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Author Topic: Issues in the American Creed (Constitutional Law and related matters)  (Read 288493 times)
ccp
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« Reply #1350 on: November 15, 2016, 02:34:55 PM »

 "comment on process and participants in the process, Mitch McConnell single-handedly made this Trump pick possible.  He single-handedly kept the balance from shifting from 5-4 conservative to 5-4 liberal, in the terms that most observers score it.  Trump Supporters should be careful criticizing people who helped set the table for him.  "

Doug,
How did he do this "single handedly?"

He does not strike me as having stood up the LEftist rebel (yes rebels - they are - not us) onslaught.
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DDF
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« Reply #1351 on: November 15, 2016, 02:37:29 PM »

http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-boxer-files-longshot-bill-to-scrap-the-1479234745-htmlstory.html
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It's all a matter of perspective.
ccp
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« Reply #1352 on: November 15, 2016, 04:48:16 PM »


http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-boxer-files-longshot-bill-to-scrap-the-1479234745-htmlstory.html

Just more evidence the LEFT is intent on giving the country away to the world.

Just keep letting people flood over here, especially in states like California, offer them benefits, and ram their vision down the throats of the rest of us who pay the bills and we should just shut up or we are a bunch of "ists" or "phobes".


Boxer must be especially pissed Hillary didn't win.  Her daughter is married to Hillary's brother.
The Clinton Mob.  It is like in breeding.
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DougMacG
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« Reply #1353 on: November 15, 2016, 05:10:58 PM »

The list:
1. Keith Blackwell

2. Charles Canady

3. Steven Colloton

4. Allison Eid

5. Neil Gorsuch

6. Raymond Gruender

7. Thomas Hardiman

8. Raymond Kethledge

9. Joan Larsen

10. Mike Lee

11. Thomas Lee

12. Edward Mansfield

13. Federico Moreno

14. William Pryor

15. Margaret A. Ryan

16. Amul Thapar

17. Timothy Tymkovich

18. David Stras

19. Diane Sykes

20. Don Willett

21. Robert Young

The Promise:
"This list is definitive and I will choose only from it in picking future justices of the Supreme Court."
Note the plural on justices, applies also to future picks.

Some details:
Keith Blackwell is a justice of the Supreme Court of Georgia. He was appointed to the position in 2012. He had previously served on the Court of Appeals of Georgia. Before serving on the bench, Justice Blackwell was a Deputy Special Attorney General of the State of Georgia, an Assistant District Attorney in Cobb County, and a commercial litigator in private practice. Justice Blackwell is a graduate of the University of Georgia School of Law.

Charles Canady is a justice of the Supreme Court of Florida. He has served in that role since 2008, and he served as the court's chief justice from 2010 to 2012. Prior to his appointment, Justice Canady served as a judge of the Florida Second District Court of Appeal and as a member of the United States House of Representatives for four terms. Justice Canady is a graduate of Yale Law School.

Neil Gorsuch is a judge of the United States Court of Appeals for the Tenth Circuit. He was appointed to the position in 2006. Judge Gorsuch previously served in the Justice Department as a Deputy Assistant Attorney General. Judge Gorsuch was a Marshall Scholar and received his law degree from Harvard. He clerked for Justices Byron White and Anthony Kennedy.

Mike Lee is the Junior U.S. Senator from Utah and currently serves on the Senate Judiciary Committee. He has previously served as an Assistant U.S. Attorney in Utah and as a Supreme Court Clerk for Justice Alito.

Edward Mansfield is a justice of the Iowa Supreme Court. He was appointed to the court in 2011 and retained by voters in 2012. Justice Mansfield previously served as a judge of the Iowa Court of Appeals. He also teaches law at Drake University as an adjunct professor. Justice Mansfield is a graduate of Yale Law School.

Federico Moreno is a judge of the United States District Court for the Southern District of Florida and a member of the Judicial Conference of the United States. He previously served as a state and county court judge in Florida. Judge Moreno is a graduate of the University of Miami School of Law.

Margaret A. Ryan has been a judge of the U.S. Court of Appeals for the Armed Forces since 2006. Judge Ryan served in the Marine Corps through deployments in the Philippines and the Gulf War. She then attended Notre Dame Law School through a military scholarship and served as a JAG officer for four years. Judge Ryan clerked for Judge J. Michael Luttig of the Fourth Circuit and Justice Clarence Thomas.

Amul Thapar is a judge of the U.S. District Court for the Eastern District of Kentucky, serving since his appointment in 2007, when he became the first South Asian Article III judge. He has taught law students at the University of Cincinnati and Georgetown. Judge Thapar has served as an Assistant U.S. Attorney in Washington, D.C. and the Southern District of Ohio. Immediately prior to his judicial appointment, Judge Thapar was the U.S. Attorney for the Eastern District of Kentucky. Judge Thapar received his law degree from the University of California, Berkeley.

Timothy Tymkovich is the chief judge of the United States Court of Appeals for the Tenth Circuit. Judge Tymkovich was appointed to the bench in 2003. He previously served as Colorado Solicitor General. Judge Tymkovich is a graduate of the University of Colorado College of Law.

Robert Young is the chief justice of the Supreme Court of Michigan. He was appointed to the court in 1999, and became part of a majority of justices who embraced originalism and led what one scholar described as a "textualism revolution." Justice Young previously served as a judge on the Michigan Court of Appeals. Chief Justice Young is a graduate of Harvard Law School.

Favorites?
William Pryor, 11th Circuit Court of Appeals, Atlanta, "titanium spine"
Joan Larsen, Michigan Supreme Court, former Scalia clerk

http://www.nytimes.com/2016/11/15/us/politics/trump-supreme-court-justices.html?_r=0
https://www.donaldjtrump.com/press-releases/donald-j.-trump-adds-to-list-of-potential-supreme-court-justice-picks
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DougMacG
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« Reply #1354 on: November 15, 2016, 05:31:35 PM »

"Doug,
How did he do this "single handedly?"

He does not strike me as having stood up the LEftist rebel (yes rebels - they are - not us) onslaught."


Of course every Senate republican who stood with him also had a hand in it and the public who never screamed in outrage that the vacancy wasn't being filled promptly.  This one-year delay was led by Mitch McConnell, not Trump, Paul Ryan, Rush Limbaugh or anyone else.  He spoke up early, was decisive, took an enormous risk and never wavered.

Same Senate Republicans who never defunded Obamacare did something heroic here, placed a bet that jeopardized their own power and required exactly this outcome, and they won.  Now Trump, all conservatives and presumably the American people are the beneficiaries.

To have done otherwise was to take an even bigger risk, what some of us thought was the irreversible end of the country as we knew it. 

Sean Hannity was ripping Mitch McConnell today in advance of the Trump inauguration for things he hasn't done wrong yet.  Mark Levin too, I imagine.  Maybe they should check their facts and give credit where credit is due.  This was a BIG deal.  MHO.

http://www.cnn.com/2016/02/23/politics/joe-biden-supreme-court-senate-republicans/
http://thehill.com/blogs/blog-briefing-room/news/273230-mcconnell-no-hearing-for-garland
http://www.theatlantic.com/politics/archive/2016/02/mcconnell-plays-his-best-card/470817/
http://www.nytimes.com/live/obama-supreme-court-nomination/mcconnell-tells-garland/
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DougMacG
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« Reply #1355 on: November 15, 2016, 06:03:22 PM »

I support  Madison's original article 16 but I don't support the convention of the states. Open to further persuasion.

I would like to revise and extend my remarks...

The typical way of passing a new amendment, if I understand this correctly, is for 2/3rds of the House and 2/3rds of the Senate to pass a proposed amendment to send to the states where it must be ratified by 3/4ths of the state legislatures.

In this second way, the convention of the states can be called by 2/3rds of the states.  Then what comes out of that convention still needs to be ratified by 3/4ths of the state legislatures.

The fear is that some great sounding liberal thing will come out of this and all but the strongest of conservatives will be guilted into supporting it.  A right to (free) healthcare would be an example.

What has changed is that Republicans control more state legislatures than ever before.  If there was something urgent and ready to go that would really fix things, now might be the time.  Term limits for House and Senate would be potential examples.

I am still undecided on the term limits amendment and skeptical about starting about this process.  I still worry it will later be used against us.  The Founders were smarter than us and not that much has changed that hasn't already been amended, slavery ended and women voting for examples.
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ccp
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« Reply #1356 on: November 15, 2016, 06:15:54 PM »

Another good explanation for civilians like me on the Court situation.  While preserving Scalia's spot will certainly prevent a disaster we still need Kennedy and Ginsberg to retire and be replaced by the Right to really gain any traction:

https://www.conservativereview.com/commentary/2016/11/battle-for-the-courts-part-1

Doug writes [of McConell] "Maybe they (Levin Hannity and me ) should check their facts and give credit where credit is due.  This was a BIG deal.  MHO.

Agreed, but it is about time.   smiley
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DDF
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« Reply #1357 on: November 15, 2016, 07:34:12 PM »

CCP....couldn't agree more with your response.

Doug.... thanks for the list. I want to pick it apart and look for prior connections to Trump or sitting politicians.
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It's all a matter of perspective.
ccp
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« Reply #1358 on: November 16, 2016, 04:00:05 PM »

Who just happens to be a woman.  That might help shut the LEFT up:

http://www.nationalreview.com/article/442220/trump-supreme-court-picks-should-start-woman
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Crafty_Dog
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« Reply #1359 on: November 16, 2016, 11:31:33 PM »

Two Questions for Donald Trump’s Supreme Court Nominees
Will they reconsider bad precedent? Or put the court’s ‘legitimacy’ first?
By Randy E. Barnett
Nov. 16, 2016 7:27 p.m. ET
22 COMMENTS

When the Federalist Society opens its three-day National Lawyers Convention on Thursday, the official topic of conversation will be “the jurisprudence and legacy of Justice Scalia.”

Even before his arrival at the Supreme Court in 1986, Antonin Scalia was known for his commitment to “originalism.” As a federal circuit court judge, he rejected the approach of divining the “Framers’ intention,” as Raoul Berger and Robert Bork had advocated. Instead, Scalia insisted that judges seek the public meaning of the text at the time it was enacted.

I’m pleased to see that President-elect Trump is echoing Scalia. Last week Mr. Trump’s transition team affirmed that he will nominate judges “who are committed to interpreting the Constitution and laws according to their original public meaning.” During the campaign Mr. Trump released a list of 21 potential candidates for Scalia’s seat. Those on the list with whom I am familiar would be sympathetic to originalism.

The bigger unknown is where they stand on stare decisis—Latin for “let it stand.” This is the idea that precedents of previous Supreme Courts should be followed, even when they conflict with the original text of the Constitution. Here is where Scalia’s friend and colleague, Justice Clarence Thomas, comes to the fore.

Justice Thomas has been more willing to reject stare decisis and reverse precedents. Consider the New Deal-era case Wickard v. Filburn. In 1942 the Supreme Court held that Congress’s power to regulate interstate commerce extended to a farmer growing wheat to feed his own livestock. Sixty-three years later, that expansive reading of the Constitution’s Commerce Clause continues to hold.

Take the 2005 case Gonzales v. Raich, in which I represented Angel Raich. A 6-3 majority of the court relied on Wickard to rule that Congress could stop Ms. Raich from possessing homegrown marijuana for medical use, as authorized by the law of her state. Justice Thomas dissented and would have reconsidered Wickard.

Stare decisis has the unfortunate effect of grandfathering in hundreds of judicial decisions, like Wickard, that have interpreted federal powers well beyond what can be supported by the Constitution’s original meaning.

With Washington’s power now extended over Americans’ everyday lives—rather than allowing for 50 state solutions to economic and social problems—every divisive issue is elevated to the national government. This has resulted in a Hobbesian political war to control the levers of federal power, with each side trying to avoid living under policies with which it fundamentally disagrees. As a result, every presidential campaign is now “the most important election of our lives.”

Moreover, post-New Deal courts authorized Congress to delegate its lawmaking powers to the administrative state. Today, most federal “law” is made, interpreted and enforced by faceless, unaccountable executive-branch bureaucrats. This is what has allowed Washington to regulate nearly every aspect of citizens’ lives. The 535 members of Congress simply wouldn’t have the time to do it on their own.

Rejecting dubious precedents does not necessarily require overturning specific government programs that were previously upheld or entitlements on which citizens have come to rely. But it does mean declining to use these past decisions to justify new unconstitutional exercises of power. The Agricultural Adjustment Act of 1938, upheld in Wickard, might continue to operate. But future congressional schemes to regulate wholly intrastate activity could be struck down. Such an approach would gradually return the U.S. to a federal government of limited, enumerated and separated powers.

Which leads to the two questions that the Trump administration should be asking of potential judicial nominees. First: Will they elevate precedent over the original meaning of the Constitution, thereby locking in a highly distorted reading of federal power? Or will they insist on interpreting America’s founding document and its amendments as they were written?

Second: Do they, like Justice Scalia, have the courage of their convictions—the intestinal fortitude to stand against the public’s demand for this or that outcome, and to do what they believe to be right? Or will they bend with the political wind to protect the “legitimacy” of the court?

This isn’t a matter of seeking judges who will reach conservative results versus liberal ones. It’s about adhering to the text of the Constitution, while letting the political chips fall where they may. (Justice Thomas would have reached a “liberal” result in Raich.)

Thanks to the results of last week’s election—including Republicans’ retaining control of the Senate—there has never been a better opportunity in my lifetime to restore what Donald Trump, in the final presidential debate, quite eloquently referred to as “the Constitution as it was meant to be.”

Mr. Barnett, a professor of law and the director of the Georgetown Center for the Constitution, is the author of “Our Republican Constitution: Securing the Liberty and Sovereignty of We the People” (HarperCollins, 2016).
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ccp
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« Reply #1360 on: November 19, 2016, 11:43:06 AM »

https://pjmedia.com/trending/2016/11/19/cast-of-broadways-hamilton-makes-pence-early-frontrunner-for-2024/

Good point here. The irony that Hamilton in # 68 of the Federalist papers listed advantages of the electoral college.

Also ionic is the spokesperson for the cast is Brandon Victor Dixon who plays Aaron Burr.
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Crafty_Dog
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« Reply #1361 on: November 25, 2016, 09:09:16 PM »

http://www.forbes.com/sites/instituteforjustice/2016/04/20/nebraska-just-abolished-civil-forfeiture-now-requires-a-criminal-conviction-to-take-property/#52d8d6b2159e
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Crafty_Dog
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« Reply #1362 on: December 06, 2016, 12:53:16 PM »

http://www.dickmorris.com/conservative-supreme-court-possible-filibuster-killed-dick-morris-tv-lunch-alert/?utm_source=dmreports&utm_medium=dmreports&utm_campaign=dmreports
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bigdog
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« Reply #1363 on: December 19, 2016, 05:25:10 PM »

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/19/now-playing-at-the-supreme-court-the-deplorables/?utm_term=.7e445ace703b
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Crafty_Dog
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« Reply #1364 on: December 20, 2016, 04:49:29 PM »

http://www.wsj.com/articles/five-ways-to-restore-the-separation-of-powers-1482192048


By David B. Rivkin Jr. and
Elizabeth Price Foley
Updated Dec. 19, 2016 7:09 p.m. ET
279 COMMENTS

The worst legacy of the Obama administration may be disdain for the Constitution’s separation of powers. President Obama’s actions have created dangerous stress fractures in our constitutional architecture, making it imperative that the Trump administration and Republican Congress commence immediate repairs.

The Constitution separates power in two ways: among the three branches of the federal government and between the federal government and states. As James Madison wrote in the Federalist Papers, separation creates “a double security” for liberty because “different governments will control each other, at the same time that each will be controlled by itself.”

The Obama administration has spurned this core constitutional principle, aggrandizing executive power at the expense of Congress and states. It has rewritten laws, disregarding its constitutional duty to faithfully execute them.

ObamaCare’s implementation provides multiple examples: delaying statutory deadlines, extending tax credits to groups Congress never included, exempting unions from fees, expanding hardship waivers beyond recognition and granting “transition relief” for preferred employers.

Mr. Obama even usurped Congress’s power of the purse, spending billions for “cost-sharing subsidies” that pay ObamaCare insurers for subsidizing deductibles and copays. Congress never appropriated money for these subsidies, so the administration shifted money appropriated for other purposes. The House sued to defend its constitutional prerogative, and in May a federal court ruled against the administration, which has appealed.

Mr. Obama also exempted five million illegal immigrants from deportation, though Congress had unambiguously declared them deportable. He waived the mandatory work requirement of the 1996 welfare reform. He redefined sexual discrimination under Title IX, forcing schools to allow transgender students to use bathrooms of their non-biological gender, and threatening to withdraw funds if colleges refuse to reduce due process protections for individuals accused of sexual assault.

The president has exhibited particular antipathy toward the Senate’s advice-and-consent duty. In Noel Canning v. NLRB (2014), the Supreme Court unanimously ruled that the administration violated separation of powers by making unilateral appointments to the National Labor Relations Board while the Senate was in session. And the president unilaterally committed the nation to an unpopular nuclear deal with Iran, bypassing the Senate’s treaty ratification power.

Mr. Obama’s actions have also shattered federalism. The administration rewrote the 1970 Clean Air Act, commanding states to revamp their electricity generation and distribution infrastructure. It rewrote the 1972 Clean Water Act, claiming vast new power to regulate ditches and streams under the risible notion that they are “navigable waters.” It has refused to enforce existing federal drug laws, emboldening states to legalize marijuana.

The media and academy enabled the administration’s unconstitutional behavior because they support its policy agenda. But the Framers expected members of Congress to jealously defend congressional power against executive encroachment—even from a president of the same political party. As Madison observed, “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”

This principle disappeared during the past eight years. In his 2014 State of the Union address, the president vowed to implement his agenda “wherever and whenever I can” without congressional involvement—to thunderous applause by Democrats. In November 2014, Democratic Senators urged the president to vastly expand his unilateral amnesty for illegal immigrants.

The Trump administration and GOP Congress should resist the temptation to follow this Constitution-be-damned playbook. The greatest gift Republicans could give Americans is a restored separation of powers. But this cannot be accomplished by merely rescinding the Obama administration’s unconstitutional executive orders. While this is a necessary step, Congress should enact additional reforms.

First, Congress can amend the 1996 Congressional Review Act to require affirmative approval of major executive-branch regulations. The law now allows regulations to go into effect automatically if Congress does not disapprove them. The act has been used only once to overturn a regulation because it requires passage of a joint resolution of disapproval—which must be signed by the president. This requirement should be inverted: If Congress does not affirmatively approve a regulation, it never goes into effect.

Second, Congress could prohibit “ Chevron deference,” in which federal courts defer to executive branch interpretations of ambiguous statutes. Chevron deference is a judge-made doctrine that has aggrandized executive power, ostensibly to implement Congress’s intent. If Congress denounces such deference, it can simultaneously reduce executive power and encourage itself to legislate with greater specificity.

Third, Congress can augment its institutional authority by expanding its contempt power. The criminal contempt statute should require the U.S. attorney to convene a grand jury upon referral by the House or Senate without exercising prosecutorial discretion. Congress should also extend the civil contempt statute to the House, not merely the Senate, and enact a new law specifying a process for using Congress’s longstanding (but rarely invoked) inherent contempt authority.

Fourth, Congress can require that all major international commitments be ratified by treaty. A statute defining the proper dividing line between treaties and executive agreements would reassert the Senate’s constitutional role, provide clarification to the judiciary, and encourage communication and negotiation between Congress and the president.

Fifth, Congress can enact a law further restricting its ability to coerce states into adopting federal policies or commanding state officials to carry them out. While the courts have ultimate say on the contours of these federalism doctrines, a law could force greater consensus and debate, provide guidelines on Congress’s use of its powers, and signal to the judiciary a reinvigorated commitment to federalism.

Restoring separation of powers is necessary and possible. It should be the highest priority of the Trump administration and Congress.

Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington, D.C. Ms. Foley is also a professor of constitutional law at Florida International University College of Law.
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Crafty_Dog
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« Reply #1365 on: Today at 01:35:31 PM »

http://dailysignal.com/2017/01/13/heres-a-look-at-the-potential-short-list-for-trumps-supreme-court-nominees/?utm_source=TDS_Email&utm_medium=email&utm_campaign=MorningBell&mkt_tok=eyJpIjoiWmpJNVpqVmpaVGhsTVdWbSIsInQiOiJNNjFWaERMODU4YlFhblVjMUlKUytSaDFjZFF1VUFuU1wvWFlFMFwvUWw2UlBKOFpZbzVVUFdMYkVJWE5CRUdqMFJ1RXg2ZjdlaXJqaHVZZGpsYnhGTEg5QVZQNStFemhDVkM0VFwvXC9cL291bFNnSWZsNUJQNUdxd1dXN084dHh5Zlk0In0%3D
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