TX Gov. Perry and What He Would Change in the Constitution

[CAC1001]

On the issue of the Congress ignoring a decision by the SCOTUS, they already have that ability I believe. Congress isn't supposed to, but they can and have occassionally ignored decisions by the Supreme Court if they disagree with it. For example, one of the things they can do is to refuse to pass supporting legislation for a SCOTUS decision.

The sudden interest in Gov. Perry reminds me of Fred Thompson's saga when he declared he was running for President in 2007. There's a sudden peak in popularity, I think mostly because the candidate's newness.

When the field is weak, as I feel the current GOP field is, anyone who is fresh sees a rapid boost in popularity. It's more because of who they are not, than who they are.

We'll see if Perry's arc continues on its current path, or if he crashes and burns, a la Fred Thompson.

The thing about Fred Thompson though is that he crashed because he refused to actually campaign. IMO, I think his wife wanted him to be president more than he himself did, and his heart just was not in it. Rick Perry I think needs to be more careful that he doesn't end up becoming say a Barry Goldwater, doing fine among the base but alienating independents completely.

 

[SW VandeCarr]

On the issue of the Congress ignoring a decision by the SCOTUS, they already have that ability I believe. Congress isn't supposed to, but they can and have occassionally ignored decisions by the Supreme Court if they disagree with it. For example, one of the things they can do is to refuse to pass supporting legislation for a SCOTUS decision.

Can you give some examples? If SCOTUS rules based on statutes or case law, then Congress can pass new legislation to get around it. However, if SCOTUS rules based on its interpretation of the Constitution, I don't see how Congress (or the President) can (legally) get around it. The Constitution can be amended, but that takes time.

There is the case of Andrew Jackson defying SCOTUS in the removal the Cherokee Nation from its land. That was simply a blatantly illegal act which would have justified impeachment and removal from office. However, since it only involved Native Americans, Jackson got away with it.

 

[mege]

I read this article this morning on Perry. TSA, if you don't think it belongs, I will move it.

continued...

http://www.forbes.com/sites/rickung...ve-presidential-powers-to-wipe-out-obamacare/

Regarding this article specifically - I find it ultimately ironic that they make no mention of the several 'removal of enforcement' orders that President Obama has given.

I think it's a big political mistake to put forth unsolicited ideas - when opponents are unwilling (or unable) to do the same with specificity. Paul Ryan's recent plan is a good example. Posting a list of this type (without adequate explanation) does nothing more than focus attacks.

100% agree. But, I think it's unfortunate that politicians shy away from presenting detailed plans because of this.

 

[KingNothing]

Wow, what a load of crap. Even if I was a republican I wouldn't support this - most of what he is advocating for is federal control over states' rights. Hardly a "small government" concept.

 

[CAC1001]

Congress already has the power to increase the number of supreme court justices. If the president (who appoints them) and the senate (who confirms them) have sufficient cause they can change the balance of power in the court. Historically there are two instances of the threat of such an action probably influenced the courts: Reconstruction and the New Deal.

On the New Deal's, I think that was FDR's National Industrial Recovery Act being shot down by the court, which then led to various other New Deal programs being shot down by the Court, the Court essentially saying that such acts gave the President dictatorial powers because it gave to the Executive the powers of the Legislative. FDR responded by trying to pack the Supreme court, but this caused an outright uproar in the public and Congress, so it failed ultimately. However, some believe it did lead to the Court declaring the Washington state minimum wage constitutional, this after the court had declared two other minimum wage laws un-Constitutional.

The only new feature of Perry's proposal would be to cut the president "out of the loop". I think that we already have sufficient protection from a runaway court through congressional and presidential political pressure. Our constitution is a DELICATE balance of powers and should not be toyed with lightly. It has lasted over 200 years.

Skippy

By "pressure," do you mean politically pressuring the current Supreme Court, because the way I understand it is that the SCOTUS is supposed to act independent of politics...?

 

[CAC1001]

Can you give some examples? If SCOTUS rules based on statutes or case law, then Congress can pass new legislation to get around it. However, if SCOTUS rules based on its interpretation of the Constitution, I don't see how Congress (or the President) can (legally) get around it. The Constitution can be amended, but that takes time.

There is the case of Andrew Jackson defying SCOTUS in the removal the Cherokee Nation from their land. That was simply a blatantly illegal act which would have justified impeachment and removal from office. However, since it only involved Native Americans, Jackson got away with it.

From what I've read, one period in which the Executive and the Legislative were very hesitant about abiding by SCOTUS decisions was regards to civil rights issues during the 1950s under Eisenhower.

 

[mege]

Wow, what a load of crap. Even if I was a republican I wouldn't support this - most of what he is advocating for is federal control over states' rights. Hardly a "small government" concept.

Except that as constitutional amendments 2/3s of the states would have to approve... so technically they'd be giving up their own rights (in the cases of abortion and gay marriage).

It could be easilly argued that Gov. Perry's 3 & 4 are major state issues, and that repealing those amendments would mean a significant increase in state soverignty. But, see my comment above - the states choose that path.

Marriage falls under the 'commerce clause' of the constitution more strongly, IMO, than the ACA does. A marriage contract in one state is recognized in another. All it will take is one state denying a married-in-another-state-gay-couple something granted by marriage and it will become a federal issue. (aside: or is marriage covered by separation of church and state, I forget?)

 

[SW VandeCarr]

Except that as constitutional amendments 2/3s of the states would have to approve... so technically they'd be giving up their own rights (in the cases of abortion and gay marriage)

It's 2/3 of each house of Congress and 3/4 of the states (38 states).

 

[skippy1729]

Can you give some examples? If SCOTUS rules based on statutes or case law, then Congress can pass new legislation to get around it. However, if SCOTUS rules based on its interpretation of the Constitution, I don't see how Congress (or the President) can (legally) get around it. The Constitution can be amended, but that takes time.

There is the case of Andrew Jackson defying SCOTUS in the removal the Cherokee Nation from their land. That was simply a blatantly illegal act which would have justified impeachment and removal from office. However, since it only involved Native Americans, Jackson got away with it.

Step 1: Congress amends the judiciary act and adds 3 more justices.

Step 2: The president signs the bill.

Step 3: The president nominates 3 new justices who have been privately "vetted" on the issue at hand.

Step4: The senate confirms them.

Step 5: A similar case is brought up on appeal to SCOTUS.

Bingo! New Ruling.

As I said before the threat of this process probably changed some anti-reconstruction rulings and anti-new deal rulings; the plans were discussed.

 

[skippy1729]

By "pressure," do you mean politically pressuring the current Supreme Court, because the way I understand it is that the SCOTUS is supposed to act independent of politics...?

Political pressure is something that is applied and felt in the real world.

 

[SW VandeCarr]

Step 1: Congress amends the judiciary act and adds 3 more justices.

Yes. The Constitution does not specify the number of justices on the SCOTUS. The Judiciary Act can be changed by legislation. So that's not an example of the Congress evading a constitutional issue decided by the SCOTUS.

 

[SW VandeCarr]

From what I've read, one period in which the Executive and the Legislative were very hesitant about abiding by SCOTUS decisions was regards to civil rights issues during the 1950s under Eisenhower.

In fact, Eisenhower intervened in the Little Rock, Arkansas integration of public schools pursuant to a federal court order (1957). The President takes an oath to uphold the Constitution.

http://staff.imsa.edu/socsci/jvictory/civilrights_04/central_high/eisenhower_speech_littlerk.htm

 

[WhoWee]

Political pressure is something that is applied and felt in the real world.

Yes, the TEA Party rallies - although quite peaceful - have put significant political pressure on Washington and the States (for instance).

As for Perry (IMO), it appears to me he's trying to create a contract to distinguish himself from both the other candidates and both President(s) Obama and Bush. His Texas swagger and general comments are intended to project him as a "take charge" type of guy.

 

[mheslep]

Step 1: Congress amends the judiciary act and adds 3 more justices.

Step 2: The president signs the bill.
...

Yes, and apparently only the threat of packing the court is sufficient to overturn existing SCOTUS positions, at least it was in the case of FDR and the New Deal cases that the SCOTUS had previously found unconstitutional.

 

[TheStatutoryApe]

On the issue of the Congress ignoring a decision by the SCOTUS, they already have that ability I believe. Congress isn't supposed to, but they can and have occassionally ignored decisions by the Supreme Court if they disagree with it. For example, one of the things they can do is to refuse to pass supporting legislation for a SCOTUS decision.

Can you give some examples? If SCOTUS rules based on statutes or case law, then Congress can pass new legislation to get around it. However, if SCOTUS rules based on its interpretation of the Constitution, I don't see how Congress (or the President) can (legally) get around it. The Constitution can be amended, but that takes time.

There is the case of Andrew Jackson defying SCOTUS in the removal the Cherokee Nation from its land. That was simply a blatantly illegal act which would have justified impeachment and removal from office. However, since it only involved Native Americans, Jackson got away with it.

The Supreme Court has no enforcement arm. It relies upon the states, Congress, and the President to uphold the law as interpreted. So technically they can, and have, ignored the Supreme Court though this is certainly dangerous politically. It also does not nullify the Supreme Court decision so the Supreme Court may well continue to make decisions based on it regardless of whether or not congress likes it. They do still need to pass legislation or an amendment to actually override a Supreme Court decision.

 

[TheStatutoryApe]

Here are the actual quotes from Perry for #6:

I call BS on the story.

http://tpmdc.talkingpointsmemo.com/...p-flops-on-gay-marriage-backs-federal-ban.php
In have been searching for something on this. Pretty much everything are blogs and opinion pieces but all seem to agree that he seems to have been 'flip flopping' on this issue or giving conflicting statements.

 

[mheslep]

http://tpmdc.talkingpointsmemo.com/...p-flops-on-gay-marriage-backs-federal-ban.php
In have been searching for something on this. Pretty much everything are blogs and opinion pieces but all seem to agree that he seems to have been 'flip flopping' on this issue or giving conflicting statements.

If one looks at Perry's words and not what some blogger says he said, I don't see any flops.

 

[TheStatutoryApe]

If one looks at Perry's words and not what some blogger says he said, I don't see any flops.

Yes he mentions that he thinks its "fine" that states are passing their own legislation regarding same sex marriage and says "that's their business". Then he, in another interview, "corrects" himself and says he thinks it is "fine" because they are executing their states rights but otherwise finds that it is not "fine" at all and even goes so far as to say that we need the Federal Marriage Amendment to be passed (I assume this one) in order to prevent such states and "activist judges" from forcing a standard of marriage on other states that they do not accept.
That full interview is here. Whether he has flipped or flopped or what ever he apparently, in his own words, says he supports an amendment to the constitution that would define marriage as only between a man and a woman. And that is the content from the OP which you apparently took issue with yes?

 

[SW VandeCarr]

The Supreme Court has no enforcement arm. It relies upon the states, Congress, and the President to uphold the law as interpreted. So technically they can, and have, ignored the Supreme Court though this is certainly dangerous politically. It also does not nullify the Supreme Court decision so the Supreme Court may well continue to make decisions based on it regardless of whether or not congress likes it. They do still need to pass legislation or an amendment to actually override a Supreme Court decision.

I understand you are a lawyer. On your personal page you list your profession as "harassing people" which confirms to me that you must indeed be a lawyer. Just kidding. I wouldn't challenge the view of a professional, but if a court ruling can be ignored, what good is a court system? Can the police or a DA continue to hold a person for a crime when that person is acquitted of that crime by a court just because the DA doesn't like the verdict? Can a President ignore SCOTUS by continuing to enforce laws or pursue actions that the Court has struck down or dissallowed? Isn't that a violation of the Oath of Office?

As far as Congress is concerned, they also do not have an enforcement arm. There's not so much of an issue of Congress defying the court. It can pass unconstitutional laws and wait for the courts to strike them down. A SCOTUS decision doesn't usually require implementing legislation. Afaik, it has the force of law.

I think this is relevant to this thread because of concern that a President Perry might "pull a Jackson" and defy SCOTUS.

 

[WhoWee]

I understand you are a lawyer. On your personal page you list your profession as "harassing people" which confirms to me that you must indeed be a lawyer. Just kidding. I wouldn't challenge the view of a professional, but if a court ruling can be ignored, what good is a court system? Can the police or a DA continue to hold a person for a crime when that person is acquitted of that crime by a court just because the DA doesn't like the verdict? Can a President ignore SCOTUS by continuing to enforce laws that the Court has struck down? Isn't that a violation of the Oath of Office?

As far as Congress is concerned, they also do not have an enforcement arm. There's not so much of an issue of Congress defying the court. It can pass unconstitutional laws and wait for the courts to strike it down. A SCOTUS decision doesn't usually require implementing legislation. Afaik, it has the force of law.

I think this is relevant to this thread because of concern that a President Perry might "pull a Jackson" and the defy SCOTUS.

Isn't the current President or his Attorney General selective about which laws they want to enforce?

 

[SW VandeCarr]

Isn't the current President or his Attorney General selective about which laws they want to enforce?

I don't know. Can you give examples? In any case, my question is regarding the enforcement of rulings by the courts. Can the courts be ignored, especially when ruling on constitutional issues?

 

[TheStatutoryApe]

I understand you are a lawyer. On your personal page you list your profession as "harassing people" which confirms to me that you must indeed be a lawyer. Just kidding. I wouldn't challenge the view of a professional, but if a court ruling can be ignored, what good is a court system?

I am not actually a lawyer so do not take my word as gold. I just have a hobby interest in law and have done some reading.

Can the police or a DA continue to hold a person for a crime when that person is acquitted of that crime by a court just because the DA doesn't like the verdict? Can a President ignore SCOTUS by continuing to enforce laws that the Court has struck down? Isn't that a violation of the Oath of Office?

I believe all lawyers are considered "officers of the court" and so have some responsibility to listen to judges. The Supreme Court are head of the federal courts so I would assume that any federal prosecutor would be bound to heed them as a matter of hierarchical authority. State courts are separate though. While I do not think the DA of a state or city would have such authority I think a state Governor may be capable of denying the release of a prisoner even if the Supreme Court acquitted them.

As for the President "enforc[ing] laws" I believe that the Office of the President is fairly limited there. They send the Attorney General to represent the law in court which is obviously going to be on the court's turf. The President also has authority over the military but the situations where the President may exercise such authority is limited. If the President utilizes the military to get their way they are only compounding their legal troubles. While Jackson may have gotten away with it I think it would be much more difficult today.

Also, if you were wondering about the state level, I believe that state and lower courts have some authority to instruct law enforcement in their jurisdiction for the purpose or enforcement. In contrast federal courts have no authority over any federal law enforcement agency except perhaps the tax courts over the IRS and of course their own bailiffs.

As far as Congress is concerned, they also do not have an enforcement arm. There's not so much of an issue of Congress defying the court. It can pass unconstitutional laws and wait for the courts to strike it down. A SCOTUS decision doesn't usually require implementing legislation. Afaik, it has the force of law.

Congress has some control over the military and is capable of sending the National Guard to enforce its will in the states to whatever extent military force is actually capable of enforcing any particular law.

I think this is relevant to this thread because of concern that a President Perry might "pull a Jackson" and the defy SCOTUS.

I am not sure he could really get away with it depending on what it is. I read analysis of the Supreme Court decision regarding prisoners at Guantanimo which theorized the decision prescribed no action because the court was worried that Bush would ignore them and set a precedent.

 

[TheStatutoryApe]

Isn't the current President or his Attorney General selective about which laws they want to enforce?

If the Attorney General does not go to court over any particular case that does not mean that the law is not going to be enforced. It happens and typically another lawyer is found to handle the case.

 

[WhoWee]

I don't know. Can you give examples? In any case, my question is regarding the enforcement of rulings by the courts. Can the courts be ignored, especially when ruling on constitutional issues?

The Black Panther voter intimidation case comes to mind.
http://www.judicialwatch.org/news/2011/aug/court-orders-obama-justice-department-justify-some-its-withholdings-black-panther-scan

The various immigration battles can be cited - basically, the states claim they have the right to enforce immigration laws - even if the Federal Government chooses not to:

http://www.washingtonpost.com/wp-dyn/content/article/2010/11/01/AR2010110104018.html
"Bea did not make his position clear during Monday's argument, but he sharply questioned Arizona's attorneys. "Your argument that a state can take a look at whether the federal government is not enforcing its laws. . . . You can enforce laws for the federal government?" he asked. "If I don't pay my (federal) income taxes, can California sue me?''

Whatever the result, the panel's decision is the first step on a long road: legal experts expect the case to reach the Supreme Court. It is unclear when the panel will rule.

The Justice Department lawsuit, filed in July, triggered opposition from Republicans but praise from civil rights groups".

also:
http://www.foxnews.com/politics/201...s-alabama-over-controversial-immigration-law/

"The sponsor of the Alabama law, Republican state Rep. Micky Hammon, defended it Monday.
"The Obama administration and the federal bureaucrats have turned a blind eye toward the immigration issue and refuse to fulfill their constitutional duty to enforce laws already on the books. Now, they want to block our efforts to secure Alabama's borders and prevent our jobs and taxpayer dollars from disappearing into the abyss that illegal immigration causes," Hammon said.
"Allowing hundreds of thousands of illegal immigrants to run unchecked under the radar threatens our homeland security and insults those who come here legally," he added.
In a Department of Justice statement, Attorney General Eric Holder and Homeland Security Secretary Janet Napolitano said immigration enforcement is the job of the federal government. "

 

[SW VandeCarr]

Congress has some control over the military and is capable of sending the National Guard to enforce its will in the states to whatever extent military force is actually capable of enforcing any particular law.

Afaik, Congress can authorize federalizing the National Guard and did so in 2005. I don't know if that's a standing authorization or if it must be renewed from time to time. "Normally" Guard units are under the control of the states. Clearly, National Guard troops are currently serving in the US military and therefore under the actual control of the Executive . Congress can delegate and recall authority to and from the Executive when that authority is not specified in Article II of the Constitution. Also, only Congress can authorize funding to the executive and can influence policy this way. However afaik, Congress does not directly administer any enforcement unit. I don't see how it could.

http://www.stateline.org/live/details/story?contentId=170453

 

[SW VandeCarr]

The Black Panther voter intimidation case comes to mind...'

The various immigration battles can be cited - basically, the states claim they have the right to enforce immigration laws - even if the Federal Government chooses not to:
Whatever the result, the panel's decision is the first step on a long road: legal experts expect the case to reach the Supreme Court. It is unclear when the panel will rule.

The Justice Department lawsuit, filed in July, triggered opposition from Republicans but praise from civil rights groups"

Then the courts will decide. And whatever they finally decide will be the law until a future Court decides otherwise (or until the laws are changed according to a constitutional process.).

 

[TheStatutoryApe]

Afaik, Congress can authorize federalizing the National Guard and did so in 2005. I don't know if that's a standing authorization or if it must be renewed from time to time. "Normally" Guard units are under the control of the states. Clearly, National Guard troops are currently serving in the US military and therefore under the actual control of the Executive . Congress can delegate and recall authority to and from the Executive when that authority is not specified in Article II of the Constitution. Also, only Congress can authorize funding to the executive and can influence policy this way. However afaik, Congress does not directly administer any enforcement unit. I don't see how it could.

http://www.stateline.org/live/details/story?contentId=170453

Article I, Section 8; Clause 15 tells what the grounds are for calling up the Guard.

Clause 15 provides that the Congress has three constitutional grounds for calling up the militia -- "to execute the laws of the Union, suppress insurrection and repel invasions." All three standards appear to be applicable only to the Territory of the United States.

http://www.arng.army.mil/aboutus/history/Pages/ConstitutionalCharteroftheGuard.aspx
I underscored the relevant bit. There are several more notes on that page regarding the law on the topic of the Guard.