Reply #38: Actually [View All]

[adwon]

The majority of opinion goes against the idea that Congress has the power to unilaterally deny all relief in a given area. Let's say this law is passed. Will the federal courts be cowed into submission? Nope. It just means the law will end up being unconstitutional in certain jurisdictions...which will get damned interesting. It will be terribly interesting if a circuit court invalidates the entire piece of legislation and declares that the Supreme Court does have jurisdiction via the appellate process because the restriction is invalid. Wouldn't it be fun to see the GOP create a constitutional crisis that is insoluble on their terms?

The Supreme Court is not the only arbiter of the constitution. That's a bit fallacious. In most areas, it's the final arbiter, which is not the same as being the only arbiter. The Court doesn't take many cases in any given year because of the scope of the opinions they render. Frequently, the Court allows disputes to continue in the lower federal and state courts because it doesn't feel that either the issue is important or the case in question is correct for a definitive ruling.

Also, there are certain areas of policy that the Supreme Court recuses itself from considering, primarily because the political branches would ignore any ruling in those areas. And the political branches would be correct to do so. These areas are mostly limited to foreign policy, congressional self-governance, and certain aspects of election law. Not every issue that touches the constitution is correct for the Court to decide. That's why the Court frequently limits itself to decisions about who can use the power, not how the power should be used.

Both political branches also act as arbiters of the constititution, as is commensurate with their roles as co-equal branches of government. They make decisions on a daily basis as to the meaning of the constitution. The Court has authority as the final arbiter because it has a certain expertise in the area and the political branches agree to allow it to bind them to its decisions. This agreement isn't written into the constitution, but it's a long-standing tradition that began with Marbury v. Madison.

The God part is a smokescreen. It's pretty badly written and is likely to get nullified. The true purpose of the legislation is to coerce the courts to allow the administration to continue holding people indefinitely.

P.S. The first amendment is a bad argument for this bill. A better argument is that it's an attempt to reduce the authority of the Supreme Court and violates Marbury v. Madison. Most Americans will probably respond better to a threat to the independence and power of the Supreme Court than they will a threat, which it really isn't, to the Establishment Clause.

By the way, the 'no law' part in the first amendment is not absolute. It's hard to argue that this legislation actually enacts government support of religion. There is no direct government support of religion, which is the most likely test to use.