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Tag: Separation of Powers

Approaching the Gay Marriage Debate Constitutionally

By Kevin Rex Heine, Section News
Posted on Fri Mar 29, 2013 at 02:47:01 PM EST
Tags: "You Shall Not Commit Adultery", gay marriage debate, reasoned philosophical discussion, Abraham Lincoln, shifting public perception of the "central idea", constitutional premise, enumerated federal powers, enumerated federal authority, enumerated federal jurisdiction, checks and balances, separation of powers, state sovereignty, California Proposition 8 (2008), Dave Agema, Michigan's Republican National Committeeman, unity based on a principled platform, Dennis "the Menace" Lennox (all tags)

To say that the gay marriage debate has heated up in Michigan, especially in Republican political circles, is perhaps an understatement. All that RNC Committeeman Dave Agema did was repost a medical journal article (written by Frank Joseph, M.D.) to his FaceBook page, and the next thing you know, all manner of media-funneled venom is targeted at the man. The national party, which has not one, but two sections in their 2012 National Platform speaking about defending traditional marriage, has gone on record as keeping their distance on this one (even though it's been shown, on this website, that the "filthy homosexuals" headline was intended as a sensationalistic distortion of the facts), and the state party is leaving Dave to defend himself on his own. Why they're doing so is a matter for discussion another day.

It occurs to me, though, that a key reason for the discoherent response from social conservatives in this debate is because we are allowing the pro-homosexual advocates (even within our own party) to define the terms of the debate. In doing so, we're allowing them to preemptively neuter every argument we're advancing, because we're allowing their premises to stand unchallenged. I think that, if we're going to have a reasoned philosophical discussion of this matter, then a constitutional premise is a more useful way to handle this.

(3 comments, 2116 words in story) Full Story

Chief Justice Young and the Ballot Proposals

By PTurner, Section News
Posted on Thu Sep 06, 2012 at 11:36:19 PM EST
Tags: Rule of Law, Robert Young, Bob Young, Chief Justice Young, Brian Zahra, Michigan Supreme Court, Mary Beth Kelly, Stephen Markman, Ballot Proposals, Collective Bargaining, Constitution, Separation of Powers, Judiciary (all tags)

Chief Justice Robert Young of the Michigan Supreme Court released a statement this afternoon discussing how the Rule of Law judicial philosophy compelled his, and his Rule of Law colleagues', decisions regarding the various ballot proposals. In addition to the Court's opinion itself (authored by Justice Brian Zahra) it is an interesting companion piece.

In particular, Young concisely and persuasively explains why the Court's decision was proper, even if conservatives may feel some disappointment that proposals that represent bad policy will make it to the ballot this November.

Ladies and Gentlemen, welcome to the Rule of Law.

(1 comment, 631 words in story) Full Story

A Message To Our Legislators - Beware False Choices

Dissecting a Coffeehouse Combination

By Kevin Rex Heine, Section News
Posted on Thu Jul 05, 2012 at 06:45:55 PM EST
Tags: Patient Protection and Affordable Care Act, NFIB v. Sebelius (11-393), HHS v. Florida (11-398), Florida v. HHS (11-400), Individual Mandate, Medicaid Expansion, Commerce Clause, Necessary and Proper Clause, Taxing and Spending Powers, Tenth Amendment, separation of powers, checks and balances, elections have consequences, Anti-Injunction Act, shared responsibility payment, severability (all tags)

I think that, prior to last weekend, most everyone reasonable was expecting that the Supreme Court was going to rule both the Individual Mandate and the Medicaid Expansion of the Patient Protection and Affordable Care Act an unconstitutional overreach of Congress' enumerated powers, specifically with regard to the Commerce Clause, the Necessary and Proper Clause, and perhaps even the Tenth Amendment. The only question would then become whether or not severability (or lack thereof) would give SCOTUS the necessary leverage to send Barry Obama's "signature achievement" down in flames. (That latter result seems to have been clearly anticipated by Speaker Boehner's "don't spike the ball" memo from 21 June.) But then, at around 10:07 a.m., on 28 June 2012, . . . well, we'll get to that.

To say that in the immediate aftermath opinions have varied as to what, exactly, John G. Roberts, jr., 17th Chief Justice of the United States, was thinking when he sided with the four hardcore liberals on the court in upholding the individual mandate (albeit as a tax) is probably an understatement. Yes, I absolutely agree with those who hold that Chief Roberts should have sided with the other four conservative associates (Scalia, Kennedy, Thomas, and Alito) and eviscerated BHO's signature achievement, thus officially rendering his first year in office a complete waste of time. However, having taken the time to dissect the opinion as best as my non-legal expertise will provide, I'm rather inclined to believe that Chief Roberts is a masterful chess player, at least politically. As to why I think that way . . . well, let's go below the fold and discuss that.

In advance, I should probably warn you that this is going to get a bit lengthy, so you might find a fresh pot of coffee useful. This also may require more than one read-through, for the same reason.

(8 comments, 9076 words in story) Full Story

Making The President A King

By Kevin Rex Heine, Section News
Posted on Sat May 28, 2011 at 03:45:57 PM EST
Tags: H.R. 1540 of 2011 (Section 1034), House Vote # 361, Separation of Powers, Checks and Balances, War Powers, Posse Comitatus Act, Bill of Rights, military draft, debt ceiling, Justin Amash, John Conyers, Ron Paul, Michigan Congressional Republicans (all tags)

Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after having given him so much as you propose. If today he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him, - "I see no probability of the British invading us;" but he will say to you, "Be silent: I see it, if you don't."
To provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.

The above quote is from a letter written by Abraham Lincoln, while serving in the United States Congress (representing Illinois' 7th District), to his friend and law-partner William H. Herndon on 15 February 1848. The purpose of the quote, and indeed much of the letter, was that Lincoln was defending his Spot Resolutions and his position opposing the Mexican-American War.

Article 1, Section 8 of the United States Constitution clearly specifies that the power to declare war is reserved to Congress only. While the President is indeed the Commander-in-Chief of the U. S. Armed Forces, he does not have the authority to order the military into an offensive engagement without Congress' consent.

But that's about to change . . . and God help us all if this stands.