line arbitrarily to protect one's political agenda preference, it is not "meaningless," it's just arbitrary and it is probable that it will be found to be invalid in terms of logic if one bothers to analyze it logically.

Marbury v. Madison provides for a grant of power to the Judicial branch FROM the Judicial branch. That grant of power is not found in the text of the Constitution. But, as I suggested before, it is a reasonably implied power from the grants of power which were given to the Judicial branch (and based on the common law of the day).

I did not say (as you claim) that the legislature is expected to set the boundaries of its own restrictions? The Constitution already does. What's needed is fidelity to the Constitution. Why the hell shouldn't Congress determine for itself, at the very outset of some legislative proposal, whether or not they have the Constitutional authority to do what they are contemplating? Why would the President who also takes an oath to uphold the Constitution decide for himself whether or not an Act transgresses the bounds of the Constitution? And if he vetoes it on that basis, why should he not refuse to enforce the unConstitutional Law (assuming his veto gets overridden) without having to await permission from the Judicial branch? The courts may very well have an implied power of judicial review, but who the hell says that it is theirs and theirs alone?

But when you say the power of interpretation is not limited to the Courts, that's exactly what you appear to be saying. That Congress, or the Executive, have or should have the right to assign their own meaning to the words independent of the Courts - therefore they are defining the bounds of their own limitations when it comes to the restrictive Amendments. And of their own powers when it comes to the original Articles, for that matter. That's a recipe for totalitarian disaster, and not one the Framers were likely to have desired.

I agree that Congress should examine legislation to determine whether, in their opinion, it is Constitutional prior to passing it. The Executive should do so prior to signing it. And they do, as the voluntary statements in some legislation shows. But they do so according to the definitions as set forth by the Courts. Somebody has to have the final say. In order to be an effective balance that somebody cannot be an entity directly involved in drafting and enacting the law. The Courts aren't perfect, but they're as close to a neutral third party as you're going to get in our system.

Going back to the OP, I find Breyer's statement that it's a rickety system but one that's worked intriguing - and true.

 

[Liability]

Are those lines arbitrary and meaningless? Or when you go back to first principles instead of getting bogged down in details, do they make sense even if you personally disagree with the analysis?

The fact that Marbury exists, is fully accepted and obeyed without challenge by the countering branches of government and has been such for more than 200 years is telling. So is the history of the legal system in which the Framers were immersed - some things would have been understood without, as they thought, need to explain. One of those being the basic function of the Courts which within the common law system had not changed for hundreds of years. What rationale do you offer in support of your claims that the Legislature was expected to set the boundaries of its own restrictions? And more important, wouldn't that render the restrictions themselves meaningless?

If one draws a line arbitrarily to protect one's political agenda preference, it is not "meaningless," it's just arbitrary and it is probable that it will be found to be invalid in terms of logic if one bothers to analyze it logically.

Marbury v. Madison provides for a grant of power to the Judicial branch FROM the Judicial branch. That grant of power is not found in the text of the Constitution. But, as I suggested before, it is a reasonably implied power from the grants of power which were given to the Judicial branch (and based on the common law of the day).

I did not say (as you claim) that the legislature is expected to set the boundaries of its own restrictions? The Constitution already does. What's needed is fidelity to the Constitution. Why the hell shouldn't Congress determine for itself, at the very outset of some legislative proposal, whether or not they have the Constitutional authority to do what they are contemplating? Why would the President who also takes an oath to uphold the Constitution decide for himself whether or not an Act transgresses the bounds of the Constitution? And if he vetoes it on that basis, why should he not refuse to enforce the unConstitutional Law (assuming his veto gets overridden) without having to await permission from the Judicial branch? The courts may very well have an implied power of judicial review, but who the hell says that it is theirs and theirs alone?

But when you say the power of interpretation is not limited to the Courts, that's exactly what you appear to be saying. That Congress, or the Executive, have or should have the right to assign their own meaning to the words independent of the Courts - therefore they are defining the bounds of their own limitations when it comes to the restrictive Amendments. And of their own powers when it comes to the original Articles, for that matter. That's a recipe for totalitarian disaster, and not one the Framers were likely to have desired.

I agree that Congress should examine legislation to determine whether, in their opinion, it is Constitutional prior to passing it. The Executive should do so prior to signing it. And they do, as the voluntary statements in some legislation shows. But they do so according to the definitions as set forth by the Courts. Somebody has to have the final say. In order to be an effective balance that somebody cannot be an entity directly involved in drafting and enacting the law. The Courts aren't perfect, but they're as close to a neutral third party as you're going to get in our system.

Going back to the OP, I find Breyer's statement that it's a rickety system but one that's worked intriguing - and true.

The Courts have no general power of "interpretation." Some interpretation may be required if some provisions of the Constitution seem to result in ambiguity, for example. And to the extent (which I conceded already) that it is a valid implied power for the Court to engage in some judicial review, then yes, the Courts will have to engage in some interpretation.

But you gloss over my point.

So, once more with feeling.

If Congress in its infinite capacity to be moronic decides that a "law" is urgently required to institute racial segregation into the armed services, they might (despite their blindness to what the Constitution demands) theoretically pass such an abomination. The President presumably would veto it. The Congress (endlessly moronic) overrides the veto. The President has a duty to uphold the Constitution. So he does what?

(a) interpret the Constitution as requiring him, under his Oath, to enforce that law?

(b) interpret the Constitution as requiring him to disregard that law?

(c) grudgingly enforce that abomination of a "law" while filing a suit in the judicial branch to get the ******* "law" judicially "reviewed" and declared "unConstitutional" -- and then awaiting the eventual SCOTUS determination (denying, on the basis of race, equal protection of the law in the intervening time to all servicemen )?

My answer is: "(b)." I see no other rational interpretation of the Constitution and certainly none that I would defend.

 

[goldcatt]

The Courts have no general power of "interpretation." Some interpretation may be required if some provisions of the Constitution seem to result in ambiguity, for example. And to the extent (which I conceded already) that it is a valid implied power for the Court to engage in some judicial review, then yes, the Courts will have to engage in some interpretation.

But you gloss over my point.

So, once more with feeling.

If Congress in its infinite capacity to be moronic decides that a "law" is urgently required to institute racial segregation into the armed services, they might (despite their blindness to what the Constitution demands) theoretically pass such an abomination. The President presumably would veto it. The Congress (endlessly moronic) overrides the veto. The President has a duty to uphold the Constitution. So he does what?

(a) interpret the Constitution as requiring him, under his Oath, to enforce that law?

(b) interpret the Constitution as requiring him to disregard that law?

(c) grudgingly enforce that abomination of a "law" while filing a suit in the judicial branch to get the ******* "law" judicially "reviewed" and declared "unConstitutional" -- and then awaiting the eventual SCOTUS determination (denying, on the basis of race, equal protection of the law in the intervening time to all servicemen )?

My answer is: "(b)." I see no other rational interpretation of the Constitution and certainly none that I would defend.

Your answer is either b or c, depending on your interpretation of Executive privilege, ending up in the same place either way as one party or another files suit. With the Court as final arbiter.

 

[Liability]

The Courts have no general power of "interpretation." Some interpretation may be required if some provisions of the Constitution seem to result in ambiguity, for example. And to the extent (which I conceded already) that it is a valid implied power for the Court to engage in some judicial review, then yes, the Courts will have to engage in some interpretation.

But you gloss over my point.

So, once more with feeling.

If Congress in its infinite capacity to be moronic decides that a "law" is urgently required to institute racial segregation into the armed services, they might (despite their blindness to what the Constitution demands) theoretically pass such an abomination. The President presumably would veto it. The Congress (endlessly moronic) overrides the veto. The President has a duty to uphold the Constitution. So he does what?

(a) interpret the Constitution as requiring him, under his Oath, to enforce that law?

(b) interpret the Constitution as requiring him to disregard that law?

(c) grudgingly enforce that abomination of a "law" while filing a suit in the judicial branch to get the ******* "law" judicially "reviewed" and declared "unConstitutional" -- and then awaiting the eventual SCOTUS determination (denying, on the basis of race, equal protection of the law in the intervening time to all servicemen )?

My answer is: "(b)." I see no other rational interpretation of the Constitution and certainly none that I would defend.

Your answer is either b or c, depending on your interpretation of Executive privilege, ending up in the same place either way as one party or another files suit. With the Court as final arbiter.

MY answer is exclusively "(b)." While it is reasonable to expect some other people to file suit (if not the Administration itself), my position is that it is irrelevant. There is absolutely no need to go ASKING the Judicial Branch for their input. The President (like you are or I am) is perfectly capable of deciding all on his own that the hypothetical law is an abomination and without any valid basis in the Constitution.

But let's go that extra step: What if the Judicial Branch accepted the case and ultimately declared it Constitutional?

Would that suddenly make that abomination of an Unconstitutional law anything other than an abomination and UnConstitutional?

Would your opinion change if the Court then presumed to order the President to "enforce" the law?

Mine would not.

 

[goldcatt]

The Courts have no general power of "interpretation." Some interpretation may be required if some provisions of the Constitution seem to result in ambiguity, for example. And to the extent (which I conceded already) that it is a valid implied power for the Court to engage in some judicial review, then yes, the Courts will have to engage in some interpretation.

But you gloss over my point.

So, once more with feeling.

If Congress in its infinite capacity to be moronic decides that a "law" is urgently required to institute racial segregation into the armed services, they might (despite their blindness to what the Constitution demands) theoretically pass such an abomination. The President presumably would veto it. The Congress (endlessly moronic) overrides the veto. The President has a duty to uphold the Constitution. So he does what?

(a) interpret the Constitution as requiring him, under his Oath, to enforce that law?

(b) interpret the Constitution as requiring him to disregard that law?

(c) grudgingly enforce that abomination of a "law" while filing a suit in the judicial branch to get the ******* "law" judicially "reviewed" and declared "unConstitutional" -- and then awaiting the eventual SCOTUS determination (denying, on the basis of race, equal protection of the law in the intervening time to all servicemen )?

My answer is: "(b)." I see no other rational interpretation of the Constitution and certainly none that I would defend.

Your answer is either b or c, depending on your interpretation of Executive privilege, ending up in the same place either way as one party or another files suit. With the Court as final arbiter.

MY answer is exclusively "(b)." While it is reasonable to expect some other people to file suit (if not the Administration itself), my position is that it is irrelevant. There is absolutely no need to go ASKING the Judicial Branch for their input. The President (like you are or I am) is perfectly capable of deciding all on his own that the hypothetical law is an abomination and without any valid basis in the Constitution.

But let's go that extra step: What if the Judicial Branch accepted the case and ultimately declared it Constitutional?

Would that suddenly make that abomination of an Unconstitutional law anything other than an abomination and UnConstitutional?

Would your opinion change if the Court then presumed to order the President to "enforce" the law?

Mine would not.

All right, I did give a glib answer to a complicated question.

Your most common scenario is either C or a combination of B and C.

In general, depending on the legislation and the nature of the challenge against it the Executive may immediately file suit and request an emergency stay in order to have a legal basis for refusal to enforce the law. Which is the most likely scenario in the case of such a blatantly unconstitutional piece of garbage as you proposed in your hypothetical.

It may choose to enforce it - reluctantly - while a case works through the system if the unconstitutionality is less clear cut. It may also seek statutory interpretation grounds as an alternative where constitutionality is in question but not a slam dunk, in an effort to have the statute applied in a manner that would correct what they see as the problem.

Or it may choose to take on both Congress and the Courts - a political as well as legal decision - and simply refuse to either challenge or enforce it while waiting for whatever challenges are made to percolate through the system. That's some major crouching and spitting on territory, and it's how I read your option B.

I don't like A because it makes the Executive too weak in its delegated area. I don't believe that was intended. I don't like B because it makes the Executive too strong - and is rarely succesful and politically poisonous. Again, simply refusing to play ball with the other two branches is probably not what was intended. C or the combination of B and C utilizing the stay is the best option from a legal and strategic standpoint.

 

[Liability]

Your answer is either b or c, depending on your interpretation of Executive privilege, ending up in the same place either way as one party or another files suit. With the Court as final arbiter.

MY answer is exclusively "(b)." While it is reasonable to expect some other people to file suit (if not the Administration itself), my position is that it is irrelevant. There is absolutely no need to go ASKING the Judicial Branch for their input. The President (like you are or I am) is perfectly capable of deciding all on his own that the hypothetical law is an abomination and without any valid basis in the Constitution.

But let's go that extra step: What if the Judicial Branch accepted the case and ultimately declared it Constitutional?

Would that suddenly make that abomination of an Unconstitutional law anything other than an abomination and UnConstitutional?

Would your opinion change if the Court then presumed to order the President to "enforce" the law?

Mine would not.

All right, I did give a glib answer to a complicated question.

Your most common scenario is either C or a combination of B and C.

In general, depending on the legislation and the nature of the challenge against it the Executive may immediately file suit and request an emergency stay in order to have a legal basis for refusal to enforce the law. Which is the most likely scenario in the case of such a blatantly unconstitutional piece of garbage as you proposed in your hypothetical.

It may choose to enforce it - reluctantly - while a case works through the system if the unconstitutionality is less clear cut. It may also seek statutory interpretation grounds as an alternative where constitutionality is in question but not a slam dunk, in an effort to have the statute applied in a manner that would correct what they see as the problem.

Or it may choose to take on both Congress and the Courts - a political as well as legal decision - and simply refuse to either challenge or enforce it while waiting for whatever challenges are made to percolate through the system. That's some major crouching and spitting on territory, and it's how I read your option B.

I don't like A because it makes the Executive too weak in its delegated area. I don't believe that was intended. I don't like B because it makes the Executive too strong - and is rarely succesful and politically poisonous. Again, simply refusing to play ball with the other two branches is probably not what was intended. C or the combination of B and C utilizing the stay is the best option from a legal and strategic standpoint.

The reason that "(b)" is the ONLY viable and correct answer is because it is facially absurd to accept the notion that the President is required under the Constitution to enforce any law that is plainly in violation of the Constitution. So "(a)" has to be out.

"(C)" also has to be objected because it allows for -- seemingly requires, in fact -- that the President enforce a law even if only for a relatively short period of time that he knows is a violation of the Constitution. And I see no constitutional basis to say that, "Well, hell. As long as the willful violation of the Constitution is only for a short period of time, then it's ok."

If you and I can tell immediately that the hypothetical bill is facially invalid as an affront to to the requirements of the Constitution, then the President can tell that immediately, too. And as long as that is the scenario, then he would be engaging in a violation of the Constitution -- himself -- by giving any service to such an Act.

And no. It does not give him too much power. In fact, in the scenario I hypothesized, a Congress strong enough to override his Veto is strong enough to impeach his ass. And it serves no purpose to then quibble by objecting that there would be no valid basis to impeach him. There's no valid basis for that hypothetical law, either, but that doesn't always stop Congress from engaging in such behavior. That would be a pretty hefty check.

 

[jillian]

MY answer is exclusively "(b)." While it is reasonable to expect some other people to file suit (if not the Administration itself), my position is that it is irrelevant. There is absolutely no need to go ASKING the Judicial Branch for their input. The President (like you are or I am) is perfectly capable of deciding all on his own that the hypothetical law is an abomination and without any valid basis in the Constitution.

But let's go that extra step: What if the Judicial Branch accepted the case and ultimately declared it Constitutional?

Would that suddenly make that abomination of an Unconstitutional law anything other than an abomination and UnConstitutional?

Would your opinion change if the Court then presumed to order the President to "enforce" the law?

Mine would not.

All right, I did give a glib answer to a complicated question.

Your most common scenario is either C or a combination of B and C.

In general, depending on the legislation and the nature of the challenge against it the Executive may immediately file suit and request an emergency stay in order to have a legal basis for refusal to enforce the law. Which is the most likely scenario in the case of such a blatantly unconstitutional piece of garbage as you proposed in your hypothetical.

It may choose to enforce it - reluctantly - while a case works through the system if the unconstitutionality is less clear cut. It may also seek statutory interpretation grounds as an alternative where constitutionality is in question but not a slam dunk, in an effort to have the statute applied in a manner that would correct what they see as the problem.

Or it may choose to take on both Congress and the Courts - a political as well as legal decision - and simply refuse to either challenge or enforce it while waiting for whatever challenges are made to percolate through the system. That's some major crouching and spitting on territory, and it's how I read your option B.

I don't like A because it makes the Executive too weak in its delegated area. I don't believe that was intended. I don't like B because it makes the Executive too strong - and is rarely succesful and politically poisonous. Again, simply refusing to play ball with the other two branches is probably not what was intended. C or the combination of B and C utilizing the stay is the best option from a legal and strategic standpoint.

The reason that "(b)" is the ONLY viable and correct answer is because it is facially absurd to accept the notion that the President is required under the Constitution to enforce any law that is plainly in violation of the Constitution. So "(a)" has to be out.

"(C)" also has to be objected because it allows for -- seemingly requires, in fact -- that the President enforce a law even if only for a relatively short period of time that he knows is a violation of the Constitution. And I see no constitutional basis to say that, "Well, hell. As long as the willful violation of the Constitution is only for a short period of time, then it's ok."

If you and I can tell immediately that the hypothetical bill is facially invalid as an affront to to the requirements of the Constitution, then the President can tell that immediately, too. And as long as that is the scenario, then he would be engaging in a violation of the Constitution -- himself -- by giving any service to such an Act.

And no. It does not give him too much power. In fact, in the scenario I hypothesized, a Congress strong enough to override his Veto is strong enough to impeach his ass. And it serves no purpose to then quibble by objecting that there would be no valid basis to impeach him. There's no valid basis for that hypothetical law, either, but that doesn't always stop Congress from engaging in such behavior. That would be a pretty hefty check.

i'm going to jump in for a second and ask a question because i may be reading you wrong.

are you asserting that the president is supposed to unilaterally determine what is constitutional?

 

[goldcatt]

MY answer is exclusively "(b)." While it is reasonable to expect some other people to file suit (if not the Administration itself), my position is that it is irrelevant. There is absolutely no need to go ASKING the Judicial Branch for their input. The President (like you are or I am) is perfectly capable of deciding all on his own that the hypothetical law is an abomination and without any valid basis in the Constitution.

But let's go that extra step: What if the Judicial Branch accepted the case and ultimately declared it Constitutional?

Would that suddenly make that abomination of an Unconstitutional law anything other than an abomination and UnConstitutional?

Would your opinion change if the Court then presumed to order the President to "enforce" the law?

Mine would not.

All right, I did give a glib answer to a complicated question.

Your most common scenario is either C or a combination of B and C.

In general, depending on the legislation and the nature of the challenge against it the Executive may immediately file suit and request an emergency stay in order to have a legal basis for refusal to enforce the law. Which is the most likely scenario in the case of such a blatantly unconstitutional piece of garbage as you proposed in your hypothetical.

It may choose to enforce it - reluctantly - while a case works through the system if the unconstitutionality is less clear cut. It may also seek statutory interpretation grounds as an alternative where constitutionality is in question but not a slam dunk, in an effort to have the statute applied in a manner that would correct what they see as the problem.

Or it may choose to take on both Congress and the Courts - a political as well as legal decision - and simply refuse to either challenge or enforce it while waiting for whatever challenges are made to percolate through the system. That's some major crouching and spitting on territory, and it's how I read your option B.

I don't like A because it makes the Executive too weak in its delegated area. I don't believe that was intended. I don't like B because it makes the Executive too strong - and is rarely succesful and politically poisonous. Again, simply refusing to play ball with the other two branches is probably not what was intended. C or the combination of B and C utilizing the stay is the best option from a legal and strategic standpoint.

The reason that "(b)" is the ONLY viable and correct answer is because it is facially absurd to accept the notion that the President is required under the Constitution to enforce any law that is plainly in violation of the Constitution. So "(a)" has to be out.

"(C)" also has to be objected because it allows for -- seemingly requires, in fact -- that the President enforce a law even if only for a relatively short period of time that he knows is a violation of the Constitution. And I see no constitutional basis to say that, "Well, hell. As long as the willful violation of the Constitution is only for a short period of time, then it's ok."

If you and I can tell immediately that the hypothetical bill is facially invalid as an affront to to the requirements of the Constitution, then the President can tell that immediately, too. And as long as that is the scenario, then he would be engaging in a violation of the Constitution -- himself -- by giving any service to such an Act.

And no. It does not give him too much power. In fact, in the scenario I hypothesized, a Congress strong enough to override his Veto is strong enough to impeach his ass. And it serves no purpose to then quibble by objecting that there would be no valid basis to impeach him. There's no valid basis for that hypothetical law, either, but that doesn't always stop Congress from engaging in such behavior. That would be a pretty hefty check.

I disagree. The problem with B is it bypasses the Courts as the final arbiter of constitutional interpretation as well as the dispensation of justice by a (nominally and ideally) non-political entity. It implies - strongly - that the Executive can be and is the final authority on the constitutionality of legislation. Which sets a dangerous precedent and brings us right back to the point where we were before. Does or should the Executive have the authority to declare its own powers and set its own boundaries?

Do you think the Executive should be able to bypass the Courts whenever it sees fit without so much as attempting to address the situation through the system first? I see that as an upset in the balance of powers, and the only things separating us from any banana republic dictatorship are the balance of powers and the legitimacy and independence of the judiciary. Even though they're imperfect, they're still the necessary balance.

Now IF in a case as blatantly unconstitutional as your hypothetical the Courts were to fail to grant a stay upon initial filing or any level of appeal, which I can't see happening, you may have a point in forcing the constitutional crisis. But the attempt has to be made first.

 

[Liability]

All right, I did give a glib answer to a complicated question.

Your most common scenario is either C or a combination of B and C.

In general, depending on the legislation and the nature of the challenge against it the Executive may immediately file suit and request an emergency stay in order to have a legal basis for refusal to enforce the law. Which is the most likely scenario in the case of such a blatantly unconstitutional piece of garbage as you proposed in your hypothetical.

It may choose to enforce it - reluctantly - while a case works through the system if the unconstitutionality is less clear cut. It may also seek statutory interpretation grounds as an alternative where constitutionality is in question but not a slam dunk, in an effort to have the statute applied in a manner that would correct what they see as the problem.

Or it may choose to take on both Congress and the Courts - a political as well as legal decision - and simply refuse to either challenge or enforce it while waiting for whatever challenges are made to percolate through the system. That's some major crouching and spitting on territory, and it's how I read your option B.

I don't like A because it makes the Executive too weak in its delegated area. I don't believe that was intended. I don't like B because it makes the Executive too strong - and is rarely succesful and politically poisonous. Again, simply refusing to play ball with the other two branches is probably not what was intended. C or the combination of B and C utilizing the stay is the best option from a legal and strategic standpoint.

The reason that "(b)" is the ONLY viable and correct answer is because it is facially absurd to accept the notion that the President is required under the Constitution to enforce any law that is plainly in violation of the Constitution. So "(a)" has to be out.

"(C)" also has to be objected because it allows for -- seemingly requires, in fact -- that the President enforce a law even if only for a relatively short period of time that he knows is a violation of the Constitution. And I see no constitutional basis to say that, "Well, hell. As long as the willful violation of the Constitution is only for a short period of time, then it's ok."

If you and I can tell immediately that the hypothetical bill is facially invalid as an affront to to the requirements of the Constitution, then the President can tell that immediately, too. And as long as that is the scenario, then he would be engaging in a violation of the Constitution -- himself -- by giving any service to such an Act.

And no. It does not give him too much power. In fact, in the scenario I hypothesized, a Congress strong enough to override his Veto is strong enough to impeach his ass. And it serves no purpose to then quibble by objecting that there would be no valid basis to impeach him. There's no valid basis for that hypothetical law, either, but that doesn't always stop Congress from engaging in such behavior. That would be a pretty hefty check.

I disagree. The problem with B is it bypasses the Courts as the final arbiter of constitutional interpretation as well as the dispensation of justice by a (nominally and ideally) non-political entity. It implies - strongly - that the Executive can be and is the final authority on the constitutionality of legislation. Which sets a dangerous precedent and brings us right back to the point where we were before. Does or should the Executive have the authority to declare its own powers and set its own boundaries?

Do you think the Executive should be able to bypass the Courts whenever it sees fit without so much as attempting to address the situation through the system first? I see that as an upset in the balance of powers, and the only things separating us from any banana republic dictatorship are the balance of powers and the legitimacy and independence of the judiciary. Even though they're imperfect, they're still the necessary balance.

Now IF in a case as blatantly unconstitutional as your hypothetical the Courts were to fail to grant a stay upon initial filing or any level of appeal, which I can't see happening, you may have a point in forcing the constitutional crisis. But the attempt has to be made first.

"The problem with B is it bypasses the Courts as the final arbiter of constitutional interpretation as well as the dispensation of justice by a (nominally and ideally) non-political entity."

Bypassing the Court is fine by me. In fact, that is one of the main virtues of "(b)." In a scenario like the one I posited, there is absolutely no need whatsoever to even GO to Court or seek Judicial input. To wait for such "input" is also wrong since it denies the IMMEDIATE rectification of something we already know is Constitutionally wrong. Justice delayed ---

And when the Constitution is being egregiously violated, the dispensation of Justice is what's important, not which Constitutional Branch that does that dispensing.

You seem to express an almost child-like need to have nanny Court insert and inject itself into all such matters. Must be a lib thang.

 

[The Rabbi]

The Courts have no general power of "interpretation." Some interpretation may be required if some provisions of the Constitution seem to result in ambiguity, for example. And to the extent (which I conceded already) that it is a valid implied power for the Court to engage in some judicial review, then yes, the Courts will have to engage in some interpretation.

But you gloss over my point.

So, once more with feeling.

If Congress in its infinite capacity to be moronic decides that a "law" is urgently required to institute racial segregation into the armed services, they might (despite their blindness to what the Constitution demands) theoretically pass such an abomination. The President presumably would veto it. The Congress (endlessly moronic) overrides the veto. The President has a duty to uphold the Constitution. So he does what?

(a) interpret the Constitution as requiring him, under his Oath, to enforce that law?

(b) interpret the Constitution as requiring him to disregard that law?

(c) grudgingly enforce that abomination of a "law" while filing a suit in the judicial branch to get the ******* "law" judicially "reviewed" and declared "unConstitutional" -- and then awaiting the eventual SCOTUS determination (denying, on the basis of race, equal protection of the law in the intervening time to all servicemen )?

My answer is: "(b)." I see no other rational interpretation of the Constitution and certainly none that I would defend.

Your answer is either b or c, depending on your interpretation of Executive privilege, ending up in the same place either way as one party or another files suit. With the Court as final arbiter.

MY answer is exclusively "(b)." While it is reasonable to expect some other people to file suit (if not the Administration itself), my position is that it is irrelevant. There is absolutely no need to go ASKING the Judicial Branch for their input. The President (like you are or I am) is perfectly capable of deciding all on his own that the hypothetical law is an abomination and without any valid basis in the Constitution.

But let's go that extra step: What if the Judicial Branch accepted the case and ultimately declared it Constitutional?

Would that suddenly make that abomination of an Unconstitutional law anything other than an abomination and UnConstitutional?

Would your opinion change if the Court then presumed to order the President to "enforce" the law?

Mine would not.

I believe that's too simple.
In the Indian relocation case the Supreme Court decided with the Cherokee tribe that the forced relocation was against the law. Pres Jackson refused to enforce the court's decision and ordered them relocated anyway. Clearly he thought the law was on his side, or he could disregard the court's opinion (his reported statement was, now let them enforce it.).
In the AL Ten Commandments case the governor finally gave in to the courts, which ordered him to remove the offending material. But he thought he had a duty to uphold the law and was acting within Constitutional boundaries.
The short of it is that the executive has discretion and power and engages in constitutional interpretation.

 

[goldcatt]

The reason that "(b)" is the ONLY viable and correct answer is because it is facially absurd to accept the notion that the President is required under the Constitution to enforce any law that is plainly in violation of the Constitution. So "(a)" has to be out.

"(C)" also has to be objected because it allows for -- seemingly requires, in fact -- that the President enforce a law even if only for a relatively short period of time that he knows is a violation of the Constitution. And I see no constitutional basis to say that, "Well, hell. As long as the willful violation of the Constitution is only for a short period of time, then it's ok."

If you and I can tell immediately that the hypothetical bill is facially invalid as an affront to to the requirements of the Constitution, then the President can tell that immediately, too. And as long as that is the scenario, then he would be engaging in a violation of the Constitution -- himself -- by giving any service to such an Act.

And no. It does not give him too much power. In fact, in the scenario I hypothesized, a Congress strong enough to override his Veto is strong enough to impeach his ass. And it serves no purpose to then quibble by objecting that there would be no valid basis to impeach him. There's no valid basis for that hypothetical law, either, but that doesn't always stop Congress from engaging in such behavior. That would be a pretty hefty check.

I disagree. The problem with B is it bypasses the Courts as the final arbiter of constitutional interpretation as well as the dispensation of justice by a (nominally and ideally) non-political entity. It implies - strongly - that the Executive can be and is the final authority on the constitutionality of legislation. Which sets a dangerous precedent and brings us right back to the point where we were before. Does or should the Executive have the authority to declare its own powers and set its own boundaries?

Do you think the Executive should be able to bypass the Courts whenever it sees fit without so much as attempting to address the situation through the system first? I see that as an upset in the balance of powers, and the only things separating us from any banana republic dictatorship are the balance of powers and the legitimacy and independence of the judiciary. Even though they're imperfect, they're still the necessary balance.

Now IF in a case as blatantly unconstitutional as your hypothetical the Courts were to fail to grant a stay upon initial filing or any level of appeal, which I can't see happening, you may have a point in forcing the constitutional crisis. But the attempt has to be made first.

"The problem with B is it bypasses the Courts as the final arbiter of constitutional interpretation as well as the dispensation of justice by a (nominally and ideally) non-political entity."

Bypassing the Court is fine by me. In fact, that is one of the main virtues of "(b)." In a scenario like the one I posited, there is absolutely no need whatsoever to even GO to Court or seek Judicial input. To wait for such "input" is also wrong since it denies the IMMEDIATE rectification of something we already know is Constitutionally wrong. Justice delayed ---

And when the Constitution is being egregiously violated, the dispensation of Justice is what's important, not which Constitutional Branch that does that dispensing.

You seem to express an almost child-like need to have nanny Court insert and inject itself into all such matters. Must be a lib thang.

Completely disagree. On all counts.

Of course there is a need to seek Judicial imput. What you're proposing gives the Executive unlimited unilateral authority to ignore any and all laws it wants to on the basis of any constitutional interpretation it chooses to apply. That would give the Executive unlimited power over both the Legislative and Judicial, presumably enforced by the military and police powers which are under its purview when Congress and the Judiciary object, which is NOT what the Framers had in mind when crafting a separated government. If they wanted a military dictator or a ruling monarch, that's what we would have.

 

[Liability]

Your answer is either b or c, depending on your interpretation of Executive privilege, ending up in the same place either way as one party or another files suit. With the Court as final arbiter.

MY answer is exclusively "(b)." While it is reasonable to expect some other people to file suit (if not the Administration itself), my position is that it is irrelevant. There is absolutely no need to go ASKING the Judicial Branch for their input. The President (like you are or I am) is perfectly capable of deciding all on his own that the hypothetical law is an abomination and without any valid basis in the Constitution.

But let's go that extra step: What if the Judicial Branch accepted the case and ultimately declared it Constitutional?

Would that suddenly make that abomination of an Unconstitutional law anything other than an abomination and UnConstitutional?

Would your opinion change if the Court then presumed to order the President to "enforce" the law?

Mine would not.

I believe that's too simple.
In the Indian relocation case the Supreme Court decided with the Cherokee tribe that the forced relocation was against the law. Pres Jackson refused to enforce the court's decision and ordered them relocated anyway. Clearly he thought the law was on his side, or he could disregard the court's opinion (his reported statement was, now let them enforce it.).
In the AL Ten Commandments case the governor finally gave in to the courts, which ordered him to remove the offending material. But he thought he had a duty to uphold the law and was acting within Constitutional boundaries.
The short of it is that the executive has discretion and power and engages in constitutional interpretation.

I don't see why you think it's "too simple." The only difference between what Jackson did and my silly hypothetical is that Jackson improperly disregarded a SCOTUS ruling whereas the President in my hypo would be disregarding an UnConstitutional Congressionally enacted Law. In both scenarios, the President is demonstrating that the Executive has the ability to engage in Constitutional analysis.

Jackson was right in one way, and very wrong in another way, probably for the wrong reasons, too.

But that doesn't alter the fact that the Executive Branch most certainly can and does engage in Constitutional analysis. And it should. and if the Court CLEARLY tramples the Constitution in a ruling, thereby purporting to order the President to violate the Constitution, then in order to honor the Oath of Office, I maintain a President is duty bound to disregard the SCOTUS "command."

 

[Liability]

I disagree. The problem with B is it bypasses the Courts as the final arbiter of constitutional interpretation as well as the dispensation of justice by a (nominally and ideally) non-political entity. It implies - strongly - that the Executive can be and is the final authority on the constitutionality of legislation. Which sets a dangerous precedent and brings us right back to the point where we were before. Does or should the Executive have the authority to declare its own powers and set its own boundaries?

Do you think the Executive should be able to bypass the Courts whenever it sees fit without so much as attempting to address the situation through the system first? I see that as an upset in the balance of powers, and the only things separating us from any banana republic dictatorship are the balance of powers and the legitimacy and independence of the judiciary. Even though they're imperfect, they're still the necessary balance.

Now IF in a case as blatantly unconstitutional as your hypothetical the Courts were to fail to grant a stay upon initial filing or any level of appeal, which I can't see happening, you may have a point in forcing the constitutional crisis. But the attempt has to be made first.

"The problem with B is it bypasses the Courts as the final arbiter of constitutional interpretation as well as the dispensation of justice by a (nominally and ideally) non-political entity."

Bypassing the Court is fine by me. In fact, that is one of the main virtues of "(b)." In a scenario like the one I posited, there is absolutely no need whatsoever to even GO to Court or seek Judicial input. To wait for such "input" is also wrong since it denies the IMMEDIATE rectification of something we already know is Constitutionally wrong. Justice delayed ---

And when the Constitution is being egregiously violated, the dispensation of Justice is what's important, not which Constitutional Branch that does that dispensing.

You seem to express an almost child-like need to have nanny Court insert and inject itself into all such matters. Must be a lib thang.

Completely disagree. On all counts.

Of course there is a need to seek Judicial imput. What you're proposing gives the Executive unlimited unilateral authority to ignore any and all laws it wants to on the basis of any constitutional interpretation it chooses to apply. That would give the Executive unlimited power over both the Legislative and Judicial, presumably enforced by the military and police powers which are under its purview when Congress and the Judiciary object, which is NOT what the Framers had in mind when crafting a separated government. If they wanted a military dictator or a ruling monarch, that's what we would have.

But it would be your analysis that would lead to despotism, not mine.

I WANT my Executive Branch -- most definitely including the President himself or herself -- to be BOUND by the Constitution and faithfully and zealously subservient to it. The expression that "we are a nation of laws, not of men," is rooted in that willingness to say, "I want to do X, but I am forbidden." Or, "You claim to command me to do X, but the Constitution requires that I say 'No!'"

It is not an accident that led us to be warned about the dangers of the despotic branch. And that Branch was not the Legislative Branch nor was it the Executive Branch.