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mulhollandj
Posts:230
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| 09/02/2006 3:54 PM |
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One question that I must ask is if our elected officials have the right to delegate their constitutional powers to other branches of government? Does this sound absurd? Should the congress allow the judiciary to regulate interstate commerce? How about taxation? Should the judiciary delegate to the executive the final say on if a law is constitutional or not? It sounds absurd doesn't it? It warps the seperation of powers and the checks and balances that the ever wise founding fathers gave us.
The second half of this question is do our elected officials have the power to delegate their constitutional powers to foreign powers? Should we let France print our currency? Should we let China decide if our laws our constitutional? It would destroy our sovereignty.
Haven't we done both of these things? How many 'laws' does the judiciary create with judicial precedent such as forcing gay marriage to be legal? How many laws does the executive branch make? Congress has even tried to delgate their war declaring powers and power to oversee the military to the president.
What is even worse is that they have tried to give these powers, our sovereignty, to foreign powers such as the UN, WTO, NAFTA, CAFTA, IMF, etc. Justice Kennedy of the Supreme Court said that we should look to foreign law to decide Supreme Court cases. I personally find this treasonous and they should be held accountable for their actions ( go Bishop and Hatch ).
What do you think?
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Debator
Posts:47
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| 03/20/2007 1:19 PM |
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To answer the first part of your question regarding domestic interbranch delegation:
I'm not sure what Constitutional powers you believe have been delegated. When has the Supreme Court ever "regulated interstate commerce"? You also ask about taxation - what aspect of taxation do you believe has been delegated? Is your quarrel with the fact that there are no regulatory agencies that are part of the legislative branch of government? (except for the copyright office) To me, it seems that the system is entirely Constitutional. Congress has the power to make laws, the executive has the power to enforce them. Under that framework, Congress can make laws governing the areas outlined in Article I, and the Executive can then enforce those laws through his cabinet (regulatory agencies) as stated in Article II. The alternative is that Congress have direct power over the agencies that enforce the laws that they create - an idea that would certainly destroy checks and balances.
To answer your second question, regarding foreign delegation:
Again, it is unclear what powers you are referring to. But more fundamentally, are you saying that the United States cannot enter into any treaties that might implicate a Constitutional power? If so, how is the US supposed to participate in the global marketplace? Maybe more fundamentally, how is the US supposed to defend itself in the world? For example, N. Korea has built a nuclear weapon and missiles that can carry that weapon to the Pacific Coast of the US. Since the US does not have enough ties with N. Korea to pressure it into abandoning its program through diplomatic means, without international cooperation, our only option would be a military strike. However, since Russia, China and S. Korea all do have extensive ties with N. Korea, they can bring pressure on the country to abandon its program. Is allowing China, et al. to do this surrendering our sovereignty? If so, what would you have us do?
Also, how is our membership in the UN surrendering our sovereignty? The only UN body with any real power is the Security Council, and we have a veto on that council so we don't have to participate in any policy that we don't want to.
Finally, and most importantly, regarding your point about Justice Kennedy:
Justice Kennedy of the Supreme Court said that we should look to foreign law to decide Supreme Court cases. I personally find this treasonous and they should be held accountable for their actions ( go Bishop and Hatch ).
Are you suggesting that Justice Kennedy and his colleagues in that opinion be executed (as that is the punishment in this country for treason)? I personally believe that citing international law for support in a Supreme Court opinion is merely an extension of what every other court in this country does, which is to take analogous cases from other jurisdictions and apply their same reasoning and principles. |
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mulhollandj
Posts:230
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| 04/22/2007 8:56 PM |
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Let me explain a little clearer. As far as delegating controlling trade, it has been delegated to groups like the WTO. Does Utah have the right to ban online gambling or does our membership in the WTO override that as that is some countries exports. As far as delegating the ability to tax, Congress has not only given the execute tax laws to the executive but also the power to create tax code - IRS. Under our current system we have about 1/3 of law comes from the legislative, 1/3 from the executive, and 1/3 from the judiciary. Is this according the the Constitution? By what authority does the Supreme Court have to look at international law for their decisions?
Just look at the current administration usurping powers they don't have any right to. I need to be careful what I say so I'm not added to a watch list. http://jbs.org/node/3498 |
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Debator
Posts:47
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| 04/27/2007 10:55 AM |
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I don't know the answer to your online gambling question - although my instinct is that Utah couldn't ban it not because of the WTO, but because of the interstate commerce clause in the Constitution.
As to the delegation of law-making power: the Executive, through the IRS does not have any law-making power beyond agency review of specific cases. Every word of the tax code was passed by Congress. Furthermore, I disagree with your (baseless) estimates of how much law comes from the different branches of government. Congress passes thousands of bills each year, most of which are to change how the executive is "executing" the laws. While the executive does do a lot of lawmaking through the administrative process, I see this as an inherent part of its Constitutional requirement of "executing" the laws. Where Congress passes an ambiguous law, the Executive has to execute it as best it knows how. Furthermore, in many cases, the administrative agency is going to need broad flexibility in how to deal with certain situations, and Congress grants them that power - with limits. So, yes, in that sense Congress is delegating power, but it's necessary to the functioning of the government.
As to international law: you are correct in the assumption implicit in your statement - the Supreme Court almost never HAS to look at international law in coming to its decisions. The exception to this is when the Supreme Court is dealing with an issue that implicates international treaties signed by the US. However, the Supreme Court may choose to look at international law if it wants. In fact, it does this all the time. Since the very beginning of our Constitution, the Supreme Court has looked to how similar laws are applied in other countries, how countries deal with each other, and even regularly cites British law as authority for its positions. Every court in the country, even the world does this. Understand this distinction: Except in the case of English law, the Court is not saying that it is bound by the law of other countries or international organizations, but is saying that the laws and court decisions by these organizations are illuminating on the issue and provide good arguments whose merits stand alone. The Court is merely citing the source of the argument. I quote directly from the opinion, "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions." Before giving this clarification, the court went on for pages and pages about why America's standards no longer support execution of juveniles.
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Zasch
Posts:134
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| 05/05/2007 1:42 PM |
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One question that I must ask is if our elected officials have the right to delegate their constitutional powers to other branches of government?
The Supreme Court has ruled on previous occasions that such delegations of power (for instance, from the legislative to the executive branch) are not constitutional.
How many 'laws' does the judiciary create with judicial precedent such as forcing gay marriage to be legal?
The judiciary of one state has interpreted the policy of limiting marriage licenses to opposite sex couples to be in violation of the State Constitution provisions guaranteeting individuality liberty and equality. It said that the State, having no rational basis to bar gay marriage, then cannot do so on the grounds of due process and equal protection.
This appears to be within the Court's mandate, and the state may choose later to override this ruling by creating new laws banning gay marriage.
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mulhollandj
Posts:230
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| 05/05/2007 5:24 PM |
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If delegation is not proper then how can the legislative hand over their war making powers and power to control interstate commerce to world bodies?
But would a court have seen that 100 years ago or was that just understood that it did not include gay marriage? Haven't the courts forced 'updating' of the laws to fit their own interpretation? I think that the real problem is that the power of the courts have not been challenged for a long time and more impeachments need to take place. |
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Zasch
Posts:134
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| 05/05/2007 7:56 PM |
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If delegation is not proper then how can the legislative hand over their war making powers and power to control interstate commerce to world bodies?
I believe, but am not sure, that the United States does not go to war too often: Instead, the US typically engages in "interventions" or "police actions" that do not require a declaration of war.
The Constitution provides that treaties signed and ratified by the United States are supreme law of the land.
But would a court have seen that 100 years ago or was that just understood that it did not include gay marriage? Haven't the courts forced 'updating' of the laws to fit their own interpretation? I think that the real problem is that the power of the courts have not been challenged for a long time and more impeachments need to take place.
Hmm. I am going to create a new thread for this.
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Debator
Posts:47
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| 05/05/2007 9:27 PM |
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Zasch, I don't think that your statement about the Supreme Court's position on delegation of powers is correct. If you have some citation to a case or article that supports your position, I'm curious to read it. My understanding is that the opposite is true: that Congress can delegate authority to other branches of government as long as it maintains oversight (i.e. doesn't upset checks and balances).
Furthermore, as to warmaking powers, those are vested in part in the Congress and in part in the President. Coincidentally, the power to enter into treaties is also vested in the Senate and the President. As I understand it (and as the Supreme Court has read it), if the President and the Senate agree to enter into a treaty with another country that would allow the two to work together to defend peace in the world, that they can. This reading of the Constitution has many benefits including the ability to adapt in an ever more globalized world. As I stated above, if the United States expects to maintain the standard of living that it has, and if it expects to maintain the security of its people, it must enter into international agreements to protect those interests. Furthermore, as far as I can tell, every treaty entered into by the United States has opt-out clauses, allowing the US to break the treaty for a large number of reasons. Finally, if the US does decide to break a treaty, the aggrieved country will have little they can do about it. I don't really see the US as having lost ANY of its sovereignty.
I have one final point to make about delegation of powers between branches. A fair reading of the Constitution is to read Article I Sections 8 & 9 by replacing the word "Congress" with "the Federal Government". This is consistent with the Framer's vision. The Framers seemed to want the Congress to be the most powerful branch of government and that the lion's share of laws would come from it. As such, to limit the Federal Government's power, they only need to limit the power of Congress. (The one major exception to this is limiting the jurisdiction of the Federal courts.) For example, the Constitution states that "The Congress shall have Power To lay and collect Taxes...." Since Congress does not have the power to execute the laws, the power to 'collect' taxes must lie with the Executive. A more correct reading of the line is, "The Federal Government shall have the power to lay and collect taxes" - something missing from the flawed Articles of Confederation. I could go on, but I think I've made my point. |
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mulhollandj
Posts:230
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| 05/05/2007 9:35 PM |
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| We have not declared war since WWII. But in the resolutions to enter Iraq numerous UN resolutions were mentioned. Why? |
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Zasch
Posts:134
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| 05/06/2007 7:36 AM |
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Zasch, I don't think that your statement about the Supreme Court's position on delegation of powers is correct. If you have some citation to a case or article that supports your position, I'm curious to read it. My understanding is that the opposite is true: that Congress can delegate authority to other branches of government as long as it maintains oversight (i.e. doesn't upset checks and balances).
I remember reading about a case where Congress had delegated some power to the President, but the Supreme Court found it unconstitutional...
I think it was Schechter Poultry Corp. v. United States. I didn't really read it in-depth, though, so you will be better able to handle it  |
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Debator
Posts:47
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| 05/06/2007 8:26 AM |
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Schechter Poultry was about Congress delegating its lawmaking power to the President. So you are right - to a certain extent. Congress cannot delegate its checks and balances power to the President, or to any other body. That's what I'm talking about. The checks and balances of the Constitution cannot be delegated, but specific powers can - as long as Congress retains oversight.
The resolutions passed by Congress authorizing the President to go into Iraq seem to be the perfect example of how Congress may delegate its authority. It told the President that it can go to war if he wants - but Congress retains oversight as well as the power to withdraw funding, essentially ending the war. The UN resolutions were just to get support from the other countries of the world - to give our action the color of international consensus. |
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