Recently a pair of law professors from Harvard and San Francisco State made
a recommendation to the president to essentially ignore Supreme Court
rulings he disagreed with. In their words:

"We urge President Biden to restrain MAGA justices immediately by announcing that if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations."

I started thinking about this and realize that the Court has no real enforcement power, other than the good will of the other branches of government. Let's take an extreme and probably unlikely example and say,
for example, Congress passes a law that states that any public criticism of
the President will be illegal and a federal offense, and subject the perpretrator to imprisonment. Obviously such a law would probably not be passed today, but let's say it gets passed and is immediately challenged and taken to the Supreme Court and the Court rules 9-0 the law is
unconstitutional. If the president and his Department of Justice decide to ignore the ruling and continue enforcing the law, what power does the Court have to enforce its ruling?

In the example I give, Congress actually passed the offending law, but
suppose it's just an executive action by the president that is ruled unconstitutional? Since the president controls the department of Justice,
he effectively controls the enforcement arm of the government, so as a practical matter, what would happen if the president and Justice just decide
to ignore the Court? Unless Congress can get the votes together to impeach
and remove the president, what would happen?

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

On 7/24/2023 12:10 PM, Rick wrote:

Recently a pair of law professors from Harvard and San Francisco State
made a recommendation to the president to essentially ignore Supreme
Court rulings he disagreed with.  In their words:

"We urge President Biden to restrain MAGA justices immediately by
announcing that if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations."

I started thinking about this and realize that the Court has no real enforcement power, other than the good will of the other branches of government.  Let's take an extreme and probably unlikely example and
say, for example, Congress passes a law that states that any public
criticism of the President will be illegal and a federal offense, and
subject the perpretrator to imprisonment.   Obviously such a law would probably not be passed today, but let's say it gets passed and is
immediately challenged and taken to the Supreme Court and the Court
rules 9-0 the law is unconstitutional.  If the president and his
Department of Justice decide to ignore the ruling and continue enforcing
the law, what power does the Court have to enforce its ruling?

In the example I give, Congress actually passed the offending law, but suppose it's just an executive action by the president that is ruled unconstitutional?  Since the president controls the department of
Justice, he effectively controls the enforcement arm of the government,
so as a practical matter, what would happen if the president and Justice
just decide to ignore the Court?  Unless Congress can get the votes
together to impeach and remove the president, what would happen?

The professors are actually committing sedition.

The military swears an oath to support and defend the Constitution so
that buts a lot more weapons in their hands rather than the Justice
department.

The result would probably be a civil war.

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

On 7/24/2023 9:33 PM, Rick wrote:

"Roy"  wrote in message news:u9n3a2$qrr3$1@dont-email.me...

On 7/24/2023 12:10 PM, Rick wrote:

Recently a pair of law professors from Harvard and San Francisco
State made a recommendation to the president to essentially ignore
Supreme Court rulings he disagreed with.  In their words:

"We urge President Biden to restrain MAGA justices immediately by
announcing that if and when they issue rulings that are based on
gravely mistaken interpretations of the Constitution that undermine
our most fundamental commitments, the Administration will be guided
by its own constitutional interpretations."

I started thinking about this and realize that the Court has no real
enforcement power, other than the good will of the other branches of
government.  Let's take an extreme and probably unlikely example and
say, for example, Congress passes a law that states that any public
criticism of the President will be illegal and a federal offense, and
subject the perpretrator to imprisonment.   Obviously such a law
would probably not be passed today, but let's say it gets passed and
is immediately challenged and taken to the Supreme Court and the
Court rules 9-0 the law is unconstitutional.  If the president and
his Department of Justice decide to ignore the ruling and continue
enforcing the law, what power does the Court have to enforce its ruling? >>>
In the example I give, Congress actually passed the offending law,
but suppose it's just an executive action by the president that is
ruled unconstitutional?  Since the president controls the department
of Justice, he effectively controls the enforcement arm of the
government, so as a practical matter, what would happen if the
president and Justice just decide to ignore the Court?  Unless
Congress can get the votes together to impeach and remove the
president, what would happen?

The professors are actually committing sedition.

The military swears an oath to support and defend the Constitution so
that buts a lot more weapons in their hands rather than the Justice
department.

The result would probably be a civil war.

But remember the military reports to the Commander-in-Chief, and Chain-of-Command is also very important to military leaders.  And for
that matter, the Secretary of Defense and Chairman of the Joint Chiefs
are also basically appointed by the president, though you do need advise
and consent of the Senate.  Point is, we would have to hope that the officers in the highest ranks of the military have enough integrity to
stand up to possibly corrupt leaders and overcome what could be a flawed chain-of-command.

--

During my training I was taught that you were expected to disobey an
illegal order. The Posse Comitatus Act limits the powers of the federal government in the use of federal military personnel to enforce domestic policies within the United States I would suspect some resistance by the military

Also there are about 450,000 Nation Guard troops under the command of
the state governments who could resist federal orders.

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

"Roy" wrote in message news:u9n3a2$qrr3$1@dont-email.me...

On 7/24/2023 12:10 PM, Rick wrote:

Recently a pair of law professors from Harvard and San Francisco State
made a recommendation to the president to essentially ignore Supreme
Court rulings he disagreed with. In their words:

"We urge President Biden to restrain MAGA justices immediately by
announcing that if and when they issue rulings that are based on gravely
mistaken interpretations of the Constitution that undermine our most
fundamental commitments, the Administration will be guided by its own
constitutional interpretations."

I started thinking about this and realize that the Court has no real
enforcement power, other than the good will of the other branches of
government. Let's take an extreme and probably unlikely example and say,
for example, Congress passes a law that states that any public criticism
of the President will be illegal and a federal offense, and subject the
perpretrator to imprisonment. Obviously such a law would probably not
be passed today, but let's say it gets passed and is immediately
challenged and taken to the Supreme Court and the Court rules 9-0 the law
is unconstitutional. If the president and his Department of Justice
decide to ignore the ruling and continue enforcing the law, what power
does the Court have to enforce its ruling?

In the example I give, Congress actually passed the offending law, but
suppose it's just an executive action by the president that is ruled
unconstitutional? Since the president controls the department of
Justice, he effectively controls the enforcement arm of the government,
so as a practical matter, what would happen if the president and Justice
just decide to ignore the Court? Unless Congress can get the votes
together to impeach and remove the president, what would happen?

The professors are actually committing sedition.

The military swears an oath to support and defend the Constitution so that >buts a lot more weapons in their hands rather than the Justice department.

The result would probably be a civil war.

But remember the military reports to the Commander-in-Chief, and Chain-of-Command is also very important to military leaders. And for that matter, the Secretary of Defense and Chairman of the Joint Chiefs are also basically appointed by the president, though you do need advise and consent
of the Senate. Point is, we would have to hope that the officers in the highest ranks of the military have enough integrity to stand up to possibly corrupt leaders and overcome what could be a flawed chain-of-command.

--

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

On 7/24/2023 12:10 PM, Rick wrote:

Recently a pair of law professors from Harvard and San Francisco State
made a recommendation to the president to essentially ignore Supreme
Court rulings he disagreed with.  In their words:

"We urge President Biden to restrain MAGA justices immediately by
announcing that if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations."

I started thinking about this and realize that the Court has no real enforcement power, other than the good will of the other branches of government.  Let's take an extreme and probably unlikely example and
say, for example, Congress passes a law that states that any public
criticism of the President will be illegal and a federal offense, and
subject the perpretrator to imprisonment.   Obviously such a law would probably not be passed today, but let's say it gets passed and is
immediately challenged and taken to the Supreme Court and the Court
rules 9-0 the law is unconstitutional.  If the president and his
Department of Justice decide to ignore the ruling and continue enforcing
the law, what power does the Court have to enforce its ruling?

In the example I give, Congress actually passed the offending law, but suppose it's just an executive action by the president that is ruled unconstitutional?  Since the president controls the department of
Justice, he effectively controls the enforcement arm of the government,
so as a practical matter, what would happen if the president and Justice
just decide to ignore the Court?  Unless Congress can get the votes
together to impeach and remove the president, what would happen?

In _A Civil Campaign_ (a Science Fiction book by Lois McMaster Bujold), Cordelia Vorkosigan watches some political maneuvering and finds it odd.
The phrase "pretending a government into existence" comes to her mind.
And then she wonders whether the place she came from (a democracy) also
does that.

What we have in the US is something very like that. Our government works
as long as we believe in it. The Congress makes laws, the Executive
carries out those laws, and the courts rule on both the laws (meaning
and validity) and the facts.

As "Rick" noted, the Federal Courts have not direct enforcement powers.
They can make rulings, but it if they need somebody arrested, that is
done by the Federal Marshall's Service, part of the Department of
Justice. They can sentence someone to prison, but the prisons are run by
the Federal Bureau of Prisons, also part of the DoJ.

In the first part of the 21st century, an Alabama judge erected a
monument to the Ten Commandments in the courthouse. The Federal Courts
ordered it removed. The judge refused. The Alabama Commission on
Judicial Performance ordered him removed from office. They understood
something that he did not: if you don't pretend that orders from the
Federal Courts mean something, the whole system will fall apart.

Rick's hypothetical brings that point into sharp relief. The President
can ignore a court ruling, but the cost will be enormous because it will
call attention to the weak points in our system.

If the President ignores court orders that he doesn't like, then what
good are the courts? If he makes up laws (not just Executive Orders,
which are authorized by various laws passed by Congress), then what is
Congress for?

When the Supreme Court ordered President Nixon to give up the tapes of conversations in the Oval Office, he complied(*). Even President Trump,
who had much less respect for the courts, eventually complied with court
orders to turn over papers etc. to Congressional committees.

Consider the following (from a CNBC report on the January 6 Select
Committee):

Trump planned to install a new acting attorney general, Jeffrey Clark,
to help spread his false claim that President Joe Biden’s electoral
victory was rigged through widespread fraud

Three ex-DOJ officials — former acting Attorney General Jeffrey Rosen,
former acting Deputy Attorney General Richard Donoghue and former
assistant Attorney General for the Office of Legal Counsel Steven Engel
— said they threatened to resign over the scheme and said hundreds of
others would do the same.

And I suspect something like that would happen if the President decided
to ignore a Supreme Court order and enforce a law or executive order
that the Court had ruled illegal.

(*) I probably would have started a policy of reusing those tapes after
a certain time period, as soon as Congress started investigating
Watergate. "Oh, those? They were over a year old and we didn't think
they were important."

--
I do so have a memory. It's backed up on DVD... somewhere...

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

On Mon, 24 Jul 2023 17:02:07 -0700, Roy wrote:

The military swears an oath to support and defend the Constitution

Which is all very well, until someone asks what it actually means.

For example, the first amendment ... if a soldier saw someone preventing someone from speaking in public, would they have a free pass to
intervene ?

Until it's tested, it's all fancy words.

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

"Barry Gold" wrote in message news:u9nl1g$npa7$1@dont-email.me...

On 7/24/2023 12:10 PM, Rick wrote:

Recently a pair of law professors from Harvard and San Francisco State
made a recommendation to the president to essentially ignore Supreme
Court rulings he disagreed with. In their words:

"We urge President Biden to restrain MAGA justices immediately by
announcing that if and when they issue rulings that are based on gravely
mistaken interpretations of the Constitution that undermine our most
fundamental commitments, the Administration will be guided by its own
constitutional interpretations."

I started thinking about this and realize that the Court has no real
enforcement power, other than the good will of the other branches of
government. Let's take an extreme and probably unlikely example and say,
for example, Congress passes a law that states that any public criticism
of the President will be illegal and a federal offense, and subject the
perpretrator to imprisonment. Obviously such a law would probably not
be passed today, but let's say it gets passed and is immediately
challenged and taken to the Supreme Court and the Court rules 9-0 the law
is unconstitutional. If the president and his Department of Justice
decide to ignore the ruling and continue enforcing the law, what power
does the Court have to enforce its ruling?

In the example I give, Congress actually passed the offending law, but
suppose it's just an executive action by the president that is ruled
unconstitutional? Since the president controls the department of
Justice, he effectively controls the enforcement arm of the government,
so as a practical matter, what would happen if the president and Justice
just decide to ignore the Court? Unless Congress can get the votes
together to impeach and remove the president, what would happen?

In _A Civil Campaign_ (a Science Fiction book by Lois McMaster Bujold), >Cordelia Vorkosigan watches some political maneuvering and finds it odd.
The phrase "pretending a government into existence" comes to her mind. And >then she wonders whether the place she came from (a democracy) also does >that.

What we have in the US is something very like that. Our government works as >long as we believe in it. The Congress makes laws, the Executive carries
out those laws, and the courts rule on both the laws (meaning and validity) >and the facts.

As "Rick" noted, the Federal Courts have not direct enforcement powers.
They can make rulings, but it if they need somebody arrested, that is done
by the Federal Marshall's Service, part of the Department of Justice. They >can sentence someone to prison, but the prisons are run by the Federal
Bureau of Prisons, also part of the DoJ.

In the first part of the 21st century, an Alabama judge erected a monument
to the Ten Commandments in the courthouse. The Federal Courts ordered it >removed. The judge refused. The Alabama Commission on Judicial Performance >ordered him removed from office. They understood something that he did not: >if you don't pretend that orders from the Federal Courts mean something,
the whole system will fall apart.

Rick's hypothetical brings that point into sharp relief. The President can >ignore a court ruling, but the cost will be enormous because it will call >attention to the weak points in our system.

If the President ignores court orders that he doesn't like, then what good >are the courts? If he makes up laws (not just Executive Orders, which are >authorized by various laws passed by Congress), then what is Congress for?

When the Supreme Court ordered President Nixon to give up the tapes of >conversations in the Oval Office, he complied(*). >

At that point, Nixon had lost so much support in Congress and the public,
that he really had no choice. Ironically, he brought a lot of this on by
his initial ill-fated decision to fire the original special prosecutor, Archibald Cox. Nixon ordered his highly respected Attorney General Elliot Richardson to fire Cox and Richardson famously refused and resigned. Then
the Deputy AG William Ruckelshaus, who was now Acting AG, also refused to
fire Cox and was himself fired. It was finally left to the Solicitor
General, Robert Bork (who was later turned down for the Supreme Court,
largely due to his hard-line views on abortion) to fire Cox. Bork himself also reportedly wanted to resign but was persuaded by Richardson to stay in office to assure continuity of government.

When the dust finally settled on the Cox firing, Nixon had lost so much
support that by the time he appointed a new AG (the respected Republican retired Senator Bill Saxbe), he had no choice but to let stand Saxbe's appointment of Leon Jaworski as the new Special Prosecutor. The irony was
that Jaworski turned out to be even tougher and more tenacious than the academically inclined Cox, and was probably much more aggressive in pursuing the tapes in the court system. In retrospect, Nixon would have been much better off to turn the tapes over when Cox originally requested them.

--

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

"Rick" <rick@nospam.com> wrote:

At that point, Nixon had lost so much support in Congress and the
public, that he really had no choice. Ironically, he brought a
lot of this on by his initial ill-fated decision to fire the
original special prosecutor, Archibald Cox.

I remember that well. People were calling Nixon a Cox sacker.

--
Stu
http://DownToEarthLawyer.com


--
This email has been checked for viruses by AVG antivirus software.
www.avg.com

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

On 7/27/2023 3:18 PM, RichD wrote:

The military swears an oath to support and defend the Constitution so that >>> buts a lot more weapons in their hands rather than the Justice department. >> But remember the military reports to the Commander-in-Chief, and

Chain-of-Command is also very important to military leaders.
we would have to hope that the officers in the
highest ranks of the military have enough integrity to stand up to possibly >> corrupt leaders and overcome what could be a flawed chain-of-command.

There was a scene in the Macarthur movie:
"We owe our allegiance to the Constitution, not a temporary occupant
of the White House!"

Enlisted men take an oath to "Preserve, protect, and defend the
Constitution"

AFAIK officers -- whether from the service's academy or raised from
senior enlisted through Officer's Candidate School -- I believe are
taught about illegal orders and what to do about them.

--
I do so have a memory. It's backed up on DVD... somewhere...

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

On July 24, Rick wrote:

Recently a pair of law professors from Harvard and San Francisco State
made a recommendation to the president to essentially ignore Supreme
Court rulings he disagreed with. In their words:

"We urge President Biden to restrain MAGA justices immediately by

announcing that if and when they issue rulings that are based on gravely >>> mistaken interpretations of the Constitution that undermine our most
fundamental commitments, the Administration will be guided by its own
constitutional interpretations."

That was Washington's understanding - he would veto a law if
he deemed it unconstitutional.

The professors are actually committing sedition.

But the Dems talk that way routinely - after any ruling they
abhor, they claim the court is illegitimate.

"illegitimate" needn't be enforced, yes/no? In fact, a
'patriot' would actively resist -

The military swears an oath to support and defend the Constitution so that >> buts a lot more weapons in their hands rather than the Justice department.

But remember the military reports to the Commander-in-Chief, and Chain-of-Command is also very important to military leaders.
we would have to hope that the officers in the
highest ranks of the military have enough integrity to stand up to possibly corrupt leaders and overcome what could be a flawed chain-of-command.

There was a scene in the Macarthur movie:
"We owe our allegiance to the Constitution, not a temporary occupant
of the White House!"

--
Rich

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

On Thu, 27 Jul 2023 16:11:09 -0700, Barry Gold wrote:

On 7/27/2023 3:18 PM, RichD wrote:

[quoted text muted]

Enlisted men take an oath to "Preserve, protect, and defend the
Constitution"

But what does that *mean* ?

Does it confer any powers unavailable to a citizen ?

Does it allow them to act without orders ?

Does it confer any agency ?

Yes, it *sounds* nice - and the sort of thing people who like to dress up
and run around with weapons like to hear. But has it ever actually
changed the case of a court case ?

And all of that is before we start asking the really hard questions. For example "What *is* the constitution ?". One point of view may be that
it's a dusty copy somewhere under glass that needs "preserving,
protecting and defending" and the values therein are merely ink on
vellum.

And ultimately, how sacred is the constitution ? As someone who uses
their ability to think, I know it contains within it, the mechanism to
amend itself. However that means a "constitution" from 1800 (when that
oath was devised) differs from one in 1900. Or 1920. Or 1932. What then ?

Or do we just play the "well, we know what they mean" game that is how
all republics fall ?

I find it mildly amusing that the US political system was so consciously
based in antiquity (benefits of an 18th century education) that it may go
the same way. The idea of Trump as Caesar, and an invisible wall compared
to the siege of Alesia being particularly droll.

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

On 7/28/2023 9:09 AM, Jethro_uk wrote:

On Thu, 27 Jul 2023 16:11:09 -0700, Barry Gold wrote:

On 7/27/2023 3:18 PM, RichD wrote:

[quoted text muted]

Enlisted men take an oath to "Preserve, protect, and defend the
Constitution"

But what does that *mean* ?

Does it confer any powers unavailable to a citizen >
Does it allow them to act without orders ?

Does it confer any agency ?

No. It's supposed to remind them that, while they are supposed to obey
orders from their superiors, their ultimate allegiance is to the
Constitution. (Also, those words are lifted from the President's oath.)

Yes, it *sounds* nice - and the sort of thing people who like to dress up
and run around with weapons like to hear. But has it ever actually
changed the case of a court case ?

I doubt that people who like to "dress up and run around with weapons"
(e.g., various right-wing militia) care about the Constitution (nor do
they AFAIK take that oath).

I don't know if it has ever come up in a court-martial, but a competent
defense attorney would use if the warfighter had refused an illegal order.

And all of that is before we start asking the really hard questions. For example "What *is* the constitution ?". One point of view may be that
it's a dusty copy somewhere under glass that needs "preserving,
protecting and defending" and the values therein are merely ink on
vellum.

And ultimately, how sacred is the constitution ? As someone who uses
their ability to think, I know it contains within it, the mechanism to
amend itself. However that means a "constitution" from 1800 (when that
oath was devised) differs from one in 1900. Or 1920. Or 1932. What then ?

Yes, but *because* the Constitution contains the means for amending
itself, each new version is, in turn, *the constitution* until it is
amended.

Or do we just play the "well, we know what they mean" game that is how
all republics fall ?

I find it mildly amusing that the US political system was so consciously based in antiquity (benefits of an 18th century education) that it may go
the same way. The idea of Trump as Caesar, and an invisible wall compared
to the siege of Alesia being particularly droll.

I don't see what that has to do with this topic.


--
I do so have a memory. It's backed up on DVD... somewhere...

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

On Fri, 28 Jul 2023 10:48:34 -0700, Barry Gold wrote:

I don't see what that has to do with this topic.

Caesars rise to power involved several contraventions of then Roman law.
Until eventually he (literally) became a dictator.

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

On 7/28/2023 11:33 AM, Jethro_uk wrote:

I don't see what that has to do with this topic.

Caesars rise to power involved several contraventions of then Roman law. Until eventually he (literally) became a dictator.

His main contravention that I can remember was "crossing the rubicon --
he disobeyed orders. He was already a patrician, so I don't think him
being in the Senate violated laws.

The Roman system had a formal rule for creating dictators. They had to
be nominated by one of the two Consuls (on recommendation of the Senate)
and then approved by Comitia Curia (electoral tribunal).

And they were supposed to serve only for the duration of whatever
emergency justified appointing one. Cincinnatus became a dictator to
deal with an invasion. When it was over, he went happily back to his farm.




--
I do so have a memory. It's backed up on DVD... somewhere...

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)