Montana Nullifies Gun Laws

[Lombardi's_kid_brother]

Actually, the Supreme Court has granted themselves exactly that authority, claiming that they have the authority to declare a law unconstitutional as soon as it's passed, without even waiting for anybody to object to it.

Um...where is that power? In three years of law school, I never heard that.

[Lombardi's_kid_brother]

If a State believes a law is unconstitutional, isn't that a controversy? If it has to be a case, why couldn't the state sue the federal government over it?

No, a "legal controversy" is a very precise defintion.

Remember the "line item veto?" I believe Seantor Byrd tried to get this struck down by the court as soon as it was passed. The Court said, nothing has happened yet. We won't decide on this.

Eventually Clinton used it to kill a subsidy to some cranberry farmer. That actual farmer had to sue as the elimination of the subsidy was a "property interest" which was injured.

The Court then struck down the line item veto as vesting legislative power in the hands of the executive in violation of the separation of powers.

In order to sue, you need an "interest" and an "injury" to said interest. States can sometimes sue on behalf of a broad class of citizens. (Let's say that Ohio is dumping garbage into the Ohio River and that is destroying the fishing and tourism industies downstream in Kentucky. It makes more sense for Kentucky to sue than all those individuals to file a thousand cases.

One thing you need to realize is that the USSC does NOT issue a decision on a constitutional matter unless it absolutely has to. If it can get rid of case on a procedural matter, it will go that way first. If there is a state law that can impact the decision, it will be sent back down to get a ruling on that law. If it is a matter of statutory interpretation, it will go that route.

[twa]

Um...where is that power? In three years of law school' date=' I never heard that.[/quote']

I've never heard of it being done,but theoretically I suppose it is possible.

Didn't they rule in Marbury that they alone determine legality(subject to their interpretation of the Constitution) no matter what law Congress passes?

Isn't that the basis of the theory of judicial review?

You think they would refrain from ruling on a blatantly unconstitutional law simply if no suit was filed?

They determine if law is law;)

[armstrong001]

No' date=' a "legal controversy" is a very precise defintion.

Remember the "line item veto?" I believe Seantor Byrd tried to get this struck down by the court as soon as it was passed. The Court said, nothing has happened yet. We won't decide on this.

Eventually Clinton used it to kill a subsidy to some cranberry farmer. That actual farmer had to sue as the elimination of the subsidy was a "property interest" which was injured.

The Court then struck down the line item veto as vesting legislative power in the hands of the executive in violation of the separation of powers.

In order to sue, you need an "interest" and an "injury" to said interest. States can sometimes sue on behalf of a broad class of citizens. (Let's say that Ohio is dumping garbage into the Ohio River and that is destroying the fishing and tourism industies downstream in Kentucky. It makes more sense for Kentucky to sue than all those individuals to file a thousand cases.

One thing you need to realize is that the USSC does NOT issue a decision on a constitutional matter unless it absolutely has to. If it can get rid of case on a procedural matter, it will go that way first. If there is a state law that can impact the decision, it will be sent back down to get a ruling on that law. If it is a matter of statutory interpretation, it will go that route.[/quote']

I understand that the SC doesn't like to rule when it doesn't have to. But since this regards a federal law, there wouldn't be a lower court to go back to (if I understand correctly). I would be interested to know an interpretation of a very limited challenge, such as the one Montana seems to be pursuing: If a state can definitively differentiate between interstate and intrastate commerce, is that commerce exempt from federal regulation? I believe it should be, but I'm positive the Justices won't be calling me for my opinion.

[Lombardi's_kid_brother]

I understand that the SC doesn't like to rule when it doesn't have to. But since this regards a federal law, there wouldn't be a lower court to go back to (if I understand correctly)..

Of course it does. Only lawsuits between states go directly to the USSC. This case like any other would work its way up the federal courts.

I would be interested to know an interpretation of a very limited challenge, such as the one Montana seems to be pursuing: If a state can definitively differentiate between interstate and intrastate commerce, is that commerce exempt from federal regulation?

This is settled law. Only in very very specific cases is something exempt from interstate commerce.

You are asking good questions, but there is nothig revolutionary in them. Billions of trees have died since the 1930s on these questions.

[Tulane Skins Fan]

I understand that the SC doesn't like to rule when it doesn't have to. But since this regards a federal law, there wouldn't be a lower court to go back to (if I understand correctly). I would be interested to know an interpretation of a very limited challenge, such as the one Montana seems to be pursuing: If a state can definitively differentiate between interstate and intrastate commerce, is that commerce exempt from federal regulation? I believe it should be, but I'm positive the Justices won't be calling me for my opinion.

Its not just that the SC doesnt like to rule when it doesn't have to, it does not rule when there is not an actual case or controversy.

Basically though, the issue is how you differentiate between interstate and intrastate commerce. Over 200 years, and many many cases, the SC has realized that its not as obvious as it seems, and many interpretations have come down. We currently have an expansive view of the interstate commerce clause, for sure. But that doesn't alone mean its not the right view, or what was intended.

[Larry]

No' date=' a "legal controversy" is a very precise defintion.

Remember the "line item veto?" I believe Seantor Byrd tried to get this struck down by the court as soon as it was passed. The Court said, nothing has happened yet. We won't decide on this.

Eventually Clinton used it to kill a subsidy to some cranberry farmer. That actual farmer had to sue as the elimination of the subsidy was a "property interest" which was injured.

The Court then struck down the line item veto as vesting legislative power in the hands of the executive in violation of the separation of powers.

In order to sue, you need an "interest" and an "injury" to said interest. States can sometimes sue on behalf of a broad class of citizens. (Let's say that Ohio is dumping garbage into the Ohio River and that is destroying the fishing and tourism industies downstream in Kentucky. It makes more sense for Kentucky to sue than all those individuals to file a thousand cases.

One thing you need to realize is that the USSC does NOT issue a decision on a constitutional matter unless it absolutely has to. If it can get rid of case on a procedural matter, it will go that way first. If there is a state law that can impact the decision, it will be sent back down to get a ruling on that law. If it is a matter of statutory interpretation, it will go that route.[/quote']

Another example that I recall: The SC refused to rule on the "Obama isn't a citizen" BS before the election, because Obama hadn't won the election, and if he didn't win, then there would have been no harm.

The California Supreme Court did the same thing about Prop 8. (Whether it was a matter that could be voted in by an initiative, or did it have to be approved by the Legislature.) They refused to rule on the matter before the people voted, because if they'd voted it down, then it didn't matter whether that was the correct procedure or not. They had to wait until after the people voted, and then they could consider the question.

(BTW, I don't like these decisions. IMO, the voters really deserve to know if the guy on the ballot for President is Constitutionally eligible to be President, before they vote. In fact, they deserve to know the answer to that question before the Party nominates him. But, as I listed in the examples I gave, I can see some advantages to the existing rules, too.)

[Larry]

I've never heard of it being done,but theoretically I suppose it is possible.

Didn't they rule in Marbury that they alone determine legality(subject to their interpretation of the Constitution) no matter what law Congress passes?

Isn't that the basis of the theory of judicial review?

You think they would refrain from ruling on a blatantly unconstitutional law simply if no suit was filed?

They determine if law is law;)

I think "judicial review" was the term I remember from High School, which I was referring to. That was the phrase I was trying to remember.

[Lombardi's_kid_brother]

Another example that I recall: The SC refused to rule on the "Obama isn't a citizen" BS before the election, because Obama hadn't won the election, and if he didn't win, then there would have been no harm.

The California Supreme Court did the same thing about Prop 8. (Whether it was a matter that could be voted in by an initiative, or did it have to be approved by the Legislature.) They refused to rule on the matter before the people voted, because if they'd voted it down, then it didn't matter whether that was the correct procedure or not. They had to wait until after the people voted, and then they could consider the question.

(BTW, I don't like these decisions. IMO, the voters really deserve to know if the guy on the ballot for President is Constitutionally eligible to be President, before they vote. In fact, they deserve to know the answer to that question before the Party nominates him. But, as I listed in the examples I gave, I can see some advantages to the existing rules, too.)

If the courts offered advisory opinions, they would do nothing but issue advisory opinions. Every small town lawyer writing a pre-nup would be sending it to a judge for approval.

[Lombardi's_kid_brother]

I think "judicial review" was the term I remember from High School, which I was referring to. That was the phrase I was trying to remember.

Judicial review is essentially the appeals process. It's not issuing advisory opinions.

[Larry]

If the courts offered advisory opinions' date=' they would do nothing but issue advisory opinions. Every small town lawyer writing a pre-nup would be sending it to a judge for approval.[/quote']

So give the court the authority to decide not to hear the case.

I suspect that most judges know the difference between "Does the US Government have the power to wiretap US Citizens without probable cause?", "Does this person who's running for President actually fulfill the Constitutional requirements for office?", and "Your Honor? Could you check my work on this apartment lease I just drew up, and guarantee me in advance that the tenant can't overturn it, a year from now?"

[Lombardi's_kid_brother]

So give the court the authority to decide not to hear the case.

I suspect that most judges know the difference between "Does the US Government have the power to wiretap US Citizens without probable cause?", "Does this person who's running for President actually fulfill the Constitutional requirements for office?", and "Your Honor? Could you check my work on this apartment lease I just drew up, and guarantee me in advance that the tenant can't overturn it, a year from now?"

I suppose Congress could do that to Article 3 courts (though I'm not sure about that), but Congress simply cannot expand USSC authority or jurisdiction under the Constitution.

And opening it up to the Federal Courts without the possibility of appealing it to the Supreme Court is more problematic.

For example, under your wiretapping case...what district do you file it in? The 4th? The 9th? You might get two very different answers depending on where you file it. And if there is a split...and the Supreme Court won't hear it...you have a bigger mess.

All you would need is one grandstanding district judge to cause real constitutional nightmares.

You could conceivably have Obama on the ballot in CA and not in NC and and the Supreme Court refusing to step in and then all hell breaks loose for real.

[Tulane Skins Fan]

I supposed Congress could do that to Article 3 courts' date=' but Congress cannot expand USSC authority or jurisdiction under the Constitution.

And opening it up to the Federal Courts without the possibility of appealing it to the Supreme Court is more problematic.

For example, under your wiretapping case...what district do you file it in? The 4th? The 9th? You might get two very different answers depending on where you file it. And if there is a split...and the Supreme Court won't hear it...you have a bigger mess.

All you would need is one gradstanding district judge to cause real constitutional nightmares.

You could conceivably have Obama on the ballot in CA and not in NC and and the Supreme Court refusing to step in and then all hell breaks loose for real.[/quote']

I don't think Congress could expand jurisdiction for Article III courts to beyond cases or controversies. The "cases or controversies" is a part of the Constitution.

Eerily, I bet the SC could interpret it more broadly if they wanted, but they have limited their own power.

[Lombardi's_kid_brother]

I don't think Congress could expand jurisdiction for Article III courts to beyond cases or controversies. The "cases or controversies" is a part of the Constitution.

Eerily, I bet the SC could interpret it more broadly if they wanted, but they have limited their own power.

You are probably right. I was going from memory of what Article III says.

That's sort of the funny thing about all of this. All these hard rules come from Justice Marshall and he was largely creating them out of thin air. But they have been in place for 200 years and no one is going to challenge them now.

Does anyone want to get into real obscure **** about property law? I'm up for it.

[Lombardi's_kid_brother]

There does seem to be a fundamental misunderstanding of what Congress can do to the Supreme Court. Here is the list:

1. Advise and Consent on Justice Appointments.

2. Impeach Justices.

End list. Beyond that, Congress can't tell them what cases to hear or where the jurisdiction ends or when their opinions should be published.

[Larry]

There does seem to be a fundamental misunderstanding of what Congress can do to the Supreme Court. Here is the list:

1. Advise and Consent on Justice Appointments.

2. Impeach Justices.

End list. Beyond that' date=' Congress can't tell them what cases to hear or where the jurisdiction ends or when their opinions should be published.[/quote']

Somebody needs to explain that to the "No court shall have the authority to hear habaes corpus cases from Gitmo" Congress. (I think Congress has tried to pull that "no court shall have jurisdiction over this law" in other bills, too.)

Oh, how I've been longing for the USSC to rule that "Congress does have the authority to limit the jurisdiction of the subordinate courts. But only a Constitutional Amendment can alter the jurisdiction of the entire Judicial Branch. Therefore, since Congress has chosen to remove jurisdiction from all lower courts, consideration of this law will proceed directly to the Supreme Court."

[Tulane Skins Fan]

There does seem to be a fundamental misunderstanding of what Congress can do to the Supreme Court. Here is the list:

1. Advise and Consent on Justice Appointments.

2. Impeach Justices.

End list. Beyond that' date=' Congress can't tell them what cases to hear or where the jurisdiction ends or when their opinions should be published.[/quote']

That's true for the SC, as far as I know, but its pretty much exactly wrong for the other Article III courts though. Congress explicitly can limit the jurisdiction of the federal district courts.