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  1. #181
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    Re: Impeach Obama, EXECUTE Obama...sound familiar?

    Quote Originally Posted by Squatch347 View Post

    Additionally, in the paragraph before your quote we find this:

    However, the President may not prevent a member of the executive branch from performing a ministerial duty lawfully imposed upon him by Congress. Marbury v. Madison (1803); Kendall v. United States ex rel. Stokes (1838). Nor may the President take an action not authorized either by the Constitution or by a lawful statute. Youngstown Sheet & Tube Co. v. Sawyer (1952). Finally, the President may not refuse to enforce a constitutional law, or "cancel" certain appropriations, for that would amount to an extra-constitutional veto or suspension power.

    He cannot unilaterally cancel requirements or instruct members of the executive branch not to perform ministerial duties (like establishing reporting) imposed upon them by Congress.

    Yes, but you omitted the beginning of that paragraph:

    "As noted earlier, the President possesses wide discretion in deciding how and even when to enforce laws. He also has a range of interpretive discretion in deciding the meaning of laws he must execute. When an appropriation provides discretion, the President can gauge when and how appropriated moneys can be spent most efficiently."


    The executive branch does this through the rule making process - evidence presented (or do you deny this exists)?

    and any conflict is resolved through oversight (both congressional and judicial) or by congressional action.


    If I mistook your claim then what is it? Exactly.
    "Real Boys Kiss Boys" -M.L.

  2. #182
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    Re: Impeach Obama, EXECUTE Obama...sound familiar?

    Quote Originally Posted by CowboyX View Post
    Yes, but you omitted the beginning of that paragraph:

    "As noted earlier, the President possesses wide discretion in deciding how and even when to enforce laws. He also has a range of interpretive discretion in deciding the meaning of laws he must execute. When an appropriation provides discretion, the President can gauge when and how appropriated moneys can be spent most efficiently."
    And no one is disagreeing that the executive branch has some latitude, even wide latitude in implementing laws. What you are trying to support is that that wide discretion legally includes ignoring mandated reporting requirements with explicit dates. Your link doesn't support that that is the case. In fact it explicitly says they aren't allowed to do that in the paragraphs mentioned. Do you have support that the "wide latitude" here includes ignoring specifically mandated dates and requirements?
    "Suffering lies not with inequality, but with dependence." -Voltaire
    "Fallacies do not cease to be fallacies because they become fashions.” -G.K. Chesterton
    Also, if you think I've overlooked your post please shoot me a PM, I'm not intentionally ignoring you.


  3. #183
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    Re: Impeach Obama, EXECUTE Obama...sound familiar?

    Quote Originally Posted by Squatch347 View Post
    In fact it explicitly says they aren't allowed to do that in the paragraphs mentioned.

    In those cases the intent of the president was to kill the programs - not implement them at all. That's not the case here.
    "Real Boys Kiss Boys" -M.L.

  4. #184
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    Re: Impeach Obama, EXECUTE Obama...sound familiar?

    Quote Originally Posted by CowboyX View Post
    In those cases the intent of the president was to kill the programs - not implement them at all. That's not the case here.
    Can you support that?

    a) The specific intent of President Nixon in the cases covered by the Federal Courts was to kill them?

    or

    b) The current law passed by Congress and mentioned by your link only covers situations where the specific intent is to kill the program?
    "Suffering lies not with inequality, but with dependence." -Voltaire
    "Fallacies do not cease to be fallacies because they become fashions.” -G.K. Chesterton
    Also, if you think I've overlooked your post please shoot me a PM, I'm not intentionally ignoring you.


  5. #185
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    Re: Impeach Obama, EXECUTE Obama...sound familiar?

    a.)

    "Train v. City of New York, 420 U.S. 35 (1975), was a case in the Supreme Court of the United States whose implications mean "[t]he president cannot frustrate the will of Congress by killing a program through impoundment."[1]

    In this case, President Richard Nixon was of the view that the administration was not obligated to disburse all funds allocated by Congress to states seeking federal monetary assistance under the Federal Water Pollution Control Act Amendments of 1972 and ordered the impoundment of substantial amounts of environmental protection funds for a program he vetoed, and which had been overridden by Congress."

    http://en.wikipedia.org/wiki/Train_v._City_of_New_York (emphasis mine)


    b.)

    "Title X of the Act, also known as the Impoundment Control Act of 1974, specifies that the President may request that Congress rescind appropriated funds."

    http://en.wikipedia.org/wiki/Congres...ol_Act_of_1974 (emphasis mine)

    The president must ask congress to revoke the order to not have it implemented.

    It's not Obama's intent to not implement Obamacare.
    "Real Boys Kiss Boys" -M.L.

  6. #186
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    Re: Impeach Obama, EXECUTE Obama...sound familiar?

    There are three major problems with your response.

    a) It differs philosophically from the support you’ve offered.
    b) Your analysis of the case is incorrect.
    c) Your understanding of the law and its consequences is incorrect.

    Philosophical

    The evidence you’ve provided argues from a “in order for direct contradiction to be legal, x must be the case” position, what we could call a restrictive legal position (Ie you can’t do something unless it is permitted). However, you are arguing from a permissive legal position, I think because you are still thinking of the APA, where you argued that actions were legal unless prohibited.

    Essentially, you are arguing that because he is not rescinding the law completely in his mandate, these restrictions don’t apply, but that isn’t the way the case or the law are written. Rather, they argue that the executive branch may never rescind a law and may only alter explicit statutes within a law in a handful of cases (none of which you’ve demonstrated are relevant here).

    It isn’t the case either in the Heritage link you offered, the law you provided or in the case you cited (and the cases you didn’t cite) that the “wide latitude” the executive branch enjoys applies to directly contradicting established law. I’ll show a bit more below why, but if we apply the argument in a more consistent manner with the thrust of the established law, we should argue that no explicit rationale exists within the law to allow for its circumvention in this manner.

    The Court Case [s]

    Quote Originally Posted by Cowboy
    a.)"Train v. City of New York, 420 U.S. 35 (1975), was a case in the Supreme Court of the United States whose implications mean "[t]he president cannot frustrate the will of Congress by killing a program through impoundment."[1]
    It is always going to be a problem when you consider your primary source for a case to be Wiki. The actual case can be found here: http://www.law.cornell.edu/supremecourt/text/420/35

    We both agree now that the President cannot kill a program or act of congress by simply refusing to do it right?

    Your argument is that since he isn’t specifically killing all of the ACA, this doesn’t apply.

    Setting aside the point I raised earlier (that agencies cannot do whatever they want, only what they are authorized by law to do) which makes your argument moot because you need a positive legal opinion that they can contradict written law, something you haven’t shown, not a negative opinion that they can’t do x, and this isn’t x. To explain a bit, if I showed a link saying that humans can’t fly, it doesn’t mean that I can swim. I would need positive support of the latter claim, not negative support of the former, negative claim.

    Setting aside that huge burden to your argument, Wiki got the case findings wrong. Here is the actual finding:
    Held: The 1972 Amendments do not permit the Administrator to allot to the States under § 205(a) less than the entire amounts authorized to be appropriated by § 207. Pp. 42-49.

    This case is incredibly relevant to our argument. Here is what happened (all of this is in the link). Congress authorized $5B in spending for a program. President Nixon instructed the EPA to only spend $2B. IE he didn’t cancel the program, he didn’t eliminate it, he simply changed the spending rate. SCOTUS found that that violates the law.

    Sounds familiar right? He simply changed an amount to better fit what he thought was an appropriate amount of spending. Just like President Obama changed the dates of implementation. Neither killed or eliminated a program, they just changed explicit language within the law.

    Interestingly, the Nixon administration even changed its tune mid appeal and argued a very Obamaesque argument. They said, “we plan to spend all the money, we just haven’t done it yet.” IE we are just changing the dates of the disbursements (just like they are just changing the dates of the implementation). SCOTUS notes that in paragraph b, and rejects it explicitly.
    The modified position taken by petitioner in this Court that §§ 205(a) and 207 merely give the Administrator discretion as to the timing of expenditures, not as to the ultimate amounts to be allotted and obligated, as was urged in the lower courts, does not alter this Court's conclusion.


    Interestingly, there are two other cases we could cite here on this issue (and were present in the Heritage link you offered). Lujan v. Defenders of Wildlife and Youngstown Sheet & Tube Co. v. Sawyer

    Lujan v. Defenders of Wildlife (http://www.law.cornell.edu/supct/html/90-1424.ZS.html) is a great case to support my philosophical point above. First a little background, a case was brought against Interior and Commerce because Congressional funding for development in Egypt threatened an endangered animal. The Endangered Species act requires both agencies to prevent their funding from threatening endangered species. The government argued that the Endangered Species act does not explicitly allow for these agencies to override congressional funding of non-domestic programs and the agency scope is primarily domestic in nature. The Court (along with other findings) agreed and remanded the case. Since the law was not explicitly authorizing them to override Congressional dictums, they had not authority to do so.

    This fits nicely with what we’ve seen in the law elsewhere and caselaw. In order for an agency to ignore an explicit directive from Congress, they must have other legal authorization to do so.


    Youngstown Sheet & Tube Co. v. Sawyer
    https://supreme.justia.com/cases/fed.../579/case.html

    This case also is very relevant to our argument, specifically your claims that “Congress didn’t object” and “he was doing it to implement the law better.” SCOTUS clearly found that neither of those are sufficient justification for overriding established law.

    The gist of the case is that the President seized some steel mills because he feared a strike would imperil American military supplies. The government made the argument here that Congress was informed and failed to act, thus endorsing the action. Secondarily, Congress had previously authorized the President to settle national security related labor disputes, and that this was a matter of implementing that law.
    SCOTUS disagreed, they specifically found that Congressional silence is not endorsement and that altering established law to better implement the intent of the law is unlawful. Explicitely:
    (f) The power here sought to be exercised is the lawmaking power, which the Constitution vests in the Congress alone, in both good and bad times. Pp. 343 U. S. 587-589.

    Further, Congress had said the President was authorized to do X,Y, and Z to settle labor disputes, and that adding A in order to meet the intent of “securing national defense by settling labor matters” was not a valid action. This directly applies to your argument since you’ve argued that he is simply changing the language to meet the intent of the law. Even if he is doing that, it doesn’t make it legal.



    Congressional Budget and Impoundment Control Act of 1974

    Quote Originally Posted by Cowboy
    "Title X of the Act, also known as the Impoundment Control Act of 1974, specifies that the President may request that Congress rescind appropriated funds."

    http://en.wikipedia.org/wiki/Congres...ol_Act_of_1974 (emphasis mine)

    The president must ask congress to revoke the order to not have it implemented.

    It's not Obama's intent to not implement Obamacare.
    It should be a hint that your wiki source is relatively weak if it can’t even get the name quite right in its response. Lets take a look at a valid source: http://www.gpo.gov/fdsys/pkg/GPO-RID...CK-1992-34.pdf

    First, lets look at your ‘quote.’ The actual language from the summary is:

    Title X of the Act also sets out a procedure for the control of impoundments. Pursuant to the Act, the President must notify Congress whenever he proposes a rescission or deferral of funds. If Congress does not pass a rescission bill within 45 days of continuous session, the President must release all funds proposed for rescission. The President may defer funding within a particular fiscal year, subject to the enactment of a measure disapproving the deferral.

    So you’ll notice it is a bit more restrictive than wiki lets on. It isn’t just rescission, it is also deferment. A pretty easy case to be made here since the implementation of the program we are discussing requires funding, which has now been deferred.

    The text itself (page 45 onward) is even more clear in arguing against the President’s actions here [emphasis mine]:

    SEC. 1011. For purposes of this part-
    (1) "deferral of budget authority" includes-
    (A) withholding or delaying the obligations or expenditure
    of budget authority (whether by establishing reserves
    or otherwise) provided for projects or activities; or
    (B) any other type of Executive action or inaction which
    effectively precludes the obligation or expenditure
    of
    budget authority, including authority to obligate by contract
    in advance of appropriations as specifically authorized
    by law;



    SEC. 1013. (a) TRANSMITTAL OF SPECIAL MESSAGE.-Whenever the
    President, the Director of the Office of Management and Budget,
    the head of any department or agency of the United States, or any
    officer or employee of the United States proposes to defer any
    budget authority provided for a specific purpose or project,
    the
    President shall transmit to the House of Representatives and the
    Senate a special message specifying-
    (1) the amount of the budget authority proposed to be deferred;
    (2) any account, department, or establishment of the Government
    to which such budget authority is available for obligation,
    and the specific project or governmental functions involved;
    (3) the period of time during which the budget authority is
    proposed to be deferred;
    (4) the reasons for the proposed deferral, including any legal
    authority invoked to justify the proposed deferral;
    (5) to the maximum extent practicable, the estimated fiscal,
    economic, and budgetary effect of the proposed deferral; and
    (6) all facts, circumstances, and considerations relating to or
    bearing upon the proposed deferral and the decision to effect
    the proposed deferral, including an analysis of such facts, circumstances,
    and considerations in terms of their application to
    any legal authority, including specific elements of legal authority,
    invoked to justify such proposed deferral, and to the maximum
    extent practicable, the estimated effect of the proposed
    deferral upon the objects, purposes, and programs for which
    the budget authority is provided.
    A special message may include one or more proposed deferrals of
    budget authority. A deferral may not be proposed for any period of
    time extending beyond the end of the fiscal year in which the special
    message proposing the deferral is transmitted to the House
    and the Senate.

    Not only must he President request approval to defer a specific project or proposal, but he is explicitly forbidden from deferring that project beyond the fiscal year of the request, which he certainly did here.





    Now, we could well concede that there is a budgetary aspect to this action since Congress authorized funds to implement this reporting requirement. If so, all these argument above apply and it would appear your argument shows that the President, indeed acted in violation of the law.

    However, if you reject that aspect and argue that this is, in fact, not budgetary, it is just a date change, then we are back to square one, and you have to support that there is legal authorization to change statutory dates.
    "Suffering lies not with inequality, but with dependence." -Voltaire
    "Fallacies do not cease to be fallacies because they become fashions.” -G.K. Chesterton
    Also, if you think I've overlooked your post please shoot me a PM, I'm not intentionally ignoring you.


 

 
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