Obama Administration's Shift on DoMA

[Ogie Oglethorpe]

All true, but it doesnt change the current reality i.e. that SCOTUS decides. The idea that the POTUS can unilaterally decide that a law is unconstitutional is a dangerous precedent IMO. The President is not a King.

True but as an example when Bush admitted that he had reservations about McCain-Fiengold being constitutional and decided to punt the issue to the supreme court instead rather than veto it, this smacks of abrogation of constitutional responsibilities and the localized interpretation one would expect from a given branch of govermentment. Each branch should be tasked with detemining constitutionality and pose that as one of the fundamental issues as part of the process. The checks and balances are defeated if merely allowing to have SCOTUS decide everything.

[Wezil]

What is wrong with the Court deciding constitutionality Ogie?

It seems they are better suited for the role than either one individual (POTUS) or reps of the "mob" (congress).

"Punting" to the courts seems valid.

[Ogie Oglethorpe]

Because the role of each branch during the law making process requires adherence to uphold the constitution. If a president has a bill on his desk that he has concerns passes constiutional muster, he is duty bound by his oath to veto it (pocket or otherwise) until such time that those concerns can be resolved.

Similarly if the legislative never bothers to ask themselves the question whether laws and regulations pass consitutional muster they have broken their oath to uphold the constitution by virtue(vice) of negligence.

I grant that once a law is enacted SCOTUS does seem to be the most appropriate vehicle for such a determination, but since there is no such thing as an absolute there are instances in society where simply following the rules is not an acceptable course of action. As an example, it is not acceptable line of defense for military personnel to state they were simply following orders when comitting war crimes. One expects a modicum of adherence to the oaths one has taken.

[Wezil]

I would hope all lawmakers keep an eye to the Constitutionality of legislation during the formulation process but if a binding decision needs to be made I would trust the Courts over the others. Just because a law was passed I don't think you can presume it is Constitutional on the argument it wouldn't have been passed otherwise.

[Ogie Oglethorpe]

Just because a law was passed I don't think you can presume it is Constitutional on the argument it wouldn't have been passed otherwise.

But that essentially is the issue. Laws are presumed constitutional by virtue of the process and enforced as such until such time as declared otherwise. The process when followed implicitly assumes the respective branches have considered the constitutional impacts. The fact that a president indicates he thinks a bill is unconstituional but presumes to sign the bill into law anyway says volumes and violates his most basic oath.


It takes special instances and standing to challenge the constitutional aspect of law.

[Wezil]

The fact that a president indicates he thinks a bill is unconstituional but presumes to sign the bill into law anyway says volumes and violates his most basic oath.

I can agree with this. He should refer it to the Courts rather than sign.

Surely he has this power (standing)?

[Imran Siddiqui]

I do have to agree with Ogie that merely thinking the Courts are where constitutionality should be determined makes a mockery of the ideals and process of the Constitution. It allows the legislature and executive to basically pass whatever they want, even if they believe it is wildly unconstitutional because, the SCOTUS will decide.

[Wezil]

Who is arguing otherwise?

I would hope all lawmakers keep an eye to the Constitutionality of legislation during the formulation process but if a binding decision needs to be made I would trust the Courts over the others.

[Ogie Oglethorpe]

I can agree with this. He should refer it to the Courts rather than sign.

Surely he has this power (standing)?

If it wasn't signed, this would set a new precendent and one that could be considered a breach of the balance of powers of the three branches.

The judicial has little to no role in the drafting and/or creation of law. By relying on the judicial to interpret the consitutionality of a proposed piece of legislation the judicial branch would get a proxy power they weren't intended to have (in effect a veto power reserved for the executive). That function is split between the judicial and executive.

[Wezil]

I am bested.

I am simply unable to argue the intricacies of this part of your system.

[Ogie Oglethorpe]

I do have to agree with Ogie that merely thinking the Courts are where constitutionality should be determined makes a mockery of the ideals and process of the Constitution. It allows the legislature and executive to basically pass whatever they want, even if they believe it is wildly unconstitutional because, the SCOTUS will decide.

For a commie you and I agree more frequently than not.

[Ogie Oglethorpe]

I am bested.

I am simply unable to argue the intricacies of this part of your system.

No problem our system is a bit eccentric to put it mildly.

[Wezil]

I'm not sure the legislature always agrees what is Constitutional or not. Surely they pass some pieces knowing they might be somewhat "dicey"? Isn't this very issue an example of that?

[Wezil]

No problem our system is a bit eccentric to put it mildly.

It is certainly different.

On a related tangent, we currently have a case before the BC Supreme Court where the Court is being asked to rule whether our federal laws against polygamy violate the Charter of Rights. There are no defendants before the court, just a legal reference. BC wants to ensure the law is sound before they pursue polygamists in Court (there is serious doubt the law will stand as is).

edit - link for anyone interested: http://www.ctvbc.ctv.ca/servlet/an/local/CTVNews/20110221/bc_polygamists_110221/20110221?hub=BritishColumbiaHome

[Ogie Oglethorpe]

I'm not sure the legislature always agrees what is Constitutional or not. Surely they pass some pieces knowing they might be somewhat "dicey"? Isn't this very issue an example of that?

Sure. This and most legislation. One of the issues that tea partiers and people of their stripe claim is that the legislative needs to read the bills they pass as a minimum, and that upon the reading, ponder the constitutionality.

The fact that they haven't is one (or at least should be one) of reasons for the abysmal approval ratings of congress.