Posted on Jan 19, 2016
What do you make of SCOTUS calling for a 'take care' clause discussion in Obama's Executive Amnesty??
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My initial pleasure about this is rapidly turning to dread. The initial legal issue around the injunction blocking this action was based upon the Obama Administration not having given adequate notice. But SCOTUS has said that they want both sides to be prepared to discuss the 'take care' clause, ie Article I,§3 of the Constitution which says that the President shall take care that the laws of the United States be executed faithfully.
My concern is this; the Court has basically said that they plan on deciding this issue on Constitutional grounds, NOT whether or not adequate notice was given. This leads me to believe that this case is pretty much already decided on a 5-4 basis and the majority wants it decided BEFORE a vacancy or something of that nature can occur on the Court.
Ginsburg's the oldest at 82 while Kennedy and Scalia are 79 and Breyer 77. That's 2 of the 4 oldest that are liberal, one conservative and one the swing vote. Hoping I'm wrong but I'm guessing that this will end up 5-4 in favor of Obama and that the Court's calling for this decision on Constitutional grounds so the numbers can't change between a potential decision on the timeline's legality and the Constitutional issue arising again.
My concern is this; the Court has basically said that they plan on deciding this issue on Constitutional grounds, NOT whether or not adequate notice was given. This leads me to believe that this case is pretty much already decided on a 5-4 basis and the majority wants it decided BEFORE a vacancy or something of that nature can occur on the Court.
Ginsburg's the oldest at 82 while Kennedy and Scalia are 79 and Breyer 77. That's 2 of the 4 oldest that are liberal, one conservative and one the swing vote. Hoping I'm wrong but I'm guessing that this will end up 5-4 in favor of Obama and that the Court's calling for this decision on Constitutional grounds so the numbers can't change between a potential decision on the timeline's legality and the Constitutional issue arising again.
Immigration
Law
Constitution
Supreme Court
Posted 9 y ago
Responses: 9
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1LT Aaron Barr i feel that SCOTUS has forgotten their role as the Constitutional overseer. Their recent rulings seem based on society's whims and not the rule of law. This is another chance for them to make law and not define the law.
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Here's a decent article on the implications of the Clause in question.
http://www.heritage.org/constitution/#!/articles/2/essays/98/take-care-clause
The issue with the clause is that we grant the President (Executive) specific Power, for theoretically the purposes of "Usage." Unfortunately, if the President doesn't use said Powers as directed, what do we do?
An executive must have "some" ability to either prioritize, or even "ignore" laws. Legislation is intentionally slow in our system. So... we have a conflict, which is really hard to resolve. But the way we resolve this is (which already exists):
If the President is not enforcing a Law, Congress sues him to enforce it at the SCOTUS. Unless he can show that he is "faithfully executing Laws" to the best of us ability (proper funding, since Congress does that), he is forced to do so.
Unfortunately, when you have a dysfunctional Congress, the Executive (any) can run ram-shod over this process.
http://www.heritage.org/constitution/#!/articles/2/essays/98/take-care-clause
The issue with the clause is that we grant the President (Executive) specific Power, for theoretically the purposes of "Usage." Unfortunately, if the President doesn't use said Powers as directed, what do we do?
An executive must have "some" ability to either prioritize, or even "ignore" laws. Legislation is intentionally slow in our system. So... we have a conflict, which is really hard to resolve. But the way we resolve this is (which already exists):
If the President is not enforcing a Law, Congress sues him to enforce it at the SCOTUS. Unless he can show that he is "faithfully executing Laws" to the best of us ability (proper funding, since Congress does that), he is forced to do so.
Unfortunately, when you have a dysfunctional Congress, the Executive (any) can run ram-shod over this process.
The Heritage Guide to the Constitution is intended to provide a brief and accurate explanation of each clause of the Constitution.
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Sgt Brian Hoffman
Those are fair points. It's hard not to wonder, too, how much more difficult executive fiat joyriding would be were the moral high ground not previously lost by his political opponents.
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1LT Aaron Barr
I don't like the concept of 'co-equal' branches of power when it's obvious by a reading of the Constitution that Congress was intended to be the most powerful branch. Provided they could exercise it, they have the ability to override the President and Courts at almost every turn.
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Sgt Aaron Kennedy, MS
1LT Aaron Barr They have the ability to override him to a limited extent. Specifically in the Legislative Process. Once the laws are passed, he has quite a lot of Power, and it takes the Courts or NEW Legislation to override him.
Congress has a lot of power in the "building" phase, and also a lot of restrictions. The executive has almost no Power in the building phase, but is only limited by the actual Law Congress creates. He has LOTS of Power in "Absence of Law" and to "Clarify Law" which when combined with direct "control" of means and a far more streamlined process, allows him to use Power more effectively and more efficiently than Congress.
The issue with the Courts leans far more into tradition, and concepts of "standing" than anything else. An "active" SCOTUS could tear down Legislature far faster than Congress could ever build it. We tend to have a "if it ain't broke, don't fix it" system though. We have to prove there is something wrong, and the entity bringing the claim has to show how they are affected before the case can be heard.
Congress has a lot of power in the "building" phase, and also a lot of restrictions. The executive has almost no Power in the building phase, but is only limited by the actual Law Congress creates. He has LOTS of Power in "Absence of Law" and to "Clarify Law" which when combined with direct "control" of means and a far more streamlined process, allows him to use Power more effectively and more efficiently than Congress.
The issue with the Courts leans far more into tradition, and concepts of "standing" than anything else. An "active" SCOTUS could tear down Legislature far faster than Congress could ever build it. We tend to have a "if it ain't broke, don't fix it" system though. We have to prove there is something wrong, and the entity bringing the claim has to show how they are affected before the case can be heard.
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MCPO Roger Collins
Sgt Aaron Kennedy, MS - What are the limits on the SCOTUS? There ARE definitely limits on Executive Actions, but it's up to the Congress to take exception to them. And the Republican establishment have lost their manhood. Trump on the other hand...
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If they honestly discuss the "take care" clause, Obama will still lose. However, some interesting decisions have come out of our current SCOTUS, so I am not too confident that they will actually follow the constitution.
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