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Impeachment Process - Read OP Before Posting
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"He is no fool who gives what he cannot keep to gain that which he cannot lose." - Jim Elliot
"Forgiveness is the way of love." Gary Chapman
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Originally posted by Teallaura View PostBecause case law. Welcome to the wild side of American jurisprudence.
The Court avoids internal matters in the other branches - but it occasionally does rule on them. This is where executive privilege is established - in cases brought to the Court by the Exec against Congress (Nixon). And earlier we have Wilkinson, which is directly pertinent to the impeachment.
The Congress can overwrite Court decisions with law - but only so long as the new law is itself constitutional. This is why Marbury would have to be overturned to make this workable.
It stems from the separation of powers by putting supreme power in the constitution which is then divided into three equal arms and given the full authority to exercise their independent powers. Its necessary for the constitution to have a voice which is logically seen to be the judicial arm. So constitutional interpretations becomes an inferred judicial power by necessity.
This means that the courts can only rule on whether something is constitutionally valid or not in respect to the other branches. It can't give directions or set rules for the branches because that would make the judicial arm superior to the executive and legislative. Judicial review over other branches is therefore strictly limited to questions of interpretations and constructions of specific words or sections of the constitution and whether a particular action is within a constitutional power.
The constitution gives the house the sole power of impeachment this means that there is no higher authority for this specific power than the house so I don't think Marbury needs to be overturned since I think the decision made it harder by limiting judicial power in striking out the section of the Judicial Act which had increased the Supreme Courts original jurisdiction.
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Originally posted by Watermelon View PostI had a read of Marbury and I understand the principles it establishes since its the same for us. I had a quick look through my Australian constitutional law textbook and sure enough, Marbury was the case that influenced the decision in our landmark case. It forms our legal principle of 'a stream not being able to rise higher than its source' which is, in practice, asking the question 'do they have the power to do this?'.
It stems from the separation of powers by putting supreme power in the constitution which is then divided into three equal arms and given the full authority to exercise their independent powers. Its necessary for the constitution to have a voice which is logically seen to be the judicial arm. So constitutional interpretations becomes an inferred judicial power by necessity.
This means that the courts can only rule on whether something is constitutionally valid or not in respect to the other branches. It can't give directions or set rules for the branches because that would make the judicial arm superior to the executive and legislative. Judicial review over other branches is therefore strictly limited to questions of interpretations and constructions of specific words or sections of the constitution and whether a particular action is within a constitutional power.
The constitution gives the house the sole power of impeachment this means that there is no higher authority for this specific power than the house so I don't think Marbury needs to be overturned since I think the decision made it harder by limiting judicial power in striking out the section of the Judicial Act which had increased the Supreme Courts original jurisdiction.
That's the issue in Wilkinson - can the House committees say 'this is a subpoena' even when subpoena power hasn't been directly granted to that committee? Is such a lawful subpoena?
In the present inquiry we're seeing flagrant violations of Due Process - is that constitutional just because it's an impeachment inquiry? Dubious - my guess this is another reason the House hasn't tried to enforce any of the supposed subpoenas because they don't want to risk a Court ruling. But if they did, it's a constitutional matter because Due Process applies.
For what Jim suggested, where the Court cannot rule (the Court would have to have a case brought so he's right that it cannot simply intervene) judicial review itself would have to go. Judicial review isn't limited here to the question of power, although that is certainly within its scope. Judicial review deals with all questions of constitutionality with the Supreme Court as final arbiter.
Yet another reason the House doesn't want to risk the Court deciding - it might well decide that Due Process applies to impeachment."He is no fool who gives what he cannot keep to gain that which he cannot lose." - Jim Elliot
"Forgiveness is the way of love." Gary Chapman
My Personal Blog
My Novella blog (Current Novella Begins on 7/25/14)
Quill Sword
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I suppose the real question, then, is why shouldn't due process apply to impeachment? Has anybody ever articulated an argument to that end?Some may call me foolish, and some may call me odd
But I'd rather be a fool in the eyes of man
Than a fool in the eyes of God
From "Fools Gold" by Petra
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Originally posted by Teallaura View PostYou'd make a fine strict constructionist - but here's the thorny side: what if the House is violating the principles of the Constitution? What if it is redefining legal terms without making those new terms law?
That's the issue in Wilkinson - can the House committees say 'this is a subpoena' even when subpoena power hasn't been directly granted to that committee? Is such a lawful subpoena?
In the present inquiry we're seeing flagrant violations of Due Process - is that constitutional just because it's an impeachment inquiry? Dubious - my guess this is another reason the House hasn't tried to enforce any of the supposed subpoenas because they don't want to risk a Court ruling. But if they did, it's a constitutional matter because Due Process applies.
For what Jim suggested, where the Court cannot rule (the Court would have to have a case brought so he's right that it cannot simply intervene) judicial review itself would have to go. Judicial review isn't limited here to the question of power, although that is certainly within its scope. Judicial review deals with all questions of constitutionality with the Supreme Court as final arbiter.
Yet another reason the House doesn't want to risk the Court deciding - it might well decide that Due Process applies to impeachment.
It値l be interesting because if the Supreme Court somehow rules that due process applies then that could arguably be unconstitutional in itself. I say this because it would technically give impeachment proceedings grounds for appeals which the Supreme Court can claim jurisdiction over thereby effectively usurping the power of impeachment. More later.
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Originally posted by Watermelon View PostI値l get back to you in more depth after work but I thought I壇 touch quickly on due process because it値l be interesting to see if it applies to impeachment proceedings.
It値l be interesting because if the Supreme Court somehow rules that due process applies then that could arguably be unconstitutional in itself. I say this because it would technically give impeachment proceedings grounds for appeals which the Supreme Court can claim jurisdiction over thereby effectively usurping the power of impeachment. More later.
- its not a legal proceeding; life, liberty or property is not at stake so there is no constitutional requirement
- the partisan make up of the house and that relationship to the president make it impossible to be free from bias
- if due process applies and is not followed then what remedy is there? no remedy is the same as not having it and if there is a remedy then the house loses that sole power making it unconstitutional
What are the arguments for due process in impeachments?
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