Excellent summary of judicial power. However, I believe the intent is to cross the rubicon. We will find out in the next few days and weeks and should be prepared. The Vance tweet and others by the administration and its proxies is designed to test the public’s reaction to their planned unprecedented expansion of executive power.
Excellent summary of judicial power. However, I believe the intent is to cross the rubicon. We will find out in the next few days and weeks and should be prepared. The Vance tweet and others by the administration and its proxies is designed to test the public’s reaction to their planned unprecedented expansion of executive power.
Valerie - in short: 1) stay informed - read Timothy Snyder for ways to oppose autocracy, read how tyrants fall by Dirsus, read about what others have done historically - Havel and charter 77, read Applebaum and HCR; 2) stay connected with pro-democracy community, as you are; 3) attend lawful protests when your schedule permits - they are happening all over the nation but not reported by frequently by mainstream media; 4) write and call elected leaders - the impact of this is minimal but not trivial; there have been some surprising comments resulting from constituent push back; 5) don’t reflexively oppose all positions - only those that are important to you and threaten democracy. 6) don’t despair - remain hopeful and strong.
We very much need something like Charter 77 right now--some organized effort to push back. Thanks for the recommendations. One question, sorry, what or who is HCR?
How do you prepare for this? How do you respond to it? I feel as if we are watching our entire system of government being dismantled and doing nothing more than commenting on it.
Yes, this is an excellent review of judicial power to restrain exercises of discretion by executive branch officials. Of course, Article III generally vested such power in (and imposed such duty on) federal courts. Of course, former-Senator Vance's sweeping contentions were absurd-- especially for a former member of Congress.
Article I vested in Congress the power to make all laws that are "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Such power necessarily imposes the duty on Congress to determine what exercises of power actually are "necessary and proper." Of course such laws limit exercises of discretion, including by executive and judicial branch officers. Of course, Article III expressly vested in courts the power to adjudicate violations of limitations that Congress or our Constitution impose. In fact, courts restraining exercises of official discretion was a primary point of what we often call our Bill of Rights (the first 10 amendments to our Constitution). They were included in our Constitution precisely to restrain exercises of discretionary power by any public servant against the people.
However, it is dangerous to us and our Constitution to take the position that discussion of judicial conduct and power is illegitimate because such conduct is called "illegal." Of course, the conduct of judges--like the conduct of any other public servant--can be (and very often is) illegal. The Founders even anticipated that judicial conduct would be illegal. For that very reason, Article VI expressly emphasized that our "Constitution" and federal "Laws" that are "made in Pursuance" of our Constitution "and all Treaties" are "the supreme Law of the Land" and all 'Judges" everywhere are "bound thereby."
Hundreds of years of experience proves that many, many judicial actions are illegal. We even expect judicial actions to be illegal. That's why we have multiple levels of judicial review of judicial violations of law. Every successful appeal necessarily addresses illegal conduct by one or more judges. It is not healthy to presume or pretend otherwise. It is clearly contrary to the Declaration of Independence of 1776, the U.S. Constitution, federal law, copious U.S. Supreme Court precedent and common sense “to play make-believe and to assume that men in gowns are angels.” Pennekamp v. Florida, 328 U.S. 331, 359 (1946) (Frankfurter, J., concurring).
Violating our Constitution necessarily is the epitome of an illegal action. Any judge knowingly violating his or her oath (to support and defend our Constitution) is “worse than solemn mockery.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803) (Marshall, C.J.). Any judge “usurp[ing]” any power “not given” in the Constitution commits “treason to the Constitution.” United States v. Will, 449 U.S. 200, 216, n.19 (1980) (Burger, C.J.) quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (Marshall, C.J.). Let's not pretend that just because a judge does something, it's not illegal or it shouldn't be called out as illegal.
Excellent summary of judicial power. However, I believe the intent is to cross the rubicon. We will find out in the next few days and weeks and should be prepared. The Vance tweet and others by the administration and its proxies is designed to test the public’s reaction to their planned unprecedented expansion of executive power.
Valerie - in short: 1) stay informed - read Timothy Snyder for ways to oppose autocracy, read how tyrants fall by Dirsus, read about what others have done historically - Havel and charter 77, read Applebaum and HCR; 2) stay connected with pro-democracy community, as you are; 3) attend lawful protests when your schedule permits - they are happening all over the nation but not reported by frequently by mainstream media; 4) write and call elected leaders - the impact of this is minimal but not trivial; there have been some surprising comments resulting from constituent push back; 5) don’t reflexively oppose all positions - only those that are important to you and threaten democracy. 6) don’t despair - remain hopeful and strong.
We very much need something like Charter 77 right now--some organized effort to push back. Thanks for the recommendations. One question, sorry, what or who is HCR?
Heather Cox Richardson
ps, may I share this?
How do you prepare for this? How do you respond to it? I feel as if we are watching our entire system of government being dismantled and doing nothing more than commenting on it.
Yeah that's what everyone is doing now, they don't care about the government system
Yes, this is an excellent review of judicial power to restrain exercises of discretion by executive branch officials. Of course, Article III generally vested such power in (and imposed such duty on) federal courts. Of course, former-Senator Vance's sweeping contentions were absurd-- especially for a former member of Congress.
Article I vested in Congress the power to make all laws that are "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Such power necessarily imposes the duty on Congress to determine what exercises of power actually are "necessary and proper." Of course such laws limit exercises of discretion, including by executive and judicial branch officers. Of course, Article III expressly vested in courts the power to adjudicate violations of limitations that Congress or our Constitution impose. In fact, courts restraining exercises of official discretion was a primary point of what we often call our Bill of Rights (the first 10 amendments to our Constitution). They were included in our Constitution precisely to restrain exercises of discretionary power by any public servant against the people.
However, it is dangerous to us and our Constitution to take the position that discussion of judicial conduct and power is illegitimate because such conduct is called "illegal." Of course, the conduct of judges--like the conduct of any other public servant--can be (and very often is) illegal. The Founders even anticipated that judicial conduct would be illegal. For that very reason, Article VI expressly emphasized that our "Constitution" and federal "Laws" that are "made in Pursuance" of our Constitution "and all Treaties" are "the supreme Law of the Land" and all 'Judges" everywhere are "bound thereby."
Hundreds of years of experience proves that many, many judicial actions are illegal. We even expect judicial actions to be illegal. That's why we have multiple levels of judicial review of judicial violations of law. Every successful appeal necessarily addresses illegal conduct by one or more judges. It is not healthy to presume or pretend otherwise. It is clearly contrary to the Declaration of Independence of 1776, the U.S. Constitution, federal law, copious U.S. Supreme Court precedent and common sense “to play make-believe and to assume that men in gowns are angels.” Pennekamp v. Florida, 328 U.S. 331, 359 (1946) (Frankfurter, J., concurring).
Violating our Constitution necessarily is the epitome of an illegal action. Any judge knowingly violating his or her oath (to support and defend our Constitution) is “worse than solemn mockery.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803) (Marshall, C.J.). Any judge “usurp[ing]” any power “not given” in the Constitution commits “treason to the Constitution.” United States v. Will, 449 U.S. 200, 216, n.19 (1980) (Burger, C.J.) quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (Marshall, C.J.). Let's not pretend that just because a judge does something, it's not illegal or it shouldn't be called out as illegal.