Our Timidity is Killing the Constitution

NWRatCon said:

Welcome to DP. I wish you could have introduced yourself with something better than this incredibly weak sauce, but at least you are addressing the content of the post, which I greatly appreciate. I'm a bit busy with a new roof, at present, but I'll try to be back with a detailed response later today.

Click to expand...

Thanks for the welcome.

clapee said:

��

Thanks for the welcome.

Click to expand...

I'm hoping we can have a discussion of substance, and maybe even find areas of agreement. In the interest of time, I think I'll address the points in order.

clapee said:

If that is the best you got in your protestation that the Constitution is under assault, you have a fairly weak case.

Click to expand...

Constitution is obviously under assault from all directions since there are so many treasonous liberals around who don't believe in the basic principle of the Constitution, ie limited central govt or freedom from arbitrary and monopolistic central govt.

For a discussion forum, I find it increasingly obvious that numerous posters have a no interest in being persuasive or discuss substance. They come here to spout one-dimensional views and provoke a response in kind. They present a caricatured strawman and proceed to argue against the cartoon. I find myself too often responding to such provocations, and it avails nothing. At least when one addresses the substance of the OP there is space for honest discussion, therefore....

clapee said:

1. Garland - The Senate’s advice and consent role is an authorized legislative power, not a responsibility. The real issue is the politicization of the Supreme Court which acts as an inducement of such behavior, like the type taken by McConnell. But, that is the subject of another discussion.

Click to expand...

Or, we can have it here. I agree that the politicization of the Supreme Court is a primary concern, but cannot accept your formulation that "advise and consent" is not "a responsibility". Truly, the responsibility is the President's to appoint, but it is an obligation of the Senate to "bear true faith and allegiance to the [Constitution]". They take an oath explicitly to do so, and characterize it as "this obligation" (which contradicts your assertion). To bear such true faith and allegiance they are obliged to engage in their appointed responsibility on behalf of the people of the United States and in support of the President in his. He did his part, they were derelict in theirs - or at least Mitch McConnell was.

Moreover, his purpose in doing so was explicitly partisan and politicized. The GOP has been far more aggressive in pushing ideology over qualification for the third branch of government. That is precisely how the Supreme Court becomes politicized.

clapee said:

2. The wall - I’m not sure why you cite to the General Welfare Clause instead of the Appropriations Clause. Notwithstanding, Trump is simply redirecting certain allocated funds to the border wall. Most of the justification is based upon funds allocated for drug interdiction. I’m not quite clear what the issue is.

Click to expand...

My point was that Congress had the power of the purse, although you are correct that the appropriations clause is more directly applicable. Which makes your assertion perplexing. You appear to have some familiarity with the appropriation process (appropriating versus allocating), as "allocation" is a term of art, but the process is inapplicable here. Congress appropriated funds for particular purposes. More relevant here, Congress explicitly did not allocate funds for building a wall. That is a policy choice. Having made that policy choice, the President is obliged by the Constitution to execute that policy. Again, an explicit constitutional obligation ("faithfully execute"). Acknowledging that there is is some some room for interpretation when ambiguities exist, this is not such a situation. There is no ambiguity. Nor is it possible to excuse the behavior as "emergent", as he, himself, stated.

NWRatCon said:

That is precisely how the Supreme Court becomes politicized.

Click to expand...

You are totally and perfectly confused. Legislative Executive and Judicial are politicized because of the treasonous liberal faction which our Founders warned us against. Is that simple enough for you?

NWRatCon said:

There is no ambiguity.

Click to expand...

You mean none to flaming liberals who don't think 2000 sex traffickers at border is an issue, or 30 million illegals flouting our laws and diluting our culture and diving down our wages is a national security issue.

WillyPete said:

Please, help me to understand what we can hope to get from an impeachment inquiry.

The result of the impeachment itself is a forgone conclusion, which is a pretty different situation than Nixon's.

Trump's people know that as well. Why would he not just stonewall and play the victim until the Senate vote?

Seem like the best we can hope for would be to reveal publicly more of Trump's shady dealings, but they will resist this bitterly.

These revelations would have to be pretty nasty indeed, in order to overcome the downside of simultaneously handing Dem voters a defeat and re-energizing Trump's base right in the middle of election season.

Click to expand...

Congress has been trying to do their job of oversight since last January. Everyone is aware of the unconstitutional, underhanded and basically illegal financial dealings Trump has had since taking office. The problem comes from Trump himself who has intentionally (of course) stonewalled Congress by refusing to turn over documents, allow people to be interviewed or cooperating in any way with Congress and their investigations. Of course it's intentional because if everything was legal and on the up-and-up, there would be no reason to silence the voices of people subpoenaed or to refuse to turn over documents.

An official impeachment inquiry changes things because under an official impeachment inquiry, the courts will rule in favor of Congress and interviews will be enforced under the law and documents they require will have to be turned over. This of course is a slow process.

HumblePi said:

Everyone is aware of the unconstitutional, underhanded and basically illegal financial dealings Trump has had since taking office. .

Click to expand...

I assume that includes you? Then why so afraid to give us your best example?? See why we say liberalism is based in pure 100% ignorance?

James972 said:

I assume that includes you? Then why so afraid to give us your best example?? See why we say liberalism is based in pure 100% ignorance?

Click to expand...

I'd be happy to address your cynicism and condemnation of liberalism as being based in "pure 100% ignorance".

To begin with, there's several lawsuits brought by various litigants arguing that Trump’s business holdings violate the Foreign or Domestic Emoluments Clauses. These lawsuits have alleged that the President has violated the Clauses due to his failure to divest his business holdings in Trump hotels and other private enterprises. One down....

His ban on all Muslims entering the United States was deemed to be unconstitutional by five separate federal judges.

Moving on...

He tried to have Don McGahn fire Robert Mueller to put an end to the investigation. That's illegal and it's a felony, it's obstruction of justice and we're just getting stated on these investigations since an impeachment inquiry has officially been started.

Then there's the question as to whether Trump has violated the First Amendment. His Tweets may be interpreted by courts as official statements. (which they are) It has even been said to implicate First Amendment issues—for instance, through President Trump’s decision to block some users from his Twitter feed after critical remarks against him were made.

Trump has also suggested that as president, he would enact new restrictions on the First Amendment’s guaranteed freedom of the press. “We're going to open up those libel laws,” Trump said in February. “So when The New York Times writes a hit piece which is a total disgrace … we can sue them and win money instead of having no chance of winning because they're totally protected.” It hasn't happened, yet. When it does, it will be a clear violation of the First Amendment. If he wins in 2020, I can guarantee you that it will happen.

HumblePi said:

To begin with, there's several lawsuits brought by various litigants.

Click to expand...

dear, I simple asked for your best example. Are you afraid to tell us your best example?? HOw will you learn if your are afraid to try??

NWRatCon said:

For a discussion forum, I find it increasingly obvious that numerous posters have a no interest in being persuasive or discuss substance. They come here to spout one-dimensional views and provoke a response in kind. They present a caricatured strawman and proceed to argue against the cartoon. I find myself too often responding to such provocations, and it avails nothing. At least when one addresses the substance of the OP there is space for honest discussion, therefore....

Or, we can have it here. I agree that the politicization of the Supreme Court is a primary concern, but cannot accept your formulation that "advise and consent" is not "a responsibility". Truly, the responsibility is the President's to appoint, but it is an obligation of the Senate to "bear true faith and allegiance to the [Constitution]". They take an oath explicitly to do so, and characterize it as "this obligation" (which contradicts your assertion). To bear such true faith and allegiance they are obliged to engage in their appointed responsibility on behalf of the people of the United States and in support of the President in his. He did his part, they were derelict in theirs - or at least Mitch McConnell was.



Moreover, his purpose in doing so was explicitly partisan and politicized. The GOP has been far more aggressive in pushing ideology over qualification for the third branch of government. That is precisely how the Supreme Court becomes politicized.

Click to expand...

I do not think we will have middle ground here. Our premises are too divergent. However, I point you to Senate Rule XXXII, which provides that a nomination may be returned to the president. A nomination is returned when no action is taken. And by default, nominations are returned at the conclusion of a session, or after a recess of 30 days or more. This is the body’s own interpretation of their obligations in their advice and consent role.

The text of the Constitution does state the Senate must vote yes or no on a nomination.

NWRatCon said:

For a discussion forum, I find it increasingly obvious that numerous posters have a no interest in being persuasive or discuss substance. They come here to spout one-dimensional views and provoke a response in kind. They present a caricatured strawman and proceed to argue against the cartoon. I find myself too often responding to such provocations, and it avails nothing. At least when one addresses the substance of the OP there is space for honest discussion, therefore....

Or, we can have it here. I agree that the politicization of the Supreme Court is a primary concern, but cannot accept your formulation that "advise and consent" is not "a responsibility". Truly, the responsibility is the President's to appoint, but it is an obligation of the Senate to "bear true faith and allegiance to the [Constitution]". They take an oath explicitly to do so, and characterize it as "this obligation" (which contradicts your assertion). To bear such true faith and allegiance they are obliged to engage in their appointed responsibility on behalf of the people of the United States and in support of the President in his. He did his part, they were derelict in theirs - or at least Mitch McConnell was.

Moreover, his purpose in doing so was explicitly partisan and politicized. The GOP has been far more aggressive in pushing ideology over qualification for the third branch of government. That is precisely how the Supreme Court becomes politicized.

Click to expand...

With respect to your last paragraph, I do not disagree McConnell’s motivation was to wait it out and see if a Republican would win. It is a shame that that’s why it has come to.

However, I must disagree with the dole blame being placed at the feet of the GOP. Consider Bork and Thomas’ nomination hearings. Much of the blame for the politicization of the Supreme Court can be blamed on Biden, frankly. They GOP has never done to a nominee what Democrats have done to Bork, Thomas, and Kavanaugh.

NWRatCon said:

My point was that Congress had the power of the purse, although you are correct that the appropriations clause is more directly applicable. Which makes your assertion perplexing. You appear to have some familiarity with the appropriation process (appropriating versus allocating), as "allocation" is a term of art, but the process is inapplicable here. Congress appropriated funds for particular purposes. More relevant here, Congress explicitly did not allocate funds for building a wall. That is a policy choice. Having made that policy choice, the President is obliged by the Constitution to execute that policy. Again, an explicit constitutional obligation ("faithfully execute"). Acknowledging that there is is some some room for interpretation when ambiguities exist, this is not such a situation. There is no ambiguity. Nor is it possible to excuse the behavior as "emergent", as he, himself, stated.

Click to expand...

Trumps arguably had the authorization. I point you to the following article which goes through the administration’s theory. What Authorities Is President Trump Using to Build a Border Wall? - Lawfare Most of it sounds like it will pass muster.

clapee said:

With respect to your last paragraph, I do not disagree McConnell’s motivation was to wait it out and see if a Republican would win. It is a shame that that’s why it has come to.

However, I must disagree with the dole blame being placed at the feet of the GOP. Consider Bork and Thomas’ nomination hearings. Much of the blame for the politicization of the Supreme Court can be blamed on Biden, frankly. They GOP has never done to a nominee what Democrats have done to Bork, Thomas, and Kavanaugh.

Click to expand...

I couldn't disagree more with the last statement. I will point out that all three got a vote. If you felt Bork or Thomas were the "best qualified" candidates, well, you won't find agreement on that score.

HumblePi said:

I'd be happy to address your cynicism and condemnation of liberalism as being based in "pure 100% ignorance".

To begin with, there's several lawsuits brought by various litigants arguing that Trump’s business holdings violate the Foreign or Domestic Emoluments Clauses. These lawsuits have alleged that the President has violated the Clauses due to his failure to divest his business holdings in Trump hotels and other private enterprises. One down....

His ban on all Muslims entering the United States was deemed to be unconstitutional by five separate federal judges.

Moving on...

He tried to have Don McGahn fire Robert Mueller to put an end to the investigation. That's illegal and it's a felony, it's obstruction of justice and we're just getting stated on these investigations since an impeachment inquiry has officially been started.

Then there's the question as to whether Trump has violated the First Amendment. His Tweets may be interpreted by courts as official statements. (which they are) It has even been said to implicate First Amendment issues—for instance, through President Trump’s decision to block some users from his Twitter feed after critical remarks against him were made.

Trump has also suggested that as president, he would enact new restrictions on the First Amendment’s guaranteed freedom of the press. “We're going to open up those libel laws,” Trump said in February. “So when The New York Times writes a hit piece which is a total disgrace … we can sue them and win money instead of having no chance of winning because they're totally protected.” It hasn't happened, yet. When it does, it will be a clear violation of the First Amendment. If he wins in 2020, I can guarantee you that it will happen.

Click to expand...

1. Allegations made in a lawsuit are proof of nothing. They are words on a page.

2. He never banned all Muslims. This is just absolutely wrong and boggled the mind you would state this publicly.

3. Use some of those brain cells you have on this one. Trump, though he absolutely had the authority to fire Mueller, tells Don McGahn to fire him (which immediately begs the question why wouldn’t Trump have just fires him). And then, when Mueller begins investigating obstruction, Trump does not assert executive privilege and allows Mueller to interrogate the White House counsel, Don McGhan. But for Trump’s cooperation, this supposed obstruction would never have been discovered. Moreover, when prosecuting a case, a prosecutor must consider the equities of any given prosecution (I used to be a prosecutor). Laws always have objectives. A basic question an prosecutor must ask before upending someone’s life is whether the prosecution furthers the objectives of the law. In Trump’s case, there was no evidence that Trunp, or any other American person, conspired with Russia to commit any criminal offense. Based partly on the fact there was no evidence of an u dwelling offense, and Trump’s actual and material cooperation (aside from comments here and there), would be inequitable and would not further the objective of the prohibition against obstruction of a criminal investigation. (As an aside, I do think it is possible to obstruct an investigation that does not uncover evidence of an u deleting crime, but pursuing such a prosecution is difficult and should be used sparingly and for egregious conduct. The argument that his comment to McGahn is obstruction is farcical.

4. You’re probably right about Twitter. But, really...? Who cares?

5. Altering the elements of libel, which requires proof of actual malice against a public official, would not restrict the freedom of the press. The press these days need to be more responsible. However, it would require the Supreme Court to alter the elements of libel against a public official, and it is pure hysterics to think that it would. So do I agree with Trump? No. But, the press really has got to get their sh*t in order.

Moreover, it’s not like he wiretapped reporters, like Barry Obama did. Talk about a chilling effect...

NWRatCon said:

I couldn't disagree more with the last statement. I will point out that all three got a vote. If you felt Bork or Thomas were the "best qualified" candidates, well, you won't find agreement on that score.

Click to expand...

Sitting on a vote is not the same as attempting to destroy and dismantle a nominee’s reputation and character, not just as a judge or lawyer, but as a human being. As Thomas said, it was nothing more than a high tech lynching. Thomas and Bork were both more than qualified to sit on the bench. I mean, Sotomayor was confirmed for the love of God. By all’ accounts, she is absolutely not qualified for a professional standpoint.

clapee said:

Trumps arguably had the authorization. I point you to the following article which goes through the administration’s theory. What Authorities Is President Trump Using to Build a Border Wall? - Lawfare Most of it sounds like it will pass muster.

Click to expand...

The cited article is hardly an endorsement of the positions, it merely lists the administration's arguments. The reality that the judicial branch is so infested with partisan hacks may result in these moves being upheld - or, more likely, never addressed - is the real crime against the Constitution, but likely unavoidable. Yet, as the author notes,

There is no shortage of potential plaintiffs who are likely to have standing to challenge the Trump administration’s actions, including individuals whose property is taken through eminent domain to build the wall, entities who would otherwise have benefited from the original intended purposes of the funds the Trump administration is redirecting, and potentially Congress itself if either chamber is able to muster the votes to authorize such action. And several groups have already made clear their intent to pursue legal action.

Click to expand...

Moreover, these challenges are not without merit.

More vulnerable, however, are the other statutory authorities that Trump is relying on. Can § 284’s authorization to build a “fence” to “block drug smuggling corridors” really be used to build a wall across the entire southern border? Is the wall really a “military construction project” of the sort authorized by § 2808? Does the president’s declaration of national emergency really “require use of the armed forces” as required by § 2808? The patchwork of legal authorities on which the Trump administration is relying exposes the administration to a wide array of these challenges.

Click to expand...

The true shame in all of this is that the legal and constitutional merits will likely never be reached, and Congress, in its current feckless condition, is unlikely to be able to respond. In such conditions is authoritarianism spawned.

NWRatCon said:

The cited article is hardly an endorsement of the positions, it merely lists the administration's arguments. The reality that the judicial branch is so infested with partisan hacks may result in these moves being upheld - or, more likely, never addressed - is the real crime against the Constitution, but likely unavoidable. Yet, as the author notes, Moreover, these challenges are not without merit. The true shame in all of this is that the legal and constitutional merits will likely never be reached, and Congress, in its current feckless condition, is unlikely to be able to respond. In such conditions is authoritarianism spawned.

Click to expand...

I agree the article is hardly an endorsement. But, it is a well written and thorough discussion of the issues. I tend to believe the transfers will be upheld if challenged. Additionally, the issue for most of the transfers will not be one of constitutional authority, but of statutory interpretation, which is principally the reason I linked to that article. The Congress drafts these statutes which leave a large amount of interpretation and discretion to the executive. This actually makes sense when making appropriations for such an issue as drug enforcement. That is also why the courts ought to grant the executive a reasonable latitude in interpretation and discretion when selecting projects. The solution would be an amendment to the statute, but the Senate would reject it, not to mention Trump’s veto power. But, that’s really the point. These types of mechanisms in our government were intended to avoid partisan hackery. Which, I think, is what this appropriations hoopla amounts to. You are free to disagree with that opinion.

I also agree that the judiciary is becoming more overt in expressing political beliefs by way of the bench. This goes for both ends of the spectrum. When it happens, it is frustrating.

clapee said:

I also agree that the judiciary is becoming more overt in expressing political beliefs by way of the bench. This goes for both ends of the spectrum. When it happens, it is frustrating.

Click to expand...

Democrats are now openly socialist so how can they not be political in a country based on freedom and capitalism?? There is nothing political about the Republicans; they simple read the Constitution as written. Do you understand??

NWRatCon said:

. The true shame in all of this is that the legal and constitutional merits will likely never be reached, and Congress, in its current feckless condition, is unlikely to be able to respond. In such conditions is authoritarianism spawned.

Click to expand...

yes so govt is grid locked and Trump is doing what the people elected him to do. Good for him!!

James972 said:

Democrats are now openly socialist so how can they not be political in a country based on freedom and capitalism?? There is nothing political about the Republicans; they simple read the Constitution as written. Do you understand??

Click to expand...

I do understand. My career consists of reading judicial opinions. I believe liberal judges are worse than conservative judges in drawing on their politics when deciding cases, but that doesn’t mean conservative judges don’t.

clapee said:

1. Garland - The Senate’s advice and consent role is an authorized legislative power, not a responsibility. The real issue is the politicization of the Supreme Court which acts as an inducement of such behavior, like the type taken by McConnell. But, that is the subject of another discussion.

2. The wall - I’m not sure why you cite to the General Welfare Clause instead of the Appropriations Clause. Notwithstanding, Trump is simply redirecting certain allocated funds to the border wall. Most of the justification is based upon funds allocated for drug interdiction. I’m not quite clear what the issue is.

3. The Senate impeachment clause is actually the 6th clause of the 3d article. But, I am co fixed why you would cite the Senate impeachment clause while deriding the House for not impeaching Trump. Help me out a bit. Moreover, there is precedent to not convict a president for obstruction of justice and perjury, though there was ample evidence - his name is Bill Clinton. And, we all know precedent matters in these things.

4. This is an inherent problem with the reliance upon non-specific legislation being fleshed out with agency regulations. The regulations can be changed using an alteration if interpretation or with the rulemaking authority as opposed to the legislative process. This happens in every administration, and is not peculiar to Trump.

5. The Congress does not have plenary authority to haul executive officials to inquire about any topic it may desire. The existence of executive privilege exists to allow the executive to effectively carry out its tasks.

6. This is somewhat silly. Your point may be valid if Trump just wasn’t nominating people, but his number of nominees is in line with other presidents. The number of nominations confirmed, on the other hand is a different matter. Moreover, there is no requirement that Trump appoint a person to every position that is available. I frankly do not have a problem with that.

If that is the best you got in your protestation that the Constitution is under assault, you have a fairly weak case.

Click to expand...

Agreed. His post is aptly described as the sky is falling constitutionally because I said so. His post was inundated with claims and assertions, no substance in support(no supporting arguments either) but he wants a substantive discussion.


Sent from my iPhone using Tapatalk

NotreDame said:

Agreed. His post is aptly described as the sky is falling constitutionally because I said so. His post was inundated with claims and assertions, no substance in support(no supporting arguments either) but he wants a substantive discussion.

Click to expand...

I was trying to decide, my friend, what would be the more apt description of your post: chicken****, or bull****? Here's a suggestion: if you don't have anything to say, how about saving everyone's time by not saying it? At least Clapee is expressing an opinion and discussing the topic.

NWRatCon said:

I was trying to decide, my friend, what would be the more apt description of your post: chicken****, or bull****? Here's a suggestion: if you don't have anything to say, how about saving everyone's time by not saying it? At least Clapee is expressing an opinion and discussing the topic.

Click to expand...

I have a suggestion, it is a common sense suggestion. Rather than post two paragraphs of only claims and allegations, which is exactly what you did, try supporting those claims and allegations with some substance, such as espousing supporting arguments, maybe doing the unfathomable of providing evidence, perhaps you could perform the daunting task of doing both!

The only chicken and bull manure is your tiring modus operandi of creating thread, after thread, after thread, upon which you espouse grandiose theories, make claim, after claim, after claim, and provide no supporting argument and/or evidence, and then b*tch about others not making substantive replies to your substance-less theories and allegations.

I said, poignantly, in a prior post: "What sets your account apart such that it is a fact the sky is falling?" Translation for the obtuse, anyone, including fools, can make allegations, assertions, claims, but the separation among them is based on argument, evidence, hopefully both, in support of the claim. Your opening post is a vomit of claims and nothing more. Try adding substance to support your claims in your own posts if you want a substantive dialogue and avoid the appearance of hypocrisy when whining about others' failure to substantively engage your vacuous post.

Your claim is this is a precipice, a constitutional precipice, and to support that claim you allege sub-claims of constitutional violations. What argument/evidence is there for the sub-claims? Care to actually venture any? Then, how exactly do those violations demonstrate this is a precipice, a momentous occasion in which the fate of the constitutional republic of the United States hangs in the balance.