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 d-usa wrote:
What happens when the president simply doesn’t leave after being impeached?

POTUS doesn't leave until the Senate votes to remove... (don't forget, Bill Clinton was actually impeached by the House, but the Senate failed to remove him).

If the Senate does indeed votes to remove the POTUS, then every law abiding officials *must* work so that the POTUS is removed.

What happens when the president simply takes other money for defunded projects?

Now THAT'S an interesting conundrum... I guess the courts would need to step in then.

Congress still has the means to shut off fundings in other none-related areas of government in retailiation.

Has SCOTUS ever arrested anyone that disobeyed them? Has SCOTUS ever forced someone to do something?

They don't physically do the arrest...they'll hold you in "contempt" which can lead to sanctions. In the lower courts, there's usually some directive of what kind of sanctions they're allowed to issue... but, I'm unable to find what, if any, SCOTUS can sanction for "contempt"... that seems like something that hasn't really be tested before.

Our wannabe senator former judge is a good example, he simply chose to ignore SCOTUS and it was the state that took action and not SCOTUS.

Our constitution is very weak in actually enforcing the restrictions it imposes.

It takes a collective society to ensure laws are enforced.

Glad everyone is playing nice.

It seems like we've hit on the legislative responses...purse, impeachment. Though no one mentioned the legislative can just rewrite the law such that an act (in this case levying sanctions) would no longer be in the hands of the executive branch.

Also, interesting that we (and most folks I think) have little idea about judicial enforcement. If the supreme did act on this (unlikely for a host of reasons) and said POTUS must do something. Then if he didn't he could be held in contempt of court and jailed until he complied. Interesting contempt would not trigger executive immunity from criminal prosecution. Now the "how" that would work,,,,not sure at all. When there has been pushback against a supreme court order, one of the other branches has always provided the muscle for the SC.

Whether any of this would actually happen is a matter for a lockable debate.

ender502

 d-usa wrote:
If congress impeached a judge, and the judge doesn’t want to leave and the executive doesn’t physically make them, what prevents the judicial staff from simply assigning more cases to that judge?

Attorney, especially on the defense side, would have a freak'ing field day.

I know I’m harping a bit there, but there really isn’t a lot of teeth to any of the restrictions. It works because the branches more or less agree to follow the restriction, IMO.

It works because as a society there's enough of us who WANTS to live in a law-abiding society. To do so otherwise is to introduce enormous chaos.

 whembly wrote:

Has SCOTUS ever arrested anyone that disobeyed them? Has SCOTUS ever forced someone to do something?

They don't physically do the arrest...they'll hold you in "contempt" which can lead to sanctions. In the lower courts, there's usually some directive of what kind of sanctions they're allowed to issue... but, I'm unable to find what, if any, SCOTUS can sanction for "contempt"... that seems like something that hasn't really be tested before.
.

 whembly wrote:

 d-usa wrote:
If congress impeached a judge, and the judge doesn’t want to leave and the executive doesn’t physically make them, what prevents the judicial staff from simply assigning more cases to that judge?

Attorney, especially on the defense side, would have a freak'ing field day.

And all the judges in the judiciary tell the attorney that they don’t care, the judge will stay, and trial continues.

They plead to the executive, who says deal with it, and the legislative act of removing the judge is never actually enforced.

Yes, it works because everybody wants it to work and agrees to follow the rules. That includes the actual players involved. But other than “we want the rules to be followed”, there isn’t much enforcement powers.

 ender502 wrote:

 whembly wrote:

Has SCOTUS ever arrested anyone that disobeyed them? Has SCOTUS ever forced someone to do something?

They don't physically do the arrest...they'll hold you in "contempt" which can lead to sanctions. In the lower courts, there's usually some directive of what kind of sanctions they're allowed to issue... but, I'm unable to find what, if any, SCOTUS can sanction for "contempt"... that seems like something that hasn't really be tested before.
.

There was a case back in 1906? where the SC found a sheriff and participants in a lynching in contempt and had them jailed for some months. It was the local police taht slapped the irons on though. The points above about most folks respecting judicial authority and "wanting" to be part of civil society are well made.

I think there was a racial case as well during the civil rights area where local officials ended up in contempt of SCOTUS. I don’t think the 82nd was involved, so I’m thinking it’s a different case.

Edit: was much earlier:

https://en.m.wikipedia.org/wiki/United_States_v._Shipp

 d-usa wrote:

 whembly wrote:

 d-usa wrote:
If congress impeached a judge, and the judge doesn’t want to leave and the executive doesn’t physically make them, what prevents the judicial staff from simply assigning more cases to that judge?

Attorney, especially on the defense side, would have a freak'ing field day.

And all the judges in the judiciary tell the attorney that they don’t care, the judge will stay, and trial continues.

They plead to the executive, who says deal with it, and the legislative act of removing the judge is never actually enforced.

The judiciary wouldn't go along as any sane judges would loath to give appearances of impropriety.

Each branch should guard the their powers jealously...going bannana republic gak like this will fast turn into Civil War 2.0...

Yes, it works because everybody wants it to work and agrees to follow the rules. That includes the actual players involved. But other than “we want the rules to be followed”, there isn’t much enforcement powers.

Welcome to Western Civilization!

Where The Brown Shirts™ and KGB-affiliates die!

 whembly wrote:

 d-usa wrote:

 whembly wrote:

 d-usa wrote:
If congress impeached a judge, and the judge doesn’t want to leave and the executive doesn’t physically make them, what prevents the judicial staff from simply assigning more cases to that judge?

Attorney, especially on the defense side, would have a freak'ing field day.

And all the judges in the judiciary tell the attorney that they don’t care, the judge will stay, and trial continues.

They plead to the executive, who says deal with it, and the legislative act of removing the judge is never actually enforced.

The judiciary wouldn't go along as any sane judges would loath to give appearances of impropriety.

Each branch should guard the their powers jealously...going bannana republic gak like this will fast turn into Civil War 2.0...

And if the entire judiciary says “feth you congress, you ain’t impeaching any of us” and the executive says “feth the legislature, it’s not our problem”, then we have the reality that the legislature has no powers to actually impeach a judge other than the judicial branch letting them impeach a judge. If the judge decides they don’t want to go, and no other judge decides to make them go, and every attorney motion they the judge wasn’t valid is stuck down by every judge in the nation, and the executive honors the ruling and locks that person up, then what does the legislature do? Do they send the Senate Sergeant of Arms to drag the judge off the bench, or to break the guy out of jail? Does the guilty guy run into the Capitol screaming “sanctuary” and then the Capitol Police tries to figure out which branch they work for? If nobody but the legislature decides to honor the impeachment, then what recourse does the legislature have?

(For levity, here is the theoretical Supreme Court Chief Justice Roberts adressing the legislature while ignoring the impeachment of a judge)



There is no constitutional method of enforcing that impeachment, and there really aren’t many constitutional methods of enforcing the majority of the checks and balances.

Yes, it works because everybody wants it to work and agrees to follow the rules. That includes the actual players involved. But other than “we want the rules to be followed”, there isn’t much enforcement powers.

Welcome to Western Civilization!

Where The Brown Shirts™ and KGB-affiliates die!

Which brings us back to the original argument, the branches have checks and balances because everybody agrees to follow the rules.

There are two different arguments:

1) the branches balance each other because the branches agree to the self imposed limitations by following the constitution.
2) the constitution really doesn’t have any enforcement powers if a branch decides to no longer follow those checks and balances.

This is fun d...

I think if the judiciary and executive says "FETH YOU!" congress...

Then congress has no recourse, other than cut off funding.

See how long a Judiciary and Executive can defy Congress without getting paid.

Otherwise, if congress shrug their shoulders and ignores that... we don't have a Country anymore.

In fact, you can bet States will try to secede...which didn't go well the last time...

The executive is probably the kingmaker here, because both the other branches really rely on them to enforce their individual balances. Meanwhile, the executive is probably the one branch in the best position to enforce limits and balances against the other branches and it has the fewest means of having limitations enforced against them.

 d-usa wrote:
The executive is probably the kingmaker here, because both the other branches really rely on them to enforce their individual balances. Meanwhile, the executive is probably the one branch in the best position to enforce limits and balances against the other branches and it has the fewest means of having limitations enforced against them.

Aye... the executive *are* the enforcement apparatus entity of the US of A governance.

POTUS is the single most powerful figure as ALL OF the Executive power flows from that one position via Article II of the Constitution.

The "check" against POTUS is constrained on the following:
- Every 4 year elections with max 2 terms
- Congressional Impeachment/Removal
- Congressional funding allocations
- Judicial Review (which can be weak since courts currently defer administrative rules/regulation to the executive)
- Wild possibility - Congress or States can call US Constitutional Convention to re-write Article II...

Unless I'm missing something else... that's pretty much it.

I think the over-arching issue is that *oversight* across the branches isn't easy and in fact, purposely deliberative.

Not to mention, Congress over the years abdicated much of their legislative powers by delegating many to the Executives by passing laws that states "As directed by the Secretary of 'x' Dept... the Secretary shall..." laws where the Secretary of that department is a political figure in the POTUS' administration.

In addition, due to the Chevron Deference™ and other precedents, the courts actively defers to the Executive's own interpretations, rather that having the courts deliberate on the merits/demerits of such interpretations.

I think intent has been an important factor in many rulings, and legislative discussions about what they want a bill to do factors in the rulings about the bill. But if the legislative bill and intent boils down to “however the Secretary wants to do it”, it doesn’t leave them much of an argument when the executive does something in a way they don’t like.

I see both sides of that practice though. I see the benefit of the legislature keeping as much of their power rather than delegating it away. But I also see the benefit of not having to rely on a slow and cumbersome legislative body every time there is a minor change required in the execution of a law. The legislature also isn’t always a subject matter experts, and departments and secretaries should naturally be the place to best decide how to implement the law and stay faithful to the intend. Ideally a law should be “it should do X” and the executive should be “this is the best way to achieve the goal of X”. The legislature should have limits on how the goal can be achieved, but they shouldn’t micromanage things because a change in technology or geography or any other number of things can render a law useless if it defines things to narrowly.

But giving the executive too much power via delegation can also be monitored by oversight, and the legislature can’t delegate away the ultimate responsibility for any power they delegate away.

Its a tightrope, that’s for sure. And it’s made worse when there is animosity between the branches.


Automatically Appended Next Post:
Edit:

I hope that our talk about the mechanics of the branches and their powers and actions is okay, as long as we don’t talk about which politician or party committed which infractions...

What D-USA is getting at is why so many presidential systems end up as dictatorships. The US succeeds in large part because of a culturally strong devotion to general constitutional principles, though there are obvious cases of why such systems generally go bad in our history.

One added fun bit here...if a judge were to find a president in contempt they can order them detained by local police. Or they could issue a warrant for their detention. That'd be binding and local police would have to follow it. Those would be non-executive enforcement folks.

I think the same would also be true of state judges and for judges in civil trials. Recall Clinton was ordered to testify under oath.

It would be difficult (purposefully i think) for any of the branches of government to singly check the others without the tacit understanding and agreement by the other 2 branches that the single branch did indeed have authority.

ender502

For civil contempt? I don't think the courts directive can be 'arrest this POTUS'. It's just "hey, we hold you in contempt!".

For criminal contempt? The BAR is really high to get to that point, and even then there are multiple arguments by the Office of Legal Counsel (OLC) that POTUS can't be indicted while in office.

Now...after the POTUS' tenure? Indictment over something during the tenure is technically possible (never happened before). Hence you'll see the distinction that POTUS can pardon himself for anything done prior the tenure, but not any actions during the tenure. 'Tis why Ford had to pardon Nixon... not Nixon himself. There are loads of publications of this, I'll see if I can dig 'em up.

 LordofHats wrote:
What D-USA is getting at is why so many presidential systems end up as dictatorships. The US succeeds in large part because of a culturally strong devotion to general constitutional principles, though there are obvious cases of why such systems generally go bad in our history.

Somewhat similar:

Whenever I go to work at then prison working the overnight weekend shift, I will see maybe 20 cars in the parking lot. We have some officers who think they are the ultimate authority over anything. I’m just thinking that the only reason 20 people have any authority over the ~1,400 folks locked up on this building is that the inmates decide every day to let us be in charge.

You know, can't federal courts have some orders enforced by US Marshals? I mentioned they had no direct enforcement power, but I think I forgot that.

Not sure how that would play out when it's an order against a hypothetical recalcitrant executive.

 whembly wrote:
For criminal contempt? The BAR is really high to get to that point, and even then there are multiple arguments by the Office of Legal Counsel (OLC) that POTUS can't be indicted while in office.

Now...after the POTUS' tenure? Indictment over something during the tenure is technically possible (never happened before).

I think "the POTUS cannot be indicted" is an open question. I personally think the POTUS is functionally immune from criminal indictment but as you note, this hasn't really been explored... and I think the severity really dictates it. After all, the courts allowed a civil case against a sitting POTUS to proceed recently: if POTUS hypothetically murdered someone, I don't think he or she is walking away until impeached.

The US Marshall Service is an interesting beast. They serve the court, but they are still part of the Department of Justice.

 whembly wrote:
For civil contempt? I don't think the courts directive can be 'arrest this POTUS'. It's just "hey, we hold you in contempt!".

For criminal contempt? The BAR is really high to get to that point, and even then there are multiple arguments by the Office of Legal Counsel (OLC) that POTUS can't be indicted while in office.

Now...after the POTUS' tenure? Indictment over something during the tenure is technically possible (never happened before). Hence you'll see the distinction that POTUS can pardon himself for anything done prior the tenure, but not any actions during the tenure. 'Tis why Ford had to pardon Nixon... not Nixon himself. There are loads of publications of this, I'll see if I can dig 'em up.

Yes, actually it's kinda controversial but when people are "ordered" to pay a debt (in some states) if they cannot pay they can be jailed for contempt of a judicial order. It's actually pretty messed up.


Automatically Appended Next Post:

 Ouze wrote:
You know, can't federal courts have some orders enforced by US Marshals? I mentioned they had no direct enforcement power, but I think I forgot that.

Not sure how that would play out when it's an order against a hypothetical recalcitrant executive.

 whembly wrote:
For criminal contempt? The BAR is really high to get to that point, and even then there are multiple arguments by the Office of Legal Counsel (OLC) that POTUS can't be indicted while in office.

Now...after the POTUS' tenure? Indictment over something during the tenure is technically possible (never happened before).

I think "the POTUS cannot be indicted" is an open question. I personally think the POTUS is functionally immune from criminal indictment but as you note, this hasn't really been explored... and I think the severity really dictates it. After all, the courts allowed a civil case against a sitting POTUS to proceed recently: if POTUS hypothetically murdered someone, I don't think he or she is walking away until impeached.

The POTUS is immune from federal indictment for criminal charges. But they are not immune to state criminal charges. They also, as noted, are not immune to civil suits.

As long as this thread is staying on course with it's law-focus and not politics talk it's clearly fine being open, please don't keep complaining about it not being locked. If it's gone this long it is clearly ok. Ensure you use common sense with your posting and follow Rule 1 and Rule 2

In a rough nutshell:

- no talking about politics for the sake of talking about politics
- ok to talk about current events, and the political factors directly involved in them as long as it is not a political current event. Talking about Korea, and the actions of our administration regarding Korea is okay. Talking about the government shutdown is not. The more “politicized” a topic is, the more it moves into a no-go. Immigration, as an example, would likely still be a no go.
- a thread about the workings of the branches is okay. A thread talking about the ability of branches to work with or against each other is likely okay. A thread talking about “should Trump ignore Congress if they threaten to shut down again over DACA folk” wouldn’t be.

It’s kind of like obscenity in the US: “I know it when I see it”. It’s up to individual interpretation by the MODs, but most of us know what the spirit of the ban is about.

Edit:

MOD ninja’d.

 motyak wrote:
As long as this thread is staying on course with it's law-focus and not politics talk it's clearly fine being open, please don't keep complaining about it not being locked. If it's gone this long it is clearly ok. Ensure you use common sense with your posting and follow Rule 1 and Rule 2

GOOD JOB Dakka!

 d-usa wrote:
If congress impeached a judge, and the judge doesn’t want to leave and the executive doesn’t physically make them, what prevents the judicial staff from simply assigning more cases to that judge?

I know I’m harping a bit there, but there really isn’t a lot of teeth to any of the restrictions. It works because the branches more or less agree to follow the restriction, IMO.

People often think laws have power that is separate and has some kind of meaning above how it is used by people. On paper, China has some of the tightest copyright infringements laws in the world. In reality, copyright barely exists because people don't care about the law, and there's almost no institutional enforcement at any level.

Every law only matters to the extent that people make that law work. There's really two ways this happens, the first and most common is people limit their own behaviour to follow the law, either because they want to be law abiding for its own sake or because they're afraid of consequences.
The second part is enforcing consequences on people who do ignore the law.

In the US, the executive was constrained by law largely because presidents self-limited - the chose to obey the law. They would rather lose a political battle than discard the rule of law, and end up being remembered as lawless presidents. This desire was probably so strong it didn't even take a conscious thought - on losing a legislative battle or a SC ruling I doubt many presidents ever considered just ignoring it.

So the entirely hypothetical question is what happens when you have a president with so little regard for the rule of law and national order that he wouldn't self-limit and choose to obey the law simply because it is the law, and what would happen to his legacy. As you point out there's not much there in terms of actual physical enforcement. To paraphrase Stalin - 'how many divisions does the Supreme Court have?'

So it seems like a pretty big fault in the US system. But truth is that fault exists in every political system. Really, if people placed in leadership roles don't self-limit themselves according to the law, then forcing them to follow the law or forcing them out of power is inherently messy and not that reliable. It isn't reliable because the culture and society that puts a lawless leader in to power also produces a significant number of legislators who will tolerate that lawlessness, typically tied direct to that leader. Russia's political system on paper isn't perfect but it isn't that bad, but the reality is Putin. Turkey's system had a good balance of powers, but when Erdogan wanted to claim near total power he was largely aided by the legislative.

So in the US, if a president wanted to ignore the rule of law, I guess the SC and congress could attempt a series of increasingly difficult manoeuvres to sanction the president and control his access to resources, if they choose to. Good luck with that.

Washington Post had an article on the Russia sanctions issue. It does stray into the political but it does give a nice overview of what Congress can donate this point.
https://www.washingtonpost.com/amphtml/news/the-fix/wp/2018/01/30/even-if-trump-is-blatantly-ignoring-the-russia-sanctions-law-theres-not-a-lot-congress-can-do-about-it/?utm_term=.e213d28a53db&__twitter_impression=true

Not going to get into the political aspect of that WashPost article...

POTUS has damn near plenary ability in regards to foreign policy...and in the specifics of that Congressional law, the States Dept has followed it to the letter of the law (I wished we were tougher, but thats totally different conversation).

This goes into the Executive interpreting broad legal criterias to fit their agenda as d-usa mentioned previously and also the deference the POTUS has in just about all-things foreign policy wise.

It's hard to rein in bad actors in all 3 branches... the POTUS simply gets the most attention simply because the power is vested in one person, rather than spread out like the other branches.

 whembly wrote:
POTUS has damn near plenary ability in regards to foreign policy...and in the specifics of that Congressional law, the States Dept has followed it to the letter of the law (I wished we were tougher, but thats totally different conversation).

Sort of. The president has enormous discretion in terms of method, but no discretion at all in terms of motive. Think of it this way - if the president claimed his refusal to enact Russian sanctions was due because he felt that the threat of sanctions would produce a better result than enacting them, and people somehow believed him, that'd be within his scope of duties. Hell, if the president said he would have done it, but a man in a strange wig approached him and invited him to decide he action based on the flip of a coin, and called it, friend-o... that's within the president's discretion.

But if the president defended his refusal to enact sanctions by explaining that would have liked to have done it, but he owed Putin a solid because Vlad helped him move house back in 1996, then that is pretty obviously not okay.

It's hard to rein in bad actors in all 3 branches... the POTUS simply gets the most attention simply because the power is vested in one person, rather than spread out like the other branches.

That's not quite right. While the power to remove someone from congress is almost never attempted, this doesn't mean it is as hard to reign in bad actors. Rather, those powers are rarely used because congressmen regularly step down when various scandals are revealed. A congressmen works as part of a collegial organisation, he needs friends who will work with him privately and publicly, when there's growing rumours you spent your most recent holiday hunting pandas for sport no-one else in congress is going to go near you or any bill you're working on. And there's no money from the lobbyists for a senator who can't get any bills passed.

Soft power reigns in congressmen, but that same soft power doesn't really work on presidents. Hell, it took years for Nixon to finally give up, a congress critter with as much evidence built against him as they had on Nixon would have bailed long before. A president could use the state of the union to butcher and eat a panda... and while it would hammer their approvals, they still run the executive. Even with approvals in the toilet and 66 senators vowing to stop the president's every action, that president would still be the most powerful person in the world. People don't walk away from that. So it is way more likely to reach a point of needing hard power to force them from office. Nixon didn't jump until he was told they were going to push him.

 motyak wrote:
As long as this thread is staying on course with it's law-focus and not politics talk it's clearly fine being open, please don't keep complaining about it not being locked. If it's gone this long it is clearly ok. Ensure you use common sense with your posting and follow Rule 1 and Rule 2

In this spirit I have deleted my original post