35

An anti-BDS law may be invalid in some circumstances, but this has nothing to do with the establishment clause of the First Amendment. Boycotting or not boycotting Israel is not an inherently religious question and isn't justified as such. More often the issues will be pre-emption by a higher level of government's laws, lack of legal authority to enact such ...


19

First, this issue doesn't come up for people on active duty. 10 U.S. Code § 973 forbids active-duty military officers from holding or exercising the functions of an elective federal office; DoDD 1344.10 extends that to all active-duty personnel. Both the law and the directive also apply to reservists or retirees on long-term active duty (more than 270 ...


16

I think you're being confused by two separate definitions of "police power." The police power under the 10th Amendment has nothing to do with "the police," i.e. people with guns and badges and uniforms who make arrests. It refers to the authority of a government to make rules for the general welfare. Police power is almost always ...


9

Advisory opinions violate the separation-of-powers doctrine. The "case or controversy" clause helps enforce this separation. The judicial branch is responsible for resolving legal disputes by interpreting and applying existing law. In doing so, it may incidentally modify or extend the law. Courts are only supposed to do this to the extent necessary to ...


7

"Police power" is not the authority to send people out in blue uniforms with badges and guns to enforce the law. The Supreme Court defines it like this: The police power of a State embraces such reasonable regulations relating to matters completely within its territory, and not affecting the people of other States, established directly by ...


7

Congress has the power to propose amendments, but not to enact them. Amendments are only enacted once they're ratified by 3/4ths of the state legislatures. And yes, there's no reason to think it would be unconstitutional for 2/3rds of each house of Congress plus 3/4ths of the state legislatures to make fundamental changes to the Constitution like eliminating ...


7

Does the Special Counsel's non traditional prosecutorial decision making put the president above the law since he is unable to be prosecuted? All federal government employees, including the Special Counsel, are required to conform to the interpretations of the law provided by the Office of Legal Counsel in the absence of a directly applicable court ...


7

This can be effected without evidence or trial or a right to an appeal in front of an objective party. Not so. If a person is charged with a crime for violating such a code, (or refusing to leave when ordered under such a code) they could defend on the grounds that it is unreasonable, unauthorized, or violates that person's constitutional or statutory ...


6

The New York Times reported on the veto which I think that the question is referring to on December 31, 1970. The Congressional Research Service reported on the issue on March 30, 2001 and the pertinent part regarding the litigation over that pocket veto was as follows: President Richard Nixon, on December 24, 1970, exercised a pocket veto over the ...


6

Probably.* Congress has wide latitude to dictate the procedures of "inferior courts" -- the district courts and circuit courts of appeal. Those courts only exist because Congress created them, so Congress can generally set the terms on which they continue to exist. That power is limited in several important ways by the Constitution, including the terms and ...


5

It looks like you're referring to Kennedy v. Sampson. The DC District Court heard the case (364 F. Supp 1075 (1973)) and granted summary judgment to the plaintiff Sen. Edward Kennedy, holding that the veto was invalid and that the bill had become law. The case was appealed to the DC Circuit Court of Appeals (511 F.2d 430 (1974)), which affirmed.


5

Very likely not. Yes, Congress is empowered by Article III of the Constitution to "ordain and establish" Federal courts, as necessary, and the very first Congress did most of the work via the Judiciary Act of 1789, but they pretty much left the nitty gritty details up to the courts themselves. Here's an example: SEC . 17. And be it further enacted, That ...


5

The President of the United States is not ordinarily the Commander in Chief (CiC) of the Hawaiian National Guard (HNG). Unless mobilized by the President, the Hawaiian National Gueards CiC is the current governor of Hawaii, and at present, she does not have to take orders from Trump. With that said, the DOD and HNG would likely work out special ...


4

The rationale for the case and controversy requirement is that first, you don't want to burden the courts with resolving hypothetical questions, second, that the law, particularly in common law systems descended from English law, is very fact and context sensitive and may not have a well determined answer in a vacuum, and third, it insures that the courts ...


3

Attorneys are not delegates Keeping things very simple: Judge Sulivan has standing because he is the person named in the writ. Everyone has standing to challenge an order made on them personally. Judge Sullivan’s lawyer does not have standing. They are acting on behalf of the Judge as the Judge’s representative or agent - they are not acting on their own ...


3

If a random attorney at the direction of a judge has standing to challenge actions within executive branch jurisdiction, why didn’t a judge prosecute the banks guilty of criminal fraud leading to the 2008 financial crisis when Obama ordered the DOJ to not prosecute? This is a misunderstanding of the issue. Judge Sullivan is not "prosecuting" Mr. ...


3

Many laws control the conduct of the executive branch "Attempting to control the conduct of the executive branch" doesn't imply a violation of the constitutional separation of powers. Congress has many laws that control the executive. 35 USC 101 tells the Patent and Trademark Office what subject matter is patentable. 15 USC 1052 tells the Patent ...


3

As an example, POTUS does not undertake the entire pardon process on his own, instead they are preliminarily processed by the Department of Justice, which makes a recommendation. Only POTUS can "grant" the pardon, and we lack substantive information on how deeply he gets involved (does he just sign documents based on staff recommendations? does he do his own ...


3

Usually yes, possibly sometimes no. There is an area of the law where Congress does this exact thing. If a court wants to transfer certain kinds of federally regulated retirements assets titled in the name of one spouse to another spouse in the course of a divorce, this is only effective if the Court follows the exacting requirements of a "qualified ...


3

Incidentally, the law is the same in Australia flowing from Re Judiciary Act 1903-1920 & In re Navigation Act 1912-1920 [1921] HCA 20; (1921) 29 CLR 257 (16 May 1921): that is the High Court is not permitted to issue advisory opinions. For a recent discussion of this case see http://www.ruleoflaw.org.au/advisory-opinions-rule-law/. Because the Federal ...


2

Anybody can ask the courts to remedy a legal or Constitutional issue regarding the president, if they feel it has harmed them. People sue the president and other executive branch officials all the time. Members of Congress have this right just like everybody else. This lawsuit isn't alleging "high crimes and misdemeanors" and it's not seeking the ...


2

This page gives an overview of the essential legal issues regarding separation of powers. The peculiarity of the Capitol Police is that it is apparently "under" the legislative branch and not the executive branch, and might be challenged on the same basis as followed in Bowsher v. Synar, 478 U.S. 714 which found that Congress cannot reserve for ...


1

Either the power is delegated and this is a member of the judicial branch challenging the executive branch’s use of its authority or it is not a delegation, in which case it is a random attorney with a general grievance. The member of the judicial branch is just challenging an order from another judicial officer. This is part of how the judicial branch ...


1

The US courts (including the US Supreme Court) do not have an army or even a police force under their direct control, except for a few court bailiffs. Ultimately, if the executive simply defies the courts, the only remedy is a political one. A court can order a person held unlawfully to be released from detention, but the jail/prison authorizes might ignore ...


1

In most countries it is seen as somewhat improper for an executive official such as a Minister of Justice to speak about specific open cases, particularly in a way which might influence the outcome of those cases. But it may well be part of a minister;s duty to review the general state of the legal system and trends in dealing with cases, including the ...


1

There have been plenty of cases where I judge has said "Sorry, guys; I own ten shares of company XYZ so I can't hear a case where XYZ is involved". Even when in practice it's obvious that the share price of XYZ isn't going to move if the judge decides that XYZ has to repair your fridge under warranty or not. But a judge gets a salary, and that salary is ...


1

In most modern democratic countries, the government is divided into three independent branches: the legislature, the executive and the judiciary and each is independent of the other. When someone is prosecuted for a crime (or in a civil suit by the government) it is the executive branch (usually through the office of the Attorney General) that acts as ...


1

(US Centric answer) You are absolutely right about there being the potential for a conflict of interest. This is why trials are public, defendants are guaranteed counsel / representation, and the defendant has a right to a trial by a jury of his peers. As others have pointed out, there are appeals that further reduce the likelihood of falling through the ...


1

Wait a minute, what are you actually referring to? Do you mean “salaries” in the word “Money”? The one who do the prosecution is the Department of Justice, while the judge is from the Judiciary. So, judge receives salaries from the Judiciary but not the Department of Justice. We maintain the judge is making verdicts fairly by making judges a Permanent ...


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