U.S. Constitution
See other U.S. Constitution Articles
Title: GOP rep: 'No president is allowed to burn the First Amendment’
Source:
The Hill
URL Source: http://thehill.com/homenews/house/3 ... ed-to-burn-the-first-amendment
Published: Nov 30, 2016
Author: Mark Hensch
Post Date: 2016-11-30 19:10:50 by Hondo68
Keywords: Impeach Trump, scofflaw, hates BOR
Views: 110049
Comments: 265
Rep. Justin Amash (R-Mich.) on Tuesday defended the constitutionality of flag burning, saying President-elect Donald Trump would violate freedom of speech if he cracked down on it. "Nobody should burn the American flag, but our Constitution secures our right to do so. No president is allowed to burn the First Amendment," Amash tweeted. Nobody should burn the American flag, but our Constitution secures our right to do so. No president is allowed to burn the First Amendment. https://t.co/nVkq6WcbHV— Justin Amash (@justinamash) November 29, 2016 Trump earlier Tuesday floated severe penalties for flag burning, mentioning loss of citizenship or a year in jail. “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” he tweeted. Trump did not specify what inspired his 7 a.m. tweet about flag burning, which is considered protected speech under U.S. law. The Supreme Court ruled in Texas v. Johnson in 1989 that burning the American flag is allowed under the First Amendment. A spokesman for Trump on Tuesday said he agrees with Trump that the controversial act should be outlawed. “I think most Americans would agree with me that flag burning should be illegal. It’s completely despicable,” Jason Miller told CNN’s “New Day." Rep. Sean Duffy (R-Wis.) told CNN he disagrees with Trump, though. “I don’t think we want to make this a legal issue. So I disagree with Mr. Trump on that, and the court is probably right," Duffy said. “I think the court is probably right that we want to protect those people who want to protest and their right to actually demonstrate with disgracing our flag, even though so many of us who love our country and love our flag object to it.” House Majority Leader Kevin McCarthy (R-Calif.) also split with Trump and defended flag burning as free speech. “We have a First Amendment right. We’ll protect our First Amendment. That’s what the court has upheld,” he said on MSNBC’s “Morning Joe” on Tuesday. Poster Comment:
House Majority Leader Kevin McCarthy (R-Calif.) also split with Trump and defended flag burning as free speech
Already there are the beginnings of an impeach Trump movement in the HOR, and he hasn't even taken office yet. (1 image)
Post Comment Private Reply Ignore Thread
Top • Page Up • Full Thread • Page Down • Bottom/Latest
Comments (1-215) not displayed.
.
.
.
#216. To: nolu chan (#209)
Ah! So your conclusion is that it didn't get out of committee because it was unconstitutional?
Well, we have them. And since we do, I don't see how flag burning is any different. But, think outside the box. Isn't it possible that Trump brought this flag burning issue up precisely because of hate speech laws? To get people to see that both are the same thing? And that the result will be that people will insist on free speech, thereby forcing the elimination of our hate speech laws.
Whatever it is, Congress banned it. And my position is that flag burning is hate speech and should also be banned. Or, conversely, both hate speech and flag burning should be allowed. Your choice.
"Congress lacks authority to make law repugnant to the Court's interpretation of the Constitution." --- SFB's False interpretation of the Courts interpretive powers. The SCOTUS lacks authority to issue opinions repugnant to the the Constitution. All three branches of our federal government, and our State/local governments, lack authority to make law repugnant to the constitution. Congress lacks authority to make law repugnant to the Constitution. You bet, nice to see a shit for brains agreeing for a change. True,Congress has no such authority, nor does the Court have any except to issue it's opinion on constitutionality. Court opinions do not change the Constitution. Deal with reality. The Courts opinion remains an opinion, not a law. You may not like the American system of law and desire to replace it with your own personal bullshit. Take your bullshit to nolu chumps Court of the Imagination.
I've made that argument many times here, to our local chumps, --- but they can't seem to understand. Maybe it's because they don't really honor our constitutions original intent. Our constitution was designed to be predictable, --- laws made in its name are not necessarily so. -- Better liberty than predictability.
You so nice, mristerwite-san.
Cleaning up your messes is a challenge. You have the Midas touch. Everything you touch turns to shit. McCardle as precedent? Really?? What a fucking nitwit. You seriously do not what you are talking about. American Constitutional Law, 5 Ed., 2012, Otis H. Stephens, jr. and Jon M. Scheb II, pp. 204-05 [...] In Hamdan v. Rumsfeld (2006), a Yemeni national detained at Guantanamo Bay brought suit to challenge the legality and constitutionality of the military tribunal before which he was to be tried. [...] On June 29, 2006, the final day of the Term, the Supreme Court issued its historic ruling in Hamdan v. Rumsfeld. Dividing 5-to-3 (Chief Justice Roberts not participating because he had previously voted in the case at the court of appeals level) the Court held that the Bush Administration's plan to try Guantanamo Bay detainees before military commissions was unauthorized by statute and violated international law. In 2005 Congress had passed the Detainee Treatment Act, in effect barring federal jurisdiction to review the cases of Guantanamo Bay detainees. The majority, in a lengthy opinion by Justice Stevens, held that this Act did not bar federal court review of pending cases, including that of Hamdan. Nor were the military tribunals sanctioned by the Congressional Resolution of September 14, 2001, Authorizing the Use of Military Force in the aftermath of the 9/11 attacks. The overarching rationale of the Court's decision is summed up by Justice Stevens's assertion that: "Even assuming that Hamdan is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment." The majority indicated that Congress could, through appropriate legislation, provide for the use of military tribunals to try Guantanamo Bay detainees. In a concurring opinion Justice Breyer observed that "Congress [had] not issued the Executive a blank check." He added that "nothing prevents the President from returning to Congress to seek the authority he believes necessary." Early indications were that the Bush Administration would work with Congress in formulating legislation regarding military tribunals that would withstand judicial scrutiny. Justices Scalia, Thomas, and Alito filed dissenting opinions in this important case. Justice Scalia spoke for all three dissenters in insisting that as of December 30, 2005, the date on which the Detainee Treatment Act took effect, "no court had jurisdiction to hear or consider" Hamdan's petition for habeas corpus. He found the Court's conclusion to the contrary "patently erroneous." In essence, Scalia would have followed the long-abandoned McCardle precedent by recognizing the power of Congress to withdraw the Supreme Court's jurisdiction in a pending case. Responding to the Hamdan decision, Congress passed the Military Commissions Act, signed by the President on October 17, 2006. This legislation authorized "trial by military commission for violations of the law of war. ..." Reviewing a challenge to this Act, the Supreme Court, on June 12, 2008, held, among other things, that a provision denying habeas corpus jurisdiction to federal courts amounted to an unconstitutional suspension of the writ, in violation of Article I, section 9 of the Constitution. Hamdan v. Rumsfeld, 548 U.S. 557 (2006) Boumediene v. Bush, 553 U.S. 723 (2008)
You are the one who was too dumb, stupid, and ignorant not to realize that bankruptcy courts are Article I courts and not Article III courts. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. You are a fucking idiot. Article III does not begin and end with your pull quote. Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. Article III, Section I provides that, "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." Bankruptcy court judges are appointed to 14-year terms. They are employees whose compensation can be lowered during their time in office. They can be removed by majority vote of a council. They are not appointed by the President. https://en.wikipedia.org/wiki/United_States_bankruptcy_court 28 U.S.C. § 152 - - - - - - - - - - Whenever a majority of the judges of any court of appeals cannot agree upon the appointment of a bankruptcy judge, the chief judge of such court shall make such appointment. - - - - - - - - - - The judges of the district courts for the territories shall serve as the bankruptcy judges for such courts. The United States court of appeals for the circuit within which such a territorial district court is located may appoint bankruptcy judges under this chapter for such district if authorized to do so by the Congress of the United States under this section. - - - - - - - - - - A bankruptcy judge may be removed during the term for which such bankruptcy judge is appointed, only for incompetence, misconduct, neglect of duty, or physical or mental disability and only by the judicial council of the circuit in which the judge's official duty station is located. Removal may not occur unless a majority of all of the judges of such council concur in the order of removal. Before any order of removal may be entered, a full specification of charges shall be furnished to such bankruptcy judge who shall be accorded an opportunity to be heard on such charges. - - - - - - - - - - SALARY INCREASES 1988—Salaries of bankruptcy judges continued at $72,500 per annum by Ex. Ord. No. 12622, Dec. 31, 1987, 53 F.R. 222, formerly set out as a note under section 5332 of Title 5, Government Organization and Employees. And you continue to maintain that these are Article III judges because you are the shithead who is too dumb, stupid and ignorant to know any better. Mostly liar, all imbecile.
And you are still full of shit, and spinning as usual. You may call me names, but I can document for the world to see that you have no idea what the hell you are talking about. At the Constitutional Convention, on August 20, 1787 James Madison offered the following provision for consideration: "Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions." See Farrand's Records of the Federal Convention, Volume 2, page 341. The devious Progressive-Statist Cabal of Framers, foreseeing the events which have only now arisen, corruptly failed to adopt Madison's proposal, initiating a more than two-century old conspiracy. /s The federal courts have refused any and all "invitations" to issue any advisory opinion, any and all of your bullshit to the contrary notwithstanding. Issuance of advisory opinions is prohibited by the federal courts. As you were evidently too dumb, stupid and ignorant to understand the John Jay letter on first reading, read it again. Perhaps it may penetrate. John Jay responded that the U.S. Supreme Court that the Court could not issue an advisory opinion. Philadelphia August 8, 1793 Sir: We have considered the previous question stated in a letter written by your direction to us by the Secretary of State on [July 18, on the topic of] the lines of separation drawn by the Constitution between the three departments of the government. These being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments. We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States. We have the honor to be, with perfect respect, sir, your most obedient and humble servants. - - - - - - - - - - The President only has the power to call on executive departments for advisory opinions. If you were not so dumb, stupid and ignorant, you would realize that the federal courts cannot issue advisory opinions. They have not issued advisory opinions, except in your vivid imagination. An advisory opinion issued by the Supreme Court justices would make them all recuse themselves in a subsequent related case. As the federal judiciary has always refused to issue any advisory opinion, your bullshit is essentially meaningless. To the extent that you propose that Congress has any authority to limit the appeallate jurisdiction of the U.S. Supreme Court to effect a limitation upon any constitutional right, as coment on this thread supposes, you are just full of shit. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006), Boumediene v. Bush, 553 U.S. 723 (2008), and my #222. For example, from Hamdan, "the Supreme Court, on June 12, 2008, held, among other things, that a provision denying habeas corpus jurisdiction to federal courts amounted to an unconstitutional suspension of the writ, in violation of Article I, section 9 of the Constitution." Plaut et al v Spendthrift Farm, Inc, et al, 514 US 211 (1994) Plaut Syllabus at 211, Held: Plaut at 219: Plaut at 221-222: 222 eralist No. 48, pp. 333, 337 (J. Cooke ed. 1961). Madison relied as well on Jefferson's Notes on the State of Virginia, which mentioned, as one example of the dangerous concentration of governmental powers into the hands of the legislature, that "the Legislature ... in many instances decided rights which should have been left to judiciary controversy." Id., at 336 (emphasis deleted).4 If the need for separation of legislative from judicial power was plain, the principal effect to be accomplished by that separation was even plainer. As Hamilton wrote in his exegesis of Article III, § 1, in The Federalist No. 81: The essential balance created by this allocation of authority was a simple one. The Legislature would be possessed of power to "prescrib[e] the rules by which the duties and rights of every citizen are to be regulated," but the power of "[t]he interpretation of the laws" would be "the proper and peculiar province of the courts." Id., No. 78, at 523, 525. Laurence H. Tribe, American Constitutional Law, #rd Ed., Vol. 1, pp. 272-73:
No, you are just an imbecile who has dug himself a hole and who is trying to bullshit his way out. Black's Law Dictionary, 6th Ed. Erwin Chemerinsky, Constitutional Law, Third Edition, Aspen Publishers, 2009, p. 42: The core of Article III's requirement for cases and controversies is that federal courts cannot issue advisory opinions. What are the characteristics that must be present in a lawsuit to avoid being an advisory opinion? First, there must be an actual dispute between adverse litigants. At p. 44: Many other justiciability doctrines implement the prohibition against advisory opinions. What Wilson, Blair and Peters addressed to the President was not an advisory opinion. It was a courtesy letter stating why they had refused to proceed with the case. There was no official court proceeding. There was no advisory opinion from the court. Re Hayburn's Case, Annals of Congress, 2nd Cong, 1st Sess, Appendix, pp 556-57 and 572-573, April 13 and 21, 1792, ltr fm judges April 18, 1792 [H. of R.] Proceedings. [April, 1792.] 556 Friday, April 13. [...] A memorial was presented from William Haburn, setting forth that he had applied yesterday to the Judges of the Circuit Court in this city to be put on the pension list pursuant to a late law of Congress; and that the Court having refused to take cognizance of his case, he was obliged to apply to Congress for relief. The sitting Judges were Messrs. Wilson, Blair, and Peters; and from an account which Mr. Boudinot gave in his place, it appeared that the Court thought the examination of invalids a very extraordinary duty to be imposed on the Judges; and looked on the law which imposes that duty as an unconstitutional one, inasmuch as it directs the Secretary of War to state the mistakes of the Judges to Congress for their revision; they could not, therefore, accede to a regulation tending to render the Judiciary subject to the Legislative and Executive powers, which, from a regard for liberty and the Constitution, ought to be kept carefully distinct; it being a primary principle of the utmost importance, that no decision of the Judiciary Department should, under any pretext, be brought in revision before either the Legislative or Executive Departments of the Government, neither of which have, in any instance, a revisionary authority over the judicial proceedings of the courts ot justice. Another objection on the part of the Judges was, that, whereas, there are laws now in force, prescribing a day, beyond which the Courts shall not sit; this new law declares that the Court shall sit five days for the purpose of hearing claims, whether they be offered or not; and leaves nothing to the discretion and integrity of the judges, to sit as long as they have public business to do. HISTORY OF CONGRESS. 557 This being the first instance in which a court of justice had declared a law of Congress to be unconstitutional, the novelty of the case produced a variety of opinions with respect to the measures to be taken on the occasion. At length a committee of five was appointed to inquire into the facts contained in the memorial, and to report thereon. [...] HISTORY OF CONGRESS. April [21], 1792, 572 [...] WIDOWS AND ORPHANS' CLAIMS. A Message was received from the President of the United States laying before Congress the copy of a letter which he had received from the Judges of the Circuit Court of the United States held for the Pennsylvania District, relatively to the "Act to provide for the settlement of the claims of widows and orphans barred by the limitations heretofore established, and to regulate the claims to invalid pensions." The copy of the Letter referred to in the said Message was read, as follows : Philadelphia, April 18, 1792. To the President of the United States : Sir: To you it officially belongs to "take care that the laws" of the United States "be faithfully executed." Before you, therefore, we think it our duty to lay the sentiments which, on a late painful occasion, governed us, with regard to an act passed by the Legislature of the Union. The people of the United States have vested in Congress all Legislative powers "granted in the Constitution." HISTORY OF CONGRESS. 573 They have vested in one Supreme Court, and in such inferior Courts as the Congress shall establish, "the Judicial power of the United States." It is worthy of remark that, in Congress, the whole Legislative power of the United States is not vested. An important part of that power was exercised by the people themselves, when, they "ordained and established the Constitution." "This Constitution" is "the supreme law of the land." This supreme law "all Judicial officers of the United States are bound, by oath or affirmation, to support." It is a principle important to freedom, that, in Government, the Judicial should be distinct from, and independent of, the Legislative department. To this important principle the people of the United States in forming their Constitution, have manifested the highest regard. They have placed their Judicial power, not in Congress, but in "Courts." They have ordained, that the "Judges" of those courts shall hold their offices "during good behaviour;" and that "during their continuance in office, their salaries shall not be diminished." Congress have lately passed an act, "to regulate" (among other things) "the claims of invalid pensions." Upon due consideration we have been unanimously of opinion that, under this act, the Circuit Court, held for the Pennsylvania district, could not proceed: 1. Because the business, directed by this act, is not of a Judicial nature; it forms no part of the power vested, by the Constitution, in the Courts of the United States; the Circuit Court must consequently have proceeded without constitutional authority. 2. Because, if, upon that business, the Court had proceeded, its judgments (for its opinions are its judgments) might, under the same act, have been revised and controlled by the Legislature, and by an officer in the Executive Department; such revision and control we deemed radically inconsistent with independence of that Judicial power which is vested in the courts; and, consequently, with that important principle, which is so strictly observed by the Constitution of the United States. These, sir, are the reasons of our conduct. Be assured that, though it became necessary, it was far from being pleasant. To be obliged to act contrary either to the obvious directions of Congress, or to a constitutional principle, in our judgment, equally obvious, excited feeling in us, which we hope never to experience again. We have the honor to be, with the most perfect consideration and respect, sir, your most obedient and very humble servants, JAMES WILSON, [...] And in case it still did not penetrate your extraordinarily thick skull, there is the following: Flast v. Cohen, 392 U.S. 83 (1968) [...] MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. [...] And it is quite clear that "the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions." C. Wright, Federal Courts 34 (1963). [Footnote 14] Thus, the implicit policies embodied in Article III, and not history alone, impose the rule against advisory opinions on federal courts. When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III. See Muskrat v. United States, 219 U.S. 346 (1911); 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891) (correspondence between Secretary of State Jefferson and Chief Justice Jay). [...] The Court quoted Charles Alan Wright, Federal Courts 34 (1963). Footnote 14 of Flast reads: In United States v. Fruehauf, 365 U.S. 146 (1961), SCOTUS said: We do not reach that question on this appeal. For we cannot but regard it -- abstracted as it has become, in the course of these proceedings, from the immediate considerations which should determine the disposition of appellees' motions to dismiss an indictment incontestably valid on its face -- as other than a request for an advisory opinion. Such opinions, such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests, we have consistently refused to give. See Parker v. Los Angeles County, 338 U.S. 327; Rescue Army v. Municipal Court, 331 U.S. 549; United Public Workers v. Mitchell, 330 U.S. 75; Alabama State Federation of Labor v. McAdory, 325 U.S. 450; Arizona v. California, 283 U.S. 423. "The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." [Parker v. Los Angeles County, 338 U.S. 327 (1949)] "From Hayburn's Case, 2 Dall. 409, [nc - 2 U.S. 409 (1792)] to Alma Motor Co. v. Timken-Detroit Axle Co. and the Hatch Act case decided this term, this Court has followed a policy of strict necessity in disposing of constitutional issues. The earliest exemplifications, too well known for repeating the history here, arose in the Court's refusal to render advisory opinions and in applications of the related jurisdictional policy drawn from the case and controversy limitation. U.S.Const., Art. III. The same policy has been reflected continuously not only in decisions, but also in rules of court and in statutes made applicable to jurisdictional matters, including the necessity for reasonable clarity and definiteness, as well as for timeliness, in raising and presenting constitutional questions. Indeed, perhaps the most effective implement for making the policy effective has been the certiorari jurisdiction conferred upon this Court by Congress. E.g., Judicial Code, §§ 237, 240." [Rescue Army v. Municipal Court, 331 U.S. 549 (1947)] "As is well known, the federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, "concrete legal issues, presented in actual cases, not abstractions," are requisite." [United Public Workers v. Mitchell, 330 U.S. 75 (1947)] "This Court is without power to give advisory opinions. 2 U.S. 301; Muskrat v. United States, 219 U.S. 346; Stearns v. Wood, 236 U.S. 75; Coffman v. Breeze Corps., supra. It has long been its considered practice not to decide abstract, hypothetical or contingent questions, Giles v. Harris, 189 U.S. 475, 189 U.S. 486; District of Columbia v. Brooke, 214 U.S. 138, 214 U.S. 152; Anniston Mfg. Co. v. Davis, 301 U.S. 337, 301 U.S. 355; Electric Bond & Share Co. v. Securities and Exchange Commission, 303 U.S. 419; United States v. Appalachian Electric Power Co., 311 U.S. 377, 311 U.S. 423, or to decide any constitutional question in advance of the necessity for its decision, 36 U.S. 553; Trade Mark Cases, 100 U.S. 82; Liverpool, N.Y. & P. S.S. Co. v. Immigration Comm'rs, 113 U.S. 33, 113 U.S. 39; Burton v. United States, 196 U.S. 283, 196 U.S. 295; Arkansas Fuel Oil Co. v. State of Louisiana, 304 U.S. 197, 304 U.S. 202." [Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945)]
Ah! So your conclusion is that it didn't get out of committee because it was unconstitutional? No, your claim of Congress thinking they could legally enact your unconstitutional legislation cannot be shown by an act that did not get out of committee. My conclusion is your supposed evidence does not support your bogus conclusion.
All three branches of our federal government, and our State/local governments, lack authority to make law repugnant to the constitution. Clearly, you are very confused about legal things. SCOTUS does not make laws. It decides cases, and issues opinions which are its decisions. True,Congress has no such authority, nor does the Court have any except to issue it's opinion on constitutionality. Court opinions do not change the Constitution. The SCOTUS opinion interpreting the Constitution is binding. SCOTUS says what the law is. They may change a prior interpretation and separate but equal goes from constitutional to unconstitutional. SCOTUS says abortion is a constitutional right and it is treated as a constitutional right until they change their interpretation or the Constitution is amended. The Courts opinion remains an opinion, not a law. SCOTUS decides cases. It's opinions are its decisions. It is empowered to interpret the Constitution, and it's interpretation is enforceable. It is the function of SCOTUS not to mae the law, but to interpret it and say what the law is. You act to prevent legal same-sex marriage or legal abortion, as defined by the court, and you may find your ass jammed in a cell. All can freely ignore your bullshit without legal consequence. The opinion of SCOTUS is binding. Your wacko, dingbat opinions are not.
What a pathetic cut and paste data dump, with not one factoid on point. You got your ass handed to you, Shit-For-Brains
No "requirement" was called for. I already spanked you once on that feeble and dishonest strawman, Shit-For-Brains. I guess ya like being humiliated.
The invitation has NOTHING to do with how the Court would rule on a matter should adversary litigation develop. Another swing and a miss, Shit-For-Brains.
That's exactly what the Court did in Obergefell v. Hodges, Shit-For-Brains. And by the way, opinions are NOT decisions. Decisions may be rendered without any written opinions. Your ignorance is like a bottomless septic tank. However, opinions frequently contain advisory opinions in the form of dicta. You remember, that's a previously made point you fled. Rather cowardly.
Logic ain't his long suit. You know, as Congress debated the legislation, President Donald Trump could innocently ask the Court (and its members individually) if they had any concerns with the proposed lawmaking. Sort of a speak now or forever hold your peace message. I suspect advisory opinions from the Court and its members would be quickly forthcoming.
Yes, but after he strips their jurisdiction on some high-profile issue. Say, "Under God" in the Pledge of Allegiance. That might loosen their tongues a little on future cases.
Because SCOTUS said so in Marbury v Madison (1803). The U.S. Constitution does not give them that power. The court seized it and the people were content to leave it at that. But in the last 75 years, starting with "selective incorporation", every single controversial issue we have today is the result of judicial activism. The court is out of control, acting against the will of the majority, and is deciding issues that should be decided by Congress. Which is why action is required.
Sure it can. That fact that they attempted it showed they thought they could do it. And it did pass the House. It died in a Senate committee for unknown reasons. My guess is that they were gutless and chickened out. But you have zero proof otherwise. To conclude it failed because it was unconstitutional is folly.
That would be a wonderful shot across the bow.
I prefer 'brilliant' but I'll settle for wonderful. It's an old, harmless case that dealt with forcing students to say the Pledge of Allegiance containing the phrase "under God". And no, it wasn't the "forcing" part that presented a problem to the 9th Circuit. Removing judicial review would simply leave "under God" in the Pledge. Anything else is left to the school.
The SCOTUS lacks authority to issue opinions repugnant to the the Constitution. All three branches of our federal government, and our State/local governments, lack authority to make law, or to issue opinions repugnant to the constitution. And if it's decisions are repugnant to The constitution, they are null and void. - -- In any case, they do not change the Constitution, as even poor roschump agrees in #231. True,Congress has no such authority, nor does the Court have any except to issue it's opinion on constitutionality. Court opinions do not change the Constitution. Nope, not binding, as the other branches and the people can ignore such interpretations, and/or, as you admit, amend the Constitution. ---- Even the dimwitted robertpausen agrees that The U.S. Constitution does not give them that power. The Courts opinion remains an opinion, not a law. Only enforceable if the other branches agree to enforce. Get real... Only if the other branches agree with the Court. -- Thanks for making your stupid circular argument, as you've made even the other chumps here realize how wrongheaded you think.
nc #225 U.S. Supreme Court Flast v. Cohen, 392 U.S. 83 (1968) [...] MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. [...] And it is quite clear that "the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions." C. Wright, Federal Courts 34 (1963). [Footnote 14] Thus, the implicit policies embodied in Article III, and not history alone, impose the rule against advisory opinions on federal courts. When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III. See Muskrat v. United States, 219 U.S. 346 (1911); 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891) (correspondence between Secretary of State Jefferson and Chief Justice Jay). [...] The Court quoted Charles Alan Wright, Federal Courts 34 (1963). Footnote 14 of Flast reads: The rule against advisory opinions was established as early as 1793, see 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891), and the rule has been adhered to without deviation. See United States v. Fruehauf, 365 U.S. 146, 365 U.S. 157 (1961), and cases cited therein. In United States v. Fruehauf, 365 U.S. 146 (1961), SCOTUS said: The only issue which we can be sure that the District Court decided as a matter of construction of the statute (as distinguished from those issues which the District Court held could not be proved under the indictment consistently with the Government's "judicial admission") is the issue posed by the fifth theory above -- the issue posed, in its most evidently abstract form, by the question presented here in the Government's Jurisdictional Statement -- "whether a loan of money," every loan of money, as such, "comes within the [statute's]... prohibitions." We do not reach that question on this appeal. For we cannot but regard it -- abstracted as it has become, in the course of these proceedings, from the immediate considerations which should determine the disposition of appellees' motions to dismiss an indictment incontestably valid on its face -- as other than a request for an advisory opinion. Such opinions, such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests, we have consistently refused to give. See Parker v. Los Angeles County, 338 U.S. 327; Rescue Army v. Municipal Court, 331 U.S. 549; United Public Workers v. Mitchell, 330 U.S. 75; Alabama State Federation of Labor v. McAdory, 325 U.S. 450; Arizona v. California, 283 U.S. 423. "The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." [Parker v. Los Angeles County, 338 U.S. 327 (1949)] "From Hayburn's Case, 2 Dall. 409, [nc - 2 U.S. 409 (1792)] to Alma Motor Co. v. Timken-Detroit Axle Co. and the Hatch Act case decided this term, this Court has followed a policy of strict necessity in disposing of constitutional issues. The earliest exemplifications, too well known for repeating the history here, arose in the Court's refusal to render advisory opinions and in applications of the related jurisdictional policy drawn from the case and controversy limitation. U.S.Const., Art. III. The same policy has been reflected continuously not only in decisions, but also in rules of court and in statutes made applicable to jurisdictional matters, including the necessity for reasonable clarity and definiteness, as well as for timeliness, in raising and presenting constitutional questions. Indeed, perhaps the most effective implement for making the policy effective has been the certiorari jurisdiction conferred upon this Court by Congress. E.g., Judicial Code, §§ 237, 240." [Rescue Army v. Municipal Court, 331 U.S. 549 (1947)] "As is well known, the federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, "concrete legal issues, presented in actual cases, not abstractions," are requisite." [United Public Workers v. Mitchell, 330 U.S. 75 (1947)] "This Court is without power to give advisory opinions. 2 U.S. 301; Muskrat v. United States, 219 U.S. 346; Stearns v. Wood, 236 U.S. 75; Coffman v. Breeze Corps., supra. It has long been its considered practice not to decide abstract, hypothetical or contingent questions, Giles v. Harris, 189 U.S. 475, 189 U.S. 486; District of Columbia v. Brooke, 214 U.S. 138, 214 U.S. 152; Anniston Mfg. Co. v. Davis, 301 U.S. 337, 301 U.S. 355; Electric Bond & Share Co. v. Securities and Exchange Commission, 303 U.S. 419; United States v. Appalachian Electric Power Co., 311 U.S. 377, 311 U.S. 423, or to decide any constitutional question in advance of the necessity for its decision, 36 U.S. 553; Trade Mark Cases, 100 U.S. 82; Liverpool, N.Y. & P. S.S. Co. v. Immigration Comm'rs, 113 U.S. 33, 113 U.S. 39; Burton v. United States, 196 U.S. 283, 196 U.S. 295; Arkansas Fuel Oil Co. v. State of Louisiana, 304 U.S. 197, 304 U.S. 202." [Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945)] [Shithead Roscoe] The invitation has NOTHING to do with how the Court would rule on a matter should adversary litigation develop. Another swing and a miss, Shit-For-Brains. What an ignorant shithead. And what a weak response. The federal courts have refused to issue an advisory opinion since first asked for one in 1790. It seems my memory of Secretary Alexander Hamilton seeking an advisory opinion and being rebuffed by Chief Justice John Jay was not misplaced after all. Hamilton's effort was in 1790 and Jefferson's effort was in 1793. Louis Fisher and Katy J. Harriger, American Constitutional Law, 10th Ed., Vol 1, Constitutional Structures, Separated Powers and Federalism, Carolina Adademic Press, 2013, p. 77: The case or controversy requirement was tested in 1790 when Secretary of the Treasury Alexander Hamilton sought the advice of Chief Justice John Jay about a pending legal issue. Resolutions adopted by the Virginia House of Representatives had challenged the right of the national government to assume state debts. Hamilton regarded this resistance as "the first symptom of a spirit which must either be killed or it will kill the Constitution of the United States" and urged that the "collective weight" of the three branches be employed to repudiate the resolutions. Jay replied that it was inadvisable for the Court to join such action. 1 Charles Warren, Supreme Court in United States History 52-53 (1937). Similar efforts by Secretary of State Thomas Jefferson in 1793 to obtain advisory opinions were rebuffed by the Court. The Justices considered it improper to make extrajudicial decisions, noting that the Constitution gives the President the express power to obtain opinions from the heads of the executive departments. Louis Fisher served as Senior Specialist in Separation of Powers for the Congressional Research Service of the Library of Congress. - - - - - - - - - - - - - - - - - - - - Randy E. Barnett, Constitutional Law, Aspen Publishers 2008, pp. 887-88: 2d. Because, if, upon that business, the court had proceeded, its judgments (for its opinions are its judgments) might, under the same act, have been revised and controlled by the legislature, and by an officer in the executive department. Such revision and control we deemed radically inconsistent with the independence of that judicial power which is vested in the courts; and consequently, with that important principle which is so strictly observed by the constitution of the United States. In response to these objections, Congress modified its pension scheme to eliminate this role of the judiciary. That is not an advisory opinion. It is an explanation of why the court refused to be used to participate in an unconstitutional scheme developed by the legislative branch. - - - - - - - - - - - - - - - - - - - - Otis H. Stephens, Jr. and John M. Scheb II, American Constitutional Law, 5th Ed., Vol. 1, Appendix D, Glossary of terms, p. D-1: - - - - - - - - - - - - - - - - - - - -
[Shithead Roscoe] That's exactly what the Court did in Obergefell v. Hodges, Shit-For-Brains. And by the way, opinions are NOT decisions. Decisions may be rendered without any written opinions. I didn't think anyone could be this fucking stupid and want to document it for the whole world to see. Whether it is given in writing, or read from the bench, the opinions of the court are its decisions, shithead. Black's Law Dictionary, 6th Ed. The statement by a judge or court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based. See also, Hayburn's Case, 2 U.S. 409, 411 (1792) Black's Law Dictionary, 6th Ed. The opinion of the court includes the decision or judgment and sets forth the reasoning for said decision/judgment. No, dumbshit. Otis H. Stephens, Jr. and John M. Scheb II, American Constitutional Law, 5th Ed., Vol. 1, Appendix D, Glossary of terms, p. D-1: Court opinions are only rendered when they involve a case or controversy. By definition, a dictum in a court opinion cannot be an advisory opinion.
You know, as Congress debated the legislation, President Donald Trump could innocently ask the Court (and its members individually) if they had any concerns with the proposed lawmaking. Sort of a speak now or forever hold your peace message. I suspect advisory opinions from the Court and its members would be quickly forthcoming. The Court, innocently saying fuck you since 1790. Louis Fisher and Katy J. Harriger, American Constitutional Law, 10th Ed., Vol 1, Constitutional Structures, Separated Powers and Federalism, Carolina Adademic Press, 2013, p. 77: The case or controversy requirement was tested in 1790 when Secretary of the Treasury Alexander Hamilton sought the advice of Chief Justice John Jay about a pending legal issue. Resolutions adopted by the Virginia House of Representatives had challenged the right of the national government to assume state debts. Hamilton regarded this resistance as "the first symptom of a spirit which must either be killed or it will kill the Constitution of the United States" and urged that the "collective weight" of the three branches be employed to repudiate the resolutions. Jay replied that it was inadvisable for the Court to join such action. 1 Charles Warren, Supreme Court in United States History 52-53 (1937). Similar efforts by Secretary of State Thomas Jefferson in 1793 to obtain advisory opinions were rebuffed by the Court. The Justices considered it improper to make extrajudicial decisions, noting that the Constitution gives the President the express power to obtain opinions from the heads of the executive departments. Louis Fisher served as Senior Specialist in Separation of Powers for the Congressional Research Service of the Library of Congress.
Because SCOTUS said so in Marbury v Madison (1803). The U.S. Constitution does not give them that power. The court seized it and the people were content to leave it at that. Unfortunately for you, Marbury v. Madison remains good law two centuries after it was handed down. You are entitled to your own opinion. According to law, your opinion is just bullshit contrary to law, and if argued by an attorney in court today, will draw Rule 11 sanctions. You would have to argue it yourself or find someone with a law license who wants to be fined or disbarred. There's your problem, right there. The court is not there to enforce the will of the majority against the constitutional rights of the minority.
There are two houses to Congress. The fact that some in the House supported something does not express the approval of CONGRESS. You are missing the Senate where it did not get out of committee. As you say, unknown reasons. As it was demonstrably unconstitutional on its face, there is better reason believe that had something to do with its permanent interment in a deep grave, than that the Senate was gutless then, and has apparently been gutless ever since. Legislation that seeks to limit access to, or enjoyment of, any constitution right of the people has been ruled an infringement of the Constitution. That even applies to alien detainees in Guantanamo. In enacting the Military Commissions Act of 2006 (MCA), it was not doubted that, on its face, see Boumediene v. Bush, 553 U.S. 723 (2008), the MCA withdrew jurisdiction. I cited Boumediene (as well as Hamdan) last time at #222 on this thread, but it appears it requires force feeding regarding the futility of enacting an unconstitutional law withdrawing jurisdiction. Been there, done that. It does not work. At 553 U.S. 724: In your Twilight Zone version of the law, that makes it a slam dunk for the government. But then, you ignore the holding of the U.S. Supreme Court. The Court stated, And the Court held, As the law, MCA § 7, withdrawing jurisdiction was unconstitutional, the Court held it had no effect and that there was no bar to jurisdiction. https://supreme.justia.com/cases/federal/us/553/723/ SUPREME COURT OF THE UNITED STATES BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al. certiorari to the united states court of appeals for the district of columbia circuit No. 06–1195. Argued December 5, 2007—Decided June 12, 2008* In the Authorization for Use of Military Force (AUMF), Congress empowered the President “to use all necessary and appropriate force against those … he determines planned, authorized, committed, or aided the terrorist attacks … on September 11, 2001.” In Hamdi v. Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war. Thereafter, the Defense Department established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at the U. S. Naval Station at Guantanamo Bay, Cuba, were “enemy combatants.” Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. S. territory. The D. C. Circuit affirmed, but this Court reversed, holding that 28 U. S. C. §2241 extended statutory habeas jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473. Petitioners’ cases were then consolidated into two proceedings. In the first, the district judge granted the Government’s motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas action. In the second, the judge held that the detainees had due process rights. While appeals were pending, Congress passed the Detainee Treatment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241 to provide that “no court, justice, or judge shall have jurisdiction to … consider … an application for … habeas corpus filed by or on behalf of an alien detained … at Guantanamo,” and gave the D. C. Court of Appeals “exclusive” jurisdiction to review CSRT decisions. In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provision inapplicable to cases (like petitioners’) pending when the DTA was enacted. Congress responded with the Military Commissions Act of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any other action against the United States … relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of a detained alien determined to be an enemy combatant. MCA §7(b) provides that the 2241(e) amendments “shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after [that] date … which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained … since September 11, 2001.” The D. C. Court of Appeals concluded that MCA §7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners’ habeas applications; that petitioners are not entitled to habeas or the protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”; and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas. Held: 1. MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time of its enactment. Section §7(b)’s effective date provision undoubtedly applies to habeas actions, which, by definition, “relate to … detention” within that section’s meaning. Petitioners argue to no avail that §7(b) does not apply to a §2241(e)(1) habeas action, but only to “any other action” under §2241(e)(2), because it largely repeats that section’s language. The phrase “other action” in §2241(e)(2) cannot be understood without referring back to §2241(e)(1), which explicitly mentions the “writ of habeas corpus.” Because the two paragraphs’ structure implies that habeas is a type of action “relating to any aspect of … detention,” etc., pending habeas actions are in the category of cases subject to the statute’s jurisdictional bar. This is confirmed by the MCA’s legislative history. Thus, if MCA §7 is valid, petitioners’ cases must be dismissed. Pp. 5–8. 2. Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo. Pp. 8–41. [...] (c) The Suspension Clause has full effect at Guantanamo. The Government’s argument that the Clause affords petitioners no rights because the United States does not claim sovereignty over the naval station is rejected. Pp. 22–42. [...] (d) Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the DTA potentially suffers are the absence of provisions allowing petitioners to challenge the President’s authority under the AUMF to detain them indefinitely, to contest the CSRT’s findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and to request release. The statute cannot be read to contain each of these constitutionally required procedures. MCA §7 thus effects an unconstitutional suspension of the writ. There is no jurisdictional bar to the District Court’s entertaining petitioners’ claims. Pp. 57–64. [...] 4. Nor are there prudential barriers to habeas review. Pp. 64–70. (a) Petitioners need not seek review of their CSRT determinations in the D. C. Circuit before proceeding with their habeas actions in the District Court. If these cases involved detainees held for only a short time while awaiting their CSRT determinations, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. But these qualifications no longer pertain here. In some instances six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. To require these detainees to pursue the limited structure of DTA review before proceeding with habeas actions would be to require additional months, if not years, of delay. This holding should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. Except in cases of undue delay, such as the present, federal courts should refrain from entertaining an enemy combatant’s habeas petition at least until after the CSRT has had a chance to review his status. Pp. 64–67. (b) In effectuating today’s holding, certain accommodations—including channeling future cases to a single district court and requiring that court to use its discretion to accommodate to the greatest extent possible the Government’s legitimate interest in protecting sources and intelligence gathering methods—should be made to reduce the burden habeas proceedings will place on the military, without impermissibly diluting the writ’s protections. Pp. 67–68. [...] 5. In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches. However, security subsists, too, in fidelity to freedom’s first principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. Pp. 68–70. 476 F. 3d 981, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined. - - - - - - - - - - - - - - - - - - - - The Court quoted from the Military Commissions Act of 206 at 736-37: As amended by the terms of the MCA, 28 U. S. C. § 2241(e) now provides: (1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (2) Except as provided in [§§ 1005(e)(2) and (e)(3) of the DTA] no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. Section 7(b) of the MCA provides the effective date for the amendment of § 2241(e). It states:
Only enforceable if the other branches agree to enforce. Get real... Only if the other branches agree with the Court. To demonstrate the idiocy of your bullshit, it presupposes that all three branches of government have agreed with legal abortion, same-sex marriage, and flag burning since the applicable court rulings. You are an idiot. And that is not to mention the 50 states which you left out. For some reason or other, they all agree to allow abortion and same-sex marriage and flag burning. Your bullshit supposes that if the other branches of government choose to ignore or violate the law, this means that Judicial branch is devoid of judicial authority. It only demonstrates what an asshole you are. Drug possession, use, or distribution is unlawful in all 50 states, and is a federal crime in all 50 states, even when the Executive branch chooses to ignore the violations of federal law. Illegal immigration remains illegal, even when the Executive chooses not to enforce the law. As an early Christmas present, I will gift you the historical court opinion which is cited as the best challenge ever against Marbury v. Madison. I do this act of charity because I know you could never find it on your own, not that you would make the effort. It will surely give you wet dreams. - - - - - - - - - - In the case of legislation, the judiciary is empowered by the constitution to declare the legislation unconstitutional. In the case of judicial decisions, apparently the person who decides them to be unconstitutional is tpaine. If the U.S. Supreme Court interprets seme-sex marriage to be constitutionally protected, and you disagree, you can go to your window and scream that the decision is unconstitutional. Do it now. See if anything changes. Hell, for that matter, Congress can pass a law that says same-sex marriage is illegal, and the President can sign it. And you can go to your window and shout that out. See if anythig changes. Just as with your absurd assertion that an amendment to the Constitution can be struck down as unconstitutional, you must have a Deemer hidden somewhere to deem a SCOTUS opinion unconstitutional.
"This construction of the federal judicial power was not inevitable. In addition to the numerous advisory opinions given by the early Justices, English judges had a longstanding practice of issuing advisory opinions upon the monarch’s request. And federal judges and Justices have continued to give opinions informally, including through extrajudicial publications and interviews, dicta in judicial opinions, and ex parte advice to political actors." Harvard Law Review: Volume 124, Number 8 - June 2011 Time for you to run away again, SFB.
Punubral emanations? Figures. Your kind always conflates policy and law, SFB. Congress has an EXPLICIT right to to strip the Court of appellate jursidiction over Constitutional rationalizations for assuming legislative powers, SFB. And I explicitly noted before, the Court may decline to offer any justifications for waiver requests. You're terrified of engaging the actual arguments.
Time for you to gibber and scamper. Again. "And federal judges and Justices have continued to give opinions informally, including through extrajudicial publications and interviews, dicta in judicial opinions, and ex parte advice to political actors." Harvard Law Review: Volume 124, Number 8 - June 2011 And Congress can say fuck you, based on explicit Constitutional powers, SFB.
Policy, not law. Or did you forget that you announced that the Court can't make law? And that opinions were decisions? [snigger] Congress may void judicial review at will, by law, SFB
Question begging. Natch. SFB.
They're not supposed to, no. But how many examples do you want of the U.S. Supreme Court making political, rather than constitutional, decisions? You've got Roe v Wade for starters. Kelo. Obamacare. All Establishment Clause cases (creches, "under God", prayer in schools, display of the Ten Commandments").
And if it's (The Courts) decisions are repugnant to The constitution, they are null and void. Indeed they are, but, --- if the other Fed branches, or the State/local govts disagree, -- they are free to dispute that opinion, --- and to ignore it until resolved. Scotus decisions/opinions are not law. Isn't it strange that YOU deem it absurd that an amendment can be struck down as unconstitutional, --- yet you shout out that ALL Scotus opinions are constitutional? The fact is; -- Scotus decisions/opinions are not law.
I never said nor implied that the U.S. Supreme Court was required to give an opinion if asked. I merely suggested that Trump act to strip their jurisdiction on an issue. Then ask their opinion on upcoming legislation.
I don't say this often, but good point. Ex parte Merryman.
Yep, and Congress wouldn't need their opinion.
Comments (256 - 265) not displayed.
Top • Page Up • Full Thread • Page Down • Bottom/Latest"Congress thought it could? It didn't get out of committee."
#217. To: jeremiad (#201)
"I have never supported hate speech laws."
#218. To: buckeroo (#200)
"Explain "hate speech" and the authority of Congress to close the obvious "loop holes."
#219. To: nolu chump, aka shit for brains, yall (#208)
Correct interpretation of the powers of Congress.I
The Court decided in Obergefell that laws prohibiting same-sex marriage are unconstitutional. Congress has no lawful authority to pass a law prohibiting same- sex marriage. The Court in Roe v. Wade decided that laws prohibiting all abortions were unconstitutional. Congress has no lawful authority to pass a law prohibiting all abortions.
Once the Supreme Court has decided that something is unconstitutional, their opinion prevails over all others.
#220. To: Jerimiad, all you chumps (#213)
Yes, original intent is the only way to go. All precedents should be burned, and each case decided with only logical understanding of the intent of the law.
Roschump -- At least those precedents dependent on "judicial review." Congress has the explicit Constitutional power to reign those in. --- Outside of the Court playing super-legislature, precedent has value to the extent that it makes the law predictable.
#221. To: misterwhite (#218)
Or, conversely, both hate speech and flag burning should be allowed. Your choice.
#222. To: Roscoe (#178)
Yep. Congress, in its act of 27th March, 1868, removed the Supreme Court's appellate jurisdiction to hear habeas corpus appeals. In response, the Court, in Ex parte McCardle, 74 U.S. 506, (1868), went to its collective knee and kissed the legislature's, er, ring.
Detention and Trial of Foreign Nationals Apprehended in the War on Terrorism
#223. To: Roscoe (#211)
Half liar, half imbecile.
The Circuit Courts of Appeal and the U.S. District Courts aren't even mentioned in Article III. They, like the Bankruptcy Courts, are creations of Congressional legislation, which may be amended or rescinded at will, Shit-For-Brains. Here's what Article III actually says:
Article III
United States bankruptcy courts are courts created under Article I of the United States Constitution.
Each bankruptcy judge shall be appointed for a term of fourteen years, subject to the provisions of subsection (e).
#224. To: Roscoe (#210)
An invitation is not a requirement, Shit-For-Brains. The Court would be free to refuse.
LETTER FROM CHIEF JUSTICE JOHN JAY AND THE ASSOCIATE JUSTICES OF THE U.S. SUPREME COURT TO PRESIDENT WASHINGTON
the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments.
Then Congress would be free to deny appellate jurisdiction, per its explicit constitutional power.
(b) Article III establishes a "judicial department" with the "province and duty ... to say what the law is" in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 177. The Framers crafted this charter with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to decide them conclusively, subject to review only by superior courts in the Article III hierarchy. Thus, the Constitution forbids the Legislature to interfere with courts' final judgments. Pp. 219-225.
The Framers of our Constitution lived among the ruins of a system of intermingled legislative and judicial powers, which had been prevalent in the colonies long before the Revolution, and which after the Revolution had produced factional strife and partisan oppression. In the 17th and 18th centuries colonial assemblies and legislatures functioned as courts of equity of last resort, hearing original actions or providing appellate review of judicial judgments. G. Wood, The Creation of the American Republic 1776-1787, pp. 154-155 (1969). Often, however, they chose to correct the judicial process through special bills or other enacted legislation. It was common for such legislation not to prescribe a resolution of the dispute, but rather simply to set aside the judgment and order a new trial or appeal. M. Clarke, Parliamentary Privilege in the American Colonies 49-51 (1943). See, e. g., Judicial Action by the Provincial Legislature of Massachusetts, 15 Harv. L. Rev. 208 (1902) (collecting documents from 1708-1709); 5 Laws of New Hampshire, Including Public and Private Acts, Resolves, Votes, Etc., 1784-1792 (Metcalf ed. 1916). Thus, as described in our discussion of Hayburn's Case, supra, at 218, such legislation bears not on the problem of interbranch review but on the problem of finality of judicial judgments.
The Convention made the critical decision to establish a judicial department independent of the Legislative Branch by providing that "the judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Before and during the debates on ratification, Madison, Jefferson, and Hamilton each wrote of the factional disorders and disarray that the system of legislative equity had produced in the years before the framing; and each thought that the separation of the legislative from the judicial power in the new Constitution would cure them. Madison's Federalist No. 48, the famous description of the process by which "[t]he legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex," referred to the report of the Pennsylvania Council of Censors to show that in that State "cases belonging to the judiciary department [had been] frequently drawn within legislative cognizance and determination." The Fed-
"It is not true ... that the parliament of Great Britain, or the legislatures of the particular states, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory neither of the British, nor the state constitutions, authorises the revisal of a judicial sentence, by a legislative act .... A legislature without exceeding its province cannot reverse a determination once made, in a particular case; though it may prescribe a new rule for future cases." The Federalist No. 81, p. 545 (J. Cooke ed. 1961).
The question whether a federal court has jurisdiction to review the constitutionality of a congressional withdrawal of jurisdiction is distinct from the question of what limitations the Constitution in fact imposes upon such legislation. Plainly, the usual limitations of the Bill of Rights and of Article I, § 9, apply: the paradigmatic example of an external constitutional limitation would be the undisputed prohibitions imposed by the Due Process and Free Speech Clauses on legislation that would, say, restrict access to the federal courts on the basis of a litigant's race, religion, gender or political affiliation or viewpoint. Moreover, laws designed to hinder the exercise of constitutional rights are, to that degree, unconstitutional. Likewise, even those jurisdictional statutes which unintentionally burden the exercise of such rights warrant strict scrutiny;24 thus, if busing were demonstrably the only remedy to effectuate one's right not to attend a segregated school, federal legislation limiting judicial power to order busing as a remedy would appear highly suspect. Even the withdrawal of a gratuity—whether in the form of a welfare payment that a state is not independently required to make25 or in the form of an extension of court jurisdiction that Congress is not independently compelled to provide—may be forbidden if it penalizes a separately secured right.26 Congress, in short, is not entirely at liberty to create free-fire zones around currently unpopular constitutional rights.27
#225. To: Roscoe (#212)
And because they thought the examination of invalids a very extraordinary duty to be imposed on the Judges, they offered advisory opinions to the Government, resulting in the modification of the statute.
Advisory opinion. Such may be rendered by a court at the request of the government ore an interested party indicating how the court would rule on a matter should adversary litigation develop. An advisory opinion is thus an interpretation of the law without binding effect. While the International Court of Justice and some state courts will render advisory opinions the federal courts will not; their jurisdiction being restricted to cases or controversies.
a. Prohibition of Advisory Opinions
NOTES ON ADVISORY OPINIONS
HISTORY OF CONGRESS.
JOHN BLAIR,
RICHARD PETERS. U.S. Supreme Court
The rule against advisory opinions was established as early as 1793, see 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891), and the rule has been adhered to without deviation. See United States v. Fruehauf, 365 U.S. 146, 365 U.S. 157 (1961), and cases cited therein.
The only issue which we can be sure that the District Court decided as a matter of construction of the statute (as distinguished from those issues which the District Court held could not be proved under the indictment consistently with the Government's "judicial admission") is the issue posed by the fifth theory above -- the issue posed, in its most evidently abstract form, by the question presented here in the Government's Jurisdictional Statement -- "whether a loan of money," every loan of money, as such, "comes within the [statute's]... prohibitions."
#226. To: misterwhite (#216)
"Congress thought it could? It didn't get out of committee."
#227. To: tpaine (#219)
The SCOTUS lacks authority to issue opinions repugnant to the the Constitution.
The Court decided in Obergefell that laws prohibiting same-sex marriage are unconstitutional. Congress has no lawful authority to pass a law prohibiting same- sex marriage. The Court in Roe v. Wade decided that laws prohibiting all abortions were unconstitutional. Congress has no lawful authority to pass a law prohibiting all abortions.
Once the Supreme Court has decided that something is unconstitutional, their opinion prevails over all others.
#228. To: nolu chan (#223)
Bankruptcy court judges are appointed to 14-year terms.
#229. To: nolu chan (#224)
"Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions." See Farrand's Records of the Federal Convention, Volume 2, page 341.
#230. To: nolu chan (#225)
Advisory opinion. Such may be rendered by a court at the request of the government ore an interested party indicating how the court would rule on a matter should adversary litigation develop
#231. To: nolu chan (#227)
SCOTUS does not make laws. It decides cases, and issues opinions which are its decisions.
#232. To: misterwhite (#216)
So your conclusion is that it didn't get out of committee because it was unconstitutional?
#233. To: Roscoe (#232)
"You know, as Congress debated the legislation, President Donald Trump could innocently ask the Court (and its members individually) if they had any concerns with the proposed lawmaking. Sort of a speak now or forever hold your peace message."
#234. To: nolu chan (#227)
"The SCOTUS opinion interpreting the Constitution is binding."
#235. To: nolu chan (#226)
"No, your claim of Congress thinking they could legally enact your unconstitutional legislation cannot be shown ..."
#236. To: misterwhite (#233)
Yes, but after he strips their jurisdiction on some high-profile issue. Say, "Under God" in the Pledge of Allegiance.
#237. To: Roscoe (#236)
"That would be a wonderful shot across the bow."
#238. To: nolu chan (#227)
Clearly, you are very confused about legal things. --- SCOTUS does not make laws. It decides cases, and issues opinions which are its decisions.
The Court decided in Obergefell that laws prohibiting same-sex marriage are unconstitutional. Congress has no lawful authority to pass a law prohibiting same- sex marriage. The Court in Roe v. Wade decided that laws prohibiting all abortions were unconstitutional. Congress has no lawful authority to pass a law prohibiting all abortions.
The SCOTUS opinion interpreting the Constitution is binding. SCOTUS says what the law is. They may change a prior interpretation and separate but equal goes from constitutional to unconstitutional. SCOTUS says abortion is a constitutional right and it is treated as a constitutional right until they change their interpretation or the Constitution is amended.
SCOTUS decides cases. It's opinions are its decisions. It is empowered to interpret the Constitution, and it's interpretation is enforceable.
It is the function of SCOTUS not to mae the law, but to interpret it and say what the law is. --- You act to prevent legal same-sex marriage or legal abortion, as defined by the court, and you may find your ass jammed in a cell.
#239. To: Roscoe (#230)
And in case it still did not penetrate your extraordinarily thick skull, there is the following:
Advisory Opinions
Perhaps the earliest such limitation was the refusal of the Supreme Court to issue "advisory opinions" to the other branches in advance of a case or controversy. In 1792, the very first Congress enacted a statutory scheme by which U.S. circuit court judges—who were then also Supreme Court Justices—were to consider the pension claims of Revolutionary War veterans and inform the secretary of war of the nature of the claimant's disability and the amount to be paid. The secretary had the discretion to follow the court's recommendation or not. All five Supreme Court Justices— Wilson, Blair, Cushing, Iredell and Chief Justice Jay—sitting as circuit court judges in New York, Pennsylvania, and North Carolina expressed their opinions that this scheme was unconstitutional. Here is how the Pennsylvania panel explained its objections:
1st. Because the business directed by this act is not of a judicial nature. It forms no part of the power vested by the constitution in the courts of the United States; the circuit court must, consequently, have proceeded without constitutional authority.
advisory opinion. A judicial opinion, not involving adverse parties in a "case or controversy," that is given at the request of the legislature or the executive. It has been a long-standing policy of the U.S. Supreme Court not to render advisory opinions.
#240. To: Roscoe (#231)
SCOTUS does not make laws. It decides cases, and issues opinions which are its decisions.
Opinion.
“2d. Because if, upon that business, the court had proceeded, its judgments (for its opinions are its judgments) might, under the same act, have been revised and controlled by the legislature, and by an officer in the executive department.
Judgment. The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination. The final decision of the court resolving the dispute and determining the rights and obligations of the parties.
However, opinions frequently contain advisory opinions in the form of dicta.
advisory opinion. A judicial opinion, not involving adverse parties in a "case or controversy," that is given at the request of the legislature or the executive. It has been a long-standing policy of the U.S. Supreme Court not to render advisory opinions.
#241. To: Roscoe, misterwhite (#232)
Logic ain't his long suit.
Advisory Opinions
#242. To: misterwhite (#234)
The SCOTUS opinion interpreting the Constitution is binding."
The court is out of control, acting against the will of the majority....
#243. To: misterwhite (#235)
That fact that they attempted it showed they thought they could do it. And it did pass the House.
It died in a Senate committee for unknown reasons. My guess is that they were gutless and chickened out.
MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time of its enactment.
As a threshold matter, we must decide whether MCA § 7 denies the federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment. We hold the statute does deny that jurisdiction, so that, if the statute is valid, petitioners’ cases must be dismissed.
Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the DTA potentially suffers are the absence of provisions allowing petitioners to challenge the President’s authority under the AUMF to detain them indefinitely, to contest the CSRT’s findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and to request release. The statute cannot be read to contain each of these constitutionally required procedures. MCA §7 thus effects an unconstitutional suspension of the writ. There is no jurisdictional bar to the District Court’s entertaining petitioners’ claims. Pp. 57–64.
SYLLABUS
OCTOBER TERM, 2007
BOUMEDIENE V. BUSH As a threshold matter, we must decide whether MCA § 7 denies the federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment. We hold the statute does deny that jurisdiction, so that, if the statute is valid, petitioners’ cases must be dismissed.
The amendment made by [MCA § 7(a)] shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.” 120 Stat. 2636.
#244. To: tpaine (#238)
Nope, not binding, as the other branches and the people can ignore such interpretations...
And if it's decisions are repugnant to The constitution, they are null and void.
#245. To: nolu chan (#240)
It has been a long-standing policy of the U.S. Supreme Court not to render advisory opinions.
#246. To: nolu chan (#239)
(Edited)
Thus, the implicit policies embodied in Article III
#247. To: nolu chan (#241)
The Court, innocently saying fuck you since 1790.
#248. To: nolu chan (#242)
Marbury v. Madison remains good law two centuries after it was handed down.
#249. To: nolu chan (#243)
As it was demonstrably unconstitutional on its face
#250. To: misterwhite (#237)
I prefer 'brilliant' but I'll settle for wonderful.
#251. To: nolu chan (#242)
"The court is not there to enforce the will of the majority against the constitutional rights of the minority."
#252. To: nolu chump, yall (#244)
In the case of legislation, the judiciary is empowered by the constitution to declare the legislation unconstitutional.
If the U.S. Supreme Court interprets seme-sex marriage to be constitutionally protected, and you disagree, you can go to your window and scream that the decision is unconstitutional. Do it now. See if anything changes. Hell, for that matter, Congress can pass a law that says same-sex marriage is illegal, and the President can sign it. And you can go to your window and shout that out. See if anythig changes. Just as with your absurd assertion that an amendment to the Constitution can be struck down as unconstitutional, you must have a Deemer hidden somewhere to deem a SCOTUS opinion unconstitutional.
#253. To: nolu chan (#241)
#254. To: tpaine (#252)
Indeed they are, but, --- if the other Fed branches, or the State/local govts disagree, -- they are free to dispute that opinion, --- and to ignore it until resolved.
#255. To: misterwhite (#253)
Then ask their opinion on upcoming legislation.
.
.
.
[Home] [Headlines] [Latest Articles] [Latest Comments] [Post] [Mail] [Sign-in] [Setup] [Help] [Register]