Posted on 01/09/2015 1:14:34 PM PST by dontreadthis
Edited on 01/09/2015 2:38:17 PM PST by Admin Moderator. [history]
The way I look at the passage of time issue is the same way congress and the courts have looked at the passage of time issue on Constitutional amendments. There was no time limit on how long it took each of the states to get around to addressing the issue.
To look at it any other-way would be unfair and unnatural with respect to the way our State legislators operate which is NOT on a clock.
Something legislators require an election to operate and many of them still only operate for short times every 2 years. It is unreasonable to expect them to act in less a time than a decade on such an important matter.
Niether of those criteria was used to raise reveue in the early days of the Republic, not even all that "early".
We had import duties, and some consumption taxes, such as on whiskey, but on other things as well. I can't recall if we had export duties as well. All taxes cause disruptions in one sector or another. Income taxes actually do that less, if moderate and uniform, but direct taxes, which income taxes are, were forbidden in the Constitution.
For instance, the president has the power to nominate judges and secretaries. May his nominations be challenged in court? No. No judge will order a president to nominate or not nominate a particular person.
The states are charged in Article II with appointing electors to the presidency. What if a state did not? Can a federal court demand a recount and order a state not to submit electoral votes until the count is finished?
John Boehner has challenged an exec order or two of Obama’s. Will the courts hear the case, or will the dispute be regarded as a political dispute?
So, for Article V will or even should a federal court hear a case that demands congress call a convention because waaaay more than thirty-four applications have been made? Would it be regarded as a political dispute? I suspect so.
These are all excellent points that you raise because they are so informative to the realities and plausible outcomes. As remarked by others in the forum, these discussions help many readers gain a sense of the Article V process and challenges.
When I said the first obvious recourse was for states to take it to the US Supreme Court given Congress’ failure to call a convention, I said this would be when the term ‘justiciable’ would be relevant. I didn’t say the case would be justiciable, that is for SCOTUS to decide. And I agree that Article V is not subject to justiciability but when organizers appear before SCOTUS, then ‘justiciable’ becomes relevant in the eyes of SCOTUS.
> “So, for Article V will or even should a federal court hear a case that demands congress call a convention because waaaay more than thirty-four applications have been made?”
Should the states file a suit with SCOTUS over Congress’ failure to call a convention, then justiciability is for SCOTUS to decide. If they take the case, then they will have determined the case is justiciable.
> “Would it be regarded as a political dispute? I suspect so.”
Again in the context that the states take recourse to SCOTUS, then SCOTUS may very well rule the case is not justiciable because it is a political dispute.
In reading a little of the Powell v. McCormack case, I sensed SCOTUS ruled that the case was justiciable because it called for ‘interpreting’ the Constitution which it felt it was its duty to do.
That said, I am not sure SCOTUS can enforce its interpretation. If Congress continued to defy SCOTUS’ interpretation, I believe SCOTUS has no power to force Congress to follow its interpretive ruling. It certainly brings pressure it would seem to bear on the case.
I am not sure either that in Powell v. McCormack that SCOTUS’ ruling that Congress must seat Powell according to the Constitution provided the animus for Congress to seat him. The background of the case mentions that after he was refused to be seated he was reelected again. For all that is known Congress may have ignored SCOTUS’ ruling and then acquiesced to seat him because his constituents reelected him.
But certainly it brought pressure to bear on the case.
The other recourses are far-fetched except the recourse to bring political pressure on Congress via election campaigning.
A determination of ‘non-justiciable’ by SCOTUS may be preferable because even if SCOTUS ruled the case justiciable, they may rule against the states. They may say the language of the Constitution says unequivocally that Congress MUST call a convention (which it does), but it does not say WHEN. They may decide that timing is the domain of Congress. Congress may respond before SCOTUS that it intends to call a convention but that it is deliberating whether the 34+ applications are consistent to have met the mark of 2/3’s, etc. It may also argue that it is also taking up similar amendments on its own body and is giving that priority.
So a SCOTUS ruling could be devastating to the states and if on the other hand it favored states, then Congress might ignore the ruling.
Frightening thoughts all around and possibly too extreme to contemplate but such thoughts and discussions serve to illustrate the possibilities.
Turning to electioneering, the same activist force on the ground that accomplishes the 34+ state applications can also be used to bring pressure to bear on members of Congress to do their duty to follow the Constitution by calling a convention, thus avoiding the SCOTUS recourse all together.
But it may not be so easy.
Although it would seem that 34+ applications would translate to roughly 68 US Senators, the reality is that some US Senators are elected based on geography and not ideology. It is a fact that most democrat US Senators have heavy democrat urban areas that elect them regardless of more numerous rural red areas.
At least 60 US Senators are needed in a cloture vote to join in calling for a state convention. Presently there are 55 GOP US Senators. Assume that McConnell has convinced 20 of them to hold off on ‘the admirable effort of the states’ because Congress itself is taking up the same amendments or because there is some ‘ambiguity’ in the 34+ state applications; no matter what reason is used the call is delayed.
Assume all the democrat US Senators (45) vote against cloture. Then there are McConnell’s 20 and 5 of the democrats to target; 25 US Senators total. Seems daunting but then how many Article V activists are estimated to be needed to bring political pressure to vote for cloture? It depends on the makeup of the states behind the recalcitrant US Senators, and it also depends on the election year.
It’s possible to get this done for 2016 else it may have to wait for 2020. And if it comes down to 2020, the ideology of the GOP will need to swing to its base.
In 2016, 10 democrat US Senate seats and 24 republican US Senate seats are slated to be defended. Given the mood of the nation at present and given fortuitous events for example popular Nevada Governor Sandoval deciding to run against Harry Reid, political pressure resides mainly in the makeup of the presidential election campaign to drive down ticket votes.
If Ted Cruz gets the nod, then it is completely possible that Senators up for reelection will vote to call a convention and this assumes the 34+ applications are accumulated by early 2016 in time for the real heat of the 2016 presidential race, and importantly the vote for cloture is brought before election day in November 2016.
I say this with awareness of what Ted Cruz is up against as I also remember Reagan was up against very similar challenges. I also believe Ted Cruz will openly support a states convention.
I believe Ted Cruz will carry about 60% of the independents which now comprise an astounding 42% of the electorate (up from 24% in 2012; big story there but silent in the liberal media). He will carry all of the stubborn blue collar conservative vote (6 million +) that sank Romney in 2012. He will carry about half of the legal Latino vote and about all of the GOP base as well as Reagan democrats.
Ted Cruz’ campaign can turn McConnell’s 20 Senators around to vote for cloture. That leaves 5 democrat US Senators to turn. Possibly the democrat Senators to turn will be found in Nevada, Colorado, Pennsylvania, Wisconsin and Illinois.
How many lead activists are estimated to be necessary to turn those 5 democrat Senators to vote for cloture in 2016? By lead activist I mean a person who is budgeted to manage, motivate, guide and inspire the average 3,000 activists needed in each congressional district (CD).
Without getting into the critical details of the demographics and the geographic boundaries of targeted democrat strongholds, I offer a crude estimate for now of the number of lead activists necessary.
State, # of CDs held by Democrats
NV, 1
CO, 3
PA, 5
WI, 3
IL, 10
Total of 22 CDs.
Assuming 22 CDs X 100 Leads per CD = 2,200 leads.
Budgeting $150,000 per lead activist, a total funding of $330 million would require about $30 in contributions from about 10 million Tea Party activists (numbers confirmed via social media; example 7.7 mil likes on Facebook).
Some of the funding and organizational infrastructure is already in place to accomplish this. What is needed is a plan to submit to key decision makers inside that infrastructure.
But as I pointed out in my "transcript of the secret closed door meeting", which by the way was intended to be slightly humorous, Congress will attempt to control the convention using Orrin Hatch's 1991 bill based on the 1973 ABA Report. That report was written by high-powered Washington lawyers working for the ruling class of 40 years ago. The struggle in the Supreme Court will occur, but not because of Congress' refusal to call a convention. It will occur because of Congress' attempt to control a convention. Sen. Hatch's "Constitutional Convention Control and Stonewalling Act" (my name) will be the bone of contention.
The good news is that Justices Thomas, Scalia and Alito will be using their special card keys that get them into the Library of Congress after hours where they will be burning the midnight oil to divine Original Intent. (In this case, there is nothing more important than Original Intent!) I would hope that at least two other justices would join them in striking down Hatch's law. Once that's done, the states are in the driver's seat, and it's full speed ahead.
A very crude analysis but gives an idea of the scale of the business we discuss here :)
Are you buying anything that was ‘processed’? Then, that was taxable (it IS a ‘final’ product, no?).
If you harvest/mill/etc. yourself....no. See the final product yourself? Taxable
Of course, there’s barter/trade...Like income, nothing ‘gained’; only a exchange of equal value.
Thus, electronics sold by the piece WOULD be taxed, but as part of XYZ (TV), only the TV would be taxed. How are the intermediate taxes halted/assured? The same way biz is done today...auditing of the books by the State of biz.
There is the greatest ‘PRO’ FOR the consumption tax: don’t wish to pay for the tax, you are FREE not to make the purchase. No other tax system returns the Freedom to We the People like that...NONE.
Anything coming from Warren Buffet has an ulterior motive behind it.
As I posted just prior, there is no other system of taxation that returns Freedom to We the People like a consumption tax.
Instead, you’ve already posited a continuation of slavery (in your case, 10% slave, but slave none the less), does NOT encompass the whole whom use the services that ONLY those with ‘income’ pay (the retired, the ‘poor’, the ‘under-the-table’, etc.), less Freedom and another slippy slope...the ‘poverty’ line (You want a never-ending loophole: define ‘poverty’).
As for ‘final point of sale’, it is easy to define, and currently exists. If a product is bought by another seller (IE: biz IDs, same as today). Since the tax flow upstream (final, biz, State, Fed.), there is NO chance to go back to the final point of sale. Little to no change to how the process works today...
And, no, ANY new taxation scheme MUST be tethered to the 16th and it’s removal; anything else WOULD be a disaster for us all.
Appreciate the break-out. But the Fair Tax, though good, is not 100%...for me. Here’s where my (L) tendencies come out in force:
1) NO ONE should pay 0% taxes.
2) IF one is getting a pre-bate, one is paying too many taxes
#1: Many would call me everything but the Son of God, heartless and cruel...Meh. Unless voting is tied to taxes paid, EVERYONE should have skin in the game. (hence #2). I see nothing in the Constitution that says, nor implies, “...We remind ourselves of the goal that no American should pay tax (NRST) for the essentials of living meaning at or below the poverty line...”; nothing in Life is FREE.
#2: My opposition to the HIGH 23%: Gov’t is TOO big already, why keep it venue neutral on that fact alone? Too, gov’t begets the added bonus of $$ ‘loaned’ w/out interest and thus the same lost to those getting the ‘pre-bate’.
Gov’t NEEDS $$, let them raise it on the whole of We the People. But the bulk of these extra-constitutional dealing should be left to the State; then, again, those (L) inklings and the Takings, 13th, etc.
I rely pretty heavily on Milton Friedman’s caution about going to a “consumption” tax becasue of the potential pitfalls, mainly the “value-added” tax feature (”VAT”) which would be a disastrous complexity and opportunity for almost unlimited government intrusion into business operations.
But as I said, the first thing that needs to be decisively dealt with is the 16th Amendment: if it’s valid, forget it, it won’t be repealed. But if it could in fact be proven in court that the amendment was never ratified, then the states could begin working on nullifying an illegal and invalid “amendment.”
If the 16A proved to be legally bogus, then we’re back to Art I Sec 9 Clause 4 of the U.S. Constitution which only allows taxation based on proportion of (state?) census, which sounds like a flat rate, but not an income tax. A tax based on proportional population based on the census could mean no income OR consumption tax - simply a tax based on proportion of population based on the census.
I don’t disagree with your argument that an income tax is a slave tax and I appreciate your ardency about that. But somehow, the 16th Amendment must be proven bogus. I don’t know what the chances are of that happening. Nevertheless, if the 16A validity issue was not accepted by a federal court, state courts could hear the case. If a state found the 16A invalid because it in fact was never legally ratified, then that state could or should nullify the 16A.
I suppose that state could, in the alternative, figure out the tax owed based on Art I Sec 9 Clause 4 of the U.S. Constitution. But you’d still have the problem of how to overcome the feds withholding on your paycheck.
Completely concur re: VAT.
RE: 16th validity. I believe the time is long past for any Constitutional remedy (IMHO, the research of it being invalid is quite compelling)...we have long ago failed being a Republic (no judge, no court, no ANYBODY would touch such a case; if you could it past ‘standing’ or ‘frivolity’ status).
Even if it was (re)found to be valid, IMHO, it still does not negate any other clause nor Amendment: The 5th is still valid, the 13th is still valid (that right there, if read correctly, would kill the 16th dead) and there are still only a limited number of Constitutionally authorized ‘tasks’ to be paid for. Hell, equality under the Law?? No, there should be no SS, no Dept of XYZ, no foreign aide, no...so there is no need for taxes that we are paying these days (and worse for our progeny).
And, yes, any/all taxes after would fall to the State (in whatever manner THEY wish to collect). 5(0/7) little experiments as was the plan.
As to your last point, the State(s) could just as easily protect their Citizens from the long-arm of the Fed....adding to that same bill that any/all attempts to collect by the Fed must go through the State or else some lovely jail-time for anyone that tries (IE: make all biz payments by proxy through the State, or even escrow). Let the big boys duke it out.
Yeah, I know, fantasy land unfortunately. But, ah, to dream...
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