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The wilds of Pennsyltucky

I'm no constitutional lawyer so i don't have a definitive answer to this.

Thoughts?

BTW, this isn't a "should he" question. It's just a question of whether the Pres has the power to do such.

ender502

"Burning the aquila into the retinas of heretics is the new black." - Savnock

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This message was edited 1 time. Last update was at 2018/02/01 18:32:34


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The wilds of Pennsyltucky

Locked? Why? This is a straight technical question about constitutional law.

ender502

"Burning the aquila into the retinas of heretics is the new black." - Savnock

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In what way is this not a US Politics thread?

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 ender502 wrote:
Locked? Why? This is a straight technical question about constitutional law.

ender502


Due to the way any US political thread tends to generate vast amounts of flame war bait, threads here covering US politic topics generally get locked unless the mods give permission. It's nothing personal, but it always ends in two sides trying to insult each other while toeing the line of acceptable Dakka behaviour. And it's only for US Politic threads I think for now, since a large portion of Dakka's members are US citizens (although the UK one gets locked periodically too. Us canadians....generally don't give a hoot about Justin Potato).

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 ender502 wrote:
Locked? Why? This is a straight technical question about constitutional law.

ender502


Sorry there, cousin, but US Politics ist verboten, eh?

We were once so close to heaven, St. Peter came out and gave us medals; declaring us "The nicest of the damned".

“Anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that 'my ignorance is just as good as your knowledge.'” 
   
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The wilds of Pennsyltucky

Well, you Canadians ARE a historically polite people.

ender502

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Well that and nothing really happens in our politics. At least nothing noteworthy enough to make headline news outside of canada.

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Kanluwen wrote:
Hell, I'm not that bothered by the Stormraven. Why? Because, as it stands right now, it's "limited use".When it's shoehorned in to the Codex: Space Marines, then yeah. I'll be irked.


When I'm editing alot, you know I have a gakload of homework to (not) do. 
   
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 ender502 wrote:
I'm no constitutional lawyer so i don't have a definitive answer to this.

Thoughts?

BTW, this isn't a "should he" question. It's just a question of whether the Pres has the power to do such.

ender502

Yes...No... maybe?

As a co-equal branch, the POTUS has a lot of leeway.

Seems a very open ended OP question.... it'd help the discussion if you describe what is it you think the POTUS is ignoring...

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North Carolina

 ender502 wrote:
I'm no constitutional lawyer so i don't have a definitive answer to this.

Thoughts?

BTW, this isn't a "should he" question. It's just a question of whether the Pres has the power to do such.

ender502


Article II of the US constitution explains the foundation of the powers of the executive branch:
https://www.law.cornell.edu/constitution/articleii

PotUS doesn't need congressional permission to exercise executive powers. PotUS has to follow the law the same as any other federal official.

Congress needs the PotUS to sign ratified bills into laws unless they have a 2/3rds majority to overturn a presidential veto of a ratified bill.

Each of the 3 branches of the US federal govt (Legislative, Executive, Judicial) is subject to the checks and balances imposed on it by the other 2 branches.

Mundus vult decipi, ergo decipiatur
 
   
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The President can ignore Congress on a number of issues explicitly delegated to him. In practice it isn't usually a good idea due to the level at which the U.S. government requires cooperation to get anything done, and the manner in which governments operate (see https://www.youtube.com/watch?v=dIto5mwDLxo for a satirical demonstration of legalese) means that if the President wants to bull-rush something past Congress that they don't want him to they'll find a way to argue that it's actually something he can't and send it off to the courts to figure out who's right, which tends to take a long time.

(See Myers v. United States (1926) for an example of a case in which the President's ability to do things without Congress (in this case to fire officials) was upheld.)

This message was edited 1 time. Last update was at 2018/01/30 23:43:35


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The wilds of Pennsyltucky

 whembly wrote:
 ender502 wrote:
I'm no constitutional lawyer so i don't have a definitive answer to this.

Thoughts?

BTW, this isn't a "should he" question. It's just a question of whether the Pres has the power to do such.

ender502

Yes...No... maybe?

As a co-equal branch, the POTUS has a lot of leeway.

Seems a very open ended OP question.... it'd help the discussion if you describe what is it you think the POTUS is ignoring...


I think the crux of it is section 224. Gives the POTUS 60 days to give congress a list of people and orgs that have committed cyber crimes on the US on behalf of the russian federation and those pople and orgs will have sanctions placed on them.
https://www.congress.gov/115/plaws/publ44/PLAW-115publ44.pdf


The bill is law and POTUS did sign it so he would seem to have an affirmative duty to follow it.

ender502


Automatically Appended Next Post:
 AnomanderRake wrote:
The President can ignore Congress on a number of issues explicitly delegated to him. In practice it isn't usually a good idea due to the level at which the U.S. government requires cooperation to get anything done, and the manner in which governments operate (see https://www.youtube.com/watch?v=dIto5mwDLxo for a satirical demonstration of legalese) means that if the President wants to bull-rush something past Congress that they don't want him to they'll find a way to argue that it's actually something he can't and send it off to the courts to figure out who's right, which tends to take a long time.

(See Myers v. United States (1926) for an example of a case in which the President's ability to do things without Congress (in this case to fire officials) was upheld.)


I'd think Myers is pretty easily differentiated cause it has to do with firing EO officials. Essentially, the court said the EO IS the president's house to run. That is, at this point, settled law.

I'm not sure if there are any cases of the president successfully refusing to follow a law passed by congress.

ender502

This message was edited 1 time. Last update was at 2018/01/30 23:48:14


"Burning the aquila into the retinas of heretics is the new black." - Savnock

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avoiding the lorax on Crion

This won t last long.

The thing about US law is some tricky situations have no verdict toll forced. The President had alot of powers, it's up to courts how far they go.

The founding fathers and others never thought of everything.

Also.. In before da lock and mods rolling boulder.

This message was edited 1 time. Last update was at 2018/01/30 23:58:47


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Pleasant Valley, Iowa

 ender502 wrote:
I'm no constitutional lawyer so i don't have a definitive answer to this.

Thoughts?

BTW, this isn't a "should he" question. It's just a question of whether the Pres has the power to do such.

ender502


The President is in charge of executing the laws that Congress passes. If he chooses not to do so, then Congress's only meaningful checks are to punish the executive branch via withholding funding (or the thread of), or impeaching the president and removing him from office. Congress is a co-equal branch of government but they have no tools to enforce their will other then that, by design, just as the other branch, the Judicial, has no way of directly enforcing the rulings they issue.

The executive also has some latitude to interpret what "executing the law" means, practically. At this point you start getting past simple answers, but ultimately the same remedies exist as above.

TLDR, he can unless it really pisses Congress off.

In the hypothetical, this is more of a political science question that a political question so shouldn't be locked. In practice, it really is a US political question since it's inviting commentary on current events, and so should be locked.

This message was edited 3 times. Last update was at 2018/01/31 00:42:54


 lord_blackfang wrote:
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 ender502 wrote:
...I'd think Myers is pretty easily differentiated cause it has to do with firing EO officials. Essentially, the court said the EO IS the president's house to run. That is, at this point, settled law.

I'm not sure if there are any cases of the president successfully refusing to follow a law passed by congress.

ender502


Myers was presented as an example of a dispute over what the President was and wasn't allowed to do in the past, not as an example of the kinds of things he might be able to refuse to do today.

The most egregious case of the President disregarding the actions of another branch to take unilateral action I can think of is the Trail of Tears. Loosely: Marshall wrote in 1832 (Worcester v. Georgia) that the federal government's relationship to the Native American tribes was one of nations and they didn't have any right to seize native land or interfere in native law/government, which was disregarded by a succession of Presidents over the next twenty years as they deployed the Army to forcibly remove most of the tribes in the southeast to the other side of the Mississippi. From a legal standpoint this wasn't hugely remarkable since Marshall was careful not to directly instruct Jackson to do or not do anything, but personally I find it extremely sketchy that the Chief Justice of the Supreme Court might have limited the legal bounds of his decision in case the President chose to ignore it.


Automatically Appended Next Post:
 Ouze wrote:
...In practice, it really is a US political question since it's inviting commentary on current events, and so should be locked.


(I'm trying to be as historical as I can about it, I promise.)

This message was edited 1 time. Last update was at 2018/01/31 00:28:25


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Pleasant Valley, Iowa

 AnomanderRake wrote:
The most egregious case of the President disregarding the actions of another branch to take unilateral action I can think of is...


I'm trying to remember the exact details, but wasn't there something unlawful about the civil was that was just done anyway - the writ of habeas corpus being suspended, but also something else.

Also, virtually every single war in the last, like, 60 years is pretty clearly unconstitutional if you go RAW, it's really on Congress to declare war. But that's become normalized, so eh.

 AnomanderRake wrote:
(I'm trying to be as historical as I can about it, I promise.)


Well, it's an interesting topic.

This message was edited 1 time. Last update was at 2018/01/31 00:36:11


 lord_blackfang wrote:
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 Flinty wrote:
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Congress also has the ability to eject a president at any time based on "high crimes and misdemeanors" which has no clear definition other than what congress decides it means. So in theory, a president could get elected and congress could immediately vote to impeach based on the high crime of having a really bad haircut. It wouldn't happen, for all sorts of reasons, but legally, nothing stops it.

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Pleasant Valley, Iowa

Sure. People often think impeachment and removal are legal devices, but they're really political ones.

 lord_blackfang wrote:
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 Flinty wrote:
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essentially the seperation of powers constrains all three, but congress has the money...so that helps.
   
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 MechaEmperor7000 wrote:
Well that and nothing really happens in our politics. At least nothing noteworthy enough to make headline news outside of canada.


Hey, you made the rounds on facebook when you actually had people put in cabinet positions which they actually had some experience of.

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 thekingofkings wrote:
essentially the seperation of powers constrains all three, but congress has the money...so that helps.


The much vaunted "power of the purse" can only go so far. Existing debts and ongoing expenses still have to be paid, regardless.

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Houston, TX

 Ouze wrote:
Sure. People often think impeachment and removal are legal devices, but they're really political ones.


Really, all the constraints on presidential power are political. Consider that even if a president exceeds his authority or refuses to enforce laws, it generally requires Congress to take affirmative steps to rectify the situation. Congress may remain inactive or even certify the actions, which allows the situation to continue. It's a big reason why the concept of an expansive executive took off. Presidents figured out that unless they do something really egregious, Congress is likely to do nothing or issue a mild rebuke at worst. Even better for the President, frequently Congress approves or even legislatively grants greater authority if the numbers are right (IE same party control/popular support for an issue)!

The only other avenue is to challenge presidential acts in court, but that is often slow and courts tend to give deference to the other branches on many issues. Plus, it's not hard to slightly amend an executive order and keep doing the same thing versus trying to pass a fixed law in Congress.

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Pleasant Valley, Iowa

 jmurph wrote:
The only other avenue is to challenge presidential acts in court, but that is often slow and courts tend to give deference to the other branches on many issues. Plus, it's not hard to slightly amend an executive order and keep doing the same thing versus trying to pass a fixed law in Congress.


That's why just about everyone on here regardless of partisan stripe uniformly thought it was so odd when John Boehner filed that lawsuit during the Obama administration. Not only is it not really on the Judicial to get involved in how faithfully the Executive is enforcing the law, who precisely is going to enforce whatever they decree?

This message was edited 1 time. Last update was at 2018/01/31 16:10:48


 lord_blackfang wrote:
Respect to the guy who subscribed just to post a massive ASCII dong in the chat and immediately get banned.

 Flinty wrote:
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Very surprised it's lasted this long. That being said, I like the snipe the 2nd poster got in. A nice IBTL post.

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Pleasant Valley, Iowa

I think we successfully moved past the obvious forbidden elements into "how the government works" pretty nicely TBH.

 lord_blackfang wrote:
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Leerstetten, Germany

The constitution really has no real way for the three branches to truly have the power to hold each other in check. The principle is there, but there really aren’t any teeth. How does the SCOTUS enforce their rulings? If a judge somewhere still refuses to marry gay couples, does the court really have the teeth to do something about it? If the court strikes down a law, nothing keeps the legislature from passing it again the next year. If the legislature passes a law, nothing stops the president from ignoring it.

The limits and responsibilities of the three branches only work when the branches themselves are willing to honor them.
   
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Prestor Jon wrote:
 ender502 wrote:
I'm no constitutional lawyer so i don't have a definitive answer to this.

Thoughts?

BTW, this isn't a "should he" question. It's just a question of whether the Pres has the power to do such.

ender502


Article II of the US constitution explains the foundation of the powers of the executive branch:
https://www.law.cornell.edu/constitution/articleii

PotUS doesn't need congressional permission to exercise executive powers. PotUS has to follow the law the same as any other federal official.

Congress needs the PotUS to sign ratified bills into laws unless they have a 2/3rds majority to overturn a presidential veto of a ratified bill.

Each of the 3 branches of the US federal govt (Legislative, Executive, Judicial) is subject to the checks and balances imposed on it by the other 2 branches.


Please note also that SCOTUS is an arbiter in some instances, although it will tend to drop the case if they can as a political issue, and will only rule if there's a direct legal question between the executive and Congress on an enumerated power, or issues of privilege (Nixon era).
Now the real constitutional crisis becomes if Congress passes a Constitutional law and the President specifically disobeys it. Congress always has the ultimate recourse of refusing to fund a program, or impeachment and expulsion of the President.

*The above is not politics, but legally how the government functions under the Constitution.


Automatically Appended Next Post:
 d-usa wrote:
The constitution really has no real way for the three branches to truly have the power to hold each other in check. The principle is there, but there really aren’t any teeth. How does the SCOTUS enforce their rulings?{/quote]
Its a question, but the Court can order persons released, or unconstitutional actions to be avoided and can put people in jail for contempt of a lawful order. For example, the Pres could order the DOJ to go round up all X people. The Court could then have the head of the DOJ arrested if he did not comply with their orders.
Also, at that point we then get an interesting scenario on what does the military do.




If a judge somewhere still refuses to marry gay couples, does the court really have the teeth to do something about it?

Yes. SCOTUS has a variety of options in that circumstance.

If the court strikes down a law, nothing keeps the legislature from passing it again the next year. If the legislature passes a law, nothing stops the president from ignoring it.

The legislature can then end fund for the entity that enacts the law, or can impeach and eject the President.

The limits and responsibilities of the three branches only work when the branches themselves are willing to honor them.

This is a good argument. But at the end fo the day Congress can eject the President.

This message was edited 1 time. Last update was at 2018/01/31 19:30:27


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What happens when the president simply doesn’t leave after being impeached?

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

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

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.
   
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Also interestingly, Congress can impeach/remove Judges as well.

There are recourse legally & politically affecting each branch.

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Leerstetten, Germany

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.
   
 
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