woodpusher:
"Legally, the 1867 Statute, and all subsequent statutes to the same effect, never became laws.
An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.
The other branches treat a statute as law until the Judiciary proclaims otherwise.
When the Judiciary proclaims a statute to have been enacted as repugnant to the Constitution, it holds that the Legislature had no authority to issue the statute in the first place, and its act of issuance was entirely void. " And here we see my key point, underlined.
The 1867 Tenure law was not ruled on directly before being repealed in 1887.
It was mentioned in dicta in 1926 as "invalid".
But in 1868, in woodpusher's own words, "The other branches treat a statute as law..."
President Johnson broke the Tenure of Office Act (then considered law), for which he was impeached.
President Lincoln broke no law regarding habeas corpus.
That's what all these many lengthy posts are about. ![]()
woodpusher: "Legally, the 1867 Statute, and all subsequent statutes to the same effect, never became laws. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.
The other branches treat a statute as law until the Judiciary proclaims otherwise.
When the Judiciary proclaims a statute to have been enacted as repugnant to the Constitution, it holds that the Legislature had no authority to issue the statute in the first place, and its act of issuance was entirely void. "
And here we see my key point, underlined.
The 1867 Tenure law was not ruled on directly before being repealed in 1887.
It was mentioned in dicta in 1926 as "invalid".
But in 1868, in woodpusher's own words, "The other branches treat a statute as law..."
Let me clarify for the willfully, legally, incompetent. The other branches treat a statute as if it were a valid law until the Judiciary proclaims otherwise. Only the Judicial Branch is vested with the power to establish that a Statute was and is unconstitutional, repugnant to the Constitution, and therefore null and void, and never capable of having become a valid law.
As for your repeated incompetent nonsense that the 1867 Act was mentioned in dicta, it was holding and the very basis of the Myers decision. I have cited a law school faculty to that effect, and you have cited Wikipedia and your own blather.
It is not a dictum when it is necessary and central to the case.
http://law2.umkc.edu/faculty/projects/ftrials/impeach/imp_tenure.html
In 1926, in the case of Myers vs. United States, the Supreme Court, in an opinion by Chief Justice Taft, held unconstitutional a law requiring the consent of the Senate for removal of certain non-Cabinet officials
Aside from the observable fact that it is not a dictum, my source here is a law school faculty, yours is Wikipedia and your own blather.
But in 1868, in woodpusher's own words, "The other branches treat a statute as law..."
If you treat a dog's tail as a leg, does it have five legs?
The Executive or Legislative Branches treating a statute as presumptively valid, does not transform an unconstitutional statute into a valid law.
The Myers Court stated, "the Tenure of Office Act of 1867, in so far as it attempted to prevent the President from removing executive officers who had been appointed by him by and with the advice and consent of the Senate, was invalid...."
And the Myers Court continued, "... and that subsequent legislation of the same effect was equally so. For the reasons given, we must therefore hold that the provision of the law of 1876, by which the unrestricted power of removal of the first class postmasters is denied to the President, is in violation of the Constitution, and invalid."
Repealing an unconstitutional and void Statute, that, in legal contemplation never became a law, does not convert the void and unconstitutional Statute into a law.
Norton v. Shelby County, 118 U.S. 425, 442 (1886), Justice Field, Opinion of the Court
Their position is that a legislative act, though unconstitutional, may in terms create an office, and nothing further than its apparent existence is necessary to give validity to the acts of its assumed incumbent. That position, although not stated in this broad form, amounts to nothing else. It is difficult to meet it by any argument beyond this statement: an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.
As a law, the Statute of 1867 has apparent existence and nothing more. In legal contemplation, it was unconstitutional and could never have existed as a valid law.