With executive orders flying thick and fast, only being impeded by
executive actions, and with at least one (firing of federal officials
without 30 day notice) being illegal, I find myself wondering how far the fresh doctrine of presidential immunity goes ?
Firing the officials was "an official act" so surely a poster child for
the POTUS immunity from breaking the law whilst undertaking official
acts ?
Presumably it would be illegal to dismantle SCOTUS, but if it's an
official act ?
Not being steeped in the affairs of a former colony :) I may have misconstrued the nature of presidential immunity. However it seems to me
that all roads lead to POTUS. If the legislature won't pass a bill, POTUS just issues an EO and if doesn't matter if it's lawful or not.
On a slightly related note, can SCOTUS be forced to hear a case ? Or
refuse to hear a case ?
With executive orders flying thick and fast, only being impeded by
executive actions, and with at least one (firing of federal officials
without 30 day notice) being illegal, I find myself wondering how far the fresh doctrine of presidential immunity goes ?
Firing the officials was "an official act" so surely a poster child for
the POTUS immunity from breaking the law whilst undertaking official
acts ?
Presumably it would be illegal to dismantle SCOTUS, but if it's an
official act ?
Not being steeped in the affairs of a former colony :) I may have misconstrued the nature of presidential immunity. However it seems to me
that all roads lead to POTUS. If the legislature won't pass a bill, POTUS just issues an EO and if doesn't matter if it's lawful or not.
On a slightly related note, can SCOTUS be forced to hear a case ? Or
refuse to hear a case ?
Again, two issues. If there isn't specific legal
authority for a particular Executive Order, then that
order is void, th officials of he executive branch are
bound by their oath to he Constitution to disregard it,
and the courts are bound by _their_ oath to the
Constitution to rule that way when someone brings a
case.
On 1/29/2025 1:23 PM, Stan Brown wrote:
Again, two issues. If there isn't specific legal
authority for a particular Executive Order, then that
order is void, th officials of he executive branch are
bound by their oath to he Constitution to disregard it,
and the courts are bound by _their_ oath to the
Constitution to rule that way when someone brings a
case.
With any given executive order, there's three (main) possibilities:
Congress passes a law saying X is illegal and the EO says "X is legal."
(or visa-versa.)
Congress: Shooting someone is illegal.
Executive order: It is perfectly legal to shoot someone.
Outcome: The EO is void and shooting someone still lands you in jail.
Congress: We're passing a law saying the prez can decide if John can
shoot Mary.
EO: This orders John to shoot Mary.
Outcome: John is hailed as a hero after pulling the trigger.
Congress: <crickets> (i.e. doesn't say anything and doesn't pass a law
in any respect on the matter, either for or against.)
EO: The Gulf will now be called The Gulf of Trump.Calling it anything
else will result in 30 days in jail.
Outcome: John called it The Gulf of Dumbo.
Jail: Yes or no?
I.e. is it a case of "Unless we, the congress, or the constitution says explicitly that you can, you can't" or is it more "you can do anything
you want unless we or the constitution specifically say 'no'"?
It seems to me that regular laws are pretty much in the form of "you can
not do X" and rarely in the form of "you are allowed to do X" (generally
the only time they say "you are allowed to do X" is when there;s a law
saying "you can't do Y" and the "you are allowed to do X" is carving out
an exception ("No parking....except on Sundays." "No driving in the HOV lane...unless you have at least two in the vehicle." Etc.)
On 1/29/2025 1:23 PM, Stan Brown wrote:
Again, two issues. If there isn't specific legal
authority for a particular Executive Order, then that
order is void, th officials of he executive branch are
bound by their oath to he Constitution to disregard it,
and the courts are bound by _their_ oath to the
Constitution to rule that way when someone brings a
case.
With any given executive order, there's three (main) possibilities:
Congress passes a law saying X is illegal and the EO says "X is legal."
(or visa-versa.)
Congress: Shooting someone is illegal.
Executive order: It is perfectly legal to shoot someone.
Outcome: The EO is void and shooting someone still lands you in jail.
Congress: We're passing a law saying the prez can decide if John can
shoot Mary.
EO: This orders John to shoot Mary.
Outcome: John is hailed as a hero after pulling the trigger.
Congress: <crickets> (i.e. doesn't say anything and doesn't pass a law
in any respect on the matter, either for or against.)
EO: The Gulf will now be called The Gulf of Trump.Calling it anything
else will result in 30 days in jail.
Outcome: John called it The Gulf of Dumbo.
Jail: Yes or no?
I.e. is it a case of "Unless we, the congress, or the constitution says explicitly that you can, you can't" or is it more "you can do anything
you want unless we or the constitution specifically say 'no'"?
It seems to me that regular laws are pretty much in the form of "you can
not do X" and rarely in the form of "you are allowed to do X" (generally
the only time they say "you are allowed to do X" is when there;s a law
saying "you can't do Y" and the "you are allowed to do X" is carving out
an exception ("No parking....except on Sundays." "No driving in the HOV lane...unless you have at least two in the vehicle." Etc.)
On 4/29/2025 9:30 AM, Mike Anderson wrote:
[quoted text muted]
saying "you can't do Y" and the "you are allowed to do X" is carving out
an exception ("No parking....except on Sundays." "No driving in the HOV lane...unless you have at least two in the vehicle." Etc.)
The Constitution does specifically allow for free speech, so the 30-day
jail sentence for calling it the Gulf of Dumbo would likely be rejected
by the courts.
And the Bill of Rights is mostly a list of things you CAN do (free
speech, assembly, owning guns, etc.).
I.e. is it a case of "Unless we, the congress, or the constitution says explicitly that you can, you can't"
Those latter are the reason for all those Executive Orders. Congress has
told the Executive Branch that they want something to happen and set
some guidelines. Within those guidelines, the President or those
appointed by him can make rules, spend money (within the limits set by Congress), etc. This is the basis for all those executive orders.
https://www.gao.gov/legal/appropriations-law/impoundment-control-actlaid down that the President could not hold back ("impound" or
Yes, but ...
Many of those orders are blatantly or at least arguably
unconstitutional. Many more are in_violation_ of laws passed by
Contress, not issued in fulfillment of legislation.
In the aftermath of Nixon, for instance, the Impoundment Control Act
of 1974
https://www.gao.gov/legal/appropriations-law/impoundment-control-actlaid down that the President could not hold back ("impound" or
"sequester") funds appropriated by Congress, as Nixon had done,
unless the appropriation itself granted that power, which few to none
of current appropriations do.
On 4/30/2025 9:52 AM, Stan Brown wrote:
Yes, but ...
Many of those orders are blatantly or at least arguably
unconstitutional. Many more are in_violation_ of laws passed by Con[g]ress, not issued in fulfillment of legislation.
In the aftermath of Nixon, for instance, the Impoundment Control Act
of 1974
https://www.gao.gov/legal/appropriations-law/impoundment-control-actlaid down that the President could not hold back ("impound" or
"sequester") funds appropriated by Congress, as Nixon had done,
unless the appropriation itself granted that power, which few to none
of current appropriations do.
I agree 100%. But this has nothing to do the question of what "a law" is
(as passed by COngress).
On Tue, 29 Apr 2025 06:30:45 -0700 (PDT), Mike Anderson wrote:
I.e. is it a case of "Unless we, the congress, or the constitution says
explicitly that you can, you can't"
That is exactly it. The constitution delegates certain powers to the
Federal government, but all other powers remain with the states. (See Amendment X.) Granted, there is considerable wiggle room under the
"necessary and proper" clause at the end of Article I section 8.
If the Constitution does not assign a power to Congress, Congress
does not have that power. If the Constitution doesn't assign a power
to an officer, that officer does not have the power. The Congress can
however assign some powers of Congress to an executive officer under
the "necessary and proper" clause.
The problem is that there's no quick way, in the present environment
where a majority of each house and the entirety of the Cabinet are
spineless Trump-toadies, to act quickly when the President arrogates
to himself powers that he does not legally have. He should by rights
be speedily impeached and convicted, or at the least sidelined by the Amendment XXV process based o his dementia and the great harm he is
doing to the economy as well as to democracy itself, but the people
who would have to take those actions are his minions, so it won't
happen.
On 4/29/2025 9:30 AM, Mike Anderson wrote:
On 1/29/2025 1:23 PM, Stan Brown wrote:
Again, two issues. If there isn't specific legal
authority for a particular Executive Order, then that
order is void, th officials of he executive branch are
bound by their oath to he Constitution to disregard it,
and the courts are bound by _their_ oath to the
Constitution to rule that way when someone brings a
case.
With any given executive order, there's three (main) possibilities:
Congress passes a law saying X is illegal and the EO says "X is
legal." (or visa-versa.)
Congress: Shooting someone is illegal.
Executive order: It is perfectly legal to shoot someone.
Outcome: The EO is void and shooting someone still lands you in jail.
Congress: We're passing a law saying the prez can decide if John can
shoot Mary.
EO: This orders John to shoot Mary.
Outcome: John is hailed as a hero after pulling the trigger.
Congress: <crickets> (i.e. doesn't say anything and doesn't pass a law
in any respect on the matter, either for or against.)
EO: The Gulf will now be called The Gulf of Trump.Calling it anything
else will result in 30 days in jail.
Outcome: John called it The Gulf of Dumbo.
Jail: Yes or no?
I.e. is it a case of "Unless we, the congress, or the constitution
says explicitly that you can, you can't" or is it more "you can do
anything you want unless we or the constitution specifically say 'no'"?
It seems to me that regular laws are pretty much in the form of "you
can not do X" and rarely in the form of "you are allowed to do
X" (generally the only time they say "you are allowed to do X" is when
there;s a law saying "you can't do Y" and the "you are allowed to do
X" is carving out an exception ("No parking....except on Sundays." "No
driving in the HOV lane...unless you have at least two in the
vehicle." Etc.)
The Constitution does specifically allow for free speech, so the 30-day
jail sentence for calling it the Gulf of Dumbo would likely be rejected
by the courts.
And the Bill of Rights is mostly a list of things you CAN do (free
speech, assembly, owning guns, etc.).
On Tue, 29 Apr 2025 06:30:45 -0700 (PDT), Mike Anderson wrote:
I.e. is it a case of "Unless we, the congress, or the constitution says
explicitly that you can, you can't"
That is exactly it. The constitution delegates certain powers to the
Federal government, but all other powers remain with the states. (See Amendment X.) Granted, there is considerable wiggle room under the
"necessary and proper" clause at the end of Article I section 8.
If the Constitution does not assign a power to Congress, Congress
does not have that power. If the Constitution doesn't assign a power
to an officer, that officer does not have the power. The Congress can
however assign some powers of Congress to an executive officer under
the "necessary and proper" clause.
The problem is that there's no quick way, in the present environment
where a majority of each house and the entirety of the Cabinet are
spineless Trump-toadies, to act quickly when the President arrogates
to himself powers that he does not legally have. He should by rights
be speedily impeached and convicted, or at the least sidelined by the Amendment XXV process based o his dementia and the great harm he is
doing to the economy as well as to democracy itself, but the people
who would have to take those actions are his minions, so it won't
happen.
On 4/30/2025 12:52 PM, Stan Brown wrote:
On Tue, 29 Apr 2025 06:30:45 -0700 (PDT), Mike Anderson wrote:
I.e. is it a case of "Unless we, the congress, or the constitution says
explicitly that you can, you can't"
That is exactly it. The constitution delegates certain powers to the
Federal government, but all other powers remain with the states. (See
Amendment X.) Granted, there is considerable wiggle room under the
"necessary and proper" clause at the end of Article I section 8.
If the Constitution does not assign a power to Congress, Congress
does not have that power. If the Constitution doesn't assign a power
to an officer, that officer does not have the power. The Congress can
however assign some powers of Congress to an executive officer under
the "necessary and proper" clause.
The problem is that there's no quick way, in the present environment
where a majority of each house and the entirety of the Cabinet are
spineless Trump-toadies, to act quickly when the President arrogates
to himself powers that he does not legally have. He should by rights
be speedily impeached and convicted, or at the least sidelined by the
Amendment XXV process based o his dementia and the great harm he is
doing to the economy as well as to democracy itself, but the people
who would have to take those actions are his minions, so it won't
happen.
I realize there's some things that Congress can't do, specifically,
because it's a right of the state (I believe the 21 age limit for
drinking and the 55-mph max speed are two cases of these and Congress, instead of saying "no driving over 55" actually said "if a state allows driving over 55, we'll simply not give them funding for roads" or
something such.)
However, this wasn't abound Congress vs the states but between Congress
vs POTUS. The question was about powers that Congress DOES have but
might not actually exercise.
Congress has full control over any laws dealing with interstate
commerce. So Congress can pass a law saying, specifically, "sending chocolates through the US Mail is illegal" They can also add on to it
that it's legal between Feb 1st and Feb 14th, etc.
So the possibilities are:
Congress passes a law stating, specifically and explicitly, that
"mailing chocolates is perfectly legal. Feel free to do so any time you want." But an EO says "it's illegal." (and yes, I realize most laws are
in the form of "you can't do X" and rarely "yes, you can do X.")
Congress passes "sending chocolates through the US Mail is illegal" with
no exemptions. An EO says "it's perfectly legal to mail chocolates."
(This EO might not be valid but then, I believe, the Justice Department
can be told 'just ignore enforcing it', thus having the same effect.)
Congress passes "sending chocolates through the US Mail is illegal
except the first two weeks of Feb." An EO says "it's illegal even in
those two weeks."
Congress passes no law of any kind specifically mentioning chocolates.
But an EO says "it's illegal."
The last one would be like the Gulf of Dumbo but without the
1st-ammentment issue.
On 4/29/2025 10:36 AM, Rick wrote:
On 4/29/2025 9:30 AM, Mike Anderson wrote:
On 1/29/2025 1:23 PM, Stan Brown wrote:
Again, two issues. If there isn't specific legal
authority for a particular Executive Order, then that
order is void, th officials of he executive branch are
bound by their oath to he Constitution to disregard it,
and the courts are bound by _their_ oath to the
Constitution to rule that way when someone brings a
case.
With any given executive order, there's three (main) possibilities:
Congress passes a law saying X is illegal and the EO says "X is
legal." (or visa-versa.)
Congress: Shooting someone is illegal.
Executive order: It is perfectly legal to shoot someone.
Outcome: The EO is void and shooting someone still lands you in jail.
Congress: We're passing a law saying the prez can decide if John can
shoot Mary.
EO: This orders John to shoot Mary.
Outcome: John is hailed as a hero after pulling the trigger.
Congress: <crickets> (i.e. doesn't say anything and doesn't pass a
law in any respect on the matter, either for or against.)
EO: The Gulf will now be called The Gulf of Trump.Calling it anything
else will result in 30 days in jail.
Outcome: John called it The Gulf of Dumbo.
Jail: Yes or no?
I.e. is it a case of "Unless we, the congress, or the constitution
says explicitly that you can, you can't" or is it more "you can do
anything you want unless we or the constitution specifically say 'no'"?
It seems to me that regular laws are pretty much in the form of "you
can not do X" and rarely in the form of "you are allowed to do X"
(generally the only time they say "you are allowed to do X" is when
there;s a law saying "you can't do Y" and the "you are allowed to do
X" is carving out an exception ("No parking....except on Sundays."
"No driving in the HOV lane...unless you have at least two in the
vehicle." Etc.)
The Constitution does specifically allow for free speech, so the
30-day jail sentence for calling it the Gulf of Dumbo would likely be
rejected by the courts.
And the Bill of Rights is mostly a list of things you CAN do (free
speech, assembly, owning guns, etc.).
OK, so the Gulf of Dumbo wasn't a good choice (I was just trying ti find something really stupid to jail someone over and wasn't thinking about
the 1st Amendment applications.) Lets replace it with:
EO: Refusing to allow the President to play through on the golf course
will result in 30 days in jail.
Jail or no jail?
On 4/29/2025 10:36 AM, Rick wrote:
[quoted text muted]
OK, so the Gulf of Dumbo wasn't a good choice (I was just trying ti find something really stupid to jail someone over and wasn't thinking about
the 1st Amendment applications.) Lets replace it with:
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