Is it Time to Send the Electoral College Packing?

[SeattlePioneer]

Hello BSA24,

 

 

Your comments above are meaningless.

 

Try answering the concrete example of judicial abuse of power I already gave:

 

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[Merlyn_LeRoy]

It's pretty strange to cite Marbury v. Madison to try and show how the supreme court has exceeded its bounds, since that decision struck down that part of the judiciary act of 1789 that expanded the supreme court's jurisdiction beyond the limits set in article III of the constitution -- in other words, the court refused to accept the larger jurisdiction granted by congress, because congress didn't have the power to extend the court's jurisdiction. And that bit about going 54 years between declaring an act unconstitutional -- that's only by the supreme court itself, and the supreme court reviewed laws during those 54 years, they just found them constitutional. If they didn't have the power to potentially declare those laws unconstitutional, there would be no point in reviewing them at all.

 

And this part:

I would say that not surprisingly, the Congress adopted an amendment which gave THE CONGRESS new powers.

 

Not just congress, but at least 3/4 of the states too.

 

I don't see anything about the Supreme Court getting the power to enforce the 14th amendment or other amendments which gave THE CONGRESS the power to enforce those amendments.

 

I don't see the Supreme Court enforcing the 14th amendment. The executive branch enforces the laws, and if it doesn't (e.g. Jackson), they don't get enforced.

[Merlyn_LeRoy]

And if the Supreme Court was doing what it should, you would be correct.

 

But in practice the Supreme Court treats the 14th amendment as something that it is entitled to enforce whenever it chooses.

 

How does it enforce it? Like I said, that's the executive branch's job, and if the exec doesn't enforce it, it doesn't get enforced.

[SeattlePioneer]

The Supreme Court enforces the 14th amendment through it's opinions and court orders of course.

[Merlyn_LeRoy]

Like I said, the exec enforces decisions, not the supreme court, and if the exec ignores it, the supreme court can't do anything about it. Andrew Jackson ignored the court rather famously.

 

And since the supreme court strikes down laws, how is that "tyranny"? The court is only preventing laws that are too restrictive, like laws that improperly infringe on the rights of citizens. The end result is halting government action; that's a really odd definition of tyranny you got there.

 

Got any actual examples?

[Brewmeister]

The point that I think is being made is that the Supreme Court has successfully elevated itself beyond a co-equal branch of government. Whereas the executive and legislative branches regularly squabble, the attitude when the judicial branch acts is, "well, that's that." I would imagine that a Supreme Court being ignored by another branch of government would generate a pretty loud hue and cry.

[SeattlePioneer]

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When the Federal Courts use the authority granted the Congress for themselves, that's an EXCELLENT example of tyranny.

[Merlyn_LeRoy]

When the Federal Courts use the authority granted the Congress for themselves, that's an EXCELLENT example of tyranny.

 

That's an EXCELLENT example of not-a-specific example. What authority are the federal courts using that only congress has?

 

Here's an example of a SPECIFIC example: "The federal courts declared war on Ceylon in 2007, yet only congress has the power to declare war."

[NJCubScouter]

I don't really understand this debate about courts "enforcing" the 14th Amendment, on either side. I do like to think I know something about the law and how it works, so I'll just say something and see if it helps.

 

The basic function of courts is to decide cases that are properly brought before them. (For the sake of simplicity lets keep this to the trial-level courts such as the U.S. District Courts; I don't think it's necessary to get into appellate and Supreme Court jurisdiction right now.) And the basic way that the courts decide cases is by applying the relevant law to the facts of the case. If the case is one where a party is challenging a state statute (or the enforcement of a state statute in a particular case) on the grounds that it violates the U.S. Constitution, the relevant law will include the provision(s) of the constitution which the party claims are inconsistent with the relevant state law. Quite often, these provisions will include the 14th Amendment. So the 14th Amendment is just part of "the law" that is being applied to "the facts" to produce a result in the case. (And keep in mind Article VI, Clause 2 of the Constitution: "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.")

 

If you want to say that the court is "enforcing" the 14th Amendment, I suppose you can, but there is nothing wrong with the court doing so. "Enforcing" may be a correct common-language description of what the court is doing, but it is not really a correct legal description. The court is merely applying the law to the facts, which is what it is supposed to do.

[SeattlePioneer]

Hello NJ,

 

 

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Section 5 rather unabiguously says that the CONGRESS has authority to enforce the 14th amendment by going through the rather elaborate means of passing a law.

 

It's a grant of power to the CONGRESS which the CONGRESS uses if and when it chooses to do so.

 

For the courts to take and use that power themselves is outrageous.

 

 

[Merlyn_LeRoy]

For the courts to take and use that power themselves is outrageous.

 

Well, they HAVEN'T. I keep asking you for a specific example, and you can't come up with one.

[NJCubScouter]

Seattle Pioneer, I think you are getting hung up on semantics here, but as far as I can tell it is a semantic issue that has been created by you, not by the courts. As I explained above, what you are calling "enforcement" is just the courts applying the law to the facts in order to decide cases. Not only is that well within their constitutional authority, it is their basic function.

 

And by the way, section 5 of the 14th Amendment merely means that the Congress is given the authority to pass legislation that will carry out the rights granted by the amendment. As just one example, it is doubtful that Congress would have had the authority to pass the Voting Rights Act were it not for the authority granted by the 14th Amendment. But it does not deprive the other branches of their obligation and authority with respect to the provisions of that amendment. In the case of judicial branch, that means applying the 14th Amendment as part of the law necessary to decide cases brought before the courts.

[SeattlePioneer]

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Exactly. It's a grant of power to the CONGRESS.

 

 

Nothing would be more expected than for the Congress to grant itself additional power as part of it's own legislation.

 

 

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It wasn't a grant of additional power to the courts.

 

The Congress has the power to declare war, to coin money and appropriate money to spend too. That doesn't mean the courts can use these powers should they choose to do so.

 

The basic problem is that the courts do what they wish and as a practical matter it's been difficult for the Congress and President to act against them.

 

Of course, there have been examples when just that has happened. The impeachment of Salmon Chase was an example of that. Lincoln' ignored numerous Supreme Court decisions. Jackson famously refused to recognize a Supreme Court decision. Franklin Roosevelt's court packing plan proposed to deal with the issue of an activist court.

 

Unfortunately, elite groups have defended aristocratic rule by the courts and prevented the political branches from taking effective action to curb that activism which both liberals and conservatives have engaged in when they had majorities on the court.

 

Bush v Gore and the Citizens United decision has created a backlash by liberals against judicial power, but not a readiness to take effective action to curb judicial arrogance. But perhaps that will come.

 

Too bad the court didn't Obamacre was illegal and that affirmative action illegal recism. Decisions like that might cause liberals and conservatives to unite to curb judicial power.

 

Judicial power can be moderated without destroying judicial independence. That would encourage judicial turnover and reduce the high stakes game of Supreme Court nominations, which is clearly unhealthy.

 

The Supreme Court has reformed many institutions in this country. No reason why it shouldn't be their turn.

 

 

 

[Merlyn_LeRoy]

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Exactly. It's a grant of power to the CONGRESS.

 

I have never seen the supreme court pass legislation to enforce the 14th amendment.

[SeattlePioneer]

Yes, Merlyn--

 

 

The Supreme Court issues "opinions" and court orders telling pretty much any institution or person what to do.

 

But whatever you call it, they are taking enforcement action when they do so.

 

A quibble about words is not a substantial objection.