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Do you believe that Executive Action done because "Congress is not acting" is likely Constitutional?

Do you believe executive action is LIKELY constitutional when done when Congress decides not to act?


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Zyphlin

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Do you believe that Executive Action done because "Congress is not acting" is likely Constitutional?

A question here presented in a broad sense.

Do you personally, regardless of whether you think the courts would agree or not, believe that, in general, Executive Action done because "congress is not acting" is likely a Constitutional action? Specifically, this is talking about instances where Congress has taken engaged in discussion or negotiation about a particular matter, but ultimately...due to whatever reason....has chosen to NOT take action by not bringing it to a floor vote or not receiving the necessary votes to pass a bill.

In such cases, do you believe it's constitutionally justified for a President to take Executive Action to enact an aspect or a proxy instance of said legislative action?

****NOTED CAVEAT**** Please note, this isn't saying every instance is definitely Unconstitutional / Constitutional, but whether or not you believe it LIKELY is one of those options when it occurs. ****NOTED CAVEAT****
 
Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

I think "Executive Action" (i.e. Executive Orders and Agency Rules and Policies) are perfectly Constitutional as long as they remain guidance on how the Executive Branch will enforce established laws.

They are only Un-Constitutional when they are in direct conflict with the letter of a law.

Laws seldom address the mechanics of enforcement, they simply outline the issues being addressed, specify what is and is not legal, and where illegal what kind of punishments ensue.

When it comes to the establishments of Agencies designed to administer the laws, there is always an expectation that the Chief Administrator has leeway to set up rules and policies regarding enforcement and day to day operations.

The courts are the final arbiters of whether or not the Agency acted properly on a case by case basis.
 
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Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

Do you personally, regardless of whether you think the courts would agree or not, believe that, in general, Executive Action done because "congress is not acting" is likely a Constitutional action?
Whether Congress is acting or not has nothing to do with whether or not an Executive Action is legal. The legality of the EA is based entirely on the Action itself. Now whether or not the Action is a good idea might depend heavily on what Congress is doing, and how urgent the problem is, but that doesn't change the legality of it.
 
Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

A question here presented in a broad sense.

Do you personally, regardless of whether you think the courts would agree or not, believe that, in general, Executive Action done because "congress is not acting" is likely a Constitutional action? Specifically, this is talking about instances where Congress has taken engaged in discussion or negotiation about a particular matter, but ultimately...due to whatever reason....has chosen to NOT take action by not bringing it to a floor vote or not receiving the necessary votes to pass a bill.

In such cases, do you believe it's constitutionally justified for a President to take Executive Action to enact an aspect or a proxy instance of said legislative action?

****NOTED CAVEAT**** Please note, this isn't saying every instance is definitely Unconstitutional / Constitutional, but whether or not you believe it LIKELY is one of those options when it occurs. ****NOTED CAVEAT****

I believe the Founding Fathers designed our government with willful intent to avoid monarchy and kings. Democracy takes cooperation. When the Legislative branch can't seem to reach a decision for the people.. due to corruption, partisanship, or *gasp* legitimate legislative work. I believe then, it is "Constitutional" for a President to act on behalf of a lethargic Legislature. However, because something is Constitutional does not make it right or prudent. Constitutionally, I have the ability to do many things, that does not mean I should go out and do them.

Going back to my previous point, the Founding Fathers designed our government to discourage absolute power and "rogue" executives from being able to do much. For that, I thank them, lest we have some villain in office who makes decisions based upon how it would effect his ego alone.
 
Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

I didn't like it when Obama, Bush, and Clinton did it, I don't like Trump doing it.

The only time I see it as constitutional is in some very strict conditions: when it unravels previous EOs and when it is strictly enforcement.

Unconstitutional: when it contradicts current law, when enforcement establishes new law. Neither is within the powers of the executive, imo.
 
Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

I think "Executive Action" (i.e. Executive Orders and Agency Rules and Policies) are perfectly Constitutional as long as they remain guidance on how the Executive Branch will enforce established laws.

They are only Un-Constitutional when they are in direct conflict with the letter of a law.

Laws seldom address the mechanics of enforcement, they simply outline the issues being addressed, specify what is and is not legal, and where illegal what kind of punishments ensue.

When it comes to the establishments of Agencies designed to administer the laws, there is always an expectation that the Chief Administrator has leeway to set up rules and policies regarding enforcement and day to day operations.

The courts are the final arbiters of whether or not the Agency acted properly on a case by case basis.

The problem is that the courts simply do not do so. There is no "case by case" examination of DACA by the courts - DACA flat out made up a blanket exception to federal immigration law for hundreds of thousands of folks. The date 6/15/2007 never appears in federal immigration law but is the basis for DACA.
 
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Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

Whether Congress is acting or not has nothing to do with whether or not an Executive Action is legal. The legality of the EA is based entirely on the Action itself. Now whether or not the Action is a good idea might depend heavily on what Congress is doing, and how urgent the problem is, but that doesn't change the legality of it.

Case law suggests otherwise. Previous SCOTUS cases on this matter suggested that an Executives authority to act using his own power is at it's utmost lowest when that action runs counter to the will of congress. Thus, if the will of congress is to not act on something (demonstrated by it's decision to either not bring it up to vote, or to vote it down), then that does have some impact on the legitimacy of the executive action.

Or do you just disregard that case law (a perfectly viable notion given this is about ones own opinion on constitutionality)
 
Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

The problem is that the courts simply do not do so. There is no "case by case" examination of DACA by the courts - DACA flat out made up a blanket exception to federal immigration law for hundreds of thousands of folks. The date 6/15/2007 never appears in federal immigration law but is the basis for DACA.

It moved DACA folk to the end of the list when it comes to priority of who gets deported. As there will never be enough resources to deport all people here illegally, it works like an exception but it's not law and it's using the powers the President has.
 
Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

It moved DACA folk to the end of the list when it comes to priority of who gets deported. As there will never be enough resources to deport all people here illegally, it works like an exception but it's not law and it's using the powers the President has.

DACA/DAPA did far more than that - it made them eligible to legally work in the US.
 
Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

EO's have been used by Presidents since George Washington. The problem with EO's comes about when Presidents use them to either create laws, or to circumvent laws that were already passed by Congress. They can be challenged in courts for violation of the separation of powers. EO's are not binding and can be overturned by the next administration through another EO.
 
Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

EO's have been used by Presidents since George Washington. The problem with EO's comes about when Presidents use them to either create laws, or to circumvent laws that were already passed by Congress. They can be challenged in courts for violation of the separation of powers. EO's are not binding and can be overturned by the next administration through another EO.

Which is much of What Trump is doing. He's been blistering the Obama legacy of action through EO's by nullifying much of what he did with them. Which shows the limited value an EO has, the next President might just erase your "Legacy".
 
Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

Case law suggests otherwise. Previous SCOTUS cases on this matter suggested that an Executives authority to act using his own power is at it's utmost lowest when that action runs counter to the will of congress. Thus, if the will of congress is to not act on something (demonstrated by it's decision to either not bring it up to vote, or to vote it down), then that does have some impact on the legitimacy of the executive action.

Or do you just disregard that case law (a perfectly viable notion given this is about ones own opinion on constitutionality)

Sounds like a correlation, not a causation. Either the President has the authority to take an action or he doesn't. The mood of congress does not change the powers of the executive branch.
 
Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

A question here presented in a broad sense.

Do you personally, regardless of whether you think the courts would agree or not, believe that, in general, Executive Action done because "congress is not acting" is likely a Constitutional action? Specifically, this is talking about instances where Congress has taken engaged in discussion or negotiation about a particular matter, but ultimately...due to whatever reason....has chosen to NOT take action by not bringing it to a floor vote or not receiving the necessary votes to pass a bill.

In such cases, do you believe it's constitutionally justified for a President to take Executive Action to enact an aspect or a proxy instance of said legislative action?

****NOTED CAVEAT**** Please note, this isn't saying every instance is definitely Unconstitutional / Constitutional, but whether or not you believe it LIKELY is one of those options when it occurs. ****NOTED CAVEAT****

I picked no.Because what would be the point of having a congress and senate if the president can write laws. The house,senate, and president are supposed to be checks and balances. There is suppose to be red tape. If Congress doesn't slap a bill on the president's desk that the president wants then that is too bad for the president. If the president doesn't sign a bill that congress slapped on his desk then that if too bad for congress( unless they got a veto proof majority in both houses) Our system of government is set up to have as many road blocks as possible because our founders didn't want our government doing something on the spur of the moment.
 
Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

I picked no because the idea that the president should be able to take sweeping action because congress is unwilling or unable to act has more in common with despotic rule than constitutional rule. Congress, not the executive, is the law making branch of government. If congress cant act on a particular issue, then that issue doesn't get acted on. If the public wants it, and the congress wont act, then the public can send new people to congress. For the president to bypass this process and act on his own is to essentially nullify congress and rule by fiat. While that sort of thing may be desirable to some while their guy is king, these same people will be quite unhappy when a new king arrives.
 
Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

A question here presented in a broad sense.

Do you personally, regardless of whether you think the courts would agree or not, believe that, in general, Executive Action done because "congress is not acting" is likely a Constitutional action? Specifically, this is talking about instances where Congress has taken engaged in discussion or negotiation about a particular matter, but ultimately...due to whatever reason....has chosen to NOT take action by not bringing it to a floor vote or not receiving the necessary votes to pass a bill.

In such cases, do you believe it's constitutionally justified for a President to take Executive Action to enact an aspect or a proxy instance of said legislative action?

****NOTED CAVEAT**** Please note, this isn't saying every instance is definitely Unconstitutional / Constitutional, but whether or not you believe it LIKELY is one of those options when it occurs. ****NOTED CAVEAT****

Other: It's hard to say what is and is not constitutional when it comes to executive actions. We have original sources that don't agree on basic things such as just how energetic the executive should be. Hamilton, Jefferson, Madison had rather differing views. There also isn't much in the way of actual case law and I have trouble imagining how the vast majority of executive orders could ever get into court (it comes down to the "case and controversy" requirement of Article 3, which in turn informs SCOTUS and any federal courts congress establishes of what sort of disputes they can actually hear).

So we really don't have a solid basis to begin discussing this with any specificity.

I'd suggest that if further congressional action were required to aid the executive faithfully execute another existing piece of legislation, but congress refuses to act, then perhaps it does fall within the executive's authority to do something by EO where congress fails to act. On the other hand, if congress simply refuses to do something in a situation where action is not required to execute some other piece of legislation, then perhaps executive action in place of congress might not be constitutional - provided the executive action is the functional equivalent of legislating.

(But note: the courts have given executive agencies great leeway to promulgate rules with the force of law - quasi-legislative functions - as well as leeway to carry out quasi-judicial functions.).

But this is guesswork. Maybe if I get bored I'll try to figure out just how many, if any, SCOTUS cases rule on the boundaries of executive action.




Edit: It's an interesting and complicated question. I'll have to mull it over.
 
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Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

A question here presented in a broad sense.

Do you personally, regardless of whether you think the courts would agree or not, believe that, in general, Executive Action done because "congress is not acting" is likely a Constitutional action? Specifically, this is talking about instances where Congress has taken engaged in discussion or negotiation about a particular matter, but ultimately...due to whatever reason....has chosen to NOT take action by not bringing it to a floor vote or not receiving the necessary votes to pass a bill.

In such cases, do you believe it's constitutionally justified for a President to take Executive Action to enact an aspect or a proxy instance of said legislative action?

****NOTED CAVEAT**** Please note, this isn't saying every instance is definitely Unconstitutional / Constitutional, but whether or not you believe it LIKELY is one of those options when it occurs. ****NOTED CAVEAT****

I do not think congress not taking action would make something previously unconstitutional constitutional. That is, congress not acting would not change the constitutionality of an EO. Is that what you are asking?

Edit: I will probably discover more of what you are asking as I read the thread, so don't hurt me too bad over asking questions you already answered...
 
Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

Case law suggests otherwise. Previous SCOTUS cases on this matter suggested that an Executives authority to act using his own power is at it's utmost lowest when that action runs counter to the will of congress. Thus, if the will of congress is to not act on something (demonstrated by it's decision to either not bring it up to vote, or to vote it down), then that does have some impact on the legitimacy of the executive action.

Or do you just disregard that case law (a perfectly viable notion given this is about ones own opinion on constitutionality)

Can you mention or link to some specific cases you are referring to here? One line summaries of court rulings are incomplete at best.

Also, I would suggest that in determining the will of congress, not voting on something would be a highly suspect method to determine that will.
 
Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

Can you mention or link to some specific cases you are referring to here? One line summaries of court rulings are incomplete at best.

Also, I would suggest that in determining the will of congress, not voting on something would be a highly suspect method to determine that will.

Youngstown Sheet & Tube Co. v. Sawyer

Opinion

Legal Legacy post on it

Wikipedia article

Article by The Hill, focused of course around Trumps use of EAs.

From the opinion, explaining when the Executive's power is at it's most limited

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter....

I would suggest that the failure of Congress to bring to the floor, or pass, a particular measure or bill would suggested that the implied will of congress would be for said bill or measure to NOT be done. If they wanted it to be done, then the measure would have passed.

For example, if the Congress has repeatedly failed to pass or bring forth a measure that removed a fine on individuals for not having insurance, an executive action that essentially removes the assessment of a fine on individuals for not having insurance would be against the implied will of congress and thus would have a significant hurdle to pass in order to be considered a constitutional execution of the law on the part of the President.
 
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Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

Youngstown Sheet & Tube Co. v. Sawyer

Opinion

Legal Legacy post on it

Wikipedia article

Article by The Hill, focused of course around Trumps use of EAs.

From the opinion, explaining when the Executive's power is at it's most limited



I would suggest that the failure of Congress to bring to the floor, or pass, a particular measure or bill would suggested that the implied will of congress would be for said bill or measure to NOT be done. If they wanted it to be done, then the measure would have passed.

For example, if the Congress has repeatedly failed to pass or bring forth a measure that removed a fine on individuals for not having insurance, an executive action that essentially removes the assessment of a fine on individuals for not having insurance would be against the implied will of congress and thus would have a significant hurdle to pass in order to be considered a constitutional execution of the law on the part of the President.

Your wiki article linked to this one: https://en.wikipedia.org/wiki/Medell%C3%ADn_v._Texas, which is a much more recent case(2008). To quote from the ruling in that case:

Such considerations, however, do not allow us to set aside first principles. The President's authority to act, as with the exercise of any governmental power, 'must stem either from an act of Congress or from the Constitution itself.'

I find it hard to say that not acting is an act. However, 200 years of rulings, from a multitude of people, leaves enough questions that you just can never tell. But the above quote was written by a current member of the court(Roberts), so is a little firmer I think. Hard to tell with SCOTUS, and ultimately, it is for them to decide.
 
Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

I find it hard to say that not acting is an act. However, 200 years of rulings, from a multitude of people, leaves enough questions that you just can never tell. But the above quote was written by a current member of the court(Roberts), so is a little firmer I think. Hard to tell with SCOTUS, and ultimately, it is for them to decide.

I think perhaps we're misunderstanding each other, or perhaps what is being meant by the term act.

If anything, Roberts opinion doesn't really conflict with the question I asked earlier.

Roberts statement is that the President's authority to take executive action must stem from an act of Congress or the Constitution.

If one's argument is that "Congress has not acted on X, therefore I am taking executive Action to essentially do X", the President's action is not stemming fro man act of congress but rather in clear disregard that Congress made no such act.

What Youngstown essentially says is that when a President is taking executive action stemming from an act of congress (i.e. the law) in order to enforce and administer the law, he has wide latitude in choosing what actions to undertake if it's clearly in line with the intent of Congress as it relates to the law in question. However, if the actions he's taking, even if they stem from an act of congress, is seemingly at odds with the intent or desires of congress, then the latitude regarding the types of actions he can take are limited.

Lets take immigration for an example.

If Congress is taking action and passing laws cracking down criminal illegal aliens but giving leniency to underage illegal immigrants that were brought here against their will, and in conjunction with that the President...piggybacking off a law Congress had previously passed...passes an executive action directing his agencies to focus on criminal illegal aliens and to utterly ignore any illegal alien under the age of 18, it is likely constitutional and within the President's scope. While the congress hadn't passed a law saying "don't enforce any immigration law against those under 18 years old" or such, the actions the President enacted are in line with the will of congress and thus his latitude is great.

If Congress is taking action and passing laws cracking down on all illegal immigration across the board, and specifically voted down a law that gave leniency to underage illegal immigrants...then a president doing the same action as described above would be more constitutionally questionable. While he's still piggybacking off the same formerly passed laws, the new executive action he's given directing his agency to forgo faithful enforcement of the law in some instances and instead focusing primarily in a small subset of the potential criminal population is clearly counter to the implied will of congress and thus would be more difficult to uphold to constitutional scrutiny.

essentially....

Executive Actions are meant to give the President latitude to best interpret and enforce the laws that Congress has and is passing, and when he's using Executive Actions to do that his power is at it's broadest.

Executive Actions are NOT meant to give the President the ability to circumvent the will of congress by simply not enforcing, or minimally enforcing, portions of a law or enacting policies that congress have voted against making law. When he's using EA's in that fashion his power is at it's utmost limited state.

That doesn't mean all such instances are unconstitutional. But my argument would be that in such a case, it's far more likely than not to be an unconstitutional form of executive action.
 
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Re: Do you believe that Executive Action done because "Congress is not acting" is likely Constitutio

The problem is that the courts simply do not do so. There is no "case by case" examination of DACA by the courts - DACA flat out made up a blanket exception to federal immigration law for hundreds of thousands of folks. The date 6/15/2007 never appears in federal immigration law but is the basis for DACA.

The Courts are not investigators; they are arbiters.

A case must be presented in a court of proper jurisdiction by an aggrieved party with standing.

Standing in Federal Court: At the federal level, legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law. Federal courts only have constitutional authority to resolve actual disputes (see Case or Controversy).

*In Lujan v. Defenders of Wildlife (90-1424), 504 U.S. 555 (1992), the Supreme Court created a three-part test to determine whether a party has standing to sue:

1. The plaintiff must have suffered an "injury in fact," meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent

2. There must be a causal connection between the injury and the conduct brought before the court

3. It must be likely, rather than speculative, that a favorable decision by the court will redress the injury.
https://www.law.cornell.edu/wex/standing

DACA was not examined because no aggrieved party filed suit to challenge it. :shrug:
 
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