The Supreme Court's function of "judicial review" is not enshrined in the Constitution. It was self-made, and so in a Hamiltonian sense Whittaker is not really that far from the mark. It's a minority view, but it is a view.
Eh it was understood before then though. Federalist 78 (Hamilton)
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
And the Anti-Federalist Brutus XII
It is to be observed, that the supreme court has the power, in the last resort, to determine all questions that may arise in the course of legal discussion, on the meaning and construction of the constitution. This power they will hold under the constitution, and independent of the legislature. The latter can no more deprive the former of this right, than either of them, or both of them together, can take from the president, with the advice of the senate, the power of making treaties, or appointing ambassadors.
In determining these questions, the court must and will assume certain principles, from which they will reason, in forming their decisions. These principles, whatever they may be, when they become fixed, by a course of decisions, will be adopted by the legislature, and will be the rule by which they will explain their own powers. This appears evident from this consideration, that if the legislature pass laws, which, in the judgment of the court, they are not authorised to do by the constitution, the court will not take notice of them; for it will not be denied, that the constitution is the highest or supreme law. And the courts are vested with the supreme and uncontroulable power, to determine, in all cases that come before them, what the constitution means; they cannot, therefore, execute a law, which, in their judgment, opposes the constitution, unless we can suppose they can make a superior law give way to an inferior. The legislature, therefore, will not go over the limits by which the courts may adjudge they are confined.
...
It is obvious that these courts will have authority to decide upon the validity of the laws of any of the states, in all cases where they come in question before them. Where the constitution gives the general government exclusive jurisdiction, they will adjudge all laws made by the states, in such cases, void ab initio. Where the constitution gives them concurrent jurisdiction, the laws of the United States must prevail, because they are the supreme law. In such cases, therefore, the laws of the state legislatures must be repealed, restricted, or so construed, as to give full effect to the laws of the union on the same subject. From these remarks it is easy to see, that in proportion as the general government acquires power and jurisdiction, by the liberal construction which the judges may give the constitution, will those of the states lose its rights, until they become so trifling and unimportant, as not to be worth having
It was understood that the SCOTUS could void a law that violated the Constitution.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
That's what "in Law and Equity" meant at the time.
If Whitaker was forced to recuse now that would be exactly the kind of half-baked failed plan I've come to expect from this administration.
Isn't recusal voluntary? Can you force someone to recuse themselves?
No, it can't be literally forced. I think the closest you would see is Whitaker caving to overwhelming pressure from Congress and/or DOJ ethics officials.
The hilarious outcome, per OremLK's "half-baked" comment above, would be if Whitaker immediately says, "Of course I'm recusing myself, it's only appropriate."
Yeah, I was afraid of that. He's a Trump toady, so he'll never cave. There's no reason to since there are no consequences for not doing so. Who's going to punish him?
Dunno how scotus could really do its job without judicial review.
Wouldn't that defeat the point of engineering a conservative supreme court?
Just hedging those bets, the either they own the court or it's powerless, either way fuck you democrats.
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AstaerethIn the belly of the beastRegistered Userregular
538’s response seems to be unclear on the concept:
This matters because the person overseeing the Mueller investigation has significant power over both its scope and direction. Rosenstein chose to protect Mueller, but Whitaker could do the opposite. If Whitaker — as he appears — is more skeptical of Mueller’s investigation than Rosenstein was, there are avenues for him to slow or curtail the investigation as it enters what may be its final, crucial stages. When Mueller files his report, the person overseeing him has significant authority over how much information from that report is disclosed to Congress or the public. And, of course, the power to fire Mueller is now in Whitaker’s hands, too.
On the other hand, as I wrote earlier this year, we shouldn’t jump to conclusions either. Trump needs to tread carefully when it comes to Mueller. A blatant attempt to intimidate the special counsel or interfere with Mueller’s work could constitute obstruction of justice by Trump, which Mueller already appears to be investigating.
“Trump can’t stop Mueller from investigating him for obstruction, that would just lead to Mueller investigating him for obstruction” not if Trump stops him, guys, hello
They can’t catch you for obstructing justice if you just keep obstructing harder
Romney has an advantage over Flake and most republican Trump critics in that he is wildly popular in his home state, so we will see. I could see it going either way.
Romney has an advantage over Flake and most republican Trump critics in that he is wildly popular in his home state, so we will see. I could see it going either way.
Also in that his constituents are not as enthralled with Trump as many red states and might actually follow Romney's cues in that regard.
Anyway, what's the word--are we protesting tomorrow?
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GnomeTankWhat the what?Portland, OregonRegistered Userregular
edited November 2018
How does the new house fit in to this? Can't the house launch their own investigation, under Meuller, even if Whitaker tries to stop it at the DoJ? I seem to remember Kenn Starr being under congressional oversight as a special council during the Clinton impeachment. Would they have to start an actual impeachment hearing, or can the house justice committee launch an investigation separate from that?
Isn’t that bill Flake is mentioning the trap bill they passed that hides other ways for Republicans to limit the investigation and sets arbitrary timeframes?
Also, on an academic level, I understand that protests are an important part of being an engaged citizenry.
In this specific instance, (and again I'm not saying people shouldn't) can someone tell me why beyond "letting people know we are upset?"
I mean the Dems in the House already know and are already going to do what they can. The Pubs don't give a shit if we protest.
I get that the "end goal" is to ensure the special investigation is allowed to run its natural healthy course.
But the way everyone keeps talking about a "break the glass" event.. I dunno, when I imagine for instance a fire extinguisher that you need to break the glass to put out the fire with..
I guess what I'm saying is I don't imagine in that scenario that your plan after breaking the glass is to form a large group just outside the building to let everyone know you are pretty upset that the building is on fire and you don't feel like the firefighters are doing an adequate job.
Please explain to me like I am a third grade civics class.
Also, on an academic level, I understand that protests are an important part of being an engaged citizenry.
In this specific instance, (and again I'm not saying people shouldn't) can someone tell me why beyond "letting people know we are upset?"
I mean the Dems in the House already know and are already going to do what they can. The Pubs don't give a shit if we protest.
I get that the "end goal" is to ensure the special investigation is allowed to run its natural healthy course.
But the way everyone keeps talking about a "break the glass" event.. I dunno, when I imagine for instance a fire extinguisher that you need to break the glass to put out the fire with..
I guess what I'm saying is I don't imagine in that scenario that your plan after breaking the glass is to form a large group just outside the building to let everyone know you are pretty upset that the building is on fire and you don't feel like the firefighters are doing an adequate job.
Please explain to me like I am a third grade civics class.
It doesn’t matter if there’s a specific route to change. When government fails, the people have to make their displeasure heard. Protesting not only demonstrates public disapproval but helps to build and cement it toward action. That action might be keeping the wave going in 2020, or it might be along the lines of non-violent revolution, but no matter what it starts with enough people willing to drop their everyday lives and go out on the streets. If the system is broken you have to reject the system, and the way you do that won’t necessarily be functional within that system.
Also, rapid response has been effective before in this admin at curbing policy, from the Muslim ban to family separations. Outrage over Comey is the reason Mueller got hired in the first place. The admin doesn’t listen enough but it will partially back down in some instances.
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jungleroomxIt's never too many graves, it's always not enough shovelsRegistered Userregular
Kurt Eichenwald has numerous posts about the vacancies act and appointing someone to a senate confirmed position and how Whitaker shouldn’t actually be eligible for Acting AG.
The Trump Administration is literally breaking the law with the appointment of Whitaker as Acting AG. Even the acting AG must be someone who was confirmed by the Senate. But that would mean Trump would have to name Rosenstein - who he wants out to end Mueller. So..breaks law.
The short of it is the vacancies act would allow a non senate confirmed person to fill in if no other senate confirmed persons are available.
Rod Rosenstein is like... right there. So that’s breaking one part of it.
Also apparently this person has to be making the equivalent of a GS-15 salary which would be hilariously high for his position as Sessions chief of staff if he was actually making it.
I feel like the actual details of this are not going to get any media attention because it looks like Trump can’t legally skip over Rosenstein in this case.
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Unsure. If they wait for the weekend it might not be a bad move.
Eh it was understood before then though. Federalist 78 (Hamilton) And the Anti-Federalist Brutus XII It was understood that the SCOTUS could void a law that violated the Constitution. That's what "in Law and Equity" meant at the time.
QEDMF xbl: PantsB G+
Yeah, that was literally question 1.
Wouldn't that defeat the point of engineering a conservative supreme court?
Yeah, I was afraid of that. He's a Trump toady, so he'll never cave. There's no reason to since there are no consequences for not doing so. Who's going to punish him?
Aside from the principle of "what the fuck are you gonna do about it lib" kinda
Just hedging those bets, the either they own the court or it's powerless, either way fuck you democrats.
“Trump can’t stop Mueller from investigating him for obstruction, that would just lead to Mueller investigating him for obstruction” not if Trump stops him, guys, hello
They can’t catch you for obstructing justice if you just keep obstructing harder
I’m no fan but this is literally all he can do until he’s seated
Mitt Romney is not known for loud phone conversations while riding the Acela Express.
Also in that his constituents are not as enthralled with Trump as many red states and might actually follow Romney's cues in that regard.
Anyway, what's the word--are we protesting tomorrow?
The old one ain't done yet:
Eat shit you fucker this would have been very helpful at any point before the lame duck session since you have literally no power now.
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He's not making that "mistake" again
His replacement is not going to recuse themself
Not that I think he's that smart.
In this specific instance, (and again I'm not saying people shouldn't) can someone tell me why beyond "letting people know we are upset?"
I mean the Dems in the House already know and are already going to do what they can. The Pubs don't give a shit if we protest.
I get that the "end goal" is to ensure the special investigation is allowed to run its natural healthy course.
But the way everyone keeps talking about a "break the glass" event.. I dunno, when I imagine for instance a fire extinguisher that you need to break the glass to put out the fire with..
I guess what I'm saying is I don't imagine in that scenario that your plan after breaking the glass is to form a large group just outside the building to let everyone know you are pretty upset that the building is on fire and you don't feel like the firefighters are doing an adequate job.
Please explain to me like I am a third grade civics class.
I think y'all missed this
We can flood the streets and make it a moment in history
We can disrupt the day to day economy and try to bring pressure to the administration
We can stand up and demand action which will force foreign nations to notice and also demand action, potentially forcing sanctions
It’s the only play we have. It might not be a good one but democracy is at stake so we play it.
It doesn’t matter if there’s a specific route to change. When government fails, the people have to make their displeasure heard. Protesting not only demonstrates public disapproval but helps to build and cement it toward action. That action might be keeping the wave going in 2020, or it might be along the lines of non-violent revolution, but no matter what it starts with enough people willing to drop their everyday lives and go out on the streets. If the system is broken you have to reject the system, and the way you do that won’t necessarily be functional within that system.
Also, rapid response has been effective before in this admin at curbing policy, from the Muslim ban to family separations. Outrage over Comey is the reason Mueller got hired in the first place. The admin doesn’t listen enough but it will partially back down in some instances.
Please don't get this thread locked.
The Mueller Rapid Response protests have been triggered.
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Rod Rosenstein is like... right there. So that’s breaking one part of it.
Also apparently this person has to be making the equivalent of a GS-15 salary which would be hilariously high for his position as Sessions chief of staff if he was actually making it.
I feel like the actual details of this are not going to get any media attention because it looks like Trump can’t legally skip over Rosenstein in this case.
What does "can't legally" mean here?
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