Checks, Balances and Constitutional Theory

[Al Norris]

I'm still waiting for soemeone to tell me, under what legal theory does the Congress have the authority to "bail out" any private business.

The only answer I get is the same one I got when I questioned about the Chrysler Corp. bail-out: The General Welfare Clause.

That's as much hokem as how the Congress and Courts have stretched the Commerce Clause.

Edit: All off-topic posts moved from the bailout thread to this thread.

[Double Naught Spy]

I'm still waiting for someone to tell me, under what legal theory does the Congress have the authority to "bail out" any private business.

This is a simply one - the Constitution, Article I, sections 8 and 9. They simply pass a law that is not in conflict with the Constitution and get it signed by the President or override the President if he vetoes it (which he won't).

[Al Norris]

Originally Posted by Double Naught Spy

This is a simply one - the Constitution, Article I, sections 8 and 9.

OK. Double Naught, reference me the exact clause in either sect. 8 or sect. 9 that gives the Congress such a power.

You are not allowed to use, clause 1 of section 8: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; unless you can give me a counter argument to what Justice Story expounds upon in his Commentaries.

The fact of the matter is that Congress had no such authority until FDR came along. Until that time, the so-called general welfare clause was related only to collecting taxes, not their disbursement. It was FDR and his New Deal that usurped a tremendous amount of power that was never before even hinted at, let alone considered.

Remember, it took an amendment to ban alcohol, but with the New Deal, it only took a statute to ban other drugs.

Originally Posted by Double Naught Spy

The other is to ask just what would part of the Constitution or law preclude Congress from performing the bailout.

Wrong view. What is not enumerated is forbidden. This was the very talking point of federalism by Hamilton. Time and again, in the Federalist Papers, it was expounded upon. If that wasn't enough, the 10th amendment addresses this specific point.

Originally Posted by 10th Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

We could go on about this, suffice it to say, that as long as the majority of the people allow the Congress and the President to get away with the things that have been done, it will never change. The Judiciary has no power to enforce its own edicts. If the Legislative and Executive branches thumb their collective noses at the Judicial branch, what can they do?

It's been that way since Jackson gave the Courts their wake-up call.

[Double Naught Spy]

Antipitas, I think the differences you and I are discussing are differences of theory and differences of application/reality.

You are not allowed to use, clause 1 of section 8: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; unless you can give me a counter argument to what Justice Story expounds upon in his Commentaries.

Actually, I can until which time the action is ruled Unconstitutional. Justices Story's Commentaries are an opinion, not law.

The Federalist Papers are nice as well, but not a legal part of the Constitution.

Please keep in mind, I am not claiming the actions of Congress are correct or good. I am not a proponent of the bail out. I simply have not seen any sort of convincing legal argument that has shown Section 8 doesn't actually apply here. I know why it shouldn't apply, but that isn't the same thing.

[Al Norris]

00_Spy, I'm aware of all that. Just wanted to point out where it (mostly) came from.

The reality is that it won't change back to what it was. The Court will not overturn something like Wickard... Way too much legislation based upon that.

What I am saying is that until the people themselves get angry enough, over what the central government is doing, there will be no change. Right now, people are angry. Will it last? Doubtful.

[Double Naught Spy]

I was really hoping you had a legal trump to my arguments. Bummer.

What I am saying is that until the people themselves get angry enough, over what the central government is doing, there will be no change.

Yep. Not enough of the population are impacted in such a manner for this to make a difference...one in which enough of the population is both unified in comprehending the blame and motivated to act in a unified manner.

[Mike Irwin]

As a profesor of mine in college said...

Anything Congress does is legal.

Until Dianah and the Supremes says that it's not.

[Tennessee Gentleman]

The Judiciary has no power to enforce its own edicts. If the Legislative and Executive branches thumb their collective noses at the Judicial branch, what can they do?

And they know that too Al. I heard someone, probably Alan Gura, say that the court is VERY concerned about their decisions being accepted by the rest of government as they know if they put out crazy decisions they will be ignored. Seems like yet another check to their power. I think there was a more recent example of this since Jackson. The New Deal issues and Franklin Roosevelt's threat to pack the Court IIRC.

[Al Norris]

Seems like yet another check to their power.

It is and at the same time it isn't.

If the other two branches ignore the decisions, then we have a rogue government. This was, IMO, the problem with the NEW DEAL legislation. No respect for the Rule of Law by the other two branches.

On the other hand, by giving its decision, the Legislature can use it's powers to moot the decision in many cases, or call for an amendment in others.

[Tennessee Gentleman]

On the other hand, by giving its decision, the Legislature can use it's powers to moot the decision in many cases,

Agree, but I suspect that fact does color their decisions. I read about the New Deal time and the threat of that law being passed to stack the court had an effect on at least one of the justices and they quit overturning the New Deal laws. I just say all this because at first blush one might think the Supreme Court is more supreme than it really is.

[BillCA]

The Judiciary has no power to enforce its own edicts. If the Legislative and Executive branches thumb their collective noses at the Judicial branch, what can they do?

If the Judiciary rules a statute or other law as unconstitutional, yet the other branches continue to enforce that law, our Republic is in deep kim-shee.

We're seeing evidence of the corrosion in Washington D.C. with Heller and the district's attempt to ignore as much of the decision as possible.

Re: FDR and the New Deal -- didn't FDR expand the Supreme Court from 5 to 7 justices so he could add a couple of his "yes men" to the court?

[Al Norris]

Originally Posted by Tennessee Gentleman

Agree, but I suspect that fact does color their decisions.

Absolutely, it colors what is said in dicta, if not outright in the decision itself. Many times the Justice writing the decision will include "a blueprint" on what the legislature needs to do to make the law constitutional.

But there is more to this than meets the eye.

When FDR became President, he also had a legislature that was controlled by the same party. The threat of adding new Justices (that would decide cases in favor of his "New Deal") was very real. Real because he had a Congress that voted in lock-step with his proposed legislation. Since it is the Congress that decides (via legislation) how many Justices that sit on the Supreme Court, it would have been an easy reach.

In more recent times, we see much of the same thing with the first 6 years of the Bush administration.

This was not exactly what the founding generation had in mind.

[Tennessee Gentleman]

When FDR became President, he also had a legislature that was controlled by the same party. The threat of adding new Justices (that would decide cases in favor of his "New Deal") was very real. Real because he had a Congress that voted in lock-step with his proposed legislation. Since it is the Congress that decides (via legislation) how many Justices that sit on the Supreme Court, it would have been an easy reach.

In more recent times, we see much of the same thing with the first 6 years of the Bush administration.

This was not exactly what the founding generation had in mind.

OK, but doesn't it mean that the court is more attuned to what the body politic wants than many believe? I wonder if you look at many of the landmark decisions of the past if they weren't pretty close to what we public either wanted or were going towards.

I remember a class I took a long time ago that pointed out that when Brown vs. Topeka was decided that many polls and studies showed most Americans thought segregation to be wrong.

Same thing with Heller? Most polls and studies I have heard repeated in the media showed most Americans believe the 2A is an individual right.

So the question is how much does public desire shape what the court decides? Does the SCOTUS have any fear that if they get too way with their decisions out that they might become less relevant or even ignored?

[Technosavant]

This was not exactly what the founding generation had in mind.

The founding fathers also intended for the Vice President to be the "loser" of the Presidential election. They expected people to be willing and able to set politics aside for the good of the country. Hence their belief that a written set of rules for the government would restrain the natural impulse to tyranny by any group in power.

Unfortunately, they seem to have given humanity too much credit. We are all too eager to stick with politics over simple interpretations of law.

Our government has learned that they can make ANY law stick, if they only have a legislature that will pass it, a president who will sign it and direct police agencies to enforce it, and a court system that will back it.

[Al Norris]

Originally Posted by Tennessee Gentleman

OK, but doesn't it mean that the court is more attuned to what the body politic wants than many believe?

Or does it mean the Court is more in tune with what the Legislative and Executive branches will allow them to decide, and enforce their decision?

Originally Posted by Tennessee Gentleman

So the question is how much does public desire shape what the court decides?

Public desire is what (generally - there are exceptions) shapes the form of laws the Congress writes. The New Deal could not have happened, without almost total public support. It was with that support that FDR (and his Congress) was able to achieve what they did.

Originally Posted by Tennessee Gentleman

Does the SCOTUS have any fear that if they get too way with their decisions out that they might become less relevant or even ignored?

Again, they may be some of that, but it is more about what the Congress will do and about what the Executive is willing to enforce (constitutional mandate, notwithstanding).

[publius42]

The only answer I get is the same one I got when I questioned about the Chrysler Corp. bail-out: The General Welfare Clause.

Why not the commerce clause? The collapse of a major bank would seem to me to have at least as much effect on interstate commerce as a homegrown cannabis plant or machine gun for personal consumption.

(wow, I'm back all of a day and repeating that phrase again.)

[divemedic]

The power to bail out businesses comes from where all legitimate power comes: the consent of the people who are governed. In this case, people WANT to be "bailed out."

More than half of the people who live in this country take more than they give in taxes when it comes to Feddollars. Since this is an election year, and the electorate is screaming for them to do SOMETHING, they did what they do best: resorted to the printing press and handed out over $1 trillion. First, they mailed most of the people a check, then they gave cash to business and special interests.

It is my opinion that we will see more of this as the economy worsens, as it must, because we are borrowing and printing more and more money as time goes on.

[crashm1]

publius42 says;

Why not the commerce clause? The collapse of a major bank would seem to me to have at least as much effect on interstate commerce as a homegrown cannabis plant or machine gun for personal consumption.

(wow, I'm back all of a day and repeating that phrase again.)

Troublemaker!

divemedic says:

The power to bail out businesses comes from where all legitimate power comes: the consent of the people who are governed. In this case, people WANT to be "bailed out."

More than half of the people who live in this country take more than they give in taxes when it comes to Feddollars. Since this is an election year, and the electorate is screaming for them to do SOMETHING, they did what they do best: resorted to the printing press and handed out over $1 trillion. First, they mailed most of the people a check, then they gave cash to business and special interests.

I have to disagree with you here, the vast majority of people in my congressional district and state were overwhelmingly against the bailout and from what I read in the various news media that was repeated across the country. It's in part why it failed in the house the first time around. The only people I hear in favor of this colossal fraud are the media talking heads, congressional leadership and those who stand to profit from the bailout.
My anger at my congressman is great enough I am gong to be reminding my neighbors up till the first Tuesday of Nov. his opponent would have voted against it.

[Al Norris]

Divemedic, I hope that was sarcasm.

[Mike Irwin]

"The threat of adding new Justices (that would decide cases in favor of his "New Deal") was very real."

Actually, it wasn't a very real prospect, and it was not an easy reach for Roosevelt.

Those supporters in Congress? The ones who bent over backwards to pass New Deal Legislation?

They just about lost their minds when Roosevelt proposed his court packing plan. Some of the most vocal opponents to the plan were the strongest supporters of Roosevelt's New Deal programs.

Newspapers that had supported Roosevelt's New Deal also came out VERY strongly against the proposal.

"Shall the Supreme Court be turned into the personal organ of the President?...If Congress answers yes, the principle of an impartial and independent judiciary will be lost in this country." - Chicago Tribune

The court packing legislation wimpered to a final death in the Senate Judiciary Committee, where it had originally been sent by the full senate on a 70-20 vote. And, given that the chairman of the Senate Judiciary Committee at the time was VERY opposed to the court packing plan, there's virtually no chance it ever would have come out of committee in any event.

Ultimately, the court packing plan did a LOT of damage to Roosevelt. Opposition to new New Deal programs increased markedly, and virtually no New Deal legislation (certainly none of any importance) passed after 1936.

[44 AMP]

1)That which is not forbidden is permitted
2)That which is not permitted is forbidden

My reading of the Constitution and Founding Fathers writings leads me to believe that they wanted #1 for the people and #2 for the government.

Obviously a lot of people in our history haven't looked on this the way I do. And a lot have.

So what is the "right" way to look at it? Isn't that the basic difference between the right and the left in our politics? Can it be that simple? Or do we absolutely have to complicate it? and if we have to , do we have to complicate it as much as we do?

"Our lives are nasty, brutish and short..." (Hobbs, I think) This idea implies that we must be controlled, ruled for our own good, and is an underlying principle of elitists, who protect us from ourselves (and them from us).

I believe the Founding Fathers had something else in mind.

We gave, and continue to give the Fed gov the power and the authority, and men in govt are using it in our name. Today, many of us feel that power is not being used wisely or prudently in our best interest in a great number of areas. We can ask, beg, wheedle, cajole, pressure, and threaten, but the plain fact is that the only time we can actually force those we have hired (elected) to be responsive to our will is through elections every 2 and 4 years, and even then, we can only dismiss those who have broken faith with us, if enough of us vote our concience and not just our pocketbooks.

We are running full tilt down a narrow path with a deep drop on either side. I suppose in some ways we always have been, but today it seems particularly clear the danger of straying too much one way or the other. What is unclear is where the path turns and the rocks in it that will cause us to stumble and perhaps fall.

I suggest that we remember Franklin, and hang together. If nothing else, we will be in good company.

[Socrates]

The four horsemen retired. Old men, not up for a battle to alter the court, by constitutional amendment. How anyone could say that the court didn't pass socialist legislation after 36 has forgotten perhaps the absolute most absurd case of all time: Wickard. The Federal government telling a farmer he can't grow wheat on his own land for his own consumption, and, justifying it with the Commerce Clause.:barf: The court had to back peddle from that position in following decisions until 1995, when Lopez was passed.

As for the way to view such situations: I suggest another approach.

Congress can get away with anything, unless their is a Constitutional basis to sue: in other words, you need standing to sue, and invalidate such garbage.

Kali currently has a case going that may give teeth to Heller, and establish the level of scrutiny for 2nd amendment violating laws.

The question would be: What standard of scrutiny would a bail out be evaluated on?

A more fundamental approach would be to attack the congressional ability to tax.

Another would be to try and slow the government down, by limiting their meeting time, and pay. With a 9% approval rating, Congress is ripe for a huge constitutional pay cut, by Constitutional Amendment.

The sad part is the rich boys that play the market game profit in an unstable market. However, that is the EXACT reverse of what is good for America, which needs stability, and consistent, measured growth. If Bush had not bailed the companies out, or bad business folk, and instead put a trillion dollars into buying stocks, he would have accomplished a couple things. First, if the government owns stock, it's intrest is long term growth, and self-preservation, at all costs. Therefore, they are unlikely to create wild market swings by buying and selling a trillion or so dollars in stock. By putting so much money into the market, they would hugely diminish the ability of a few, ultra wealthy oil folks to manipulate the market for their own gain, by causing great swings, by putting money in, and pulling it out suddenly.

[Al Norris]

Mike, while I might agree with some of what you reported, the fact remains that the "Drama" did exactly what it was supposed to do. The Court backed off and explicitly approved the New Deal packages.

Originally Posted by Mike Irwin

Ultimately, the court packing plan did a LOT of damage to Roosevelt. Opposition to new New Deal programs increased markedly, and virtually no New Deal legislation (certainly none of any importance) passed after 1936.

Not exactly as this time line shows:

• 1935 Jan 7: Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) Held, 8-1: National Industrial Recovery Act Sect. 9(c) unconstitutional
• 1935 May 6: Railroad Retirement Bd. v. Alton R. Co., 295 U.S. 330 (1935) Held, 5-4: Railroad Retirement Act unconstitutional
• 1935 May 27: Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) Held, 9-0: National Industrial Recovery Act unconstitutional
• 1935 May 27: Humphrey's Executor v. U.S., 295 U.S. 602 (1935) Held, 9-0: President may not remove FTC commissioner without cause.
• 1936 Jan 6: United States v. Butler, 297 U.S. 1 (1936) Held, 9-0: Agricultural Adjustment Act unconstitutional
• 1936 May 18: Carter v. Carter Coal Company, 298 U.S. 238 (1936) Held, 6-3: Bituminous Coal Conservation Act of 1935 unconstitutional
• 1936 Nov 3: Roosevelt electoral landslide
• 1936 Unk: Justice Owen Roberts switches sides creating a liberal majority which upheld all New Deal packages
• 1936 Dec 16: West Coast Hotel Co. v. Parrish argued
• 1937 Feb 5: Conference vote on West Coast Hotel
• 1937 Feb 5: Judiciary Reorganization Bill of 1937 ("JRB37") announced.
• 1937 Feb 10: NLRB v. Jones & Laughlin Steel Corp. argued
• 1937 Mar 9: "fireside chat" regarding national reaction to JRB37
• 1937 Mar 29: West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) Held, 5-4: State of WA minimum wage law constitutional
• 1937 Mar 29: SONZINSKY V. UNITED STATES , 300 U.S. 506 (1937) Held, 9-0: National Firearms Act a constitutional tax
• 1937 Apr 12: NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) Held, 5-4: NLRA constitutional
• 1937 May 24: Steward Machine Company v. Davis, 301 U.S. 548 (1937) Held, 5-4: Social Security tax constitutional
• 1937 Jul 22: JRB37 referred back to committee by a vote of 70-20 to strip "court packing" provisions.
• 1938 Feb 16: [Second] Agricultural Adjustment Act of 1938
• 1939 May 15: U.S. v. Miller, 307 U.S. 174 (1939) Held, 8-0: National Firearms Act constitutional and not a usurpation of State police powers, No second amendment violation.
• 1941 May 26: Agricultural Adjustment Act of 1938, amended
• 1942 Nov 9: Wickard v. Filburn, 317 U.S. 111 (1942) Held, 9-0: Agricultural Adjustment Act upheld

The obvious point I was trying to make, was that during this era, our country took a decided turn away from what and how the government operates (via the constitutional powers). The Checks and Balances failed. Miserably.

[Mike Irwin]

Phyrric victory at best, Al.

After 1936, even with the huge landslide that Roosevelt enjoyed, he wasn't able to get a single significant piece of New Deal legislation through Congress again.

And, it's also HIGHLY erroneous to say that Roosevelt's plan to pack the Supreme Court somehow "scared" the justices into rolling over and licking Roosevelt's boots.

It also requires an examination of the differences in the pieces of New Deal legislation that the court did review/reject, and the pieces that the court refused to review.

The court was not engaged in a program of rejecting every piece of New Deal legislation 20 minutes after it came off of Roosevelt's desk.



I think it's also an incorrect assessment to say that the 'checks and balances' failed miserably.

The checks and balances acted exactly as the framers NEVER envisioned them to act.

Remember, it was the Supreme Court itself that decided, via Marbury v Madison, that it had the ultimate judicial review over laws passed by Congress and enacted by the President.

That was a role that the framers never envisioned, because they never wrote that role into the powers allocated to the Supreme Court.

[Al Norris]

Originally Posted by Mike Irwin

Phyrric victory at best, Al.

One takes victory, in whatever manner it is presented.

The court was not engaged in a program of rejecting every piece of New Deal legislation 20 minutes after it came off of Roosevelt's desk.

Was that implied in what I wrote? I certainly don't think so.

When one studies the cases of the era, one can conclude that certain legislation was negated because it was an overreach of legislative powers. After the 1936 election, and the defection of Owens, one can also conclude that "something" happened; Several cases were decided in the governments favor that before had been decided against.

That "something" has always been open to debate.

Remember, it was the Supreme Court itself that decided, via Marbury v Madison, that it had the ultimate judicial review over laws passed by Congress and enacted by the President.

That was a role that the framers never envisioned, because they never wrote that role into the powers allocated to the Supreme Court.

That's actually a popular misconception. Jefferson played heavily upon that, BTW.

Judicial Review has been part and parcel of the judicial powers, as far back as the Magna Carta.

There really was no stretch in Marbury. If this were not so, the rest of the founders (who were mostly alive then) would have sounded the Hue and Cry. Jefferson led the charge, followed by whom?