Balkinization  

Monday, February 04, 2019

Are we in an unrecognized constitutional crisis?

Sandy Levinson

The term "constitutional crisis" is much bandied around these days.  Jack and I wrote an article about a decade ago offering some quite stringent conditions for a genuine "constitutional crisis" to exist, and he has argued that its use during the Trump presidency has been misleading.  He and I might slightly disagree on the main point, for I do believe that the failure of the Constitution to provide an alternative to the clearly inefficacious mechanisms of the Impeachment Clause and the 25th Amendment to get rid of a president in whom we deservedly have no confidence at all in matters of war and peace, life and death, or, for that matter, keeping the country together in some semblance of "domestic tranquility," may serve as evidence why the Constitution itself is the crisis at present.

But I don't want to rehearse those arguments once again.  Instead, I am intrigued by piece in the Washington Post describing the increasing concern, including on the part of Republican senators themselves, about the abject failure of the remarkably lackadaisical and insouciant Trump to name candidates for offices subject to the "advice and consent" of the Senate.  Instead, he appears to prefer that "acting" officials remain in place.  The Post story suggests that Trump actually prefers such officials because they are more "responsive" to his dictatorial will.  "It gives me more flexibility," Trump is quoted as saying. 

Given the almost certain willingness of the GOP in the Senate to rubber-stamp Trump's appointments, including the announcement today nominating the egregious (though reportedly extremely hard-working) former lobbyist David Bernhardt, to continue gutting the Interior Department, perhaps one shouldn't really care, for example, that the current Secretary of Defense is merely "acting," as is, until William Barr is confirmed, the equally egregious Matthew Whitaker as Attorney General.  One certainly can't seriously the proposition that the Senate will truly attempt to assert its genuine independence from the Executive when both are controlled by the same Party.  But is this near-indifference, save for a few inside-the-Beltway cogniscenti, to the actual implementation of the Senate's role in confirming high-level appointments just another piece of evidence that we must realize that our constitutional order is increasingly dominated by a President (and not simply the institution of "the presidency") who can freely ignore what had been thought to have been basic precepts of that order? 

There is so much more to be worried about, with regard to the disaster that is Donald Trump, that this particular feature may indeed be relatively unimportant and thus unworthy of being classified even as a minor "crisis."  But even if we reject that label, is it not a breach of the Constitution, just another indication that Madison was correct in describing constitutions as basically creating only "parchment barriers" that could easily be breached by those with sufficient energy to do so?



Comments:

It is true as a general matter that the system as a whole, not any one mere "parchment barrier," is the imperfect security in place. This includes the limitations of any one person, particularly this person, to operate their will. This involves, however, various institutions protected by that parchment (Congress, the press etc.).

The concern that the acting AG is illegitimate, for instance, has been expressed by various people. There is an expressed understanding as well he was chosen especially because he would be a toady to Trump, including in respect to the Mueller Investigation. But, Whitaker is realistically constrained there, even if in theory he had power to severely interfere in various respects. The same holds true to his permanent replacement, whose confirmation is likely to occur later this month.

This restraint, if limited in nature, involves a complicated mixture of interconnected parts. It brings to mind Justice Kennedy's much maligned concurrence in the travel ban case in which he noted that even if the courts do not restrain them, governmental actors still have an obligation to constitutional limitations.
 

The constitutional crises to which you refer are long standing - Congress' delegation of its legislative power and the court's judicial power to an absolute bureaucracy, then Congress enacting legislation allowing POTUS to appoint acting heads of these monstrosities without Senate confirmation.

Your complaint is not really with Congress' abdications of Article I power forming the crisis, though, but rather with Trump's acting heads marginally restraining the absolute bureaucracy.
 

Is SPAM bestowing praise on "rump's acting heads marginally restraining the absolute bureaucracy" in SPAM's analysis of what's really Sandy's complaint? Perhaps SPAM can analyze whether the Cruz Canadacy sporting a beard can come to the GOP rescue in 2020, with a sort of political "cover up" of the most hated man in the Senate. SPAM's comment blames Congress for creating the problem of the Executive (although SPAM fails to direct place blame on Trump) and scorches The Court. Is this anarchy? But SPAM has his revolting 2nd A rights to protect us.

But maybe Trump's sole claim to success prior to becoming President was his "acting" on "The Apprentice," resulting in Trump's appointing of
acting heads" for Executive departments.

By the way, nice hearing from Sandy.
 

I'm pretty sure I've made this point here before, but if Congress fails to do its job, the natural result will be that the system will move towards presidential government as people get impatient with the lack of solutions to problems. Anyone who values democracy should see this as another incremental step in a slow-moving crisis.
 

Thank you very much for the information presented today, so very interesting.
Cara Mengobati Cacingan Pada Orang Dewasa
 

There of course is no absolute bureaucracy. Bureaucratic edicts are commonly changed when new Executives come into power. Congress can and has directly overruled the same. And Courts commonly strike them down.

To me the real Constitutional crisis is becoming evident today in that the Founders put the Executive power, which now includes federal foreign and domestic investigatory institutions, wholly under the President. This makes possible what we are seeing today: an administration riddled with officials of a campaign who had at the very least extremely questionable ties/dealings with foreign powers who were meddling in our elections and who unquestionably have told numerous lies about it. Any patriot should want to see this investigated to the fullest extent as it's a direct assault on our democracy by foreign powers and the traitors that would aid and abet them for mere partisan and/or monetary gain. And yet the head of the very campaign/administration that begs an investigation is also the head of the federal apparatus that oversees that investigation! It's an inherent flaw in our system that is becoming apparent more so every day (though ameliorated somewhat by the special counsel laws and political norms).
 

Mr. W: There of course is no absolute bureaucracy. Bureaucratic edicts are commonly changed when new Executives come into power. Congress can and has directly overruled the same. And Courts commonly strike them down.

If restraining the absolute bureaucracy was a regular occurrence, progressives would not be hysterically complaining about Trump "egregiously" breaking "norms" by "gutting" the bureaucracy.
 

Of course that is not what most 'progressives' are pointing to in that regard. Trump's 'breaking norms' refers to a myriad of things; his childish tweeting, his challenging of long established alliances and practices, his calls for his political opponent to be jailed (laughably Brett used to come here and talk about Trump's opponents couldn't accept electoral defeat and wanted to usurp Trump's win by criminalization; Trump can't even accept electoral *victory* to stop trying to criminalize his political opponents!), his general boorish behavior, his proven hardly considered executive orders, and finally, most germane to Sandy's point, his use of 'acting' directors.
 

Trump himself, and his sycophants, ran on, and continue to bray about, how he's an unprecedented phenomena who 'alone' can save us by 'draining the swamp' and providing unprecedented 'regulatory relief.'
 

The reference to Madison etc. brings to mind a discussion on another blog on originalism: http://www.dorfonlaw.org/2019/02/originalism-off-ground.html

The lessons of history are helpful but it is also true that we are living in the present with a lot more water under the bridge. I'm somewhat wary of such appeals to what the founders said, including by critics who use it to respond to others.

What will happen in the future remains to be seen -- it is trite now to say we should not assume -- but the bill will have to be paid somehow. It might not be as striking of a response as some desire (e.g., there is a debate now over completely ending the filibuster after 2020) but figure it will be something to see.


 

"Given the almost certain willingness of the GOP in the Senate to rubber-stamp Trump's appointments,"

I was under the impression that, aside from judicial nominations, the Senate was actually slow-walking Trump's appointments. According to Wikipedia,"Average approval time has been nine days slower for Trump appointees versus Obama's."


 

Perhaps Brett might check Wikipedia for stats on Trump's failure to make nominations to key positions requiring Senate advise and consent compared to Obama. "Acting" department heads do not call for Senate approval time.
 

The time to confirm seems irrelevant, even assuming the numbers are right. The point raised in the OP involves the use of *acting* officials. That is, Trump has refused to make a confirmable appointment, so "time to confirmation" doesn't matter.
 

Oops. I see Shag made the same point. I'll leave my comment anyway.
 

Shag: SPAM's comment blames Congress for creating the problem of the Executive (although SPAM fails to direct place blame on Trump) and scorches The Court.

A Democrat Congress long ago enacted legislation unconstitutionally allowing the POTUS to make interim appointments.

So, yes, Congress created this problem by delegating yet another one of its Article I powers to the executive.
 

SPAM seems to ignore the position of several constitutional scholars about the lack of Senate advise and consent regarding Trump's appointment of an "acting" AG who had not been so constitutionally vetted in his service as a staff person serving AG Jess Sessions. I'm not sure of the role of SCOTUS in this regard. Rather than referring to "unconstitutional" legislation, it could be that Trump acted unconstitutionally in his appointment. And of course SPAM ignores norms, as does Trump. It's obvious that Trump is an apprentice in governance. Note that SPAM continues not to direct blame on Trump. Then there's the Court.

I seem to recall that on an earlier thread at this Blog on the "Acting" AG's appointment, SPAM assured us that Trump would promptly nominate and submit to the Senate a candidate for AG. It took Trump a while.
 

Shag:

I find it amusing when "constitutional scholars" who have spent their entire lives erasing and rewriting the Constitution in order to rubber stamp progressive policy suddenly become born again original meaning absolutists when it comes to Trump employing long standing progressive laws to advance his own agenda.

As soon as these eminent scholars begin employing this new found fidelity to the text of the Constitution to progressive policy, I will take their arguments as something more than rank hypocrisy.
 

Check out the abstract at the Legal Theory Blog at:

https://lsolum.typepad.com/legaltheory/2019/02/peter-l-strauss-columbia-law-school-has-postederoding-checks-on-presidential-authority-norms-the-civil-service-and-t.html

where a link is provided to Peter Strauss' "Eroding 'Checks' on Presidential Authority – Norms, the Civil Service, and the Courts"

a short but dense 8 pages comparing what' seems to be happening with the Trump Administration under the Constitution and contrasting it to the UK's parliamentary system with its Brexit problem. Sandy might find this article interesting; perhaps he has read it. I'll be thinking of this article as I watch SOTU.
 

Perhaps SPAM isn't aware that Larry Solum, long an originalist, has suggested that original meaning originalism can lead to progressive results, in his responses to critiques of originalism to the effect that that it leads to conservative results (like a Ouija Board). Also, non-originalists consider the original meaning of the Constitution, history, precedent and other factors in interpreting/construing the Constitution as it has been amended from time to time. As a movement, originalism surfaced in the 1970s and has evolved and continues to evolve. Efforts have been made to make originalism scientific, utilizing corpus linguistics, a cunning effort.
 

Shag:

I am familiar with Sullum's interesting attempt to sell original public meaning interpretation to progressives by noting a handful outcomes with which they may agree. These are the proverbial exceptions which prove the rule, however. The original public meaning of the Constitution expressly prohibits nearly the entire progressive political economy. The opening provisions of Articles I-III separating the powers of government prohibits the absolute bureaucracy; equal protection of the law prohibits redistributions of wealth; and the limited powers granted by Article I, Section 8 and the various property rights prohibit nearly all government directions of the economy.
 

Topical tidbit: acting Cabinet members are generally understood as not in the line of succession, so the designated survivor during the SOTU could not be picked from them. Toss in Chao (not natural born), the options were somewhat limited.

https://t.co/OYReExGQjw
 

It's important to remember that with ostensible 'conservatives' like Bart every accusation masks a confession. It's safe to say that despite the sophomoric logic invoked it's also true that there's not a scrap of evidence that the writers and ratifiers of the 14th Amendment understood the EPC to bar taxation at different rates. Bart is doing exactly what he accuses 'progressives' of doing, 'rewriting' the Constitution to install his personal political philosophy (and a radical one to boot).
 

This is information that is worth visiting, because it provides information that is quite interesting.
Cara Menyembuhkan Fibroadenoma Secara Alami
 

SPAM's MAGA continues to look to the late 19th century'a The Gilded Age with it Robber Barons. But was original public meaning way back when universal in the several states in the late 18th century? And who constituted the "public" back then?
 

Mr. W: It's important to remember that with ostensible 'conservatives' like Bart every accusation masks a confession. It's safe to say that despite the sophomoric logic invoked it's also true that there's not a scrap of evidence that the writers and ratifiers of the 14th Amendment understood the EPC to bar taxation at different rates.

Why would they even consider the question? Congress had never attempted to impose a progressive income tax up through that time. Heck, progressives avoided the entire topic when they pushed to ratify the 16th Amendment.

Lack of intent is one of the reasons why you apply the original public meaning of the text rather than engaging in original intent snipe hunts.

Equal means equal.
 

"The time to confirm seems irrelevant, even assuming the numbers are right. The point raised in the OP involves the use of *acting* officials. That is, Trump has refused to make a confirmable appointment, so "time to confirmation" doesn't matter."

Yes, Trump has said that he's deliberately not filling some positions, ones he views as unneeded. The reduced number of nominations makes the sluggish action on the nominations he does make even more conspicuous.
 

"Equal means equal."

It's sophomoric to think this was understood that everyone be treated the same always in everything. Congress had (and has) laws that treated criminals differently than non-criminals, seamen differently than other workers, manufacturers of some goods differently than others, and *at the time of the writing and subsequent passing for ratification of the Amendment was operating under a federal income tax that taxed people of different incomes at different rates* (https://en.wikipedia.org/wiki/Revenue_Act_of_1862).

Again, for Bart every accusation is a confession. It's *he* that would 'rewrite' the Constitution to suit his contemporary political philosophy.
 

This comment has been removed by the author.
 

Mr. W:

In a government which limits itself to keeping people from harming one another, equal protection of the law is easy. Thou shalt not ____. No exceptions.

Equal protection of the law is by definition impossible under a totalitarian government dedicated to directing your economy and redistributing your wealth.

I recalled the 3% Civil War tax rate, but not the 5% rate. I stand corrected.

Equal still means equal.
 

SPAM responds to Mr. W:

"In a government which limits itself to keeping people from harming one another, equal protection of the law is easy. Thou shalt not ____. No exceptions."

What are the limitations on people who rely upon the 2nd A to obtain weapons and gun down innocent people? SPAM's response might track the NRA: "Those innocent people would be the 'good guys' with guns that if armed would stop the 'bad guys' with guns." Consider the protection that the "bad guy" with a gun gets from the judicial system after gunning down innocent people; what "equal protection" do the latter get?

 

Shag: What are the limitations on people who rely upon the 2nd A to obtain weapons and gun down innocent people?

Thou shalt not murder.

 

"Trump has said that he's deliberately not filling some positions, ones he views as unneeded."

This has nothing to do with the point of the OP, which is acting officials. The fact that there is an acting official means that he doesn't view them as unneeded.

"The reduced number of nominations makes the sluggish action on the nominations he does make even more conspicuous."

I don't know why you keep trying to change the subject to this.


 

What about "Thou shalt not be murdered"? The victim gets unequal protection than does the perp. Query: Were the ten commandments incorporated into the Constitution?
 

"In a government which limits itself to keeping people from harming one another, equal protection of the law is easy. Thou shalt not ____. No exceptions."

That's your political philosophy but not that of writers and ratifiers of the text. You're doing exactly what you accuse 'progressives' of doing.
 

BD: "Equal means equal."

Mr. W: It's sophomoric to think this was understood that everyone be treated the same always in everything.

BD: "In a government which limits itself to keeping people from harming one another, equal protection of the law is easy. Thou shalt not ____. No exceptions."

Mr. W: That's your political philosophy but not that of writers and ratifiers of the text. You're doing exactly what you accuse 'progressives' of doing.


Tap dance much?

When I noted the unchanging meaning of the term equal, you changed the argument to whether equal protection of the law is possible.

When I noted how equal protection is possible, you change the argument to original intent.

Equal means equal - period.

Equal protection of the law by definition precludes progressivism and another other totalitarian political economy - period.
 

"I don't know why you keep trying to change the subject to this."

You sorta do.
 

This isn't a dance contest, if it were I'd be Michael Jackson and you'd Elaine from Seinfeld. Your argument is sophomoric at best. Equal can have several senses. In one, you treat everyone the same. In another, you treat similarly situated people the same. There's not a shred of evidence that the writers and ratifiers of the 14th Amendment understood the term as used in the EPC to mean the former and there's tons of evidence they did not (as I said, they had different taxes on different people based on income, excise taxes on some products but not others, protections for specific persons [such as seamen or widows] and not for others, etc.,).

So you don't have a textual or historical leg to stand on. Hard to dance in that situation.
 

This comment has been removed by the author.
 

Mr. W: Equal can have several senses. In one, you treat everyone the same. In another, you treat similarly situated people the same.

There is no need to choose between the two. When the government prohibits a harmful act, it achieves both ends.

There's not a shred of evidence that the writers and ratifiers of the 14th Amendment understood the term as used in the EPC to mean the former.

Once again, we are applying the term under its original public meaning, not the intent of one or more drafters or ratifiers.

I would not be surprised if every single person who drafted or ratified the EPC personally supported one or more unequal protections of the law. Equality is arguably one of the most difficult principles of a liberal political economy to apply.

 

"There is no need to choose between the two."

That's ridiculous. To take a mundane example, when I, who want to treat my kids equally, want them to help take groceries into the house, I could make both my 16 year old and 5 year old lug the same type of bags in or I could make sure the older one gets heavier bags than the younger one. Likewise, when a government taxes, as it must, it can tax everyone in a different economic situation in one consistent way and everyone in a different one in another, distinct consistent way. Most reasonable people would see that to do the first approach would be a sophomoric understanding of 'equal.'

"under its original public meaning"

Both meanings were known at the time, and all the evidence points to that is how the ratifiers and writers understood it. Again, you haven't a leg to stand on. You want to force a radical re-understanding of this Constitutional provision to suit your particular political philosophy, *exactly* what you accuse your 'progressive' boogeymen of doing.




 

BD: "There is no need to choose between the two. When the government prohibits a harmful act, it achieves both ends.."

Mr. W: That's ridiculous. To take a mundane example, when I, who want to treat my kids equally, want them to help take groceries into the house, I could make both my 16 year old and 5 year old lug the same type of bags in or I could make sure the older one gets heavier bags than the younger one.


Your hypo is not analogous to a prohibition of a harmful act. An analogy would be a rule forbidding your children from hitting one another.

However, your hypo perfectly illustrates my point that government parental direction of our lives as if we were children is incompatible with equal protection of the law.

Mr. W: Likewise, when a government taxes, as it must, it can tax everyone in a different economic situation in one consistent way and everyone in a different one in another, distinct consistent way.

Nothing prohibits government from taxing ____ at the same rate for everyone. Governments do so every day.
 

"You sorta do."

Heh.
 

Is an acting head of department a "principal officer" in the sense of the 25th Amendment, with a vote to suspend a incapable President from office? It's contestable, and the Amendment provides a remedy through Congressional votes; but the legal doubt adds an inhibition to others, and makes the procedure even less likely.
 

"Your hypo is not analogous to a prohibition of a harmful act"

No, your condition that we only consider prohibition of a harmful act is absurd because we are talking about *taxation* which is not a prohibition but a government *demand.* In taxation government *demands* a person *do* something. So my analogy is exactly apt.

"Nothing prohibits government from taxing ____ at the same rate for everyone."

Sure, but nothing in our Constitution mandates it and everything in our history indicates that deviations from this are acceptable.

Again, you have no leg to stand on, textual or historical. You've offered nothing in either realm and are unable to refute what's been offered in both on the other side. You're just left with, as usual, trying to force your political philosophy undemocratically on the rest us via 'rewriting' the Constitution.
 

Apparently SPAM is of the view that the 16th A (1913) is unconstitutional because it violates an earlier A's "equal protection" clause.
 

Shag, that's a good point of course, but the least of his problems ;)
 

BD: "There is no need to choose between the two. When the government prohibits a harmful act, it achieves both ends.."

Mr. W: That's ridiculous. To take a mundane example, when I, who want to treat my kids equally, want them to help take groceries into the house, I could make both my 16 year old and 5 year old lug the same type of bags in or I could make sure the older one gets heavier bags than the younger one.BD:

BD: "Your hypo is not analogous to a prohibition of a harmful act"

Mr. W: No, your condition that we only consider prohibition of a harmful act is absurd because we are talking about *taxation* which is not a prohibition but a government *demand.* In taxation government *demands* a person *do* something. So my analogy is exactly apt.


We were discussing substantive law. You are attempting to change the subject again.

Your hypo was in no way analogous to taxation. A fair analogy to taxation would be you taking some or all of your kids earnings to support the family.

BD: "Nothing prohibits government from taxing ____ at the same rate for everyone."

Mr. W: : Sure, but nothing in our Constitution mandates it and everything in our history indicates that deviations from this are acceptable.


In what possible way is the government taxing the earnings of Richie Rich at a higher rate than Mildred Middle Class "equal." Please do not offer the old progressive shibboleth that earnings between $___ and $___ are taxed the same. Earnings are earnings. The socialists and fascists stated purpose in imposing a progressive income tax was to redistribute wealth (aka theft). In their more honest moments, progressives will admit the same.
 

Shag: Apparently SPAM is of the view that the 16th A (1913) is unconstitutional because it violates an earlier A's "equal protection" clause.

When applied as written, the 16A and equal protection of the laws compel a flat tax on all earnings without credits and deductions.
 

"Your hypo was in no way analogous to taxation."

Nope. In my hypo I ask all in my family to contribute, same with taxation. I consider my kids equal, government must do the same. But of course that's not understood sophomorically, I ask those with more capabilities to do 'more.'

"A fair analogy to taxation would be you taking some or all of your kids earnings to support the family."

Ah, the great thing is you lose here even on your own incorrect terms. If I ask my 18 year old daughter to contribute 10% of the income from her 20,000 a year job and my 5 year old daughter to contribute 1% of her 'income' in 'good grades allowance' (20 dollars per 9 week term) am I treating them 'unequally?' I think most people realize I'm asking them to equally contribute to the family, but recognizing that the 1% of 20 dollars to a kid with no other means is comparable to 10% of 20,0000 dollars for a kid with much more means.

"In what possible way is the government taxing the earnings of Richie Rich at a higher rate than Mildred Middle Class "equal.""

I just explained this.
 

"I don't know why you keep trying to change the subject to this."

You think there's no connection between the Senate letting nominees languish without votes, (Note, they're entitled to do that, doesn't imply they should.) and an administration resorting to acting officials?

I'm not saying it's the ideal response, but it's a response. So, no, I'm not changing the subject. If the Senate were acting promptly on non-judicial nominations, I expect Trump wouldn't be so eager to resort to acting officials.
 

A government sets a toll of 50 cents on two axle vehicles and a 1.10 on four or more axle vehicles.

Under your sophomoric logic the EPC would prevent this (after all, it treats people in two kinds of situations (1. those with two axle vehicles and those with four or more) unequally). A government places an excise tax on alcohol sales but not soda sales. Under your sophomoric logic the EPC would prevent this (after all, it treats people in two kinds of situations (1. those selling alcohol and those selling soda) unequally). A government places different protections and exemptions on seamen than it does bricklayers. Under your sophomoric logic the EPC would prevent this (after all, it treats people in two kinds of situations (1. those working as seaman and those working as bricklayers) unequally). And a government that lays a different rate of tax on people who make X amount than people that make Y is the same.

Of course these examples show 1. how ridiculous your argument is (just as those who sell alcohol and those selling soda (etc.,) are differently situated, so it the person who makes x vs. y and 2. how unsupported by history and tradition your argument is (every distinction I pointed to was existent at the time of writing and ratification of the 14th).

Again, Bart is just trying to do exactly what he accuses his political opponents of. Every accusation is a confession with him, as he ignores history and meaning to try to force his current political philosophy on top of democratic majorities via rewriting the Constitution.
 

Mr. W: If I ask my 18 year old daughter to contribute 10% of the income from her 20,000 a year job and my 5 year old daughter to contribute 1% of her 'income' in 'good grades allowance' (20 dollars per 9 week term) am I treating them 'unequally?'

Without any doubt.

I think most people realize I'm asking them to equally contribute to the family, but recognizing that the 1% of 20 dollars to a kid with no other means is comparable to 10% of 20,0000 dollars for a kid with much more means.

No. You are offering the reason why you treat your children unequally.

A government sets a toll of 50 cents on two axle vehicles and a 1.10 on four or more axle vehicles.

Depends on the purpose.

If the tolls are used to compensate the government for the damage to the public roads caused by different size vehicles and are proportional to that purpose, then there is no equal protection problem.

If the tolls are meant to raise general revenue, they violate equal protection.

A government places different protections and exemptions on seamen than it does bricklayers. Under your sophomoric logic the EPC would prevent this (after all, it treats people in two kinds of situations).

Correct. The government has no business providing protections or exemptions to anyone based on their employment, in part, because it violates equal protection of the laws. Yet another excellent example of why equal protection prohibits government direction of our economy.
 

"Without any doubt."

That's a ridiculously simplistic and literalistic understanding that almost no one else accepts.

"If the tolls are used to compensate the government for the damage to the public roads caused by different size vehicles and are proportional to that purpose, then there is no equal protection problem."

How is that? If the government can treat people differently based on their different situations re damaging public roads then they can treat them differently on other criteria. I mean, my taking into account the differential ability of my two kids is unequal, but my taking into account the differential potential damage to the roads is not? You keep stacking your assumptions over each other in Jenga like fashion.

"Correct."

And yet from the beginning of our Republic and through the period the EPC was passed such laws existed and were well known...No one thought this violated equal protection.

Your proposal is a radical, a-textual, a-historical reading of your politics into the Constitution to overcome democratic majorities. Every accusation from you is a confession.
 

"You think there's no connection between the Senate letting nominees languish without votes, (Note, they're entitled to do that, doesn't imply they should.) and an administration resorting to acting officials?"

That's not the reason Trump is using acting officials. He told us just the other day why he's doing that: he thinks it's better for him.

Your explanation also doesn't make sense in light of the facts. Most of the acting officials occupy positions to which Trump has failed to nominate anyone (or failed to so for quite a while).
 

Mr. W: That's a ridiculously simplistic and literalistic understanding that almost no one else accepts.

You are confusing treating everyone equally under the law and your own personal concept of equity. They are not remotely the same things.

BD: "If the tolls are used to compensate the government for the damage to the public roads caused by different size vehicles and are proportional to that purpose, then there is no equal protection problem."

Mr. W: How is that?


The distinction between compensation and taxes to support public goods. In the former case, an individual is compensating the government for the damages she caused. This really is not a tax at all. In the latter case, taxes to support public goods should treat everyone the same.

And yet from the beginning of our Republic and through the period the EPC was passed such laws existed and were well known...No one thought this violated equal protection.

The fact we have a poor history of providing equal protection of the law does not mean equal means anything else than equal. You are simply citing past failures to provide equal protection to excuse present and future ones.
 

I wish to preserve this "classick" [sic] comment by SPAM:

***

Shag: Apparently SPAM is of the view that the 16th A (1913) is unconstitutional because it violates an earlier A's "equal protection" clause.

When applied as written, the 16A and equal protection of the laws compel a flat tax on all earnings without credits and deductions.
# posted by Blogger Bart DePalma : 11:58 AM

***

Maybe some originalists over at the Originalism Blog may provide cover for SPAM.


 

Brett apparently construes Article II's "take care" clause to mean "take care" of Trump personally (but not necessarily other presidents).
 

Shag:

The 16A does not provide for unequal income tax rates and the EPC does not preclude an income tax. The combination of the two require equal rates of income taxation.
 

SPAM is thus challenging the constitutional validity of federal income tax laws since the 16th A was ratified, including differing rates, credits and deductions. Perhaps SPAM will raise his constitutional challenges aiming for cert to get before the Roberts Court.
 

Shag:

The Supremes long ago rubber stamped the myriad of EP violations in our tax code. As with most "conservative" jurists, Roberts is not about to revisit this precedent to enforce the Constitution as written.
 

Post a Comment

Older Posts
Newer Posts
Home