Posted on 07/20/2012 12:11:33 AM PDT by Meet the New Boss
cricket:”No question; bigger than Watergate - in truth - just not in political reality. The Leftist Media grew Watergate; and it served their agenda. The truth of Obama does not serve this Media’s agenda.”
The other critical point here is that Nixon was actually ashamed of what he had done and so he resigned. Obama would never be as principled as Nixon...
That's not true. It's entirely unclear whether the De Facto Officer Doctrine--which by the way is not part of the constitution-- would even apply here. Not to mention, in Ryder v. United States (1995) the Rehnquist Court unanimously ruled that the De Facto Officer Doctrine did not apply to the judges who had been unconstitutionally appointed to the military court in question, because, amongst other things, those appointments had been made in violation of Article II's Appointments Clause. Relying on this SCOTUS precedent one could reasonably conclude that the De Facto Officer Doctrine does not apply when an explicit violation of the Constitution occurs.
To argue that the De Facto Officer Doctrine would apply even when it explicitly violates the Constitution is to essentially argue that the constitution is meaningless and unenforceable. Such a doctrine would also logically suggest that the constitution is not in fact the Supreme law of the land, since it can be disregarded with impunity by the government--which would also ironically be a violation of the Constitution's Supremacy Clause.
Applying the DFOD in the face of a direct constitutional violation would absolutely subvert the law in the name of maintaining order. It would also encourage the violation of the law since those impersonating an officer under the color of law would be able to get away with their acts being upheld even if they explicitly violate the constitution. This doctrine would ultimately subvert the rule of law in the name of saving it. It's a choice between sacrificing law and principle (the constitution) at the expense of order and convenience, or choosing temporary order and convenience at the expense of law and principle . Take your pick.
Let's just keep this as simple as possible. We're not trying to get the Mombasa MF in court because he's the AntiChrist, although that is possible.
We want him in court for forgery and fraud. That the BC is fake is easily proven, because, as I never tire of posting,
In fact, we don't really need him in court at all, unless HE cares to sue AZ for removing him from the ballot, which ought to be done at 9AM tomorrow morning. That, IMNSVHO, is the only way to get the man or his party, in court.
If he chooses not to contest removal from the ballot in one state, so be it. But I believe the damage will have been done to his campaign. Needed: The SoS of AZ to have the courage to enter the history books.
Those seeking "Impeachment" with 120 days to go before an election are just 'Whistlin' Dixie,' especially given the pusillaniminity of the GOP-controlled House ...Their mantra: "Well, he was born in Hawaii...
bookmark
You have misunderstood the holding in Ryder.
The key passage from Ryder: "Unlike the defendants in Ball, McDowell, and Ward, petitioner raised his objection to the judges' titles before those very judges and prior to their action on his case. And his claim is based on the Appointments Clause of Article II of the Constitution--a claim that there has been a "trespass upon the executive power of appointment," McDowell, supra, at 598, rather than a misapplication of a statute providing for the assignment of already appointed judges to serve in other districts.
So we see two grounds upon which the Court relied upon for not applying the de facto officer doctrine:
(1) He raised his objection to the qualification of the judges in the legal proceedings prior to their ruling. Of course it would have been nonsense to ignore his legal challenge to the judges' right to sit and then after the judges rule, claim that it is "too late, their decision is now protected by the de facto officer doctrine." He raised his objection in a timely manner BEFORE the ruling. The de facto officer therefore should NOT apply in those circumstances. The Court got it right.
(2) The case was not merely a question of whether an officer (judges in this case) failed to meet a specified eligibility criteria (such as age or residency). It was whether the manner of appointing the court itself complied with the Constitution.
The facts in Obama have nothing in common with Ryder. There is no analogous claim as in Ryder that the composition of the office of the presidency itself violates the Constitution; indeed, one can't make that claim, because the office of the president is established directly in the Constitution itself.
And because of standing issues, the Courts have refused to entertain claims on the merits that Obama is ineligible, unlike in Ryder. It would be analagous to Ryder if a petitioner were to challenge a pending but not completed executive action by Obama that affected him and after his challenge was raised but before the final resolution on the merits of Obama's eligibility the executive action was taken, following which a decision on the merits as to ineligibility is made by the court; clearly, the de facto office doctrine, as in Ryder, does not support giving effect to that executive action.
Obama's case, on the other hand, is a straightforward application of the de facto officer doctrine. The law requires that to be eligible to the office he be 35 years old, lived in the U.S. for 14 years and be a natural born citizen. If, unknown to the citizenry at large and the Congress, at the time of qualification the person holding the office did not meet one of the qualifications for office, then the facts would be a textbook case of the de facto officer doctrine.
To argue that the De Facto Officer Doctrine would apply even when it explicitly violates the Constitution is to essentially argue that the constitution is meaningless and unenforceable. Such a doctrine would also logically suggest that the constitution is not in fact the Supreme law of the land, since it can be disregarded with impunity by the government--which would also ironically be a violation of the Constitution's Supremacy Clause.
Applying the DFOD in the face of a direct constitutional violation would absolutely subvert the law in the name of maintaining order. It would also encourage the violation of the law since those impersonating an officer under the color of law would be able to get away with their acts being upheld even if they explicitly violate the constitution. This doctrine would ultimately subvert the rule of law in the name of saving it. It's a choice between sacrificing law and principle (the constitution) at the expense of order and convenience, or choosing temporary order and convenience at the expense of law and principle . Take your pick.
The de facto officer doctrine in no way violates the Constitution.
Let's go back to first principles:
In my view, I believe the courts would hold that the power to determine whether the person chosen for president has qualified for the office is exclusively given to the joint session of Congress at the time of the counting of the votes, and that the Constitution does not permit the courts to usurp that function by second-guessing the determination of that joint session of Congress that the person chosen is either eligible or ineligible.
Therefore, the ONLY method for removing a president where there appears later evidence that the president was not in fact eligible is through an impeachment/removal proceeding in the House and Senate.
The legal nature of this proceeding is NOT to overturn the finding by the original joint session of eligibility; the Constitution does not contemplate re-opening the joint session of the counting of the votes AFTER the person has been found qualified and installed. Rather, it would be removing the president for a high crime and misdemeanor in the nature of fraud for deceiving as to his qualifications.
So as a technical matter, by impeaching and removing him the House and Senate do not legally rescind the original finding of the joint session that the president was eligible. Rather, they find him guilty of a high crime and misdemeanor and remove him with effect from that point on. The actions taken by the president prior to his removal would continue to have legal effect.
Even it the politicians don't see this as "high crime" or "mis demeanor" and fail to impeach, it won't matter. It will be impossible for him to perform the duties of office while he is in a prison cell.
You are referring to the qualified immunity from prosecution that exists generally for government officials with respect to acts performed in pursuance of their official duties. This of course applies not just to the president but to other officials.
There is another, much broader principle beyond that immunity doctrine to which you refer that applies only to the president himself and which derives from his unique position under the Constitution.
That principle is that because the president is himself the person charged with enforcing the laws, he must be removed from office before the laws may be enforced against him.
If Obama were to murder Axelrod in the White House by stabbing him in the head with an ice pick (let's say Obama decided that Axelrod, like Trotsky, had become apostate to true Marxism and deserved to die), in my understanding of the courts' interpretation of the Constitution he would have to be impeached and removed from office by the House and Senate before he could be indicted by a US Attorney for committing murder on federal property.
I agree with Vieiro that the standing doctrine has been misapplied by the courts. And I would go further than Vieiro in seeking to apply 18 USC § 242 and 42 USC § 1983 not only against Obama but against the Democratic National Committee on the grounds that their role in certifying Obama as eligible under state electoral laws was an action under color of law. I differ with him in my view that the counting of the votes and determination of eligibility by the Joint Session of Congress may not be second-guessed by the courts and that the Constitution has vested the exclusive power in the House/Senate to remove him.
So the Police Chief or Sheriff can not be prosecuted until removed from office? Sheriffs in particular are elected (in most places).
And what of Governors? They are the Executive of a state, are they immune from prosecution under state statutes for unofficial acts, must they be removed from office prior to prosecution?
This "doctrine" is not found in law, only judicial custom.
A sheriff or police chief will not arrest himself, but there are higher authorities to prosecute a sheriff or police chief. And governors have often been prosecuted by federal authorities.
But the president is in a unique position. Federal law is the supreme law of the land, and the power to enforce the law is vested in the person of the president. There is no higher law enforcement person with the power to arrest and prosecute the president (other than Congress using its constitutional power).
placemark.
Oh, so agree! So much irony, in comparing 'moralities' here. Even in his paranoia; albeit; a somewhat understandable paranoia;Nixon had a conscience.
Truly doubt, Obama, has EVER felt a 'self-recriminating' remorse or personal guilt for anything. 'Conscience' is required. And when one suffers a 'mega'-sized narcissism; there is simply no room for such. It appears for Obama - and for all Liberals, for that matter - that conscience is simply a waste of space. They have an entirely different 'checks/balance' MO; rooted in amoral or anti-moral ground.
Questionable; that there ever was an authentic moral ground for Marx; and all who imagine his wisdom. No question; Liberalism/Leftism is a perverse, 'chicken/egg' unfolding.
The fraud is in the White House, if he is not an NBC, simply by having presented himself as qualified to take the oath of office.
The De Facto Officer Doctrine is a specific manifestation of a more general principle: not every wrong has a remedy. I think those applying such a principle, however, misapply another important principle: the fact that there is no remedy for an illegitimate action does not make the action legitimate. I would suggest that the DFOD should not be taken to say that the actions of the DFO are in fact legitimate, but rather serves to limit the remedies which would otherwise be available on account of its illegitimacy.
I think the failure to recognize the distinction between the legitimacy of an action, and the availability of a remedy, is behind much of the horrid court precedent that plagues this country. Essentially, the Court takes the position that because prior decisions generally have to be acknowledged as legitimate, the Court must act as though the Constitution and laws have enough nooks and crannies to justify them. The net effect is that the Court makes decisions not based upon the Constitution the Founders wrote, but rather based upon an amorphous fantasy version which continuously adapts itself to fit every decision the Court hands down.
The Constitution is a relatively simple document. If the Court were to recognize that it is neither necessary nor proper to maintain the fiction that every Court decision is legitimately decided, the comparative simplicity of the Constitution would again be revealed. Among other things, when the Bill of Rights uses terms like "unreasonable" or "excessive", such terms are not supposed to be defined primarily in terms of judicial decisions which have held that certain things were appropriate and certain things were not. Rather, they should be applied at face value: if a jury which has examined all the facts surrounding a case would regard a particular punishment as excessive, it is. If a jury which has examined the circumstances surrounding a search would find that it was conducted in unreasonable fashion, or the cop who sought the warrant did not have bona fide probable cause, it should regard the search as illegitimate and not construe against the person who was searched any evidence gained thereby.
If a defendant asks a judge to examine the conduct of an officer in a search, and the judge determines that there is no way an impartial jury would regard the search as "reasonable", it may be appropriate for the judge to suppress the evidence on the grounds that jurors may find it hard to let a guilty person go free if the evidence against him, though illegitimately gathered, appears genuine. On the other hand, it is neither fair nor proper for courts to declare that the the question of whether a search was conducted in "reasonable" fashion should be regarded as having been "settled law" even before the search has took place.
Returning to the DFOD, the right and proper thing for the Court to do would be to acknowledge that the gross misdeeds of various people [including alas many justices themselves] had created a situation where the government has performed many illegitimate actions; allowing such actions to stand would cause unjust harm to some people, but rescinding such actions would cause unjust harm to others. The DFOD is meant to protect the interests of those who would be unjustly harmed by rescinding an apparently-legitimate action should be given priority over those who would be harmed by upholding it. It is not meant to protect the unjust enrichment of those who would benefit from the illegitimate action. The proper resolution is to roll things back in a manner such that (1) those who had a good-faith reliance on the legitimacy of the actions end up about as well off as they would have been without such reliance, and (2) those who would be harmed by the actions are not harmed any more than necessary to achieve (1).
One major problem with trying to apply the DFOD to the present situation is that in general it is designed to ensure that companies have no incentive to leave a phony officer in place. Applying it to the present situation, however, would have the opposite effect. The people who are sheltering the phony officer would be the ones hoping to benefit from his actions; letting them get away with it would encourage more such malfeasance.
The concept of respect for precedent lies at the heart of the rule of law and is a bedrock of a conservative legal philosophy. Respect for precedent is a fundamental safeguard to protect us from the rule of the whims of arbitrary and tryannical judges.
What you are advocating is the abandonment of the rule of law and something even more radical than the "organic" or "living" Constitution doctrine of the liberals.
Your position would invite every far left justice like Ginsburg to abandon all settled law which is inconvenient to the progressive project on the grounds that in her personal opinion she considers it subjectively "illegitimate," unbound by the notion of settled precedent.
In order for there to BE a rule of law and not a rule of the passing whims of radical justices, prior court decisions need to be acknowledged as generally legitimate and the concept of precedent needs to be accorded respect, except in the most egregious instances where an activist court itself has trampled upon precedent and settled law like in Roe v Wade.
‘nother placemark.
Precisely because there will be no small-business driven economic recovery where the rules are not rules, except for some. There is no way to calculate nor project any margin of profit in such an environment, and venture capital just won't be forthcoming.
The uncertainty of Obamacare alone (and now the continued uncertainty over repeal of any or all of it and the battles yet to be fought at the State level) all contribute to the lack of economic recovery. Even those small businesses in the few relatively prosperous areas of the country balk at hiring because of this.
It also does not escape me that two of the votes at SCOTUS in favor of the measure were Obama appointees, and one of those was involved in creating Obamacare and should have recused. Void those votes, with the appointments, and no Obamacare.
If the supreme law of the land is not upheld, there is no law, except at the State and local level; the Federal Government has lost its legitimacy.
If the supreme law of the land is not upheld, there is no law, except at the State and local level; the Federal Government has lost its legitimacy.
We can pretend it is by shaking our fist: "Let Obama try to ban guns! Good luck with that, it's OUR right".
But we can also pretend that Obama's the first real Conservative in the WH since Ronald Reagan, I suppose, if we wanted.
Does not mean it's reality.
I agree with all that you have written.
I think you are misunderstanding what I am advocating. In cases where existing law is ambiguous and a judge has to invent rules sufficient to resolve the ambiguity, other judges who are faced with the same ambiguity should resolve it the same way. On the other hand, in any case where ambiguity genuinely exists, a judge should be able to justify his interpretation of the law as being consistent with the Constitution and statutes without having to cite precedent. The Supremacy Clause of the Constitution doesn't give list Supreme Court decisions as having authority; consequently, any authority they have must be subservient to the Constitution and statutes.
That having been said, even court rulings which contradict the Constitution or statutes may be binding to a significant degree, but not because they are legitimate. If a court issues a decision--legitimate or not--future courts should not act in such a fashion detrimental to those who act upon a good-faith in the former decision's legitimacy. The previous decisions should be regarded as "precedent" only to the extent necessary to protect those who rely upon it from unjust harm. Future courts may not be able to undo such decisions instantly, but should endeavor to "unwind" their effects gradually.
Essentially, what should happen in many cases would be for the Court to be willing to say that e.g. government agents have interpreted its decision on XX date as justifying YY behavior during searches; such behavior is in fact generally not legitimate, but as a consequence of the earlier decision, officers reasonably believed that it was. Provided that departments make a good-faith effort to inform officers that such behavior is not legitimate, no remedy shall be available against officers or departments who acted on a reasonable good-faith belief that it was, or who within fifteen days of this decision act on such such belief before they discover that it was erroneous. This protection shall not apply to willful ignorance, even within the fifteen-day window.
Compare the effects of issuing that decision, with those of issuing a decision which simply declares that an officer's action was legitimate. The immediate effects would be the same, but recognizing the officer's actions as having been illegitimate but without remedy would avoid the tendency of court decisions to allow more and more egregious behavior on the part of the government and its personnel.
Further, allowing for behavior to be found illegitimate but without remedy would also allow courts to be more honest when they issue their decisions. Frequently courts will find themselves in situation where the appropriate decision for the case at hand would appear to be at odds with the law; under current practice, courts feel compelled to pretend that the law says something it does not in order to justify their decision. It would be better for courts to instead acknowledge that the law says something which would appear to be at odds with their decision, but then explain why they feel the law should not be applied in the case at hand (e.g. because applying the law in the extant case would magnify the harm done by a failure to apply it in a previous case).
On a parting note, I think a lot of Fourth Amendment jurisprudence should be thrown out the window. Among other things, in many cases the difference between legitimate and illegitimate actions may be the intention of the officer performing them. If an officer forces open a container because he legitimately believes it contains evidence mentioned in a warrant, and if the officer takes reasonable efforts to avoid or minimize damage to the container, the fact that the container is damaged despite such efforts would not make the search illegitimate. If, however, the officer deliberately destroys a container as a means of punishing or terrorizing the owner, such action would constitute a deliberate violation of the owner's Fifth Amendment right not to be deprived of property except by due process of law. Since determining the legitimacy of a particular search would require making judgments of various witness' credibility, I can't see any fair way of making such determinations except in an adversarial fact-finding hearing; the most practical such hearing would generally be trial court.
My view is that especially in cases where ambiguity exists, a judge needs to adhere all the more closely to principles established in precedents. The law needs to be as predictable as possible, and judges should always adhere as closely as possible to the text, legislative history and the body of case law developed in accordance therewith in order to carry into effect the original intent of the statute.
Take just the First Amendment as an example: “Congress shall make no law abridging the freedom of speech.” It would take a text of hundreds of pages to explain what this law means in the myriad of circumstances in which this issue arises. If every judge presented with a new case arising under this clause were free to ignore the principles established in prior case law there would be no ability for citizens to know what the law is, as it would vary radically depending on the happenstance of the individual judge deciding the case who would be free to ignore the prior developed body of law.
The Supremacy Clause of the Constitution doesn't give list Supreme Court decisions as having authority; consequently, any authority they have must be subservient to the Constitution and statutes.
The Constitution certainly DOES give Supreme Court decisions authority, by the very fact of vesting the judicial authority of the United States in that body. The Supremacy Clause is not limited to statutes of the United States, rather it extends to all “laws” of the United States made in pursuance of the Constitution. The power of the courts to interpret statutes under case law and for that case law to be considered “law” is the very heart of the English common law system that we inherited and continued. As if there were any doubt, the Constitution refers to the power of federal courts to decide cases “in law and equity” arising under the Constitution – the fact that the Framers contemplated judges applying principles of equity in deciding cases removes any doubt from the question of whether principles established in judicial cases were to be considered law.
Because I disagree with your premise that precedent should not be considered binding by virtue of being such, I also disagree with the rest of your reasoning that follows therefrom. The proper way for the Supreme Court to reverse rulings is to explicitly hold that such decisions, like Roe v Wade and Plyler v Doe, themselves are contrary to well-reasoned precedent that was soundly founded on the original intent of the Constitution, and NOT based on a claim of changing social attitudes or the peculiar jurisprudential philosophy of the judge or justice ruling in the case free to ignore the prior established body of law.
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