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A curious day in Congress
The Senate sets out to give DC voters the ability to elect a voting member to the House of Reps, which is blatantly unconstitutional (the Constitution refers to House members in terms of being residents of a State, which DC is not), and compensating the GOP by adding one member from Utah (which, depending on how it is done, is probably unconstitutional as well.
Along the way the Senate adds an amendment repealing most of the DC gun laws. At least that's constitutional.
UPDATE: I dunno who would have standing to challenge the constitutionality. Maybe anyone, maybe no one. I recall back, nearly 30 years ago, Rep. Abner Mikva was confirmed as a judge of the DC Circuit Court of Appeals. The salary for the position had been increased (via an automatic pay raise) during his time as a legislator, so there was a good, if not 100%, argument that he was barred from taking it. Congress passed a bill that specifically said any Congress critter could challenge the appointment in the name of the US. Senator McClure sued -- and the court ruled that he had no standing, despite the enactment. In that case, there was at least a theoretical way to raise the issue ... anytime he was assigned to a panel to decide a case, either side could have objected. But since that would really hack off the court, no one ever did.
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Brilliant!
Did the Senate do this to kill the bill?
I hope it passes, and then the Supreme Court strikes down the DC rep, leaving the Utah rep and the gun provisions. That would be satisfying.
David, any thoughts on who has standing to challenge seating the DC rep? JNH
I am greatly opposed to said bill. But not for the reasons as most.
While I agree it is a violation of the Constitution. I actually dislike that D.C. is unrepresented and support them having representation. But believe it should be the following:
I. In the form of a Constitutional Amendment
II. The addition of 1 Senator and 2 House of Representative members that represent not just D.C. but all non-state territories (D.C., Puerto Rico, Guam, Virgin Islands, etc.)
This would give ALL American territories a voice, and not just the biggest bastion of Democrat Party rule.
Is it fair to give D.C. representation and not Puerto Rico for the only reason that D.C. has the national capital. Talk about bigotry.
Check out the second amendment votes …
Question: On the Amendment (Ensign Amdt. No. 575 )
Vote Date: February 26, 2009, 03:52 PM
Vote Counts: YEAs 62 NAYs 36 Not Voting 1
Grouped by Home State
Alabama: Sessions (R-AL), Yea Shelby (R-AL), Yea
Alaska: Begich (D-AK), Yea Murkowski (R-AK), Yea
Arizona: Kyl (R-AZ), Yea McCain (R-AZ), Yea
Arkansas: Lincoln (D-AR), Yea Pryor (D-AR), Yea
California: Boxer (D-CA), Nay Feinstein (D-CA), Nay
Colorado: Bennet (D-CO), Yea Udall (D-CO), Yea
Connecticut: Dodd (D-CT), Nay Lieberman (ID-CT), Nay
Delaware: Carper (D-DE), Nay Kaufman (D-DE), Nay
Florida: Martinez (R-FL), Yea Nelson (D-FL), Nay
Georgia: Chambliss (R-GA), Yea Isakson (R-GA), Yea
Hawaii: Akaka (D-HI), Nay Inouye (D-HI), Nay
Idaho: Crapo (R-ID), Yea Risch (R-ID), Yea
Illinois: Burris (D-IL), Nay Durbin (D-IL), Nay
Indiana: Bayh (D-IN), Yea Lugar (R-IN), Nay
Iowa: Grassley (R-IA), Yea Harkin (D-IA), Nay
Kansas: Brownback (R-KS), Yea Roberts (R-KS), Yea
Kentucky: Bunning (R-KY), Yea McConnell (R-KY), Yea
Louisiana: Landrieu (D-LA), Yea Vitter (R-LA), Yea
Maine: Collins (R-ME), Yea Snowe (R-ME), Yea
Maryland: Cardin (D-MD), Nay Mikulski (D-MD), Nay
Massachusetts: Kennedy (D-MA), Not Voting Kerry (D-MA), Nay
Michigan: Levin (D-MI), Nay Stabenow (D-MI), Nay
Minnesota: Klobuchar (D-MN), Nay
Mississippi: Cochran (R-MS), Yea Wicker (R-MS), Yea
Missouri: Bond (R-MO), Yea McCaskill (D-MO), Yea
Montana: Baucus (D-MT), Yea Tester (D-MT), Yea
Nebraska: Johanns (R-NE), Yea Nelson (D-NE), Yea
Nevada: Ensign (R-NV), Yea Reid (D-NV), Yea
New Hampshire: Gregg (R-NH), Yea Shaheen (D-NH), Nay
New Jersey: Lautenberg (D-NJ), Nay Menendez (D-NJ), Nay
New Mexico: Bingaman (D-NM), Nay Udall (D-NM), Yea
New York: Gillibrand (D-NY), Nay Schumer (D-NY), Nay
North Carolina: Burr (R-NC), Yea Hagan (D-NC), Yea
North Dakota: Conrad (D-ND), Yea Dorgan (D-ND), Yea
Ohio: Brown (D-OH), Nay Voinovich (R-OH), Yea
Oklahoma: Coburn (R-OK), Yea Inhofe (R-OK), Yea
Oregon: Merkley (D-OR), Nay Wyden (D-OR), Nay
Pennsylvania: Casey (D-PA), Yea Specter (R-PA), Yea
Rhode Island: Reed (D-RI), Nay Whitehouse (D-RI), Nay
South Carolina: DeMint (R-SC), Yea Graham (R-SC), Yea
South Dakota: Johnson (D-SD), Yea Thune (R-SD), Yea
Tennessee: Alexander (R-TN), Yea Corker (R-TN), Yea
Texas: Cornyn (R-TX), Yea Hutchison (R-TX), Yea
Utah: Bennett (R-UT), Yea Hatch (R-UT), Yea
Vermont: Leahy (D-VT), Nay Sanders (I-VT), Nay
Virginia: Warner (D-VA), Yea Webb (D-VA), Yea
Washington: Cantwell (D-WA), Nay Murray (D-WA), Nay
West Virginia: Byrd (D-WV), Yea Rockefeller (D-WV), Nay
Wisconsin: Feingold (D-WI), Yea Kohl (D-WI), Nay
Wyoming: Barrasso (R-WY), Yea Enzi (R-WY), Yea
NUGUN may be on to something there....except I fear that DC would overwhelm even the collective votes of the territories, and those in the territories don't actually pay taxes....
I think returning (at least for voting purposes) the district to the surrounding states is the simplest solution. It also has the advantage of not changing the status quo much
Good find Carl - they're going to need those 62 votes when the House conferences in their version, given this quote from the story:
"Voting rights supporters hope to drop the amendment when the House and Senate conference over differences between their respective versions of the legislation. The House is set to approve its version next week.
“We want to assure that when the bill gets signed into law it does not have the gun amendment,” said Ilir Zherka, executive director of D.C. Vote. “That’s our challenge. That’s our fight.”
D.C. Mayor Adrian Fenty described the Senate vote as a “historic breakthrough” in D.C.’s “200-year-old fight for full voting rights.”
The effect of the gun amendment is unknown. Gun-control advocates, including many city leaders, condemned it.
“I believe the amendment is reckless,” said Sen. Dianne Feinstein, D-Calif. “I believe it is irresponsible. I believe it will lead to more weapons and violence on the streets of the District of Columbia.”"
But yeah, I'm on the same page as others in not liking the whole thing. The government, as it apportions out representation, should do so blindly and not with an eye towards "we're adding a Democrat, so let's make sure we're adding a Republican as well". It's gerrymandering at the national level and is unprincipled and unConstitutional.
Some of the Senators have remarked that it is probably not constitutional BUT that the courts shoudl decide so I sent this to some of the reprehensibles and senilators:
On the requirements of a Legislator to remain obedient to the Constitution.
185. ..."The case is different with the legislator and executive. He is bound to support the Constitution, - to uphold it as one of the pillars to an edifice. He is under the Constitution, not above it. He cannot support it by doing an act repugnant to it. 'His public office is a public trust.' If he doubts his power to do under the authority of the Constitution, he is bound to resolve the doubt against the act, not in favor of it."
"Mr. Cooley thus states it: 'Legislators have their authority measured by the Constitution; they are chosen to do what it permits, and nothing more, and they take a solemn oath to obey and support it. When they disregard its provisions they usurp authority, abuse their trust and violate the promises they have confirmed by an oath. To pass an act when they are in doubt whether it does not violate the Constitution is to treat as of no force the most imperative obligations any person can assume. ... A witness in court who would treat his oath thus lightly, and affirm things of which he was in doubt, would be held a criminal. Indeed, it is because the legislature has applied the judgement of its members to the question of its authority to pass the proposed law, and has only passed it after being satisfied of the authority, that the judiciary waive their own doubts and give it their support.'"
"He holds the same views as to the duty of the President, and maintains that the President, even where the judiciary has sanctioned the constitutionality of an act, is not only duty bound to give his approval to a similar act, but may, in consonance with his duty, withhold his approval. It follows from this, that a legislator cannot justify a vote for a law on the ground that as judge he would not declare it void. The legislator crosses no forbidden line when he refuses to enact what he believes is repugnant to the Constitution. The judiciary does cross a forbidden line where it declares a law void, unless it be without doubt repugnant to the Constitution. The legislator is never warranted in voting for a law he does not believe the Constitution sanctions, to support which he has sworn as an affirmative duty, not that he will not pull down the pillars of the edifice, but, as one of the many pillars, he will uphold it."
"In the case of the law-maker, the question to be asked is: 'Have I the right under the Constitution to pass this act ?' The onus is for him to show his authority. In the case of a judge, the question is: 'Is the law clearly unconstitutional ? In annulling the law in support of the Constitution will I transcend my judicial functions and usurp the legislative; or is the repugnancy so strong that I will only act judicially in annulling the effect of the law, and not transcend the boundary of my power ?' The burden shifts in the two cases. The legislator must show that he has the right; the judge must show the legislator was clearly wrong."
"Hence the law-maker may not justify a vote for a measure which as judge he could not declare void; but, if the judiciary declares such an act unconstitutional, it should forbid the law-maker to pass similar legislation. On the other hand, though the judiciary cannot declare a law unconstitutional because not clearly repugnant, it does not justify the law-maker in voting for it."
The Constitution of the United States: A Critical Discussion of its Genesis, Development, and Interpretation, John Randolph Tucker, LL.D., 1899. ISBN 0-8377-1206-8 (reprint)
Cooley on Constitutional Law, Pp. 153-54. 161-63., Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the States of the American Union, Judge Thomas
Cooley, 1868. Thomas M. Cooley, LL.D., General Principles of Constitutional Law in the United States of America, (3rd ed. 1898).
It's also nice that Congress is trying to pass legislation that eliminates the DC gun laws BUT the DC guns laws are already unconstitutional. The Constitution specifically states that Congress shall exercise exclusive> legislation in the District. It is impossible to transfer that authority without directly and overtly violating the explicit words of the Constitution. EVERYTHING the DC council does is unconstitutional unless the council develops it, sends it to Congress, and Congress passes it. TO argue otherwise is to demonstrate ignorance of our language.
This is being done to get two more Democrat Senate seats, which is the next act.
FWB brings up that pesky old Constitution! Thought we got rid of that thing?
Why not gerrymander the District of Criminals? Draw borders around each Federal building's campus and detach those from the present "District".
Then, return the remainders to the states that contributed them (Virginia and DC). Either existing municipal jurisdictions could annex the contiguous sections of the old District, or former ones (like Georgetown) could be reestablished or there could be a city of Washington, VA and a city of Washington, MD (like Kansas City, KS and Kansas City, MO).
Since no one, except perhaps the President and a few military personnel, would actually live in the Federal Archipelago and people would just work there, the whole nonsense about giving DC representation or statehood or whatever would be moot.
The newly gerrymandered District would be islands of monuments and Federal offices (except for the President and Vice President's residences, etc.) without any permanent population to be represented.
Washington, VA would have VA gun laws... and Washington, MD could shift the balance of power from Maryland's other failed city-state, Baltimore.
Whoops! I meant to say "Then, return the remainders to the states that contributed them (Virginia and Maryland)."
Agreed, MajorMike. However I think VA has already been returned.
New York: Gillibrand (D-NY), Nay
This is one of the main disappointments,, so much for a A rating from the NRA......
And VA's portion of the D.C. has been returned already so all that would do is shift 1-2 represenatives to MD in the next census.
Now If they did what the constitution calls for, (1 representative per 30,000 citizens) we could have real representation.
Even if one assumes that political gamesmanship will ultimately prevail and the D.C. firearms amendment won't survive conference committee, it's still good news: A filibuster-proof bipartisan majority of the U.S. Senate just endorsed a rollback of Second Amendment infringements that in large part mirror the package of "reasonable gun control" initiatives proposed by President Obama and Attorney General Holder. Couple the Senate vote with last year's lopsided vote in the House of Representatives to repeal D.C.'s first post-Heller firearms ordinance, and it becomes clear that the Administration is going to have real trouble pushing an unpopular and Unconstitutional gun control agenda on the Hill. Maybe we don't have to worry so much about this Congress enacting a nationwide "assault weapons" ban or other severe restrictions.
On the other hand, if the firearms amendment DOES make it into the final legislation that reaches the President's desk, he'll be in a very interesting pickle - veto it and scuttle D.C. voting rights he supports? Sign it and endorse a rollback of gun control he favors? Either way, he ends up looking bad.
>New York: Gillibrand (D-NY), Nay
This is one of the main disappointments,, so much for a A rating from the NRA......
She's an *appointed* Senator.
If she wants any support from the Demagogue Party Senatorial election committee, which I do beleive is chaired by her New York colleague, Chucky (the cerial killer) Schumer, she has to toe the line, drop panties, and bend over.
No surprise here.
Maybe we can ship Burris down there to be a senator.
Puerto Rico has REJECTED statehood more than once! Why should they get a vote in Congress? As for DC, let there be a constitutional amendment. If Congress can do this by legislation, then what is to stop them from changing the nature of Congressional representation altogether away from the constitutional model? We need to stop digression from the constitution.
WHO HAS STANDING TO CHALLENGE THIS?
I agree and wish you guys would STFU until someone can answer this question:
WHO HAS STANDING TO CHALLENGE THIS?
The answer to the question of who has standing to challenge this would be:
If a law is passed by the House by only ONE vote, and then passed by the senate and enacted by the president, and the deciding vote was made by the DC representative, then anyone prosecuted under that law could argue to the Court that the law is not a duly enacted law, that the deciding vote was unconstitutional, and thus the statute that supports the prosecution is a nullity. That would likely go to the supreme court. It would have the potential to knock out a whole series of laws because afterward they would have to evaluate every bill that only passed by one deciding vote cast by the DC representative.
If it ain't passed by valid votes through the legislature, it isn't a LAW. It's nothing.
> If a law is passed by the House by only ONE vote, and then passed by the senate and enacted by the president, and the deciding vote was made by the DC representative, then anyone prosecuted under that law could argue to the Court that the law is not a duly enacted law, that the deciding vote was unconstitutional, and thus the statute that supports the prosecution is a nullity.
The "the income tax amendment wasn't passed legitimately" folks have tried to make that argument repeatedly. Have they ever gotten a hearing on whether or not the vote was legit?
IIRC, courts have gone with "if Congress says that they passed it correctly, it was passed correctly".
If that's what has happened wrt the income tax, why would DC's vote be any different?
I note that lots of legislation is passed in violation of house and/or senate rules regarding voting procedures. Since the constitution says that both bodies have the power to decide their voting procedures, such violations "should" cause those votes to be invalid. Has any court ever upheld such a challenge or even considered case-specific facts?
Standing schmanding, you'll do what we say and like it! You have no representation. States have none. Courts make their own rules, not or iron, but of rubber that can be manipulated at their whim to their ends.
The key to solving these issues is education of the populace concerning who is in charge. The Courts have stolen power and We the People have let them. In the early 1800s, the People knew who was the boss and often told the SC to F.O. when the SC came out with some inane decision.
So today, We the People must get off our butts and tell the Courts to go to hell.
I've quoted the following thousands of times. Most people just don't get it.
For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.
Sir William Blackstone, Blackstone's Commentaries on the Laws of England, Book I, Chp3, pg.205/6
Here's and explanation: Whenever majority of the People disagee with ANYONE in government, the People WIN. We the People are sovereign.
Example: In California, the People passed an antigay marriage law. The Courts ruled it was unconstitutional under the Califonia constitution. The court was wrong. The people of CA created the state constitution and thus are superior to the constitution. ANYTHING the people of CA decide is equal to the Constitution and thus it cannot be "unconstitutional" over that which the people are in charge.
The Courts, esp. judges, have forgotten their place as servants not bosses.
Here's a more extensive explanation.
Creator/created (You don't have to believe to understand but it helps.)
Who's in charge?
Of course the Creator is always in charge. The created is the subordinate. So Between the Constitution and the judicial branch which is the Creator and which is the created? The Constitution is the Creator (superior) and the judicial branch (and the legislative branch and the executive branch) is the created (subordinate). The subordinate cannot define the superior. The SC cannot define the limits or nonlimits of the Constitution because the Constitution created the SC. Do you have the legitimate authority to determine the extent of your superior's power? I think not.
So who is in charge of the Constitution?
Its superior. We the People.
Neither Congress nor the judiciary nor the executive can define any of the terms in the Constitution. First Congress is inferior to the Constitution, subordinate to it. Second, if We the People sutpidly allow Congress to define one word, then Congress or the other branches can define any word. The Constitution then becomes moot.
For too long, the educational system has failed to teach the truth. The judges and others have stolen power because the people were either ignorant or lazy.
It is time to awaken the Creator, We the People, and take back our nations from the the usurpers. Education is the key BUT not the lies of the public system.
IMNSHO, Any one of We the People has standing to challenge any point arising under the Constitution because We the People are the Creator of those rules for government. The claim that the courts have the authority to determine standing is just another of the myriad of lies those thugs have spewed out their arses while stealing power from We the People.
Dominus providebit!
Well, at least a part won't be overturned by the USSC