Issues in the American Creed (Constitutional Law and related matters) SCOTUS

[bigdog]

What questions would you like answered ?

What's your take on the bloated omnibus ag pork and graft bills? What limits, if any do you think exist for the commerce clause ?

Pork exists in all policy spaces. When the commerece is purely intrastate, there is the limit. I want you to recognize that days of the village based economy have ended, and therefore because of the constitutional power afforded Congress, the reach is necessarily extended.

[Crafty_Dog]

Ummm , , , no.

The reach is NOT extended.  What is different is the relative size of interstate and intrastate.

[DougMacG]

"Pork exists in all policy spaces. When the commerece is purely intrastate, there is the limit."  (Wickard-Filburn?)  "I want you to recognize that days of the village based economy have ended, and therefore because of the constitutional power afforded Congress, the reach is necessarily extended."

"How intricate should oversight be in other policy spaces? There is a great deal to agriculture. I'd like that to be intricate..."

I agree on the federal role in having a safe food supply, but look at the Dept of Agriculture.  In the 1980s while selling to the government, I had the opportunity to work with the US Dept of Agriculture, APHIS (Animal Plant Health Inspection Service).  APHIS was headquartered in the warehouse district of Minneapolis where it operated with far more efficiency than other divisions in Washington.  Protecting our nation's food supply is good government, maybe great government.  But what portion of the Ag budget goes to that end?  Very little.

Wickard- Filburn is wrong.  I didn't see Bigdog answer that.  To others, it was a case where the Supreme Court ruled that growing wheat to feed your own animals, that never left the farm, was interstate commerce.  Wrong in so many ways, but the ruling is still the law of the land.

The interstate commerce clause authorized government at the federal level in the context of a limiting-government document.  To read that expansively and believe they should control anything and everything because nearly all commerce potentially could cross state lines is wrong (IMHO).  Because they can regulate Florida oranges or Idaho potatoes doesn't mean they should.  Maybe the quality of that product is adequately governed at the state or local level before it crosses the state line.

Where does a lien against a house cross state lines?  When it is bought and sold?  So what.  If government participates as a player in the market, is that authorized as 'regulation'?  How about K-12 education, where does that cross state lines?  Or is that the general welfare clause?  If the neighborhood school is a federal responsibility, then what on earth are the limits of promoting the general welfare other than congress saying this bill or law promotes the general welfare?

We no longer live in a village-based economy.  Have the constitutional limits on government all become obsolete because of that, and because court precedents (Wickard, Obamacare, etc.) have found a way around all of them?

What about 'equal protection'?  Why is it legal or constitutional for any government to give any preference to any business (Solyndra), that it does not give to everyone else?  Why don't we read THAT clause expansively?

[Crafty_Dog]

Former Heritage Foundation president Ed Feulner: "The Constitution doesn't grant us freedoms; it prohibits government from taking them. Nearly all of us, at one time or another, refer to our 'constitutional right to free speech.' While this common phrase may seem harmless, it points to a larger misunderstanding of where our rights come from -- a misunderstanding that undermines many of our most fundamental policy debates. The fact is, the U.S. Constitution protects our God-given rights from government. The government does not (as the phrase above implies) grant those rights to us as citizens. This is perhaps the most widely misunderstood aspect of our system of government."

[bigdog]

Ummm , , , no.

The reach is NOT extended.  What is different is the relative size of interstate and intrastate.

Fine. In DOES increase the percentage of commerece which comes under the oversight of Congress (which, as a reminder is the focus from which this discussion arose).

[bigdog]

"Pork exists in all policy spaces. When the commerece is purely intrastate, there is the limit."  (Wickard-Filburn?)  "I want you to recognize that days of the village based economy have ended, and therefore because of the constitutional power afforded Congress, the reach is necessarily extended."

"How intricate should oversight be in other policy spaces? There is a great deal to agriculture. I'd like that to be intricate..."

I agree on the federal role in having a safe food supply, but look at the Dept of Agriculture.  In the 1980s while selling to the government, I had the opportunity to work with the US Dept of Agriculture, APHIS (Animal Plant Health Inspection Service).  APHIS was headquartered in the warehouse district of Minneapolis where it operated with far more efficiency than other divisions in Washington.  Protecting our nation's food supply is good government, maybe great government.  But what portion of the Ag budget goes to that end?  Very little.

Wickard- Filburn is wrong.  I didn't see Bigdog answer that.  To others, it was a case where the Supreme Court ruled that growing wheat to feed your own animals, that never left the farm, was interstate commerce.  Wrong in so many ways, but the ruling is still the law of the land.

The interstate commerce clause authorized government at the federal level in the context of a limiting-government document.  To read that expansively and believe they should control anything and everything because nearly all commerce potentially could cross state lines is wrong (IMHO).  Because they can regulate Florida oranges or Idaho potatoes doesn't mean they should.  Maybe the quality of that product is adequately governed at the state or local level before it crosses the state line.

Where does a lien against a house cross state lines?  When it is bought and sold?  So what.  If government participates as a player in the market, is that authorized as 'regulation'?  How about K-12 education, where does that cross state lines?  Or is that the general welfare clause?  If the neighborhood school is a federal responsibility, then what on earth are the limits of promoting the general welfare other than congress saying this bill or law promotes the general welfare?

We no longer live in a village-based economy.  Have the constitutional limits on government all become obsolete because of that, and because court precedents (Wickard, Obamacare, etc.) have found a way around all of them?

What about 'equal protection'?  Why is it legal or constitutional for any government to give any preference to any business (Solyndra), that it does not give to everyone else?  Why don't we read THAT clause expansively?

We have this type of discussion cyclically. I quote me from July 9, 2012, in the discrimination thread:

"As for Guro's point about the Commerece Clause, I think it is (mostly) interpreted in the manner in which the Founders, in particular Madison, intended. The difference isn't the interpretation, it is the commerce. In 1790, commerce was much more local. Family farms, local industry, etc. was much more common. In a world in which Anheuser Busch is owned by a European Company, but the headquarters is in St. Louis, but it is bottled and distributed throughout the country and sold in stores like Walmart (which is headquarted in Arkansas and has stores nation and world wide), where does local commerce begin and end? In 1790, there was no interstate highways, no nationwide train, trucking and airline industry, no FedEx, Amazon or...."

That Wickard remians good law does not mean it remains "the law of the land." You conveniently ignore US v. Lopez (1995), US v. Morrison (2000) for example. 

[Crafty_Dog]

I fully get the idea that commerce is a lot more complex and a lot more of it is interstate, but I also am of the distinct opinion that the interstate commerce clause is used willy nilly on matters that are truly intrastate.

What were the facts and holdings of Lopez and Martin?

[G M]

What if the federal gov't suddenly shut down the Ag Dept.? Poison grapefruit? Dogs and cats living together? Mass hysteria?

[G M]

Mold at WA food plant reveals flaws in food safety net


 

by CHRIS INGALLS / KING 5 News
Bio | Email | Follow: @cjingalls


Posted on February 14, 2012 at 10:45 PM

 Updated Wednesday, Feb 15 at 3:23 PM





Related:
•Records reveal history of mold problems at troubled WA food plant
•Federal inspectors told to ignore moldy food at local plant
•Read USDA's statement issued after first story aired
•Read USDA/FDA Memorandum of Understanding
•Read the USDA's statement re: KING 5 investigation
•Read Snokist's response to FDA warning letter

Federal inspectors knew of serious food safety violations at a Washington state fruit processing plant. It seemed like the kind of thing that the United States Department of Agriculture would jump on. But that’s not what happened.
 
Government whistleblowers tell the KING 5 Investigators that the agency was more concerned about the money Snokist was generating for the USDA than the safety of the citizens it serves.
 
“I think it’s pretty poor,” said Wendy Alguard, the USDA’s former inspector assigned to Snokist. “All (the USDA) is out to do is try and make money, instead of doing what their original job is, being concerned about the product and the safety of people,” said Alguard.
 
“Money, it’s money,” agreed Jerry Pierce, the USDA inspector who as Alguard’s predecessor at Snokist.
 
Applesauce reprocessing
 
The inspectors say they witnessed employees “reprocessing” large bins of moldy applesauce. Snokist workers scraped mold off the top of spoiled applesauce, heat-treated the remaining applesauce and then mixed it with fresh applesauce to sell it to the public.
 
“It’s appalling that a company would take those measures just to make a few dollars,” said Alguard.
 
Both inspectors said they considered the reprocessing a health hazard and immediately reported it to their boss at the USDA.

But they say the USDA never put meaningful pressure on Snokist.
 
Records obtained by the KING 5 Investigators show the reprocessing continued for more than three years.
 
Snokist on store shelves
 
You may have never seen a Snokist can on your store shelf, but you may have eaten the company’s applesauce.
 
Snokist supplies applesauce to major brands. It ends up in grocery stores under many different store names.
 
The USDA and the Food and Drug Administration say they do not have a list of companies that recieved Snokist applesauce. They referred KING 5 to Snokist for that information.
 
Snokist declined to provide a list of the companies and grocery stores that received reprocessed applesauce.
 
Records filed with the government show that Snokist was supplying fruit products to the Kroger Company, Western Family Foods, Gerber, Monarch, Red Man and Costco.  But those records do not reveal whether any of these companies recieved reprocessed applessauce.
 
An official at one company said his firm had no idea that Snokist was reprocessing applesauce.
 
USDA response
 
In a written statement the USDA told KING 5 that its inspectors were “diligent” about keeping the reprocessed applesauce out of the national school lunch program. Snokist was a major supplier of fruit products and bid on school lunch contracts across the United States.
 
But the USDA says its employees don’t have the authority to halt questionable applesauce that could be going to non-government contracts.
 
The former inspectors think the USDA could have cracked down on the company, but say their boss didn’t want to lose the “fees” Snokist was paying the USDA to remain in the school lunch program.
 
 User fees
 
Records obtained by the KING 5 Investigators show Snokist paid more than a half-million dollars in user fees to the USDA in just over three years. The fees pay for USDA inspections and services to monitor the food Snokist is sending to USDA programs like school lunches and  food banks.
 
The inspectors believe their boss ignored their concerns about the applesauce because he didn’t want to lose the money Snokist’s contract brought in to the USDA.
 
“It was a good boost for my supervisor,” said Pierce. “It made him look good in the western region as well as Washington, DC.”
 
Another case
 
There is another case in which the USDA ignored food safety issues with severe consequences.
 USDA inspectors worked at the Wright County egg plant in Galt, Iowa where rotten eggs were splattered on equipment, egg drippings coated the floor and the men’s bathroom had no sink for basic hygiene.
 
Plant employees complained about the unsanitary conditions. “I told the USDA officer about it and she said, ‘Well, just go back and do your job,’” said one Wright County egg plant employee.
 
 In 2010, the plant was blamed for a salmonella outbreak that sickened thousands of people and led to the nation’s largest ever egg recall.
 
 USDA mission
 
 Bill Marler, a Seattle attorney and renowned food safety advocate, says it’s not just about money, it’s also about the USDA’s mission.
 
"The USDA has an arm that's interested in food safety, but the vast majority of it is interested in purchasing food and getting it to the public," Marler said.
 
The agency promotes agricultural products, an important role, and may be reluctant to play the part of food police.

“The goal shouldn't be just let's grease the skids to get good food from the farm to your kids lunch plate," said Marler. “There's got to be oversight and food safety concerns along the way"
 
In principal, the USDA has agreed with that. In a memorandum of understanding with the US Food and Drug Administration, the USDA agrees to report food serious food safety issues spotted by its employees.

"This memorandum of understanding between the FDA and USDA has been around for a long time,” said Marler. “It just doesn't work."
 
Inspectors claim retaliation
 
 Meanwhile, both inspectors believe they were punished for pressing the issues over Snokist’s moldy applesauce. Wendy Alguard tipped the FDA to Snokist’s applesauce reprocessing. The agency quickly put a stop to it.
 
Alguard says the USDA tried to transfer her to a less desirable job in California. She was fired late last year after refusing the assignment.
 
Jerry Pierce says his career was tarnished, as well. He retired from the USDA at the end of 2011.
 The USDA inspector who worked at Snokist before Pierce was also terminated by the agency.
 A USDA spokesperson denies that there was any retaliation involved.

[G M]

http://hotair.com/archives/2013/06/18/white-house-threatens-to-veto-house-farm-bill-because-it-isnt-expensive-enough/

White House threatens to veto House farm bill because it isn’t expensive enough


posted at 11:11 am on June 18, 2013 by Erika Johnsen






Both Senate and House versions of the farm bill that Congress is looking to pass, preferably in short order and definitely before the current bill expires this September, are little better than deliberately gigantic messes full of an impressively convoluted combination of food stamps, corporate pork, tricky amendments, and completely unnecessary federal special treatment that agribusiness lobby claims agriculture for some reason deserves above all other economic sectors. The Hill has a useful rundown of some of the major battles that still need to be fought within Congress before they can agree upon a final bill, but one of the biggest is going to be over the majority of the spending in the bills that goes to food stamp programs. The Senate-passed version of the farm bill cut the food-stamp program by merely $400 million per year, with the support of the Obama administration, but the House is looking to go a little deeper (hi, trillion dollar yearly deficits, anyone?!) — and the Obama administration doesn’t like that at all.
 

The White House is threatening to veto the House version of a massive, five-year farm bill, saying food stamp cuts included in the legislation could leave some Americans hungry.
 
The House is preparing to consider the bill this week. The legislation would cut $2 billion annually, or around 3 percent, from food stamps and make it harder for some people to qualify for the program. Food stamps, now called the Supplemental Nutrition Assistance Program, or SNAP, cost almost $80 billion last year, twice the amount it cost five years ago. …
 
The White House said in its statement Monday that food stamps are “a cornerstone of our nation’s food assistance safety net.” The administration argued that the House should make deeper cuts to farm subsidies like crop insurance instead.
 
Yes, it’s very easy to talk about the people who will be helped by continued growth in the food stamp program, except that the Obama administration has completely obliterated the normal standards and has grown the program by a whopping 70 percent since 2008 alone — even as the White House continues to insist that employment is improving everyday and our economy is continuing to recover. If that were really the case, why the expanded need for food stamps? You can’t have it both ways, you know.
 
Oh, and by the way — where is a lot of that corporate and special-interest pork in the farms bills coming from, you might very well wonder?
 

House members have filed more than 200 amendments to the bill, which is expected to come to the floor later this week.
 
Ugh.

[bigdog]

What if the federal gov't suddenly shut down the Ag Dept.? Poison grapefruit? Dogs and cats living together? Mass hysteria?

Once again, that is not the issue. That fact is, agriculture (or at least much of it) is, in fact, interstate commerece.

[bigdog]

And your posts on the USDA does not dimish the fact that the interstate commerece of agriculture is legitimate congressional use of oversight.

[Crafty_Dog]

GM: We (well YOU actually  ) are wandering a bit far afield from the subject matter of this thread.  I respect and probably agree with your point that much of what the DoA does would not be missed if it did not do it, but what you post here would best fit in the Bureaucracy thread-- this here is the Constitutional thread. 

BD:  Still hoping to hear from you concerning the facts and holding of the Lopez and Martin cases.

Until then (and perhaps even after LOL) I will stand by my motion that SCOTUS jurisprudence of the Interstate Commerce clause intrudes into many areas that are INTRAstate-- and no, I can't give any examples off the top of my head 

[G M]

What if the federal gov't suddenly shut down the Ag Dept.? Poison grapefruit? Dogs and cats living together? Mass hysteria?

Once again, that is not the issue. That fact is, agriculture (or at least much of it) is, in fact, interstate commerece.

And the intent of the founders was to prevent states from acting like tiny european countries engaging in economic pissing matches, not a loophole where the federal government can assert police powers over the citizenry.

[bigdog]

What if the federal gov't suddenly shut down the Ag Dept.? Poison grapefruit? Dogs and cats living together? Mass hysteria?

Once again, that is not the issue. That fact is, agriculture (or at least much of it) is, in fact, interstate commerece.

And the intent of the founders was to prevent states from acting like tiny european countries engaging in economic pissing matches, not a loophole where the federal government can assert police powers over the citizenry.

Loophole?

[bigdog]

BD:  Still hoping to hear from you concerning the facts and holding of the Lopez and Martin cases.

Lopez: http://en.wikipedia.org/wiki/United_States_v._Lopez

"The Government's principal argument was that the possession of a firearm in an educational environment would most likely lead to a violent crime, which in turn would affect the general economic condition in two ways. First, because violent crime causes harm and creates expense, it raises insurance costs, which are spread throughout the economy; and second, by limiting the willingness to travel in the area perceived to be unsafe. The Government also argued that the presence of firearms within a school would be seen as dangerous, resulting in students' being scared and disturbed; this would, in turn, inhibit learning; and this, in turn, would lead to a weaker national economy since education is clearly a crucial element of the nation's financial health.

The Court, however, found these arguments to create a dangerous slippery slope: what would prevent the federal government from then regulating any activity that might lead to violent crime, regardless of its connection to interstate commerce, because it imposed social costs? What would prevent Congress from regulating any activity that might bear on a person's economic productivity?"

Morrison: http://en.wikipedia.org/wiki/United_States_v._Morrison


"United States v. Morrison, 529 U.S. 598 (2000), is a United States Supreme Court decision which held that parts of the Violence Against Women Act of 1994 were unconstitutional because they exceeded congressional power under the Commerce Clause and under section 5 of the Fourteenth Amendment to the Constitution."

[DougMacG]

"That Wickard remains good law does not mean it remains "the law of the land." You conveniently ignore US v. Lopez (1995), US v. Morrison (2000) for example."

No intent to deceive.  Did the federal government lose its authority to regulate a product (or service) like Filburn's, that doesn't cross state lines (and I missed it)?  My business is the rental of single family homes, regulated at the city, county, and state levels, in addition to regulation by an entire federal department.  My business could not be more like a family farm of 1790 in this regard.  None of my products or services have ever crossed state lines.

When the US Department of Housing (HUD) opened a full investigation against me over an accusation easily proven false, I wonder if a simple point to these cases would have sufficed - instead of providing the hundreds of documents they were requiring.

Linking myself, over 700 current federal departments and agencies are listed at the end of the post (link below), more departments and agencies now than before Lopez, Morrison or any previous time in our history (and many more coming).  All of these are constitutionally authorized federal powers - in the founders' spirit of a constitutionally limited government?  I don't think so.  http://dogbrothers.com/phpBB2/index.php?topic=1850.msg72139#msg72139

[Crafty_Dog]

While I am glad to know of Lopez and that SOME sort of limits remain on the Interstate Commerce clause, Doug's question seems to me quite fair. 

[Crafty_Dog]

Not wanting to interrupt the flow of the conversation on the IC Clause, but pasting here GM's post of candidate Obama's thoughts on some C'l issues.
============

http://www.boston.com/news/politics/2008/specials/CandidateQA/ObamaQA/

Barack Obama's Q&A

 By Charlie Savage
Globe Staff / December 20, 2007

 


1. Does the president have inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes?




The Supreme Court has never held that the president has such powers. As president, I will follow existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for national security purposes consistent with FISA and other federal statutes.

2. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites -- a situation that does not involve stopping an IMMINENT threat?)

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.

As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.” The recent NIE tells us that Iran in 2003 halted its effort to design a nuclear weapon. While this does not mean that Iran is no longer a threat to the United States or its allies, it does give us time to conduct aggressive and principled personal diplomacy aimed at preventing Iran from developing nuclear weapons.

3. Does the Constitution empower the president to disregard a congressional statute limiting the deployment of troops -- either by capping the number of troops that may be deployed to a particular country or by setting minimum home-stays between deployments? In other words, is that level of deployment management beyond the constitutional power of Congress to regulate?

No, the President does not have that power. To date, several Congresses have imposed limitations on the number of US troops deployed in a given situation. As President, I will not assert a constitutional authority to deploy troops in a manner contrary to an express limit imposed by Congress and adopted into law.

4. Under what circumstances, if any, would you sign a bill into law but also issue a signing statement reserving a constitutional right to bypass the law?

Signing statements have been used by presidents of both parties, dating back to Andrew Jackson. While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability.
 

I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation. The fact that President Bush has issued signing statements to challenge over 1100 laws – more than any president in history – is a clear abuse of this prerogative. No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.

5. Does the Constitution permit a president to detain US citizens without charges as unlawful enemy combatants?

No. I reject the Bush Administration's claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.

6. Does executive privilege cover testimony or documents about decision-making within the executive branch not involving confidential advice communicated to the president himself?

With respect to the “core” of executive privilege, the Supreme Court has not resolved this question, and reasonable people have debated it. My view is that executive privilege generally depends on the involvement of the President and the White House.

7. If Congress defines a specific interrogation technique as prohibited under all circumstances, does the president's authority as commander in chief ever permit him to instruct his subordinates to employ that technique despite the statute?

No. The President is not above the law, and the Commander-in-Chief power does not entitle him to use techniques that Congress has specifically banned as torture. We must send a message to the world that America is a nation of laws, and a nation that stands against torture. As President I will abide by statutory prohibitions, and have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors.

8. Under what circumstances, if any, is the president, when operating overseas as commander-in-chief, free to disregard international human rights treaties that the US Senate has ratified?

It is illegal and unwise for the President to disregard international human rights treaties that have been ratified by the United States Senate, including and especially the Geneva Conventions. The Commander-in-Chief power does not allow the President to defy those treaties.

9. Do you agree or disagree with the statement made by former Attorney General Gonzales in January 2007 that nothing in the Constitution confers an affirmative right to habeas corpus, separate from any statutory habeas rights Congress might grant or take away?

Disagree strongly.

10. Is there any executive power the Bush administration has claimed or exercised that you think is unconstitutional? Anything you think is simply a bad idea?
 

First and foremost, I agree with the Supreme Court's several decisions rejecting the extreme arguments of the Bush Administration, most importantly in the Hamdi and Hamdan cases. I also reject the view, suggested in memoranda by the Department of Justice, that the President may do whatever he deems necessary to protect national security, and that he may torture people in defiance of congressional enactments. In my view, torture is unconstitutional, and certain enhanced interrogation techniques like “waterboarding” clearly constitute torture. And as noted, I reject the use of signing statements to make extreme and implausible claims of presidential authority.

Some further points:

The detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional.

Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.

The violation of international treaties that have been ratified by the Senate, specifically the Geneva Conventions, was illegal (as the Supreme Court held) and a bad idea.

The creation of military commissions, without congressional authorization, was unlawful (as the Supreme Court held) and a bad idea.

I believe the Administration’s use of executive authority to over-classify information is a bad idea. We need to restore the balance between the necessarily secret and the necessity of openness in our democracy – which is why I have called for a National Declassification Center.

11. Who are your campaign's advisers for legal issues?

Laurence Tribe, Professor of Law, Harvard University

Cass Sunstein, Professor of Law, University of Chicago

Jeh C. Johnson, former General Counsel of Department of the Air Force (1998-2001)

Gregory Craig, former Assistant to the President and Special Counsel (1998-1999), former Director of Policy Planning for U.S. Department of State (1997-1998)

12. Do you think it is important for all would-be presidents to answer questions like these before voters decide which one to entrust with the powers of the presidency? What would you say about any rival candidate who refuses to answer such questions?

Yes, these are essential questions that all the candidates should answer. Any President takes an oath to, “preserve, protect and defend the Constitution of the United States." The American people need to know where we stand on these issues before they entrust us with this responsibility – particularly at a time when our laws, our traditions, and our Constitution have been repeatedly challenged by this Administration.

[Crafty_Dog]

I don't see how this passes C'l muster, but I admit to a certain admittedly immature glee nonetheless , , ,

===========================================

Gun Bill in Missouri Would Test Limits in Nullifying U.S. Law
By JOHN SCHWARTZ
Published: August 28, 2013


JEFFERSON CITY, Mo. — Unless a handful of wavering Democrats change their minds, the Republican-controlled Missouri legislature is expected to enact a statute next month nullifying all federal gun laws in the state and making it a crime for federal agents to enforce them here. A Missourian arrested under federal firearm statutes would even be able to sue the arresting officer.


Lawmakers are considering whether to override a veto of a gun bill by Gov. Jay Nixon of Missouri, who considered the bill unconstitutional.

The law amounts to the most far-reaching states’ rights endeavor in the country, the far edge of a growing movement known as “nullification” in which a state defies federal power.

The Missouri Republican Party thinks linking guns to nullification works well, said Matt Wills, the party’s director of communications, thanks in part to the push by President Obama for tougher gun laws. “It’s probably one of the best states’ rights issues that the country’s got going right now,” he said.

The measure was vetoed last month by Gov. Jay Nixon, a Democrat, as unconstitutional. But when the legislature gathers again on Sept. 11, it will seek to override his veto, even though most experts say the courts will strike down the measure. Nearly every Republican and a dozen Democrats appear likely to vote for the override.

Richard G. Callahan, the United States attorney for the Eastern District of Missouri, is concerned. He cited a recent joint operation of federal, state and local law enforcement officials that led to 159 arrests and the seizing of 267 weapons, and noted that the measure “would have outlawed such operations, and would have made criminals out of the law enforcement officers.”

In a letter explaining his veto, Mr. Nixon said the federal government’s supremacy over the states’ “is as logically sound as it is legally well established.” He said that another provision of the measure, which makes it a crime to publish the name of any gun owner, violates the First Amendment and could make a crime out of local newspapers’ traditional publication of “photos of proud young Missourians who harvest their first turkey or deer.”

But the votes for the measure were overwhelming. In the House, all but one of the 109 Republicans voted for the bill, joined by 11 Democrats. In the Senate, all 24 Republicans supported it, along with 2 Democrats. Overriding the governor’s veto would require 23 votes in the Senate and 109 in the House, where at least one Democrat would have to come on board.

The National Rifle Association, which has praised Mr. Nixon in the past for signing pro-gun legislation, has been silent about the new bill. Repeated calls to the organization were not returned.

Historically used by civil rights opponents, nullification has bloomed in recent years around a host of other issues, broadly including medical marijuana by liberals and the new health care law by conservatives.

State Representative T. J. McKenna, a Democrat from Festus, voted for the bill despite saying it was unconstitutional and raised a firestorm of protest against himself. “If you just Google my name, it’s all over the place about what a big coward I am,” he said with consternation, and “how big of a ‘craven’ I was. I had to look that up.”

The voters in his largely rural district have voiced overwhelming support for the bill, he said. “I can’t be Mr. Liberal, St. Louis wannabe,” he said. “What am I supposed to do? Just go against all my constituents?”

As for the veto override vote, he said, “I don’t know how I’m going to vote yet.”

State Representative Doug Funderburk, a Republican from St. Peters and the author of the bill, said he expected to have more than enough votes when the veto override came up for consideration.

Adam Winkler, a professor of law at the University of California, Los Angeles, who follows nullification efforts nationally, said that nearly two dozen states had passed medical marijuana laws in defiance of federal restrictions. Richard Cauchi, who tracks such health legislation for the National Conference of State Legislatures, said: “Since January 2011, at least 23 states have considered bills seeking to nullify the health care law; as of mid-2013 only one state, North Dakota, had a signed law. Its language states, however, that the nullification provisions ‘likely are not authorized by the United States Constitution.’ ”

=====================

Page 2 of 2)

What distinguishes the Missouri gun measure from the marijuana initiatives is its attempt to actually block federal enforcement by setting criminal penalties for federal agents, and prohibiting state officials from cooperating with federal efforts. That crosses the constitutional line, said Robert A. Levy, chairman of the libertarian Cato Institute’s board of directors — a state cannot frustrate the federal government’s attempts to enforce its laws.


Mr. Levy, whose organization has taken a leading role in fighting for gun rights, said, “With the exception of a few really radical self-proclaimed constitutional authorities, state nullification of federal law is not on the radar scope.”

Still, other states have passed gun laws that challenge federal power; a recent wave began with a Firearms Freedom Act in Montana that exempts from federal regulations guns manufactured there that have not left the state.

Gary Marbut, a gun rights advocate in Montana who wrote the Firearms Freedom Act, said that such laws were “a vehicle to challenge commerce clause power,” the constitutional provision that has historically granted broad authority to Washington to regulate activities that have an impact on interstate commerce. His measure has served as a model that is spreading to other states. Recently, the United States Court of Appeals for the Ninth Circuit struck down Montana’s law, calling it “pre-empted and invalid.”

A law passed this year in Kansas has also been compared to the Missouri law. But Kris W. Kobach, the Kansas secretary of state, disagreed, saying it had been drafted “very carefully to ensure that there would be no situation where a state official would be trying to arrest a federal official.”

In Missouri, State Representative Jacob Hummel, a St. Louis Democrat and the minority floor leader, said that he was working to get Democrats who voted for the bill to vote against overriding the veto. “I think some cooler heads will prevail in the end,” he said, “but we will see.”

Taking up legislative time to vote for unconstitutional bills that are destined to end up failing in the courts is “a waste of taxpayers’ money,” Mr. Hummel said, adding that more and more, the legislature passes largely symbolic resolutions directed at Congress.

“We’re elected to serve the citizens of the state of Missouri, at the state level,” he said. “We were not elected to tell the federal government what to do — that’s why we have Congressional elections.”

The lone Republican opponent of the bill in the House, State Representative Jay Barnes, said, “Our Constitution is not some cheap Chinese buffet where we get to pick the parts we like and ignore the rest.” He added, “Two centuries of constitutional jurisprudence shows that this bill is plainly unconstitutional, and I’m not going to violate my oath of office.”

Mr. Funderburk, the bill’s author, clearly disagrees. And, he said, Missouri is only the beginning. “I’ve got five different states that want a copy” of the bill, he said.

[bigdog]

While I am glad to know of Lopez and that SOME sort of limits remain on the Interstate Commerce clause, Doug's question seems to me quite fair. 

Remember all the time you spent on this, http://www.breitbart.com/Big-Government/2012/07/03/did-justice-roberts-invalidate-obamacare, Doug?

[Crafty_Dog]

I wonder if this man would think Lopez goes far enough , , ,

"The power of the people pervading the proposed system, together with the strong confederation of the states, will form an adequate security against every danger that has been apprehended."
–John Dickinson, Letters of Fabius, 1788

[Crafty_Dog]

http://www.nationalreview.com/corner/357102/whos-got-power-use-force-john-yoo

[DougMacG]

While I am glad to know of Lopez and that SOME sort of limits remain on the Interstate Commerce clause, Doug's question seems to me quite fair.  

Remember all the time you spent on this, http://www.breitbart.com/Big-Government/2012/07/03/did-justice-roberts-invalidate-obamacare, Doug?

Bigdog,  The link makes two points (if I am reading it correctly). 1) Roberts is getting some kind of revenge on Obama (intentional or otherwise) by siding with the conservatives as they scale back the application of the commerce clause, and 2) he is affirming and invalidating Obamacare all in one stroke by declaring it a tax while knowing the bill originated in the Senate not the House and therefore will be struck down - null and void.

Since then,

a) Obamacare implementation is going forward.  Origination case was dismissed in District Court, see below.*  It is the "law of the land" - because of Chief Justice John Roberts.  What am I missing here?

b) No government program, department, agency, regulation or significant federal regulatory authority (to my knowledge) has been rolled back by the Supreme Court or by anyone else since or because of the ruling.  New federal regulations issued just since the Roberts decision approaching 2000 pages/week, costing $2 trillion/yr.  http://dailycaller.com/2012/09/11/more-than-1600-pages-of-regulations-added-to-federal-register-last-week-cost-now-1-8-trillion-per-year/
http://cnsnews.com/news/article/under-obama-11327-pages-federal-regulations-added

c) All future congresses now have the 'Roberts Roadmap' to get around constitutional constraints on unlimited authority.  Declare mandates a tax.
-------------------

*  Matthew Sissel v. Dept HHS  The origination case was dismissed by US District Court Washington DC.  The House had passed a shell bill, not a tax, and then went back and inserted Obamacare into it.  'Inelegant', but legal.(Not in my view.)  http://blog.pacificlegal.org/wordpress/wp-content/uploads/2013/07/SisselDismissal.pdf

[ccp]

Talk about switch and bait.  From a shyster in the liberal media (white house propaganda).  Only could he turn Obama's self made mess in Syria into a "history -defying" decision.   I guess Shapiro was Rip Van Winkle during the Bush one and two years.

****Obama's history-defying decision to seek Congressional approval on Syria
US President Barack Obama speaks about Syria outside the White House in Washington, DC on August 31, 2013
Walter Shapiro
Walter Shapiro 23 hours ago 
 
President Barack Obama, according to background briefings by his aides, reached a fateful decision late Friday afternoon as he strolled along the White House lawn with his chief of staff Denis McDonough. Contrary to every expectation by his national security team, Obama concluded that he should ask Congress for authorization to bomb Syria.

The full reasoning behind the president’s turnabout remains murky. He may have wanted to share responsibility for a risky strategy to punish the barbarous regime of Syrian strongman Bashir al-Assad for using chemical weapons against his own people. Obama may have recognized the political dangers of attacking another Middle Eastern country without popular support at home.

And the president, a former part-time constitutional law professor, may have also belatedly recalled the wording of Article One, Section Eight of the Constitution that grants Congress the sole power “to declare war.”

But whatever Obama’s underlying motivations and however the Syrian vote plays out on Capitol Hill, the president’s decision to go to Congress represents an historic turning point. It may well be the most important presidential act on the Constitution and war-making powers since Harry Truman decided to sidestep Congress and not seek their backing to launch the Korean war.

Just a few days ago, before Obama’s decision was known, legal scholars from both the right and the left were in agreement that waging war over Syria – no matter how briefly – without congressional approval would bend the Constitution beyond recognition.

Jack Goldsmith, a Harvard law professor who served as a Bush administration lawyer during the run-up to the 2003 Iraq war, wrote in the legal blog Lawfare, “The planned use of military force in Syria is a constitutional stretch that will push presidential war unilateralism beyond where it has gone before.” And liberal constitutional scholar Garrett Epps,  writing for the Atlantic  , concluded, “It’s pretty clear that an American attack would violate the Constitution.”

Virtually no one in politics, the press or the academic community expected Obama to go to Congress for approval. That isn’t the way the presidential power works in the modern era. It is a sad truth that whomever occupies the Oval Office invariably expands rather than trims back the Imperial Presidency. Obama himself has reflected this pattern with his aggressive enhancement of the National Security Agency’s efforts to monitor electronic communications.

For more than six decades, the war-making powers of Congress have been eviscerated by presidents of both parties.

Which brings us back to Truman, who in 1950 balked at asking a Congress weary after World War Two for approval to militarily respond to the Communist attack on South Korea. Dean Acheson, Truman’s secretary of state, claimed in his memoirs that a congressional debate over the Korean War “would hardly be calculated to support the shaken morale of the troops or the unity that, for the moment, prevailed at home.”

Acheson may not have remembered that military morale and national unity are not mentioned in the Constitution. But the war-marking powers of Congress are at the heart of the nation’s founding document. It was as if the sign on Truman’s desk read, “The Buck Stops Here – And This is Also Where the Constitution Is Twisted.”



..View gallery."
Syria - History of politics and conflict from 1920 …
March 8, 2005 - A Syrian soldier riding on top of a tank gestures after leaving his position, in Dah …

The plain-spoken Truman resorted to weaselly words to claim that Korea was a United Nations-sponsored “police action” rather than a war. No other American “police action” has ever led to 54,246 wartime deaths.

Truman’s assertion of vast executive power as Commander in Chief set a template for future presidents. Even when presidents have gone to Congress for approval of major military engagements, these blank-check authorizations have often been based on deceptive arguments.

Lyndon Johnson premised the entire Vietnam war on the 1964 Gulf of Tonkin Resolution, which was designed to permit a limited response to two minor and maybe mythical naval skirmishes with North Vietnam. Similarly hyperbolic were George W. Bush’s claims about Saddam Hussein’s non-existent arsenal of weapons of mass destruction.

Even more legally dubious were all the times a president sent troops and planes into combat without anything more than desultory briefings of the congressional leadership.

Ronald Reagan dispatched the Marines into Grenada in 1983 under the preposterous rationale that he was only protecting endangered American medial students. Bill Clinton skirted congressional approval for the 1999 airborne attacks to halt Serbia’s ethnic cleansing of Kosovo on the shaky grounds that this was a NATO operation. And Obama himself was even on flimsier footing when he justified America’s participation in the 2011 bombing campaign over Libya based on a United Nations resolution.

But Syria did not provide Obama with any of these fig-leaf justifications.

No American lives are in danger and the national security threat is hard to identify. Not only is NATO not participating, but also neither are the Brits, the United State’s closest diplomatic ally. With Russia serving as Assad’s enabler, there will be no Security Council resolution or UN mandate.

Every time a president employs questionable legal arguments to wage war, it becomes a valuable tool for the next Commander in Chief impatient with the constitutional requirement to work through Congress. That’s why it would have been so dangerous for Obama to go forward in Syria without a congressional vote or the support of the UN or NATO. It is as much of a slippery slope argument as the contention that Iran, say, would be emboldened with its nuclear program if America did not punish Assad’s chemical attacks.

Assuming Obama wins congressional approval, America’s coming attack on Syria is designed to set a lasting precedent: No government can ever again use chemical, biological – let alone nuclear – weapons without facing devastating consequences. As Obama asked rhetorically in his Saturday Rose Garden statement, “What message will we send if a dictator can gas hundreds of children to death in plain sight and pay no price?”

But Obama’s decision to seek congressional approval may prove to be an even more important precedent. Future presidents – as they consider unilateral military action without American security hanging in the balance – will have to answer, “Why didn’t you go to Congress like Obama did over Syria?”

Confronted with a series of wrenching choices over Syria, Obama chose the course that best reflects fidelity to the Constitution as written. Hopefully, in the days ahead, taking that less traveled road by presidents will make all the difference.****

[bigdog]

While I am glad to know of Lopez and that SOME sort of limits remain on the Interstate Commerce clause, Doug's question seems to me quite fair.  

Remember all the time you spent on this, http://www.breitbart.com/Big-Government/2012/07/03/did-justice-roberts-invalidate-obamacare, Doug?

a) Obamacare implementation is going forward.  Origination case was dismissed in District Court, see below.*  It is the "law of the land" - because of Chief Justice John Roberts.  What am I missing here?

The consistent SC move away from the from the Commerce Clause cases that you and GM cite.

[Crafty_Dog]

But in that the holding was that Obamacare is a tax and the bill that was passed originated in the Senate, isn't there a new basis for challenging its consitutionality?    I am under the impression that such suits have been brought , , ,

[bigdog]

But in that the holding was that Obamacare is a tax and the bill that was passed originated in the Senate, isn't there a new basis for challenging its consitutionality?    I am under the impression that such suits have been brought , , ,

I would think so. And I think I've said so here (as in, somewhere on the forum). But, man, we've come a far way from the original basis of this current discussion. Oversight.

[Crafty_Dog]

That's been known to happen around here 

[DougMacG]

"What am I missing?"

"The consistent SC move away from the from the Commerce Clause cases that you and GM cite."
------------------

Point well taken.  I know Roberts made a point about the commerce clause but I don't see how that translated into any new limit or pullback on any federal government power.  The movement is most certainly in the other direction.

Rather than regulating commerce, the movement in government (ACA for example) is toward coercive paternalism, which was not a founding principle.

BD, I hope the new school year is starting out well for you.

[ccp]

There is a lot of very poor logic hear but some food for thought:

National Journal
Michael Hirsh September 2, 2013  PoliticsBarack Obama Syria

World War II began 74 years ago Sunday when German troops invaded Poland. The invasion conclusively discredited the concept of "appeasement" as a foreign policy for, well, the next 74 years. But if the U.S. Congress opposes authorization of the military mission to Syria that President Obama has now handed off to it, and if Obama uses that as an excuse to back further away from enforcement of his "red line," the "A" word will likely come to dominate the international debate once again.

And Barack Obama, who in his first term was known as the vanquisher of Osama bin Laden, could come out of his second looking more like Neville Chamberlain.

I don't want to overstate things. Bashar al-Assad, a tinpot dictator who is fighting only for his own survival, is no Hitler. He's not set to overrun an entire continent. And the "lessons of Munich" and the dangers of appeasement are generally overdrawn. But, after all, it was Secretary of State John Kerry who lumped Assad with the Fuehrer on the talk shows Sunday, saying that he "now joins the list of Adolf Hitler and Saddam Hussein [who] have used these weapons in time of war." (Technically, Hitler's only use of gas was not on the battlefield but to kill millions in extermination camps.)

These are also the clear implications of the president's own words. Already the United Nations, NATO, and Great Britain have failed to enforce his red line against chemical weapons use. Only the United States, with the possible help of France, stands in the way of allowing Assad to grin triumphantly atop the WMD massacre he authorized, to do it again and again, and thus make it more acceptable internationally. As Obama said in his Rose Garden statement Saturday: "If we won't enforce accountability in the face of this heinous act, what does it say about our resolve to stand up to others who flout fundamental international rules? To governments who would choose to build nuclear arms? To terrorists who would spread biological weapons? To armies who carry out genocide?"

So the stakes look very high indeed. All of which makes Obama's other announcement on Saturday so unsettling. Obama said 1) Military force against Syria is justified; 2) that he has decided to use it; and 3) that he believes he has the authority to do so right now. But then he declared that he's going to ask Congress for approval that, by his own account, he doesn't need. Thus, a president who for the last four years has had no compunction about unilaterally deciding whom to launch drone strikes against or whom to spy on has effectively surrendered a chunk of constitutional authority to a fractious, unreliable and politically motivated Congress over the issue of redressing the perilous precedent set by Assad.

It may well be that this is "the right thing to do for our democracy," as Obama said. But previous presidents, both Democrat and Republican, have said otherwise. They have declared even the War Powers Act (which gives Obama the authority to attack Syria for 60 days before asking for congressional approval) to be an unconstitutional infringement of presidential power.

The risk of Obama's handover to Congress is that, as Susan Page wrote in USA Today, "he has weakened his own presidency—what happens if he doesn't want to seek congressional authorization the next time?—and even the presidency itself. That argument is part of the reason that Ronald Reagan didn't seek congressional authorization before ordering the invasion of Grenada, why George H.W. Bush didn't seek authorization before launching military action in Panama, why Bill Clinton didn't seek authorization before ordering the bombing of Kosovo."

Obama is feeling lonely at the top because he doesn't have the U.N., NATO, or even the British behind him this time. Still, it is more than a little odd that he is turning for companionship to the Congress that has made a mockery of his every initiative until now. And Obama has not been consistent in this policy. "If from the beginning he said something to the effect of, 'I'm a constitutional scholar. I think the Constitution intends for the use of military force to be justified, and Congress has to approve. So I will use my presidency to make that a precedent,' then fine, no one would be seeing it as an abdication," says one scholar of the ethics and legality of war. "Instead, it came across as 'I need top cover because our closest allies ever won't follow us on this one.'"

What also smacks sadly of the appeasement era of the 1930s is all the talk about "war weariness," from Obama and others. "I know well we are weary of war," the president said Saturday. "But we are the United States of America, and we cannot and must not turn a blind eye to what happened in Damascus. Out of the ashes of world war, we built an international order and enforced the rules that gave it meaning."

Yet that international order is what is now in some danger, 74 years later. After all, it was just this kind of war weariness that created Neville Chamberlain, and his foreign policy of "positive appeasement" as he called it, in the years after the terrible bloodletting of World War I. If one becomes unwilling to strike dictators and mass murderers, all that remains is to appease them.

[DougMacG]

US v. Lopez (1995), US v. Morrison (2000) came up earlier as limiting the over-reach of the commerce clause.  But Gonzalez v. Reich 2005 seemed to me to do the opposite. (?)  Federal law has supremacy - when growing a plant for personal consumption, legal under state law, never to cross state lines.  Sounds like WIckard-Filburn was affir

From today's WSJ:

"California argued a decade ago that its medical marijuana law let individuals grow their own for personal use, but the Supreme Court ruled in Gonzales v. Raich in 2005 that federal law had supremacy. Defenders of ObamaCare even used the Raich precedent to claim that the feds could force all Americans to buy health insurance."

http://online.wsj.com/article/SB10001424127887323324904579044771286022400.html?mod=WSJ_Opinion_AboveLEFTTop
----------------------

Justice Stevens delivering the opinion of the Court in Gonzales v. Raich, 2005:  Well-settled law controls our answer. ...  Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U.S., at 151; Wickard v. Filburn, 317 U.S. 111, 128—129 (1942). As we stated in Wickard, “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”
http://www.law.cornell.edu/supct/html/03-1454.ZO.html


It certainly reads (to the layman) that after Lopez, 1995 and Morrison, 2000, (although before the Roberts' opinion in NFIB v. Sebelius), that the central and controversial point of Wickard v. Filburn, federal jurisdiction of a purely local activity, was still the 'law of the land' in Gonzales, 2005.  

[bigdog]

There was dissent in majority from Scalia, who agreed on the outcome, not its reasoning. And, as I noted elsewhere, there has been a consistent (though not necessarily constant) pushback on the Commerce Clause since the mid-1990's.

[DougMacG]

There was dissent in majority from Scalia, who agreed on the outcome, not its reasoning. And, as I noted elsewhere, there has been a consistent (though not necessarily constant) pushback on the Commerce Clause since the mid-1990's.

I see your point in Court opinions.  I don't know why we don't see a resulting federal rollback of jurisdiction over anything in those 18 years.  Instead the federal government marches forward, uses other rationale, even some they deny - like that Obamacare is a tax - that originated in the House.
-------------------

To Crafty, from a previous post, I think you missed this: 

Matthew Sissel v. Dept HHS  The [Obamacare] origination case was dismissed by US District Court Washington DC.  The House had passed a shell bill, not a tax, and then went back and inserted Obamacare into it.  'Inelegant', but legal.(Not in my view.)  http://blog.pacificlegal.org/wordpress/wp-content/uploads/2013/07/SisselDismissal.pdf

http://dogbrothers.com/phpBB2/index.php?topic=1850.msg75155#msg75155

[bigdog]

I see your point in Court opinions.  I don't know why we don't see a resulting federal rollback of jurisdiction over anything in those 18 years.  Instead the federal government marches forward, uses other rationale, even some they deny - like that Obamacare is a tax - that originated in the House.

The Court lacks an enforcement mechanism. In the words of Hamilton (Federalist 78), the lacks the purse (of Congress) and the sword (of the president). In other words, it is difficult for the judicial branch to make change.

[Crafty_Dog]

Doug:

I did miss that, thank you for bringing it to my attention again.

[ccp]

Judicial ethics and Supreme Court exceptionalism

National Constitution Center
Amanda Frost August 15, 2013 10:00 AM  Politics

Editor’s note: The following is an excerpt selected by Professor Frost from her full 49-page research paper. The paper is available at the Social Science Research Network (registration is required) at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2304287.


In his mild-mannered way, Chief Justice John Roberts has set the stage for a constitutional conflict between Congress and the Supreme Court.  Roberts’ 2011 Year-End Report on the Federal Judiciary focused on judicial ethics, a subject that has been much in the news lately.

In the course of that year, several of the Justices were publicly criticized for their alleged involvement in political fundraisers;  acceptance of gifts  and travel expenses paid for by groups with political viewpoints; failure to report a spouse’s employment; and, most controversially, refusal to recuse themselves from the constitutional challenges to the health care reform legislation despite alleged conflicts of interest.

Existing laws already cover some of this claimed misconduct, and the spate of negative publicity inspired the introduction of new federal legislation that would further regulate the Justices’ behavior.

Roberts’ Year-End Report acknowledged these accusations of impropriety, as well as the legal framework that governs in this area.  Then, in a shot across Congress’s bow, he stated that the Court had “never addressed” Congress’s constitutional authority to prescribe ethics rules for the Supreme Court—which many took to be a broad hint that, at least in the Chief Justice’s view, Congress lacks that authority.

To be sure, the Chief Justice was careful to note that his “judicial responsibilities preclude [him] from commenting on any ongoing debates about particular issues or the constitutionality of any enacted legislation or pending proposals.”

But he went on to say that the “Court has never addressed whether Congress may impose [ethical] requirements on the Supreme Court,” and noted that the constitutionality of the recusal statute in particular has “never been tested.”  With those words, Roberts put the nation on notice that Congress’s authority to regulate the Justices’ ethical conduct is an open question.

The Chief Justice’s Report raises serious questions about the constitutional status of existing ethics legislation, as well as the Supreme Court Justices’ willingness to abide by laws that at least some of them may consider to be invalid, and thus non-binding.

Currently, federal legislation requires that the Justices recuse themselves from cases in which they have a conflict of interest, mandates that they file annual reports in which they publicly disclose many aspects of their finances, and bars them from accepting money for most outside employment.

Although the Justices appear to follow these laws, the Chief Justice’s Report suggested that he is not sure they have to.

His comments also cast doubt on the constitutionality of the Supreme Court Ethics Act of 2013, which was recently introduced by Representative Louise Slaughter and Senators Chris Murphy, Richard Blumenthal, and Sheldon Whitehouse.  Although the Chief Justice’s Report has provoked vociferous responses from those on either side of the issue, thus far there has been little academic analysis of the constitutional issues involved.

Although the Constitution requires that there be a Supreme Court, it did not make that institution self-executing, nor did it give the Court the power to control its internal operating rules, as it does for the House and Senate.

Thus, Congress is authorized—perhaps even required—to enact legislation implementing the judicial power under its Article I authority to “make all Laws which shall be necessary and proper for carrying into Execution . . . all other powers vested by this Constitution in the Government of the United States.”

For example, vital matters such as the Court’s size, the dates of its sessions, and quorum requirements are absent from the Constitution, and thus have always been controlled by federal legislation.

Indeed, a federal statute requires that each newly confirmed Justice “solemnly swear” that she will “administer justice without respect to persons, and do equal right to the poor and to the rich” before taking her place on the Court.

Ethics statutes, which promote the effective and legitimate exercise of the “judicial power,” thus must be understood as part and parcel of Congress’s broader power to establish the federal courts and control judicial administration.

That said, Congress’s power to regulate the Supreme Court’s ethical conduct is limited by separation of powers concerns and the need to preserve judicial independence.

Federal legislation, whether it concerns ethics or other aspects of judicial administration, cannot seek to control the outcome of pending cases.

Congress would obviously be well outside its constitutional authority, for example, if it enacted a law providing that all Justices appointed by a Republican president must recuse themselves from cases challenging the constitutionality of federal legislation.

In short, ethics legislation cannot be used to control the content of judicial decisions, or to penalize the Justices for their decisions in previous matters.

Finally, Congress must take care to preserve the Supreme Court’s constitutional status as the head of the judicial branch.

The Supreme Court is the only constitutionally required court, and the Constitution specifies that the lower courts are “inferior to” the Supreme Court.

Thus, it is constitutionally questionable whether Congress could, by statute, alter the judicial hierarchy by giving lower court judges the power to force a Justice to recuse him or herself, or penalize a Justice for an ethical violation.

However, none of the existing ethics statutes give the lower courts any such authority over the Supreme Court, or otherwise threaten its role at the head of the federal judiciary.

Furthermore, the Supreme Court’s special constitutional status does not insulate the Justices from regulation of their ethical behavior—after all, Congress has enacted similar statutes affecting the President and Vice-President of the United States without causing any constitutional crisis.

In sum, Congress has considerable leeway to regulate the Justices’ ethical conduct, just as it has exercised authority to decide other vital administrative matters for the Court, as long as it does not interfere with the Court’s decisional independence or the Court’s role as the head of the third branch of government.

Constitutional questions are frequently raised by opponents of legislation seeking to regulate the Justices’ ethical conduct, distracting from the policy questions that are also worthy of debate.

Hopefully, the above discussion (and the full essay at SSRN) will help to clear away the obstacles that have too often prevented a full and frank discussion of whether the benefits of such legislation outweigh the costs.

Amanda Frost is a professor of law at American University’s Washington College of Law. She writes and teaches in the fields of federal courts, civil procedure, statutory interpretation, judicial ethics, and transparency in government.

[bigdog]

Found it:


Here is an update: http://www.stltoday.com/news/local/govt-and-politics/missouri-legislature-fails-to-override-vetoes-of-tax-cut-gun/article_9e4aedb4-71de-5df7-b407-e80179a71a54.html

In a word, the veto override failed. 

I don't see how this passes C'l muster, but I admit to a certain admittedly immature glee nonetheless , , ,

===========================================

Gun Bill in Missouri Would Test Limits in Nullifying U.S. Law
By JOHN SCHWARTZ
Published: August 28, 2013


JEFFERSON CITY, Mo. — Unless a handful of wavering Democrats change their minds, the Republican-controlled Missouri legislature is expected to enact a statute next month nullifying all federal gun laws in the state and making it a crime for federal agents to enforce them here. A Missourian arrested under federal firearm statutes would even be able to sue the arresting officer.


Lawmakers are considering whether to override a veto of a gun bill by Gov. Jay Nixon of Missouri, who considered the bill unconstitutional.

The law amounts to the most far-reaching states’ rights endeavor in the country, the far edge of a growing movement known as “nullification” in which a state defies federal power.

The Missouri Republican Party thinks linking guns to nullification works well, said Matt Wills, the party’s director of communications, thanks in part to the push by President Obama for tougher gun laws. “It’s probably one of the best states’ rights issues that the country’s got going right now,” he said.

The measure was vetoed last month by Gov. Jay Nixon, a Democrat, as unconstitutional. But when the legislature gathers again on Sept. 11, it will seek to override his veto, even though most experts say the courts will strike down the measure. Nearly every Republican and a dozen Democrats appear likely to vote for the override.

Richard G. Callahan, the United States attorney for the Eastern District of Missouri, is concerned. He cited a recent joint operation of federal, state and local law enforcement officials that led to 159 arrests and the seizing of 267 weapons, and noted that the measure “would have outlawed such operations, and would have made criminals out of the law enforcement officers.”

In a letter explaining his veto, Mr. Nixon said the federal government’s supremacy over the states’ “is as logically sound as it is legally well established.” He said that another provision of the measure, which makes it a crime to publish the name of any gun owner, violates the First Amendment and could make a crime out of local newspapers’ traditional publication of “photos of proud young Missourians who harvest their first turkey or deer.”

But the votes for the measure were overwhelming. In the House, all but one of the 109 Republicans voted for the bill, joined by 11 Democrats. In the Senate, all 24 Republicans supported it, along with 2 Democrats. Overriding the governor’s veto would require 23 votes in the Senate and 109 in the House, where at least one Democrat would have to come on board.

The National Rifle Association, which has praised Mr. Nixon in the past for signing pro-gun legislation, has been silent about the new bill. Repeated calls to the organization were not returned.

Historically used by civil rights opponents, nullification has bloomed in recent years around a host of other issues, broadly including medical marijuana by liberals and the new health care law by conservatives.

State Representative T. J. McKenna, a Democrat from Festus, voted for the bill despite saying it was unconstitutional and raised a firestorm of protest against himself. “If you just Google my name, it’s all over the place about what a big coward I am,” he said with consternation, and “how big of a ‘craven’ I was. I had to look that up.”

The voters in his largely rural district have voiced overwhelming support for the bill, he said. “I can’t be Mr. Liberal, St. Louis wannabe,” he said. “What am I supposed to do? Just go against all my constituents?”

As for the veto override vote, he said, “I don’t know how I’m going to vote yet.”

State Representative Doug Funderburk, a Republican from St. Peters and the author of the bill, said he expected to have more than enough votes when the veto override came up for consideration.

Adam Winkler, a professor of law at the University of California, Los Angeles, who follows nullification efforts nationally, said that nearly two dozen states had passed medical marijuana laws in defiance of federal restrictions. Richard Cauchi, who tracks such health legislation for the National Conference of State Legislatures, said: “Since January 2011, at least 23 states have considered bills seeking to nullify the health care law; as of mid-2013 only one state, North Dakota, had a signed law. Its language states, however, that the nullification provisions ‘likely are not authorized by the United States Constitution.’ ”

=====================

Page 2 of 2)

What distinguishes the Missouri gun measure from the marijuana initiatives is its attempt to actually block federal enforcement by setting criminal penalties for federal agents, and prohibiting state officials from cooperating with federal efforts. That crosses the constitutional line, said Robert A. Levy, chairman of the libertarian Cato Institute’s board of directors — a state cannot frustrate the federal government’s attempts to enforce its laws.


Mr. Levy, whose organization has taken a leading role in fighting for gun rights, said, “With the exception of a few really radical self-proclaimed constitutional authorities, state nullification of federal law is not on the radar scope.”

Still, other states have passed gun laws that challenge federal power; a recent wave began with a Firearms Freedom Act in Montana that exempts from federal regulations guns manufactured there that have not left the state.

Gary Marbut, a gun rights advocate in Montana who wrote the Firearms Freedom Act, said that such laws were “a vehicle to challenge commerce clause power,” the constitutional provision that has historically granted broad authority to Washington to regulate activities that have an impact on interstate commerce. His measure has served as a model that is spreading to other states. Recently, the United States Court of Appeals for the Ninth Circuit struck down Montana’s law, calling it “pre-empted and invalid.”

A law passed this year in Kansas has also been compared to the Missouri law. But Kris W. Kobach, the Kansas secretary of state, disagreed, saying it had been drafted “very carefully to ensure that there would be no situation where a state official would be trying to arrest a federal official.”

In Missouri, State Representative Jacob Hummel, a St. Louis Democrat and the minority floor leader, said that he was working to get Democrats who voted for the bill to vote against overriding the veto. “I think some cooler heads will prevail in the end,” he said, “but we will see.”

Taking up legislative time to vote for unconstitutional bills that are destined to end up failing in the courts is “a waste of taxpayers’ money,” Mr. Hummel said, adding that more and more, the legislature passes largely symbolic resolutions directed at Congress.

“We’re elected to serve the citizens of the state of Missouri, at the state level,” he said. “We were not elected to tell the federal government what to do — that’s why we have Congressional elections.”

The lone Republican opponent of the bill in the House, State Representative Jay Barnes, said, “Our Constitution is not some cheap Chinese buffet where we get to pick the parts we like and ignore the rest.” He added, “Two centuries of constitutional jurisprudence shows that this bill is plainly unconstitutional, and I’m not going to violate my oath of office.”

Mr. Funderburk, the bill’s author, clearly disagrees. And, he said, Missouri is only the beginning. “I’ve got five different states that want a copy” of the bill, he said.

[Crafty_Dog]

Reminding Our Elected Representatives to Exercise Their Power
________________________________________
Happy Constitution Day! In celebration of that monumental day in September 1787, let’s reflect upon the genius of the Constitution and perhaps take time to help our elected representatives remember its genius as well.
 
Today’s Washington is wrought with politicians who continually overstep their constitutional limitations and then when asked to correct their acts of usurpation, hide behind constitutional limits that don’t actually exist. The President claims to have no control over executive departments, i.e. IRS, and congress claims to be unable to act because of “mandatory spending.” It is time that we remind our elected representatives what powers and responsibilities they do have.
 
Delegated Powers
The fundamental premise of the Constitution is found in the Declaration of Independence. “That, to secure…rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” We the People have a right to establish a government with restraints, or limits, for the sole purpose of protecting our fundamental rights, “laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” The government cannot go beyond the bounds in which we have given it and we cannot delegate powers to the government that we ourselves do not have.
 
The Separation of Powers
From the philosophies of Polybius and Montesquieu, the Constitution separates the delegated powers between the Legislative, Executive, and Judicial branches and between the federal government and the states.
 
“The way to have good and safe government is not to trust it all to one, but to divide it among the many…It is by dividing and subdividing…that all will be done for the best.” –Thomas Jefferson
 
Each branch of our federal government is given very specific authority over writing the law, executing the law, and interpreting the law. While there is some overlap in powers in the form of checks and balances, none of the branches have been delegated the authority to delegate their powers to any other entity or branch. Nor are they given the authority to ignore such powers.
 
The President is Hiding Behind…Himself?
“The executive power shall be vested in a President of the United States of America.” –Article 2, Section 1, Clause 1
 
The executive branch consists of one individual, the President. He is the entire executive branch. In the Constitutional Convention the founders had actually considered having up to three presidents. They concluded that a single executive is best. All other individuals, departments, etc. are an appendage to the President. While the President cannot legally issue an executive order that regulates and taxes the people or the states, he can extend an executive order to all or part of the executive branch. He is all powerful within the executive branch.
 
When the President claims that the IRS or the NSA are beyond his control, he is referring to powers that simply do not exist. He has the authority to execute laws. He has all power over executive departments. If he is hiding behind these executive departments, he is only hiding behind himself.
 
Congress Claims to have Usurped Themselves
“All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” –Article 1, Section 1, Clause 1
 
“All,” not part, not some, “All legislative powers shall be vested…” A careful study of the entire Constitution will not only reveal that congress has sole legislative authority, but they have not been given the authority to delegate even the smallest part to any other branch or governing body.
 
Many tea party activists have recently been told by congressional staffers that Congress cannot defund Obamacare because of “mandatory spending provisions.” Who made the spending mandatory? Congress. So, let’s get this straight, Congress has all legislative authority so they write a law that binds them to not make a law? Have they usurped themselves?
 
Do not let congressional staffers, your Congressmen, or your Senators tell you they cannot change or defund a law. They can. “All legislative powers” are theirs. They are hiding behind constitutional limits that simply do not exist. The only laws they cannot alter or abolish without a constitutional amendment is the Constitution and existing amendments.
 
Remind Washington to Exercise Their Powers
We have continually attempted to remind Washington to stay within their constitutional limits. They continue to usurp our rights, encroach on each other’s powers, and trample the states. It is time that we encourage them to actually exercise their powers. We must remind the president that he has the power to stop the IRS and NSA targeting of tea party groups and individual citizens. It is time to remind congress that they have the power to alter or abolish any federal law, especially those that violate the 20 legislative powers given in the Constitution.
 
Remind Washington to stop hiding behind themselves or limits that do not exist, to stop usurping the powers and rights of others, and to start exercising the powers that have been delegated to them.
 
And in your frustrations, remember to have a Happy Constitution Day!

In liberty,
Tea Party Patriots National Support Team

[ccp]

Levin to the Rescue

Brent Bozell's column is released twice a week.

Brent Bozell III
L. Brent Bozell August 14, 2013 3:00 AM 

 Only those happily trampling on the last vestiges of freedom will deny that our federal government as a constitutional republic has ceased to function. The president can no longer control (nor does this one want to control) the enormous and ever-expanding bureaucracy functioning as a government by fiat. The legislative branch, so corrupted, so drunk by the allure of power, so disdainful of its constituents, is unable to stop its bankrupting ways. The judiciary is perhaps the worst. The Supreme Court is openly rejecting the authority of the Constitution itself.

If the federal government refuses to adhere to the enumerated powers of the Constitution, what can the citizenry do about it? The events of the past five years (more, actually) prove this. It has become virtually impossible to stop the agenda of a radical Chief Executive who brazenly uses the federal government as his personal political machine. It is almost impossible to defeat an incumbent member of Congress with all the advantages it has awarded itself. For all intents it is impossible to replace a member of the Supreme Court.

The left is content with this terrible turn of events. By "transformation" they meant the transfer of power to the state.

Conservatives are loath to declare American exceptionalism dead, yet are powerless to stop the statist steamroller. With every cycle, the situation worsens. At some point the unthinkable — tyranny — is upon us. We are running out of time. Only radical surgery will save the patient now.

Enter Dr. Mark Levin with his new book, "The Liberty Amendments: Restoring the American Republic". Levin is a Constitutional scholar — and he shines. He argues passionately that the federal government can be brought under control only if new limitations are thrust upon it by its citizenry. He proposes a Constitutional convention, not one called by Congress but one impaneled by two-thirds of state legislatures, and which would require a three-fourths margin to pass any new amendments. It is the lesser known of the two options provided by Article V of the Constitution.

What should a Constitutional convention tackle? Levin offers eleven amendments for consideration, with appropriate subdivisions, each carefully researched and each designed to reduce the power of the state.

Term limits for Congress is the first liberty amendment Levin offers. It is my view also the most important. Only when there are limits (12 years of service) will Congress be populated by men and women driven only by the call to service, not the siren song of power. The millions delivered by special interests for the re-election of incumbents who, in turn, reward said interests with billions in grants, contracts, tax shelters and the like — will cease.

Levin calls for other limitations on Congress. He proposes an amendment to limit federal spending and another to limit taxation, the combination, which will restore fiscal sanity while devolving power from the state. He offers an amendment to repeal the 17th Amendment, returning to the Article 1 mandate that Senators be chosen by their state legislators.

What about the Supreme Court? "(S)hould five individuals be making political and public policy decisions and imposing them on every corner of the nation ... as they pursue even newer and more novel paths around the Constitution in exercising judicial review?" Levin points to the obvious: Sometimes mistakes are made (Roberts, anyone?) and America shouldn't be punished for the rest of that jurist's life. He proposes 12-year term limits for them, as well.

What can be done to control, even reduce the size and scope of the bureaucracy? All federal departments and agencies must be re-authorized by Congress every three years or be terminated — that's what.

There's a liberty amendment to protect and promote free enterprise, now under vicious assault. One to protect private property given the ability of the federal government suddenly to steal it. Amendments to increase the power of the States, and finally, an amendment to protect the voting process.

Who would have thought any such amendments would ever be needed? And that's the point. Such is the nature of the crisis.

Levin quotes Tocqueville reflecting on the Constitutional Convention of 1776: "(I)t is new in history of society to see a great people turn a calm and scrutinizing eye upon itself when apprised by the legislature that the wheels of its government are stopped."

It is time for our legislatures once more to issue the clarion call

Levin hopes "The Liberty Amendments" will launch a national discussion, and it will. Levin is a consequential man, and this is a consequential book. Some critics will dismiss the concept out of hand. It is they who should be dismissed — unless they have bold new alternatives to propose. Nothing else is working, and nothing else will do. We have reached the tipping point.

L. Brent Bozell III is the president of the Media Research Center. To find out more about Brent Bozell III, and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

[Crafty_Dog]

http://www.youtube.com/watch?v=RwN-uFCtXPs

[DougMacG]

In his closing of upholding Obamacare as a tax, Chief Justice Roberts wrote:  "...the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people."  He did not elaborate on exactly how the people might prevent its implementation in the face of divided elections and divided government.

I contend that under the principle of consent of the governed, one congress cannot bind subsequent congresses to spend future monies.  In fact, the entire budget process is a farce, is it not, if both chambers of Congress are required to reaffirm all programs of their predecessors, regardless of available funds, a changed electorate or changed circumstances.

President Obama and Majority Leader Reid are saying that the law passed and signed two congresses ago requires the House today to fully fund this program and all previously passed programs.

Can someone point to something in the constitution that resolves this dispute?

http://www.usconstitution.net/const.html

[bigdog]

If we are not a country of the rule of law, what are we? Since when are laws not binding?

[G M]

If we are not a country of the rule of law, what are we? Since when are laws not binding?

Is this a trick question? What laws bind Buraq Hussein Obama ?

[Crafty_Dog]

The meaning of your question is not clear to me either BD.

[bigdog]

Doug is wondering why a law would require an action. Until a law is repealed or superceded, it is binding, is it not?

If we are not a country of the rule of law, what are we? Since when are laws not binding?

[DougMacG]

Doug is wondering why a law would require an action. Until a law is repealed or superceded, it is binding, is it not?

Thanks for the response.  I agree that a valid law regulating or prohibiting or an activity is still in force until repealed, but is it lawful for one congress to require future congresses to spend future monies?  I think not.  The 111th Congress should not / cannot determine the spending priorities of the 113th Congress.  That has no semblance of consent of the governed IMHO.  The electorate changes and in this case so did control of one body of Congress.   If the outcome is pre-determined, why is a vote on re-authorization required?  And when a CR or budget is not passed, why does spending stop instead of continue based on un-repealed law?


[/quote]"If we are not a country of the rule of law, what are we? Since when are laws not binding?"[/quote]

Law that may not be binding:

1.  Immigration laws strictly control entry, length and purpose of visit, etc.  Now we have sanctuary cities, states, even a whole nation not subject to immigration laws, http://www.sanctuarycities.info/, and a President granting amnesty and citizenship without a bill from congress.  http://blog.heritage.org/2013/08/30/obama-grants-amnesty-to-illegal-immigrants-without-congress/

2. Border Protection, Anti-terrorism and Illegal Immigration Control Act of 2005 required 700 miles of fence to be built.  How is that going?  http://www.washingtontimes.com/news/2013/jun/18/senate-rejects-border-fence/

3.  The War Powers Resolution of 1973 is a federal law restricting the president's power to commit the United States to an armed conflict .  Was this followed consistently, in Kosovo?  Belgrade?  Libya?

4.  Congress shall make no law...abridging the freedom of speech?  Yet campaign finance laws are loaded with abridgement. http://www.fec.gov/law/feca/feca.shtml

5.  ... the right of the people to keep and bear Arms, shall not be infringed.   http://www.atf.gov/content/firearms

6.  Federal Marijuana Laws.  Possession Any amount (first offense) misdemeanor, 1 year    $1,000 max fine...  http://www.cnn.com/2013/08/29/politics/holder-marijuana-laws/index.html  No federal challenge to pot legalization in two states. 

7.  Congressional Budget and Impoundment Control Act of 1974 requires the Senate to pass its first budget by May 15.  http://www.house.gov/legcoun/Comps/BUDGET.pdf  Is that Sen. Reid in the orange jump suit??

8.  The Affordable Care Act calls for the employer mandate to go into effect Jan 1 2014.  The President unilaterally changed a passed law. 

9.  Griswold v. Connecticut and Roe v. Wade decisions recognize the Right of Privacy as the law of the land.  ACA tromps all over personal privacy.

10. Eric Holder was held in Contempt of Congress?  http://www.cnn.com/2012/06/28/politics/holder-contempt/index.html  No arrest, no penalty. 

Are we a nation of laws?  It depends on which side is asking.

[bigdog]

An impressive list, Doug. Sincerely. Yet, with some of the list, we know that there are limits no matter what the wording of the Constitution.

You discuss free speech, but I don't think that you really want unlimited free speech, no matter what the exact wording of the Constitution may be. Libel? Slander? Child pornography? I'll take the limitations. 

On the War Powers Act, one rather large difference between it and the ACA is only one of these two laws has been taken to the SCOTUS. And when that law was taken there, the court upheld most of the provisions.

I think you know how I feel about the second amendment and privacy, so I won't address those again, here at least.

As for the rest of the list, am I to understand that your primary argument is that since other laws are ignored/not enforced, the nation as a whole should be become scofflaws? If I understand this argument correctly, I rephrase my question: should we not be a nation of law?

[DougMacG]

I don't think that you really want unlimited free speech, no matter what the exact wording of the Constitution may be. Libel? Slander? Child pornography? I'll take the limitations.  

I'll take those limitations too.  But do I want political speech?  Yes, as long as I don't have to listen to it all.

...am I to understand that your primary argument is that since other laws are ignored/not enforced, the nation as a whole should be become scofflaws?

No, and I see it appears that way.  My primary argument is what I stated first, rephrased here, is that the jurisdiction of the 111th Congress when it comes to appropriations should be to pass laws about how money will be spent during their time in temporary, limited, constitutional power, not attempting as they did to bind future congresses to their priorities.

I think they confuse their laws with constitutional provisions and amendments.  If the 1974 Budget Act that requires the first Senate budget for Oct. 1 to be passed by May 15 was to be binding on Harry Reid in 2009-2013 for example, then it should have been passed as a constitutional amendment under a wholly different process.

I rephrase my question: should we not be a nation of law?

We are a nation strangling in laws.  If you asked me if we should be a nation of far fewer laws, where all of them conform with a careful reading of the letter and spirit of our constitutional limits on federal powers, then I would wholeheartedly agree.  Back to ACA and the idea that a one-time, simple and temporary majority shall forever control its citizens with forced appropriations and over 27,000 pages of law detailing the most personal and minute aspects of our lives, shall we be a nation of tyranny?  I say No.  

Congress has the power of appropriations and that power is checked and renewed with every election, IMHO.

[bigdog]

"But do I want political speech?" Defined as speech or "speech"? The phrase "money talks" is not literal. If money is speech, why all the concern over George Soros's "speech"? Or is it, like you suggest, in effect that laws are in the eyes of the beholder?

Future congress's are not bound by the 1974 Budget Act or the ACA. But I repeat: Until a law is repealed or superceded, it is binding, is it not?

"We are a nation strangling in laws.  If you asked me if we should be a nation of far fewer laws, where all of them conform with a careful reading of the letter and spirit of our constitutional limits...". I don't think we disagree here. In fact, as you might recall, I've posted several times about the hopes that Congress would meet its constitutional requirements rather than delegating power to the president (whomever that may be... is this where we differ?).