It sure is noisy in here!

March 20, 2002 | Texasforever

[Lucius Cornelius Sulla]

Did you read this one in your studies?

No, my course was entirely based on SCOTUS case law, and as I said, as far as I know there has been no case law on this subject.

[michigander]

What makes you think I didn't understand that?

This is what did it for me:

reply 64:
Bush said his opinion is that certain parts are unconstitutional, BUT the president is NOT the arbiter of what is or is not constitutional the Supreme Court is. I do NOT want a president of ANY party making those decisions. That ain't his job.

reply81:
On policy grounds as they always do. The president takes an oath to preserve and to defend the constitution NOT to interpret law. Declaring a bill unconstitutional is a legal decision that the president does not posses. He can speak his mind and he can have his Solicitor General mount a challenge to a law that he likes except for the parts he feels are unconstitutional. I sure as hell do not want one man having constitutional veto. That is not protecting and defending the constitution.. Policy and those disputes are fine.

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Article I

Section 7.

All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

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If as you state, "his opinion is that certain parts are unconstitutional", it most certainly is within his job description to veto this bill, note his objections and return the bill to the House.

That is NOT interpreting law. It is NOT making a declaration of any kind.

IMHO, it is the manner the President is supposed to be speaking his mind in these cases and that "in my opinion these parts of this bill are constitutionally questionable. 1,2,3,..." would be a legitimate objection.
The Congress is within its power to override his veto or they can change the bill and start the process over again.
There is no chance of one branch of governement or "one man having constitutional veto" over a bill.

[itsahoot]

How about this recent EO? Second paragraph."not Subject to
Judicial Review

Bush Orders Military Tribunals for Noncitizens Accused of Terrorist Acts

 

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

 

 

BUSH ORDERS MILITARY TRIBUNALS FOR NONCITIZENS ACCUSED OF TERRORIST ACTS
Immigrants' Rights Update, Vol. 15, No. 8, Dec. 20, 2001

Drawing on his authority as commander-in-chief, President George W. Bush has signed an executive order allowing the use of military tribunals to try non-U.S. citizens accused of international terrorism. In issuing the order, which dispenses with the "principles of law and . . . rules of evidence generally recognized . . . by the U.S. district courts" in criminal trials, he cited the "extraordinary emergency" created by the September 11 terrorist attacks.

The Nov. 13, 2001, order has been the subject of intense controversy. It has elicited criticism from civil libertarians, immigrants' rights advocates, and lawmakers concerned with its sharp departure from longstanding principles and procedures of American jurisprudence. For example, the order appears to authorize tribunals to conduct proceedings outside public scrutiny, reach convictions on two-thirds majority votes, and issue sentences-even the death penalty-that are not subject to judicial review. In addition, some observers have pointed out that the order's death penalty provision may be affecting the support of some allies for the U.S.'s antiterrorism efforts. A number of European governments that do not sanction capital punishment have already stated that they will refuse requests to extradite individuals arrested in connection with the September 11 attacks.

Who is Affected by the Order? The executive order covers any individual who is not a U.S. citizen, who the president finds reason to believe is or was a member of the Al Quaeda organization. Also subject are persons who have "engaged in, aided or abetted, or conspired to commit, acts of international terrorism. . .that have caused, threaten to cause," or are intended to cause "injury to or adverse effects on the U.S., its citizens, national security, foreign policy, or the economy." Individuals who participate in activities in preparation for such terrorist acts are also subject to the order, as well as are persons who harbor members of Al Quaeda or others who have engaged in terrorist acts.

Such individuals must be detained, either inside or outside the U.S., and they must be treated humanely and provided adequate food, water, shelter, clothing, and medical attention. They must also be allowed, within the confines of their detention, to freely exercise their religion.

Military tribunals are authorized to try individuals for any and all offenses that they have allegedly committed that are covered by the order. Such individuals may be punished according to applicable law, including life imprisonment and, as noted above, the death penalty.

The Secretary of Defense' s Authority under the Order. The secretary of Defense is directed to appoint one or more military commissions and issue orders and regulations for conducting military tribunals. These rules must include provisions describing pretrial, trial and, post-trial procedures; modes of proof; issuance of process; and qualifications of attorneys. These regulations are to provide for

• military commissions to sit at any time and place;
• "full and fair trials," with the military commission sitting as trier of fact and law;
• admission of evidence that, in the opinion of the presiding officer, would have "probative value to a reasonable person" (at the time the presiding officer renders the opinion, a commission member may request that the commission adopt the opinion of the commission majority on the evidence at issue;
• the handling of evidence, material, or other information and the conducting and closing of proceedings in a manner consistent with Executive Order 12958 of Apr. 17, 1995 (which is concerned with classified national security information) and with related statutes and regulations;
• the conduct of the prosecution by one or more attorneys designated by the secretary of Defense and the conduct of the defense by attorneys on behalf of the individual subject to the order;
• convictions requiring only a two-thirds majority of commission members present at the time of the vote (a majority of the commission must be present for the vote);
• sentencing that also requires only a two-thirds majority of commission members present at the time of the vote (a majority of the commission must also be present for this vote); and
• submission of the trial record, including any conviction or sentence, for review and final decision by the president or the secretary of Defense, if so designated by the president.

Exclusive Jurisdiction and Relationship to Other Laws. In addition, under the order, military tribunals have exclusive jurisdiction over individuals subject to this order. They may not seek any remedy or maintain any proceeding, directly or indirectly, in any court of the United States, any state court, any court of any foreign nation, or any international tribunal.

Finally, the order specifies that nothing in it shall be construed to authorize the disclosure of state secrets to any person not authorized to have access to them; to limit the authority of the president to grant reprieves or pardons; or to limit the secretary of Defense's authority to try any person who is not subject to this order. Nor may it be interpreted to create any right, benefit, or privilege, enforceable at law or equity, by any party against the U.S., or any of its departments, agencies, or other entities.

Bush Order, "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism" (Nov. 13, 2001); published at 66 Fed. Reg. 57,831-36 (Nov. 16, 2001).

 

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[Lucius Cornelius Sulla]

How about this recent EO?

I am certain the SCOTUS would not grant certiori to any appeal from this order, because of the respect it gives to the powers of the Commander in Chief in Wartime, so the question of judicial review would remain moot.

[American Gal In America]

If Bush feels part of the bill is unconstutional, then he should veto it and not rely on the SCOTUS.

Agreed. That is the bottom line.

[itsahoot]

How about this little zinger, not during war time?

In related news, President Clinton issued a new executive order on federalism on Wednesday (8/4) that replaces a largely unenforced federalism executive order from the Reagan Administration. The order calls on agencies to consider federalism impacts and to consult with state and local officials as part of their rulemakings. Unlike the federalism legislation, however, the executive order is not subject to judicial review.

This stuff goes on all the time guys, and this is not even congress.

[Lucius Cornelius Sulla]

Unlike the federalism legislation, however, the executive order is not subject to judicial review.

As far as I know everything is subject to judicial review until the SCOTUS says it is not. And it has never said it about anything.

[Molly Pitcher]

Texas, you've made an effort here, and it isn't bad, but the problem is I didn't sleep thru the campaign, nor the first year+ of the President's administration.

I DO remember what he said and wrote on "CFR".

Isn't it disturbing to you that in the statement issued yesterday, Bush declares he'll sign the bill, despite constitutional concerns??

Sen. Thompson made similar statements on the Senate floor yesterday and was rightly mocked.

Now I'm going to wait to see what Bush further says and does at the signing ceremony, and then make my final judgment.

[itsahoot]

There are currently 50 bills pending in congress that have the
phrase "Not subject to Judicial Review" in them, I hve provided the
links, you can read them.

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50 Bills from the 107th Congress ranked by relevance on"not subject to judicial review ".

       50 bills containing your phrase exactly as entered.
       0 bills containing all your search words near each other in any order.
       0 bills containing all your search words but not near each other.
       0 bills containing one or more of your search words.

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Listing of 50 bills containing your phrase exactly as entered.

1 . Small Business Liability Protection Act (Referred in Senate)[H.R.1831.RFS]
2 . Small Business Liability Protection Act (Engrossed in House )[H.R.1831.EH]
3 . Small Business Liability Protection Act (Introduced in the Senate)[S.1064.IS]
4 . Small Business Liability Protection Act (Introduced in the House)[H.R.1831.IH]
5 . Small Business Liability Protection Act (Reported in the House)[H.R.1831.RH]
6 . Investor and Capital Markets Fee Relief Act (Introduced in the House)[H.R.1088.IH]
7 . Resolved, That the bill from the House of Representatives (H.R. 1696) entitled `An Act to expedite the construction of the World War II memorial in the District of Columbia.', do... (Engrossed Senate Amendment)[H.R.1696.EAS]
8 . To expedite the construction of the World War II memorial in the District of Columbia. (Enrolled Bill)[H.R.1696.ENR]
9 . Investor and Capital Markets Fee Relief Act (Reported in the House)[H.R.1088.RH]
10 . Municipal Solid Waste Flow Control Act of 2001 (Introduced in the House)[H.R.1214.IH]
11 . Emergency Power Production and Consumer Protection Act of 2001 (Introduced in the House)[H.R.1664.IH]
12 . Housing Affordability Assurance Act (Introduced in the House)[H.R.2753.IH]
13 . Minor Use and Minor Species Animal Health Act of 2001 (Introduced in the Senate)[S.1346.IS]
14 . Investor and Capital Markets Fee Relief Act (Engrossed in House )[H.R.1088.EH]
15 . Minor Use and Minor Species Animal Health Act of 2001 (Introduced in the House)[H.R.1956.IH]
16 . Investor and Capital Markets Fee Relief Act (Enrolled Bill)[H.R.1088.ENR]
17 . Investor and Capital Markets Fee Relief Act (Placed on the Calendar in the Senate)[H.R.1088.PCS]
18 . Terrorism Risk Insurance Act of 2001 (Introduced in the Senate)[S.1751.IS]
19 . Terrorism Risk Insurance Act of 2001 (Placed on the Calendar in the Senate)[S.1748.PCS]
20 . To amend title 10, United States Code, to authorize disability retirement to be granted posthumously for members of the Armed Forces who die in the line of duty while on active duty,... (Introduced in the House)[H.R.2203.IH]
21 . To amend title 10, United States Code, to authorize disability retirement to be granted posthumously for members of the Armed Forces who die in the line of duty while on active duty,... (Introduced in the Senate)[S.1427.IS]
22 . To amend title 10, United States Code, to authorize disability retirement to be granted posthumously for members of the Armed Forces who die in the line of duty while on active duty,... (Introduced in the Senate)[S.1037.IS]
23 . Fairness in Securities Transactions Act (Introduced in the House)[H.R.1311.IH]
24 . Fairness in Securities Transactions Act (Introduced in the House)[H.R.1480.IH]
25 . Embassy Employee Compensation Act (Introduced in the House)[H.R.3375.IH]
26 . Oklahoma City Victims Compensation Act (Introduced in the House)[H.R.3633.IH]
27 . National Disaster Medical System Act (Introduced in the House)[H.R.2333.IH]
28 . 1993 World Trade Center Victims Compensation Act (Introduced in the House)[H.R.3978.IH]
29 . Solid Waste Interstate Transportation and Local Authority Act of 2001 (Introduced in the Senate)[S.1194.IS]
30 . To amend the Federal Insecticide, Fungicide, and Rodenticide Act to permit a State to register a Canadian pesticide for distribution and use within that State. (Introduced in the House)[H.R.1084.IH]
31 . Municipal Solid Waste Interstate Transportation and Local Authority Act of 2002 (Introduced in the Senate)[S.2034.IS]
32 . Small Business Liability Relief and Brownfields Revitalization Act (Received in the Senate)[H.R.2869.RDS]
33 . Small Business Liability Relief and Brownfields Revitalization Act (Enrolled Bill)[H.R.2869.ENR]
34 . Small Business Liability Relief and Brownfields Revitalization Act (Engrossed in House )[H.R.2869.EH]
35 . Small Business Liability Relief and Brownfields Revitalization Act (Introduced in the House)[H.R.2869.IH]
36 . To amend the Federal Insecticide, Fungicide, and Rodenticide Act to permit a State to register a Canadian pesticide for distribution and use within that State. (Introduced in the Senate)[S.532.IS]
37 . School Environment Protection Act of 2001 (Introduced in the House)[H.R.111.IH]
38 . Pipeline Safety Improvement Act of 2001 (Introduced in the Senate)[S.141.IS]
39 . Acid Rain Control Act (Introduced in the Senate)[S.588.IS]
40 . Acid Rain Control Act (Introduced in the House)[H.R.25.IH]
41 . Pipeline Safety Improvement Act of 2001 (Placed on the Calendar in the Senate)[S.235.PCS]
42 . Arctic Coastal Plain Domestic Energy Security Act of 2001 (Introduced in the House)[H.R.39.IH]
43 . Water Investment Act of 2002 (Introduced in the Senate)[S.1961.IS]
44 . Pipeline Safety Improvement Act of 2001 (Engrossed in Senate)[S.235.ES]
45 . Pipeline Safety Improvement Act of 2001 (Referred in House)[S.235.RFH]
46 . Competitive Market Supervision Act of 2001 (Reported in the Senate)[S.143.RS]
47 . Competitive Market Supervision Act of 2001 (Introduced in the Senate)[S.143.IS]
48 . Emergency Agricultural Assistance Act of 2001 (Placed on the Calendar in the Senate)[S.1246.PCS]
49 . Health Care Antitrust Improvements Act of 2002 (Introduced in the House)[H.R.3897.IH]
50 . Family Farmer Cooperative Marketing Amendments Act of 2001 (Introduced in the House)[H.R.230.IH]

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[FranklinsTower]

Truly awsome! What makes it even better is that I agree with every word of it.

[Lucius Cornelius Sulla]

See #287.

[rdb3]

I just pick my allies where I can find them on important issues. Even loony Byrd can be right about some issues.

You're getting the political angle of this correct, but Byrd is "right" on this issue for all the wrong reasons.

Truth is, he's not your (our) ally at all. What Byrd's true angle is to maintain the status quo on immigration. That is bad for America overall, but the status quo does help Democrats.

This legislation at least attempts to address the immigration problem. You have to start somewhere.

[hchutch]

Thank Jim Jeffords for a lot of it. Thank the third-party types who helped Harry Reid beat John Ensign in 1998 and who siphoned enough votes from Slade Gorton to give Maria Cantwell that Senate seat in Washington.

That probably kept us from winning two Senate seats. Had we taken Reid's seat, and had we kept Gorton in, then I think it is safe to say this would not have happened.

[Lazamataz]

It sure is noisy in here!

I think everyone should just shut up around here and believe like I do.

[itsahoot]

Uncle already! I have emailed Bob Dornan for refrence to his comment. If he
replies I will get back to you.

I will note again, that the congress has the power to
abolish the Supreme Court or even the executive branch or both
through constitutional ammendment.
No such power is vested in the Supreme court to abolish
the congress or executive branch, they can neuter them however.
Therefore they are not really co-equal [:«)

[Dales]

Don't I know it.

Ugh.

[hchutch]

The fact is, I have long ago resigned myself to the fact that this is something we have to treat like a baseball season. It's 162 games, and you have to keep pushing for as high a win percentage as possible, and improving your team every go-around to do better and avenge past losses.

That's how the Founding Fathers designed the system. I assume they knew what they were doing.

[Texasforever]

Thanks for the links but I have to ask, did you go through them to see the context? There is nothing at all that prevents the legislation itself being challenged in court. The list of links also contain numerous repetitions of the same legislation.

Now having said that, you did give me some reason for pause. I can think of several instances in which the Congress or the Executive could be immune from Court review. One would be a Congressional Declaration of War. As to Executive orders they are and have been subject to court challenge. Let's make sure we are on the same page here. The Federal Courts single contribution to the 3 legged stool is to decide the constitutional soundness of the laws passed and enforced by the Legislature and the Executive. If you ask the sponsors of any legislation ever passed if they thought their bill was unconstitutional they would of course deny it as would all that voted for it or the president that signed it. The only way to ensure "unconstitutional" are never passed or signed is to attach criminal jeopardy to all that vote in favor of them. In other words, NEVER pass any law.

[Lucius Cornelius Sulla]

I will note again, that the congress has the power to abolish the Supreme Court or even the executive branch or both through constitutional ammendment.

This is to say that the congress, with the assistance of the state legislatures or state ratifying conventions, has the power to change everything in the Constitution, except eliminate the equal representation in the US Senate. They could eliminate Congress (but not the Senate, I guess), make the US a hereditary monarchy, establish Islam as the state religion, make one race the lifetime slaves of another race, etc.

I do not think that any of those proposals, or yours, would get very far in the process though, do you?

[Lucius Cornelius Sulla]

In other words, NEVER pass any law.

NOW you are talking, LOL!