Checks and balances: Can Scotus tell Pres to enforce the laws as written?

[casebro]

Reading in this sub-forum about signing orders, and Obama not enforcing the immigration laws on the books, How far can the Chief Executive go in not executing the laws as written by the Congress, and upheld by the SCOTUS?

Sure, we have Separation of Powers. But at what point do Checks and Balances come into play? Is there no limit to the laws that a Pres can ignore, short of an uprising by the masses? The Power of the Purse can prevent over zealousness, but what about non performance? SCOTUS Writ of Mandamus? And if such a thing exists, how would it be enforced?

Or is there nothing short of impeachment?

eta: Doesn't the presidential oath include "uphold the laws" or some such ?

[Beerina]

This is ironic given the left sued the Bush administration to make the EPA do more.


I believe in both cases the proper course of action is to take care of business at the next election if you think the president is doing a poor job enforcing the laws.

[KingMerv00]

Originally Posted by casebro

Reading in this sub-forum about signing orders, and Obama not enforcing the immigration laws on the books, How far can the Chief Executive go in not executing the laws as written by the Congress, and upheld by the SCOTUS?

The executive branch is not allowed to completely ignore Congressional law. If part of the executive branch (EPA, ICE, FDA, etc.) rules in a way that is "arbitrary or capricious" then it is struck down by the Supreme Court. An "arbitrary" ruling is one that is not based on reasonable evidence or a reasonable consideration of the circumstances. A "capricious" ruling is one that fails to adhere to previous similar rulings.

The typical standard of review is "Chevron deference". That means courts will defer to an agency's decision unless it is clearly contadicted by Congress or if the decision was "unreasonable".

Another related case (which Berrina wisely brought up): Mass. vs. EPA.

[theprestige]

As best I can tell--not being a Constitutional Lawyer--is that enforcement of the Executive falls to the Legislative, in the form of impeachment. Enforcement of the Legislative falls to the Judicial, in the form of constitutionality rulings by the Supreme Court.

And enforcement of the Judicial falls to the Executive, in the form of appointments to the bench.

[Spindrift]

Originally Posted by theprestige

As best I can tell--not being a Constitutional Lawyer--is that enforcement of the Executive falls to the Legislative, in the form of impeachment. Enforcement of the Legislative falls to the Judicial, in the form of constitutionality rulings by the Supreme Court.

And enforcement of the Judicial falls to the Executive, in the form of appointments to the bench.

Enforcement of everything belongs to the Executive: Armed Forces, FBI, Federal Marshals, etc.

The judiciary, except the Supreme Court is part of the Department of Justice which is part of the Executive Branch.

The Legislative Branch legislates laws.
The Executive Branch executes laws.
The Supreme Court supremes, no er... courts...damn that was going so good.

[KingMerv00]

Originally Posted by theprestige

As best I can tell--not being a Constitutional Lawyer--is that enforcement of the Executive falls to the Legislative, in the form of impeachment. Enforcement of the Legislative falls to the Judicial, in the form of constitutionality rulings by the Supreme Court.

And enforcement of the Judicial falls to the Executive, in the form of appointments to the bench.

That's only a partial picture. You forgot things like Presidental veto power, Congressional delegation of powers, and Congressional power over lower courts, etc. See my previous post for another example.

[jj]

Originally Posted by Beerina

I believe in both cases the proper course of action is to take care of business at the next election if you think the president is doing a poor job enforcing the laws.

Even if the law was passed by jingoistic, racist congressmen?

[KingMerv00]

Originally Posted by Spindrift

The judiciary, except the Supreme Court is part of the Department of Justice which is part of the Executive Branch.

But created and bounded by Congress. In theory, Congress could UNcreate or weaken the department of Justice (and indeed any executive agency). Just one more check and balance.

[theprestige]

Originally Posted by KingMerv00

That's only a partial picture. You forgot things like Presidental veto power, Congressional delegation of powers, and Congressional power over lower courts, etc. See my previous post for another example.

Didn't forget them, just didn't feel like getting into all the messy details.

Anyway, "enforcement" is probably the wrong word. "Checks and balances" makes more sense

[Grizzly Adams]

Originally Posted by Spindrift

The judiciary, except the Supreme Court is part of the Department of Justice which is part of the Executive Branch.

Uhh...

No.

[tomwaits]

Originally Posted by casebro

Reading in this sub-forum about signing orders, and Obama not enforcing the immigration laws on the books, How far can the Chief Executive go in not executing the laws as written by the Congress, and upheld by the SCOTUS?

Sure, we have Separation of Powers. But at what point do Checks and Balances come into play? Is there no limit to the laws that a Pres can ignore, short of an uprising by the masses? The Power of the Purse can prevent over zealousness, but what about non performance? SCOTUS Writ of Mandamus? And if such a thing exists, how would it be enforced?

Or is there nothing short of impeachment?

eta: Doesn't the presidential oath include "uphold the laws" or some such ?

If your view of the world is "whoever owns the gun, owns the power" then yes, the executive has supreme power over the other two branches. In that sense, the supreme court can tell the president to do all kinds of things, but they don't have a standing army.

But in reality, tradition and custom are powerful tools. Probably the most powerful tools in all of human history. And obeying Supreme Court rulings is one of those customs that would require some serious megalomania in today's political climate. Not even Nixon did that.

Originally Posted by Spindrift

The judiciary, except the Supreme Court is part of the Department of Justice which is part of the Executive Branch.

No it most certainly is not.

[JoeTheJuggler]

Originally Posted by tomwaits

Originally Posted by Spindrift

The judiciary, except the Supreme Court is part of the Department of Justice which is part of the Executive Branch.

No it most certainly is not.

All the lower courts are created by Congress, so does that mean they're part of the Legislative Branch?

The judicial authority in Article III extends to the Supreme Court AND all the lower courts created by Congress.

The lower courts still have their portion of the rock-scissors-paper sort of checks and balances over the other 2 branches, but the Constitution only establishes the Supreme Court itself.

Is there any significance to saying that an entity that has the judicial authority is not part of the judicial branch?

I think it makes more sense to consider all the lower courts part of the judiciary, but their creation (and dissolution) something that is Congress' authority. (Similarly, the Executive appoints the Supreme Court justices--that doesn't make them part of the Executive Branch, does it?)

[casebro]

So, as in the Mass. vs EPA case above, suppose Arizona want to force the Border Patrol (whachyacallit now?) to round up and deport illegal aliens, the court(s) orders would take precedence over Obama's wish to import more Democrats?

The discussions above tell me the courts would side with the Legislature's laws rather than Obama's orders?

Though, now, isn't the Justice Department, the part that works for the executive branch, suing Arizona to stop AZ from enforcing the federal law?

Lawyers and their word games. Sheesh.

[KingMerv00]

Originally Posted by Spindrift

The judiciary, except the Supreme Court is part of the Department of Justice which is part of the Executive Branch.

Originally Posted by Grizzly Adams

Uhh...

No.

Originally Posted by tomwaits

No it most certainly is not.

The lower federal courts were created by Congress as per the Constitution and are usually considered part of the judicial branch. The distinction is really a semantic one, though. What IS clear is that they aren't part of the executive branch.

On the other hand, the DOJ was also created by Congress but is considered part of the executive branch.

[KingMerv00]

Originally Posted by casebro

So, as in the Mass. vs EPA case above, suppose Arizona want to force the Border Patrol (whachyacallit now?) to round up and deport illegal aliens, the court(s) orders would take precedence over Obama's wish to import more Democrats?

Courts tend to give a lot of deference to prosecutorial discretion. I'm not familiar with precedent on this issue specifically. I haven't done the research.

Quote:

The discussions above tell me the courts would side with the Legislature's laws rather than Obama's orders?

Could? Yes. Would? Don't know. Depends on precedent.

Quote:

Though, now, isn't the Justice Department, the part that works for the executive branch, suing Arizona to stop AZ from enforcing the federal law?

I'm not sure what exactly you are referring to but states have no authority to enforce federal law. Simple separation of powers. Federal agents can't enforce state laws either.

Quote:

Lawyers and their word games. Sheesh.

The internet and its tendency to simplify complex issues. Sheesh.

[tomwaits]

Quote:

The distinction is really a semantic one, though.

Semantics are often very important to a judge, especially when it concerns the U.S. Constitution. Law is, after all, the art of splitting a hair four ways.

[Puppycow]

Originally Posted by casebro

Reading in this sub-forum about signing orders, and Obama not enforcing the immigration laws on the books, How far can the Chief Executive go in not executing the laws as written by the Congress, and upheld by the SCOTUS?

Sure, we have Separation of Powers. But at what point do Checks and Balances come into play? Is there no limit to the laws that a Pres can ignore, short of an uprising by the masses? The Power of the Purse can prevent over zealousness, but what about non performance? SCOTUS Writ of Mandamus? And if such a thing exists, how would it be enforced?

Or is there nothing short of impeachment?

eta: Doesn't the presidential oath include "uphold the laws" or some such ?

The ironic thing is that Obama is enforcing the immigration laws more zealously than Bush or any previous president did

[KingMerv00]

Originally Posted by tomwaits

Semantics are often very important to a judge, especially when it concerns the U.S. Constitution. Law is, after all, the art of splitting a hair four ways.

Just so we are clear, I agree with you. The judiciary created by Congress is traditionally considered part of the judicial branch.

[crimresearch]

Originally Posted by KingMerv00

<SNIP>...Federal agents can't enforce state laws either.

All federal law enforcement can apply the ACA if they want to charge some specific state law in federal court. But they don't have to.

Correct that it doesn't work the other way around.


And on the OP question... No... simply no. Not gonna happen.

And on "The judiciary, except the Supreme Court is part of the Department of Justice which is part of the Executive Branch"

[KingMerv00]

Originally Posted by crimresearch

All federal law enforcement can apply the ACA if they want to charge some specific state law in federal court. But they don't have to.

Help me out. The Affordable Care Act?

[crimresearch]

Originally Posted by KingMerv00

Help me out. The Affordable Care Act?

Assimilative Crimes Act.

Allows any fed to use state code to charge someone in federal court, without Congress having to write a specific statute for DUI, speeding, etc. on every single bit of federal property in the US.

Also works in concurrent jurisdiction situations. http://www.justice.gov/usao/eousa/fo...9/crm00667.htm

[Beerina]

Apocryphal saying by Jackson, but:

Originally Posted by Wikipedia

The state of Georgia became involved in a contentious jurisdictional dispute with the Cherokees, culminating in the 1832 U.S. Supreme Court decision (Worcester v. Georgia), which ruled that Georgia could not impose its laws upon Cherokee tribal lands. Jackson is often quoted (regarding the decision) as having said, "John Marshall has made his decision, now let him enforce it!"

[KingMerv00]

Originally Posted by crimresearch

Assimilative Crimes Act.

Allows any fed to use state code to charge someone in federal court, without Congress having to write a specific statute for DUI, speeding, etc. on every single bit of federal property in the US.

Also works in concurrent jurisdiction situations. http://www.justice.gov/usao/eousa/fo...9/crm00667.htm

My point still stands. From your link:

Quote:

Prosecutions instituted under this statute are not to enforce the laws of the state, but to enforce Federal law, the details of which, instead of being recited, are adopted by reference.

The ACA doesn't allow the federal government to enforce state law, it adopts state law as federal law and enforces that. That's more than a mere technicality since federal law involves federal prosecutors, federal civil procedure, federal prisons, etc. etc. Further, it only applies in a faction of federal cases.

[crimresearch]

Originally Posted by KingMerv00

My point still stands. From your link:



The ACA doesn't allow the federal government to enforce state law, it adopts state law as federal law and enforces that. That's more than a mere technicality since federal law involves federal prosecutors, federal civil procedure, federal prisons, etc. etc. Further, it only applies in a faction of federal cases.

Moving the goalposts from 'cannot' to 'only a fraction of cases', and 'in federal courts', and from 'federal agents' to the 'federal government' does nothing to make your point stand.

You made a blanket assertion, and you were flat our wrong, because there is an obvious exception.

In the world on the other side of your keyboard, sworn federal law enforcement officers and agents can, and do, use state laws to charge people in federal court. In federal magistrate's court it is a routine occurence in larger areas.
Where there is concurrent jurisdiction, some federal LEOs can take people into state court as a state officer, although that is rare.

[KingMerv00]

Originally Posted by crimresearch

Moving the goalposts from 'cannot' to 'only a fraction of cases', and 'in federal courts', and from 'federal agents' to the 'federal government' does nothing to make your point stand.

You made a blanket assertion, and you were flat our wrong, because there is an obvious exception.

We agree on how the ACA is constructed. Our disagreement stems from semantic distinctions. To me, the fact that the federal government can adopt the text of state laws does not mean they are "enforcing state law". To me that is creating and enforcing federal law. You disagree and I understand and see the logic in your POV. Over a pint of beer you might even convince me to change my definitions.

If you still consider me "flat out wrong", that's fine but there really isn't much more to say on the issue.

Quote:

In the world on the other side of your keyboard, sworn federal law enforcement officers and agents can, and do, use state laws to charge people in federal court. In federal magistrate's court it is a routine occurence in larger areas.
Where there is concurrent jurisdiction, some federal LEOs can take people into state court as a state officer, although that is rare.

I certainly may be wrong and I am willing to defer to your personal experience since I know little to nothing about the specifics of the things above.

[JamesDillon]

Originally Posted by KingMerv00

We agree on how the ACA is constructed. Our disagreement stems from semantic distinctions. To me, the fact that the federal government can adopt the text of state laws does not mean they are "enforcing state law". To me that is creating and enforcing federal law. You disagree and I understand and see the logic in your POV. Over a pint of beer you might even convince me to change my definitions.

If you still consider me "flat out wrong", that's fine but there really isn't much more to say on the issue.

You're being far too accommodating here. As CR's own link clearly states, the Assimilative Crimes Act incorporates by reference otherwise applicable state law into the corpus of controlling federal law for federal enclaves. As the Tenth Circuit has explained:

Originally Posted by Johnson v. Yellow Cab Transit Co., 137 F.2d 274, 276 (10th Cir. 1943)

The Assimilative Crimes Act adopted, for the government of the designated places under the exclusive or concurrent jurisdiction of the United States, the criminal laws in force, on the date mentioned in the Act, in the several states within which such places are situated, in so far as such laws have not been displaced by specific acts of Congress. By adoption they became Federal laws in force in the designated places.

See also U.S. v. Press Pub. Co., 219 U.S. 1 (1911):

Quote:

The effect of the [Assimilative Crimes A]ct... was to incorporate the criminal laws of the several states... into the statute, and to make such criminal laws, to the extent of such incorporation, laws of the United States.

There is a "flat out wrong" position here, but it isn't yours. Courts and Congress have been clear for over a century that state laws assimilated through the ACA become federal law subject to federal enforcement in federal enclaves. Indeed, if you think about the reason why we need the ACA in the first place, it's logically impossible that the federal government is enforcing state law through prosecutions under the ACA. Congress has exclusive jurisdiction over federal enclaves; state law does not and cannot constitutionally apply there.* As Joseph Story argued in proposing the first version of the ACA:

Originally Posted by 1 Life and Letters of Joseph Story 293 (William W. Story ed., 1851), quoted in Note, "Filling the Gap? Non-Abrogation Provisions and the Assimilative Crimes Act," 111 Columbia L.Rev. 77, 83-84 (2011)

The criminal Code of the United States is singularly defective and inefficient . . . . Few, very few, of the practical crimes . . . are now punishable by statutes, and if the courts have no general common-law jurisdiction . . . they are wholly dispunishable. The state courts have no jurisdiction of crimes committed on the high seas, or in places ceded to the United States. Rapes, arsons, batteries, and a host of other crimes may in these places be now committed with impunity. Suppose a conspiracy to commit treason in any of these places, by civil persons, how can the crime be punished? These are cases where the United States have an exclusive local jurisdiction. And can it be less fit that the Government should have power to protect itself in all other places where it exercises a legitimate authority? That Congress has power to provide for all crimes against the United States is incontestable.

*The fact that the ACA applies in some areas of concurrent jurisdiction does not undermine the point that its first, and principal, application is to enclaves of exclusive federal jurisdiction.

Originally Posted by crimresearch

Where there is concurrent jurisdiction, some federal LEOs can take people into state court as a state officer, although that is rare.

If that's true, then I'd take any bet you cared to offer that any AUSA who does so must first be deputized as a Special Assistant District Attorney and acts in that capacity in bringing charges in state court. They are, in other words, acting (as you said) as a state officer enforcing state law in such circumstances; that doesn't mean that the federal government is enforcing state law through the ACA, but rather the exact opposite.