National Emergency Gun Control

[T.Lex]

Mistretta v. US.


Was Congress's creation of a United States Sentencing Commission with the power to establish binding sentencing guidelines a constitutional delegation of authority?

they determined that Congress could delegate power. This will likely be further defined in future cases, maybe this one.

MM

What?

That's not even the most recent federal sentencing decision.

Congress has the power to set sentences for crimes. They established a range, then delegated the policy-making for all sorts of aggravators and mitigators to the sentencing commission, which then establishes what options the judge has for sentencing. (It is actually more complicated than it sounds.)

Basically, Congress delegated a portion of power that it already had - the power to set penalties for criminal cases. (The executive's role is in the prosecution of them, and how much of a sentence to ask for under the guidelines.)

That's completely different than Congress making up a power to take over "means of production" then delegating that to POTUS.

 

[Ingomike]

What?

That's not even the most recent federal sentencing decision.

Congress has the power to set sentences for crimes. They established a range, then delegated the policy-making for all sorts of aggravators and mitigators to the sentencing commission, which then establishes what options the judge has for sentencing. (It is actually more complicated than it sounds.)

Basically, Congress delegated a portion of power that it already had - the power to set penalties for criminal cases. (The executive's role is in the prosecution of them, and how much of a sentence to ask for under the guidelines.)

That's completely different than Congress making up a power to take over "means of production" then delegating that to POTUS.

It is a case about a congressional delegation of power, as is this situation. No one will ever be able to show you the explicit text you are asking for because as noted earlier, it is in the secret part of the Constitution with the abortion rights.

MM

 

[Ingomike]

Just an observation: how much better would our country be if everyone was studying the Constitution like folks here?

MM

 

[Fargo]

Mistretta v. US.


Was Congress's creation of a United States Sentencing Commission with the power to establish binding sentencing guidelines a constitutional delegation of authority?

they determined that Congress could delegate power. This will likely be further defined in future cases, maybe this one.

MM

The facts in this case appear to me to be closer to Schechter Poultry than to Mistretta.

 

[T.Lex]

It is a case about a congressional delegation of power, as is this situation. No one will ever be able to show you the explicit text you are asking for because as noted earlier, it is in the secret part of the Constitution with the abortion rights.

First, there are multiple cases about the source of abortion rights. For that matter, too, the right to free speech on platforms other than handbills.

Second, Mistreta is a case about the delegation of congressional power for a power that congress actually had. Ever since the New Deal, there are (literally) thousands of cases from federal appellate courts on the contours of congressional delegation of rulemaking. The starting point is: what power did congress have that it could delegate?

Congress does not have the power to legislate with only one chamber. Our system requires both chambers to legislate. That was the fundamental problem in Chadha and the fundamental authority in Mistreta. In the latter, the power to legislate punishments was delegated from both chambers to an independent commission.

In the US, for Congress to take something away, it has to pay for it. That's constitutional.

If Congress wants to take over land for a federal project, it probably can, but it takes legislative action, due process and compensation (as a taking). If the FBI wants to take over a factory because there's a terrorist incident going on next door, it can do so on an emergency basis, as an act of executive authority.

This whole wall thing is somewhere between those 2 points. IMHO.

 

[bwframe]

Nevertrumpers said it last time too...


[video=youtube;ahkMA6JPOHU]https://www.youtube.com/watch?v=ahkMA6JPOHU[/video]

 

[Ingomike]

First, there are multiple cases about the source of abortion rights. For that matter, too, the right to free speech on platforms other than handbills.

Second, Mistreta is a case about the delegation of congressional power for a power that congress actually had. Ever since the New Deal, there are (literally) thousands of cases from federal appellate courts on the contours of congressional delegation of rulemaking. The starting point is: what power did congress have that it could delegate?

Congress does not have the power to legislate with only one chamber. Our system requires both chambers to legislate. That was the fundamental problem in Chadha and the fundamental authority in Mistreta. In the latter, the power to legislate punishments was delegated from both chambers to an independent commission.

In the US, for Congress to take something away, it has to pay for it. That's constitutional.

If Congress wants to take over land for a federal project, it probably can, but it takes legislative action, due process and compensation (as a taking). If the FBI wants to take over a factory because there's a terrorist incident going on next door, it can do so on an emergency basis, as an act of executive authority.

This whole wall thing is somewhere between those 2 points. IMHO.

Congress delegated the Emergency Powers and its definition to the executive in duly passed law that is law until overturned.

Congress duly passed several appropriations bills that have undefined dollars that were left for the executive branch to fill out and define.

This is all Congress doing, the executive is just using the tools Congress gave them...

MM

 

[jamil]

Nevertrumpers said it last time too...


[video=youtube;ahkMA6JPOHU]https://www.youtube.com/watch?v=ahkMA6JPOHU[/video]

How is that relevant here? What do you think people are talking about?

 

[T.Lex]

Congress delegated the Emergency Powers and its definition to the executive in duly passed law that is law until overturned.

Congress duly passed several appropriations bills that have undefined dollars that were left for the executive branch to fill out and define.

This is all Congress doing, the executive is just using the tools Congress gave them...

So, several moving parts.

Maybe we should start with the definition of "delegated." I have authority over my car. If I give the keys to you and tell you to move my car from where it is to where I want it to be, I've delegated that authority to you.

I do not have authority over your car. If I give you the keys to your own car and tell you to move your car, I have not delegated anything to you. Moreover, if I delegate to you the power to move my neighbor's car - the one that neither you nor I have authority over - I still haven't really delegated anything to you.

My point is that the POTUS, as executive, already has certain powers. Those powers already include the power to act in emergency situations. That's part of being the executive.

Some of the things Congress "delegated" included things the executive already had the power to do and some things Congress doesn't even have the power to do.

Other things Congress delegated, neither has the power to do on a very large scale. Congress can't give the executive tools that it doesn't have.

To the Congress passed appropriations that have funds that POTUS can spend in a discretionary way, there's no emergency needed. Its discretionary. Its in the description. No emergency necessary.

Now, as I understand federal appropriations, some of the funds went to "construction" projects with the DOD. That's probably more like barracks or BOQs or mess clubs or whatever. But, especially on an emergency basis, POTUS can probably redirect those funds.

 

[jamil]

Congress delegated the Emergency Powers and its definition to the executive in duly passed law that is law until overturned.

Congress duly passed several appropriations bills that have undefined dollars that were left for the executive branch to fill out and define.

This is all Congress doing, the executive is just using the tools Congress gave them...

MM

I've looked at the national emergencies declared by the last several presidents. Almost all of the recent ones are sanctions against foreign governments or factions within foreign countries. None of them controversial.

None of those actions appear to be presidents exploiting this power to thwart congress, to give them what congress has declined to give. And it's not like there's a dearth of similar circumstances. Presidents ask for stuff. Congress declines. It happens all the time. In response to an uncooperative Congress, not even Mr Pen and Phone went this far.

 

[Ingomike]

I've looked at the national emergencies declared by the last several presidents. Almost all of the recent ones are sanctions against foreign governments or factions within foreign countries. None of them controversial.

None of those actions appear to be presidents exploiting this power to thwart congress, to give them what congress has declined to give. And it's not like there's a dearth of similar circumstances. Presidents ask for stuff. Congress declines. It happens all the time. In response to an uncooperative Congress, not even Mr Pen and Phone went this far.

We agree, however it is up to the Congress that started this crap to stop it, or the courts to clean it up. I do think it is different from the just use my pen to edict when they are using laws passed by Congress.

MM

 

[jamil]

We agree, however it is up to the Congress that started this crap to stop it, or the courts to clean it up. I do think it is different from the just use my pen to edict when they are using laws passed by Congress.

MM

Congress isn't likely to fix it.

 

[mmpsteve]

Congress isn't likely to fix it.

I'm OK with that this time. Cause he's my guy, this time. No Freakin Purple.

.

 

[DoggyDaddy]

No, the executive exercises his own judgment on the constitutionality of an act of Congress. Each of the branches of government has its own will in this regard. Congress has the ability to judge the constitutionality of what it enacts, the executive has the ability to judge the constitutionality of what it executes, and the courts have the ability to judge the constitutionality of laws they will enforce with the judicial power.

The history of this country has many many examples of the executive not exercising a power it deems unconstitutional.

The judicial power generally only comes in to play after the legislative and executive power have been exercised in unison. This, plus the binding nature of the rule of precedent, is why the courts are considered the last word, not because they have exclusive power to judge constitutionality.

If what I learned in high school civics is correct, then only the underlined part is true. Only SCOTUS determines what is constitutional and what is not. Is that not correct?

 

[DoggyDaddy]

Here's what I think may be a sticking point. The president may have the power to declare a national emergency. However, I think the question is does he have the power to fund this wall, by taking money that has already been congressionally approved? If congress has the "power of the purse," can the president diminish that power by reducing the allocated funds congress has set aside for certain projects? The issue may be not if he can declare an emergency to build a wall, but the place that the funding comes from, when lacking consent from congress.

All but the 1.37 Bn (in the bill just passed) and 600 million from (sorry, it's slipping my mind at the moment), is coming from the DoD budget, which, as CINC, the president controls. The money has already been appropriated for the DoD.

 

[Fargo]

If what I learned in high school civics is correct, then only the underlined part is true. Only SCOTUS determines what is constitutional and what is not. Is that not correct?

Nope, go back through the signing statements of any president in the last 50 years and you will find explicit statements by the executive that they will not execute a variety of laws because they believe them to be unconstitutional. This isn’t new, Andrew Jackson was downright offensive about it.

Congress is supposed to Exercise constitutional judgment before passing any bill, but that is obviously more fluid since they’re not a unified body. Nonetheless, the Supreme Court presumes them to have done so, Which is why it affords acts of Congress a presumption of constitutionality. Read most any Supreme Court decision on a federal statute and you will see the court explicitly reference this presumption.

They all take the same oath to uphold the Constitution, there’s nothing peculiar about the courts in that. The courts are generally held to have the final word because only things that have been approved by Congress and the president get to them.

 

[Ingomike]

If what I learned in high school civics is correct, then only the underlined part is true. Only SCOTUS determines what is constitutional and what is not. Is that not correct?

All branches take an oath to support and defend the Constitution, so by their oath they all should conduct their business according to what they interpret to be Constitutional. We have decided that SCOTUS is the final arbiter of what is Constitutional, but the framers gave them no enforcement provisions of their decisions. All branches are co-equal so it is not like SCOTUS has more power.

I have been reading some government and Constitutional legal scholars are suggesting that it is not Constitutional for one federal judge to issue an injunction stopping the President from implementing things like the travel ban and the executive branch should ignore the injunction until a higher court or even SCOTUS issues an injunction.

Can you imagine the media response if DJT did that?

MM

 

[HFDowner]

[FONT=&quot]"It's critical for everyone to understand: the president is not invoking any of his inherent constitutional powers -- none of his Article 2 powers, like commander-in-chief authority. In this case, you have a president who is only acting under a specific act of Congress, a federal statute called the National Emergencies Act of 1976. It's been used 59 times before. This is just number 60. In fact, the 59[/FONT][FONT=&quot]th[/FONT][FONT=Open Sans, Helvetica, Arial, sans-serif] time was earlier this month. Constitutionally, this should limit the use of NEA in conjunction with the second amendment.[/FONT]

 

[ghuns]

[FONT=&amp]In this case, you have a president who is only acting under a specific act of Congress, a federal statute called the National Emergencies Act of 1976...[/FONT]Constitutionally, this should limit the use of NEA in conjunction with the second amendment.

Constitutionally, how is a law passed by Congress, surrendering their specific enumerated powers to the executive branch, even constitutional?

 

[CampingJosh]

Constitutionally, how is a law passed by Congress, surrendering their specific enumerated powers to the executive branch, even constitutional?

Congress can have a particular power without having the authority to delegate that power.