So, how is this legal? (tinfoil hat thread)

[Provost Harrison]

[MichaeltheGreat]

Originally posted by Zkribbler


This is a huge problem. It basically nullifies -- as for as this law -- Art III of the Constitution. Ever since Marberry v. Madison, the courts have been empowered to evaluate the constitutionality of the laws of this nation. This law seeks to deprive the Court of this, the most basic of all our protections.

For example, no judicially ordered compensation?? The "takings" clause is written into the constitution!!

The authors of this bill obviously have no notion of the concept of American liberty.

Eminent domain is built into the Constitution, but this bill doesn't purport to grant authority to seize land for public use - it only grants authority to waive the requirements of NEPA and similar acts.

The reason for limiting judicial review is simple - SECDHS signs a D&F for an exemption, somebody sues and gets injuncitve relief on a claim of irreparable harm, and with a friendly judge and appeals panel, you can delay a project for five to ten years without even proving the underlying environmental harm.

The Congress has the authority to limit both the subject matter jurisdiction of the Supreme Court, and all inferior courts to it within the Federal judiciary. With the Supreme Court (the only one created by the Constitution, rather than Congress, the limiting authority is express:

"In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." - Article III, Section 2.

With respect to the rest of the Federal judiciary, the authority to limit review is implied in the enumerated powers of Article I, Section 8:

"To constitute Tribunals inferior to the supreme Court;"

Since Congress has the sole authority to create these courts, it has the implicit authority to define the scope of their subject matter and personal jurisdiction. It does that all the time, in many mundane ways - for one example, Federal diversity jurisdiction, which allows Federal courts to hear state law civil matters when all plaintiffs reside or do business in different states from all defendants. Formerly, the amount in controversy had to be $25,000, then it was raised to $50,000, then to $75,000.

Another area where Congress has done this repeatedly is in creating and defining the personal jurisdictions of the various Circuit Courts of Appeal.

[Donegeal]

Originally posted by Japher
We should import endangered animals into that area and hunt them!

And do it from the internet!

[Japher]

And do it from the internet!

ooh that's good! We can set the guns up in Mexico and fire into the California, that would really mess with those law makers heads!

[SpencerH]

Originally posted by MichaeltheGreat


The problem isn't just "tree-huggers" although those ignorant of the scope and purpose of national environmental legislation like to use that label to bamboozle the public at large.

If you're a large landowner of industrial zoned land near the border, would you like to find out you can't develop your land (either absolutely, or in any economically feasible way) because a neighboring land owner has altered the drainage characteristics of your site area such that you are now in a flood plain?

Or how about a road realignment necessitated by that landowner's activity, such that your property loses major arterial road frontage which was part of the whole reason you invested in that ranch property years ago, knowing it was in the process of being rezoned industrial?

A huge portion of environmental processing and land development involves identifying and mitigating commercial impacts on neighboring land owners and users. Species and habitat protection is only a part of it. Even species and habitat protection can have commercial implications, either in affecting residential property values (greenbelt preserves between residential and commercial/industrial areas, or impacts on ecosystems affecting agriculture).

Are you saying you've missed the environmental arguments that have prevented the possibility of building the barrier in the San Diego area? Perhaps your land abuts the current federal sanctuary of the "red breasted knob-gobbler"?

[SpencerH]

Originally posted by MichaeltheGreat


There are barriers. And more barriers. And cameras which don't work installed by unqualified contractors at exorbitant cost in violation of acquisition regulations and statute. The barrier is tits on a boar pork barrel, and empire building. There are tunnels, etc., and a million ways of moving people and products through regular commerce, not to mention the ocean. It's more cost effective just to pour the money down a hole.

This is a much better point for discussion than the 'sandy-headed warbler' question. So what do you propose we do about the current problem on our southern border? Whether it's a potential pork barrel, or that the current system is crap is somewhat irrelevant. Something has to be done to improve security on the Mexican border. A barrier may have significant problems but a it's a better solution than shooting on sight anyone trying to cross illegally.

[Dinner]

Or how about a road realignment necessitated by that landowner's activity, such that your property loses major arterial road frontage which was part of the whole reason you invested in that ranch property years ago, knowing it was in the process of being rezoned industrial?

You me some people speculated on the future value of realestate and lost? :shock: I'm amazed that could happen.

Seriously, they're speculators and they aren't assured anything. Some people gamble and lose; it sucks but they'll go on with their life.

[Dinner]

Originally posted by SpencerH
Are you saying you've missed the environmental arguments that have prevented the possibility of building the barrier in the San Diego area? Perhaps your land abuts the current federal sanctuary of the "red breasted knob-gobbler"?

There already is a barrier in San Diego. They're talking about expanding it, building a road paralleling the barrier, and possibly building a second barrier. In the end I'm for it but it will have an impact since much of it goes through open space preserves or the Tiajuana River Park. Not that I'd want to go to that park since the Mexican city of TJ dumps raw sewage into the river which then flows north into the US.

[Imran Siddiqui]

Originally posted by Zkribbler
This is a huge problem. It basically nullifies -- as for as this law -- Art III of the Constitution. Ever since Marberry v. Madison, the courts have been empowered to evaluate the constitutionality of the laws of this nation. This law seeks to deprive the Court of this, the most basic of all our protections.

For example, no judicially ordered compensation?? The "takings" clause is written into the constitution!!

The authors of this bill obviously have no notion of the concept of American liberty.

As MtG has said, Congress has the right to define what comes under the subject matter jurisdiction of the federal courts. The only thing Congress can't limit is the court's ability to review Constitutional questions and those questions delegated to the Supreme Court under Article III.

[MichaeltheGreat]

Originally posted by Oerdin

Or how about a road realignment necessitated by that landowner's activity, such that your property loses major arterial road frontage which was part of the whole reason you invested in that ranch property years ago, knowing it was in the process of being rezoned industrial?

You me some people speculated on the future value of realestate and lost? :shock: I'm amazed that could happen.

Seriously, they're speculators and they aren't assured anything. Some people gamble and lose; it sucks but they'll go on with their life.

No, I mean that land use and planning laws exist for a reason. You mean if you buy a house, and I put a toxic waste processing facility next door, by getting a waiver on the laws (which still apply to you) that prevent that, sucks to be you, some animals are more equal than others, and oh, by the way, you still have to comply with the land use laws that don't apply to me?

You can still lose your ass speculating, either if the market goes south, or if there are changes implemented in the land use process. In the latter case, there are hearings, procedural rules, avenues of appeal and opportunities to lobby - look at the revision process for the Temecula Valley master plan for one local example, or the Murphy Canyon Gateway project for one even closer to home.

[Zkribbler]

Oops. I misfocused on the new law. I thought it permitted the Secretary to waive all rights to compensation, even for the taking of private property. It don't. My bad.

What it does do though is grant the Secretary the right to, in effect, repeal laws. That's an Article I power and shouldn't be willy nilly transferred to the Article II executive branch.

I feel the same way about Congress ceded the right to the President to, in effect, declare war, as they did with Bush in Iraq and with Johnson in Vietnam.

There's a reason the Founding Fathers created checks and balances.

Nightmare scenario: Congress passes a law stating, "We hereby cede all our powers to the President of the United States & we're taking the rest of the year off . . . with pay. So long, suckers."

[Immortal Wombat]

Originally posted by Japher
ooh that's good! We can set the guns up in Mexico and fire into the California, that would really mess with those law makers heads!

Wouldn't you need a license for all those bullets you're importing?

[Dinner]

Originally posted by SpencerH
Perhaps your land abuts the current federal sanctuary of the "red breasted knob-gobbler"?

Someone should start a save the knob0gobbler fund. Lord knows the world could use a few more good knob-gobblers.

[Dinner]

Originally posted by MichaeltheGreat look at the revision process for the Temecula Valley master plan for one local example, or the Murphy Canyon Gateway project for one even closer to home.

Yeah, they've royally screwed the Temecula Valley. I remember when my sister first bought out there 6-7 years ago and there was hardly anything in the whole valley other then farm fields, vineyards, and horse ranches. To bad the only thing grow there now is subdivisions.

I'm not sure what the Murphy Canyon Project but I'm guessing you're talking about the Navy's new housing project in Tierra Santa that got to exist outside of the regional planning commissions guidelines. They're squeezing in almost 1000 homes into a tiny area and aren't upgrading any of the streets or schools to accomidate the extra traffic or expense. All those expenses are just being dumped on to the city by the Navy.

[Imran Siddiqui]

Originally posted by Zkribbler
What it does do though is grant the Secretary the right to, in effect, repeal laws. That's an Article I power and shouldn't be willy nilly transferred to the Article II executive branch.

Not really. It allows the Secretary to repeal those laws conflicting with the law Congress just passed. Instead of going back to Congress every little time the barrier conflicts a different law, the Secretary has the right to decide when that conflict happens, and in that case, Congress' blanket repeal applies.

It is very limited.