Using an Executive Order to pass legislation! UNCONSTITUTIONAL?

reply to post by hotpinkurinalmint


I will try to address both of your comments.

I am not a trained lawyer, but I have been cramming law into my head.

That being said, the SC has stated on two different occasions that the 16th Amendment gave NO new taxation powers to the federal government.

But yet, the IRS taxes labor as if it was income. So, who are we to believe? The federal government's IRS AGENCY code or the SC?

Next, are we to believe the Executive Branch that they are allowed to write law where the SC has stated that statutes override the EO given?

So here is the thing, if this new legislation states that federal funds can be used as money for abortions and the EO states that it cannot, which one are we to believe?

You know exactly that the law of the land has been perverted for any purpose that the federal government wants.

Admit it. You can tell the people here that the Constitution means NOTHING anymore. The federal government has perverted case law and precedent.

You are a lawyer trained in our court system. Please tell the truth.

reply to post by jam321


You might want to read a case called National Cable. It basically states for Chevron purposes, a statute is ambiguous unless the courts declare the law is in now way ambiguous. Since courts rarely rule statutes are free from ambiguity, the executive branch has a fair amount of latitude under Chevron to create rules that have the force of law.

Originally posted by hotpinkurinalmint
reply to post by endisnighe

 

Are we, as Supreme court judges, supposed to follow Supreme court precedents? Or are we just supposed to rule as if no precedent existed.

There is a rich body of Administrative law that gives the Executive branch a fair amount of latitude to make regulations that have the force of law, provided those regulations do not conflict with Congressional statutes.

In answer to your question, yes, of course, judges should consult the full knowledge of historical decisions in determining the correct outcome of a current decision, however, I would sincerely hope that Supreme court judges would not be disposed to blindly following precedents that were not founded in the Constitution.

reply to post by endisnighe


A few points that I must made.

1. The Supreme court never ruled that the income tax was unconstitutional after the 16th amendment. I know there are a lot of tax protesters out there that believe otherwise, but as a lawyer I would never attempt to make that argument in a real court because I would lose my license for making a frivolous argument. (Keep in mind, in America, the bar is set very high as to what kinds of arguments are so frivolous that a lawyer will be subject to sanction for making them.)

2. Under Administrative law principles, the Executive branch can never contradict Congress when it makes rules. The Executive branch, however, has a wide amount of latitude in clarifying ambiguities in statutes.

3. You are right that in the last century, the idea of strict separation of powers no longer exists. One could reasonably argue that this perverts the constitution. One could also reasonably argue that breaking down some of the walls between the branches of government is absolutely necessary for our modern government to function. Keep in mind, the idea of "separation of powers" is itself a judicial doctrine, albeit a longstanding one, and does not appear in the literal text of the constitution.

[edit on 21-3-2010 by hotpinkurinalmint]

I believe the biggest aspect of executive orders are that they are seldom challenged. In a way, it is a plus for both parties and neither one wants to stop it. Furthermore, hotpinkurinalmint is more than likely correct that most courts will give the executive branch the benefit of the doubt. After reading some of the bills written by Congress, I can see where their writing can be interpreted as ambiguous.

Congressional Recourse

If Congress does not like what the executive branch is doing, it has two main options. First, it may rewrite or amend a previous law, or spell it out in greater detail how the Executive Branch must act. Of course, the President has the right to veto the bill if he disagrees with it, so, in practice, a 2/3 majority if often required to override an Executive Order.

Congress is less likely to challenge EOs that deal with foreign policy, national defense, or the implementation and negotiation of treaties, as these are powers granted largely to the President by the Constitution. As the Commander-in-Chief of the armed forces, the President is also considered the nation's "Chief Diplomat." In fact, given national security concerns, some defense or security related EOs (often called National Security Directives or Presidential Decision Directives) are not made public.

In addition to congressional recourse, Executive Orders can be challenged in court, usually on the grounds that the Order deviates from "congressional intent" or exceeds the President's constitutional powers. In one such notable instance, President Harry Truman, was rebuked by the Supreme Court for overstepping the bounds of presidential authority. After World War II, Truman seized control of steel mills across the nation in an effort to settle labor disputes. In response to a challenge of this action, the Supreme Court ruled that the seizure was unconstitutional and exceeded presidential powers because neither the Constitution or any statute authorized the President to seize private businesses to settle labor disputes. For the most part, however, the Court has been fairly tolerant of wide range of executive actions.

www.thisnation.com...

reply to post by Maxmars


Oh come on, everyone here shouted through the roof about Bush and his EO's.

This is not a Republican-Democrat debate. This is a socialist bill being forced on us by a bunch of Socialist who care only about their wallets not ours.

Even if your for this bill, as an American you should be against it because its UN-CONSTITUTIONAL IN EVERY WAY. Its a TAX that is not allowed in the framework of this land let alone the way they are trying to push it on us. They cannot tell us what to do with our health.

This bill is completely UN-AMERICAN and if its passed we will see another civil war until order is restored in this once great REPUBLIC for witch it stands, One nation under GOD, indivisible with liberty and JUSTICE for ALL.

reply to post by hotpinkurinalmint


First off the two Supreme Court decisions and their STATEMENTS-

IRS agents have stated they are NOT required to file.
Here is the 2 SC decisions

Stanton v. Baltic Mining, 240 US 103 (1916), the following: “… that by the previous ruling it was settled that the provisions of the Sixteenth Amendment conferred no new power of taxation, but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged and being placed in the category of direct taxation subject to apportionment by a consideration of the sources from which the income was derived…”.

Peck & Co. v. Lowe, 247 US 165 (1918), the Supreme Court stated, in part: “The Sixteenth Amendment … does not extend the taxing power to new or excepted subjects …”

WOW, so what you are saying is that the SC means NOTHING anymore!

Thanks, for showing that lawyer and their corporate paid judges do not care what SC rulings are!

Next time I am chosen as a tax jurist, I can find anyone NOT GUILTY due to the FACT that as a sovereign citizen I can actually DETERMINE that the LAW has been BROKEN by the government.

Jury Nullification-

Georgia v. Brailsford 3 U.S. 1 (Dall.) (1794) is an early United States Supreme Court case where the presiding judge of the Court instructed the jury, in part, that a jury has a right to judge the law as well as the facts. This case is often cited as precedent by proponents of jury nullification.[1][2]

Originally posted by jam321
If he is not interpreting law, then why does he have a pending executive order that talks about the new bill and nonetheless awaits passage of the new bill?

It does not talk about the new law. It talks about old law. He is making it to comfort someone who is concerned about something that is not in the new law.

Originally posted by endisnighe
Alright folks, you guys could be Supreme Court Justices in my eyes!

Star for EVERYONE, even thoughs that disagree with my stance!

You are not making a case for your talent at evaluating arguments.

Originally posted by Sky watcher
reply to post by Maxmars

 

This is a socialist bill being forced on us by a bunch of Socialist who care only about their wallets not ours.

I don't think you know what "socialist" means. Socialists, by definition, do not care about their own wallets. They care about the well-being of society and all its members.

reply to post by Solasis

It does not talk about the new law. It talks about old law.

I never realized that the old law had health insurance exchanges or included the year 2014.

Section 2. Strict Compliance with Prohibitions on Abortion Funding in Health Insurance Exchanges. The Act specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges that will be operational in 2014.

whitehouse.blogs.foxnews.com...

reply to post by Solasis


Sorry, I did not know that stars proved anything.

Maybe I was mistaken. The more stars in this thread proves what again, oh, according to you it proves Constitutional Law.

What I was saying was the effort people put into assessing the validity of my claim.

I still do not understand people that think that because you get more stars that it proves your point.

Well, I guess some people think they are more important than they actually are.

reply to post by jam321


Alright, so it mentions the new law. But that doesn't prove anything; it just prescribes that the events that will occur as a result of this particular law will not be contrary to that particular law. So I guess I was wrong about just how far off base you are; you're just rather off base.

reply to post by endisnighe


I wasn't referring to the stars, I was referring to the "You all could be supreme court justices because you are so good at arguing!!!!!" I left in the "stars for everyone" bit to point out that you meant those on both sides. I can see how you got confused, though.... Wait, no, I can't.

reply to post by Solasis


When you make a pending executive order pertaining to an old law in addition to a law that has yet to pass, then I would say Obama is indeed interpreting the law.

Otherwise, why the need for an executive order in the first place. Obviously, somebody(OBAMA) recognized that there would be a dispute between the two laws.

reply to post by jam321


Holy crap do you not pay any attention at all? Do you forget all relevant information presented to you prior to the most recent thing you read?

He has vowed to make the executive order in order to appease congressman Stupak. Stupak, a democrat, was not going to vote for the health care bill. He was not going to because he thought (completely erroneously, I might add) that the bill was going to allow federal funding for abortions. Obama promised to make the EO to make him feel better.

On to the EO, since I know you'll forget everything else about it as soon as you move to reply to this particular fact.

First off, the order will only reinforce an existing law. One that existed prior to the one that is under discussion right now. This law, which the EO is reinforcing, says that no federal funding can go for abortions. Second off, the order has not been made yet. It will be made after the health care bill is passed. All Obama has actually done is promised to make this executive order. So, any interpretation that the order could be doing of the new law? It will not be doing it until after the law is passed.

Is there anything else you would like spelled out for you?

reply to post by Solasis


Damn, you are a genious. You have figured out what comes first, the law or the un Constitutional act.

Damn, give that man a cookie.

You still do not get it do you?

Let me lay it out for you again. The House needs to pass a legislative bill. Now, the bill, if it goes to the Senate with the component of that the Stupak coalition deems to be non cogent or non understandable, in their terminology. Could mean that the abortion is fundable.

Now, the Executive Branch institutes an E O that CANNOT overrule a Congressional LAW which the Stupak coalition thinks HAS legislative power, is all happy go lucky.

This bill is a joke, it is un Constitutional and has been manipulated since it's inception.

I guess I am speaking too fast. Would you like me to slow down?

reply to post by endisnighe


Yes, I would like you to slow down. Because you have made two fatal flaws, and I would suspect many more. Amongst the minor ones: "Genius" not "Genious."

Fatal Flaws:

1) The Executive Branch still has not instituted this order. You talk as if it is already in place. It is NOT.

2) How exactly does the future order mean to override any law whatsoever? It reaffirms an old law and states that the law currently under discussion doesn't override the old law. Do you know why it states that? BECAUSE THE NEW LAW DOES NOT OVERRIDE THE OLD LAW.

The executive order is indeed meaningless. But it is not, in any way, unconstitutional.

Pretty sure the health care bill is not unconstitutional either, but I can't argue on that one, so I'll leave it be with a frustrated headache.

OK, here is a thought....

The pres promises to EO that bill won't fund abortions.
But then it is found that EO is not possible.
So the pres says "Oops, sorry. I guess we are stuck with it now. I'm just as upset as you are. Honest"

Judge Napalitano just backed my argument.

The E O will have NO power to stop abortions.

Sorry folks the E O was just political cover for the Stupak Coalition.

So, with this component confirmed by an ex judge. I believe this maneuver to create manipulation in the Congress by the Executive Branch could be used in the states cases as an argument.

Hmmm? Maybe I should take the bar. Nahh, I hate lawyers and politicians too much.

reply to post by endisnighe


The EO was never supposed to have power to stop abortions. It was to establish that the new law would not overturn the old law. Which it wouldn't.

Please, people, use your critical thinking skills.

reply to post by Solasis


Wow, do you still not understand that an EO can only be used to verify or further an existing law? Yes, there is an existing law that states that no federal funds can be used for abortion. Now, with the subsidies of existing insurance-that allows abortion-this will bypass that law.

Still not getting it?

Let me say this slower..........subsidizing...........insurance.........that.........already.........
covers........abortion........will.........use.........federal..........funds...........
to............pay............for.........abortions.


Hence the EO is just a political maneuver to cover Democrats from the fallout of federal funds to pay for abortions. It will NOT enforce the older law, unless you think that insurance in the FUTURE will not allow abortions.

Do you SEE this yet? Slow enough?

[edit on 3/22/2010 by endisnighe]

reply to post by endisnighe


Federally Subsidised Insurance Will Not Fund Abortions. That is the end result of the combination of the New Law, the EO, and the Old Law. This would have been true without the EO; the EO will just clarify.

Do I need to put it more slowly? If you reiterate the exact same thing once again without actually thinking about what I've said, or what's true, I'm going to give up on you.

ETA:

I've been very rude in this thread, and I'm sorry for that. Personal issues made my disagreement with you much more aggressive in my mind. I still disagree with you, and still have disdain for the methods by which you arrive at your conclusions, but I've been extremely rude about that, and I"m very sorry for that.

I hope I didn't offend or hurt anyone. If I did, U2U me, and I'll try to find some way to make e-reparations.

[edit on 22-3-2010 by Solasis]