Posted on 02/18/2025 11:33:28 AM PST by Macho MAGA Man
Will read it with interest. It’s astonishing to discover that all the parties in the case were Founders of our nation whom we revere. They took ideas seriously which is why our Constitutional Republic is still limping along despite the decades of assaults upon it.
Then there’s the issue of Robert’s annual vacations in Malta.
“I’m confused.”
Me, too. Very complicated.
“We’ll see how much authority he is willing to steal.”
I’m interested to see how much USAID funds he’s managed to steal.
The Father of the Constitution was the first Cabinet officer to be found guilty of violating the Constitution!
-PJ
(a)There is established the Office of Special Counsel, which shall be headed by the Special Counsel. The Office shall have an official seal which shall be judicially noticed. The Office shall have its principal office in the District of Columbia and shall have field offices in other appropriate locations.
(b)The Special Counsel shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. The Special Counsel may continue to serve beyond the expiration of the term until a successor is appointed and has qualified, except that the Special Counsel may not continue to serve for more than one year after the date on which the term of the Special Counsel would otherwise expire under this subsection. The Special Counsel shall be an attorney who, by demonstrated ability, background, training, or experience, is especially qualified to carry out the functions of the position. A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of the Special Counsel’s predecessor serves for the remainder of the term. The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. The Special Counsel may not hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President.
I wouldn’t count on Roberts doing much other than upholding the administrative stay. He’d probably agree for the stay to be in place for the next four years.
-PJ
Imagine future outgoing Presidents appointing one of their own party members to lead the Office of Special Counsel for next five years, putting an opposition party member in charge of whistleblowers and the current President can't do anything about it!
-PJ
Re: 22 - “For once”?
CJ Roberts has been “right” on many decisions more than “wrong”.
Re: 49 - I believe it’s materially different than the EO hypothetical you explain. The Whistleblower Protection Act of 1989, 5 U.S.C. 2302(b)(8)-(9), Pub.L. 101-12 was passed by Congress and signed into law by Bush 41.
IANAL, but I could see him winning on that, or not. The Dellinger case seems to be on the fast track, so we will see.
I'm not talking about the whistleblowers themselves, I'm talking about the head of the Office of Special Counsel (Hampton Dellinger), who oversees the whistleblower cases.
The law that creates THAT office is:
5 U.S. Code Subchapter II - OFFICE OF SPECIAL COUNSEL - § 1211 - Establishment
(a) There is established the Office of Special Counsel, which shall be headed by the Special Counsel. The Office shall have an official seal which shall be judicially noticed. The Office shall have its principal office in the District of Columbia and shall have field offices in other appropriate locations.
(b) The Special Counsel shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. The Special Counsel may continue to serve beyond the expiration of the term until a successor is appointed and has qualified, except that the Special Counsel may not continue to serve for more than one year after the date on which the term of the Special Counsel would otherwise expire under this subsection. The Special Counsel shall be an attorney who, by demonstrated ability, background, training, or experience, is especially qualified to carry out the functions of the position. A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of the Special Counsel’s predecessor serves for the remainder of the term. The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. The Special Counsel may not hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President.
Ironically, this is the same termination language that District Court Rudy Contreras used to order President Trump to reinstate Cathy Harris, the Democrat chairwoman of the Merit Systems Protection Board (MSPB).
5 USC 1202: Term of office; filling vacancies; removal.
We have two different people, two different District Court Judges, the exact same language in two different sections of 5 USC (§1202 and §1211), one judge ruled in favor of the plaintiff (Rudy Contreras) and the other has not (Amy Berman Jackson issued a TRO until a hearing next week), and Chief Justice Roberts has called the plaintiff Dellinger to appear before him.
These two cases appear materially the same.
-PJ
Understand and I should have been more clear. The WBPA of 1989 established the OSC as an independent agency. So two branches of government (rightly or wrongly) cooperated to make that an independent agency in the executive. That was vs. a President using an EO to appoint one member each on a Congressional committee.
He has cover sometimes.
He’s still an a-hole.
Not that I blame him.
If someone tried to take my kids from me, I’d want to take a bazooka to their heads.
His adoptive kids are his insurance for the Democrats. Always.
He and his wife broke the rules when they adopted their kids from “Mexico”. Never have I seen blue-eyed AND blonde-haired children native to Mexico. I really think his two kids came from Ireland.
How old are they now? Aren’t they the age of majority yet?
I think the difference is between then and now, they weren’t dealing with communist assholes that were trying to destroy the country.
We are.
And at this point, I think Trump needs to do whatever is necessary, by any means necessary, to get his agenda done.
Anyone appointed by Biden or Obama needs to be removed ASAP. By every means necessary.
Yes, I am familiar with the Knights of Malta and their history. The pope went there for a full royal visit two years ago and also removed the leadership of the organization.
Malta also has a banking system that is favored by some who want ‘discretion’ when banking. John arrives there with his brief case.
Our Chief Justice also allegedly vacations annually with a bunch of his guy friends. Sort of like Bill Gates who does a similar separate annual vacation.
John Marshall ruled in Marbury v. Madison that:
The Court also ruled that when the President exercises his discretionary (political) powers, "no power.... exists... to control that discretion," that "the decision of the executive is conclusive," and that "questions, in their nature political... can never be made in this court."
The Court extends this ban on interfering with the executive's discretionary power to his officers who are acting on his instructions.
74
By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.75
In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.76
But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.77
The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.99
It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.
128
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.129
It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not original.131
The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to inquire whether a jurisdiction, so conferred, can be exercised.135
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.136
Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.137
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.140
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.141
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.142
So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.143
If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
Is the law passed by Congress (5 USC §1202 and §1211) an unconstitutional encroachment on the powers of the President just like the law giving the Supreme Court original jurisdiction for mandamus was an unconstitutional expansion of the Supreme Court's powers?
The executive Power shall be vested in a President of the United States of America."
Are there limits on this plenary power? The President is "vested" with all of the Executive power.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
When Article II Section 2 says Congress can by law establish inferior officers, does that just create the office or does Congress have the power to put limits on that office beyond the vested powers of the Executive?
I say that Congress does not have the power to limit how the President manages the inferior offices under his Executive leadership. Putting limits on the President's ability to fire inferior officers is an unconstitutional encroachment on the President's power, just like when Congress expanded the original jurisdiction of the Supreme Court. Both were violations of separation of powers. A Constitutional amendment would be needed to make such changes to the powers of those branches.
Furthermore, these District Court Judges even hearing these TRO and mandamus (reinstating) cases would violate Chief Justice Marshall's ruling that the President's execution of his discretionary powers is beyond the reach of the courts.
My reference to the President naming members of Congressional ethics committees was intended to demonstrate how a reverse encroachment on the Legislature's power would look.
-PJ
The law is probably an encroachment on Executive power. The USSC will further set limits initially established in Humphrey’s Executor (poor Humphrey), if the agree to hear which they will in time, hopefully sooner rather than later.
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