Government on the March

[IcemanCometh]

This is probably the wrong time of day to post something like this. But it needs to get out there. Please recommend this diary to keep it on the front page.
On January 26, 2005, Rep. Sensenbrenner introduced the REAL ID Act of 2005 (H.R. 418). In the name of homeland security, it includes a number of items changing immigration laws, use of drivers' licenses, etc.

But -- most overlooked -- is Section 102 of this bill. It would empower the Secretary of Homeland Security to suspend any and all laws in order to ensure the "expeditious" construction of a set of barriers and roads south of San Diego, to keep illegal immigrants out. It also would prohibit ANY judicial review of the Secretary of Homeland Security's decision to suspend any law. ON EDIT: While the law the bill references mentions barriers and roads "near San Diego," it does not appear to be (technically speaking) limited to that area -- but to any barriers or roads "in the vicinity of the United States border." (See comments below).

The text of Section 102 is below:



SEC. 102. WAIVER OF LAWS NECESSARY FOR IMPROVEMENT OF BARRIERS AT BORDERS.
Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1103 note) is amended to read as follows:

`(c) Waiver-

`(1) IN GENERAL- Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive, and shall waive, all laws such Secretary, in such Secretary's sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.

`(2) NO JUDICIAL REVIEW- Notwithstanding any other provision of law (statutory or nonstatutory), no court shall have jurisdiction--

`(A) to hear any cause or claim arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1); or

`(B) to order compensatory, declaratory, injunctive, equitable, or any other relief for damage alleged to arise from any such action or decision.'.


What does this mean? What laws might the Secretary of Homeland Security suspend?

The first obvious sets of laws that would come under attack would be environmental and labor laws. On the environmental side, think "Endangered Species Act." On the labor side, think "Davis-Bacon" prevailing wage laws and the right to organize and collectively bargain.

Also think "whistleblower laws." Homeland Security wouldn't want any pesky do-gooders blowing the whistle on corruption in contract awards.

But wait, would all of these suspensions only apply to the physical, on-location construction of the roads and barriers?

Nope! There's no such limitation in the law. You can follow this right to suspend the laws anywhere someone might be claiming legal rights and slowing down the process. The manufacturers of equipment and materials would certainly fall under this provision, for example. The government workers dealing with any aspect of this construction, in Washington or California or wherever would also fall under this provision. A city council objecting to something about the project could fall under this provision.

It's an incredible usurpation of the rule of law. A cabinet secretary is given the right to suspend any and all laws. And guess what? The courts are prohibited from reviewing his decision! Perfect! So the Secretary can abuse his "authority" all he wants. No review. No nothing. Welcome to the Second Term.

Let me repeat the language:

"the Secretary of Homeland Security shall have the authority to waive, and shall waive, all laws such Secretary, in such Secretary's sole discretion"

Again:

"the Secretary of Homeland Security shall have the authority to waive, and shall waive, all laws such Secretary, in such Secretary's sole discretion"

Got it?

The bill may be going to the House floor next week.



Party of the people, by the people and for the people (http://thomas.loc.gov/cgi-bin/query/D?c109:6:./temp/~c109OU3VwI::)

[SPARKY]

This might be more interesting after 5 beers.

[Useruser666]

404: Image removed

Hasselhoff bandwidth exceeded!

Please contact your network administrator.

[Shelly]

That signature scared me so much, I had to turn them off!

[ididnotnothat]

Is this to cover our asses just in case we need to round up some Iraqi, Iranian, Syrian or other ethnic groups like we did the Japanese?

[scott]

They can write "No judicial review/jurisdiction/etc" into the Bill all they want, but the Constitution is still the supreme law of the land and the courts WILL and DO have jurisdiction.

Sounds like a set up for "those activist judges never stop, do they" campaign.

[Nbadan]

They can write "No judicial review/jurisdiction/etc" into the Bill all they want, but the Constitution is still the supreme law of the land and the courts WILL and DO have jurisdiction.

What's to keep 'them' from just declaring Martial Law and suspending all civilian rights? This is a dangerous bill that seems to be designed solely to give the Homeland Security Dept a Carte Blanche check to circumvent local, state and federal judicial review where it sees fit. What other possible purpose can it have? Should this type of decision be left to one man?

This bill stinks, but fortunately, sanity should prevail and I doubt, in its current form, it has much of a chance to ever see a vote.

[IcemanCometh]

What do the right thinking members of this forum think? Why are they strangely silent.

[Yonivore]

What does this mean?
That Homeland Security won't be bogged down by some local bureaucrat or left-wing whacko when it comes time to slam the border shut due to a national threat.

What laws might the Secretary of Homeland Security suspend?
Any laws that would prevent them from erecting the barrier in the most expeditious manner possible?

[SPARKY]

Yeah their job would be so much easier without that Constitution thing.

[Yonivore]

Yeah their job would be so much easier without that Constitution thing.
Well, if the legislation passes...that's Constitutional until a court of competent jurisdiction rules otherwise.

For grins, just exactly what article in the Constitution do you believe would be violated by the passage of this legislation?

[SPARKY]

I don't have the time to look but I would imagine that the granting of the power to an executive branch member to usurp laws passed by Congress is not constitutionally kosher.

Can't wait to see your internets forum legal expert opinion...

[Yonivore]

I don't have the time to look but I would imagine that the granting of the power to an executive branch member to usurp laws passed by Congress is not constitutionally kosher.

Can't wait to see your internets forum legal expert opinion...
Nothing is unconstitutional until the courts say it is.

So, unless you find a precedent germain to this situation or are willing to file suit to stop the madness -- and then prevail; you're wrong. There is nothing in the Constitution that says Congress cannot pass a law that excepts, from certain other laws (which by the way they pass), another branch of government.

Hell, they do it all the time.

And, as for local, county, or state laws...well, the U.S. Constitution doesn't really apply.

[Yonivore]

I don't have the time to look...
By the way, the U.S. Constitution is only a couple of pages long, you should really try to read it sometime.

[SPARKY]

By the way are you an attorney or are you just talking out of your ass per usual?

So what if Congress passes a law ordering the destruction of the Judiciary is that constitutional until a court (which no longer exists) rules otherwise?

[Yonivore]

By the way are you an attorney or are you just talking out of your ass per usual?
First of all, your statement assumes being an attorney and talking out of your ass are mutually exclusive. I've found that one can be an attorney and talk out of their ass.

So, you resort to invective and personal attacks when you're at a loss to answer or respond. Typical of many on this forum.


So what if Congress passes a law ordering the destruction of the Judiciary is that constitutional until a court (which no longer exists) rules otherwise?
Okay, assuming the President signs it into law, it's unconstitutional on it face because the U.S. Constitution specifically creates a Judiciary and enumerates its powers and responsibilities. Therefore, the Congressional act would constitute an amendment to the Constitution requiring ratification by the States.

If that happened...well, goodbye Judiciary.

Thanks for proposing the farcical as possible.

[SPARKY]

So, you resort to invective and personal attacks when you're at a loss to answer or respond. Typical of many on this forum.


Now that's rich.




Okay, assuming the President signs it into law, it's unconstitutional on it face because the U.S. Constitution specifically creates a Judiciary and enumerates its powers and responsibilities. Therefore, the Congressional act would constitute an amendment to the Constitution requiring ratification by the States.

If that happened...well, goodbye Judiciary.

Thanks for proposing the farcical as possible.


You set the example.

[Yonivore]

Now that's rich.
Glad you enjoyed it. :rolleyes

You set the example.
No, I used a realistic example that has actually occurred. You threw out one of those "what ifs" I'm always hearing from my Eleven year-old son.

Wait a minute...is that you son? Damnit, boy, what have I told you about visiting my bookmarks on the internet. Now log off and go feed your gerbil.

[SPARKY]

Yeah, if only your kid could see you now.

Look, you just said that the Congress could circumvent the Constitution by passing a law (not amending it) which of course leads to all kinds of possibilities.

[travis2]

Yeah, if only your kid could see you now.

Look, you just said that the Congress could circumvent the Constitution by passing a law (not amending it) which of course leads to all kinds of possibilities.

ummmm...no, that's not what he said....

[Yonivore]

Yeah, if only your kid could see you now.
He just walked by.

Look, you just said that the Congress could circumvent the Constitution by passing a law (not amending it) which of course leads to all kinds of possibilities.
I never said Congress could circumvent the Constitution. I said there was nothing in the Constitution that specifically prohibits Congress from excepting a branch of the federal government from the laws it passes. They do it all the time.

In fact, I wish there was a Constitutional provision that specifically prohibited Congress from passing laws by which they, themselves, don't have to abide.

You're the bozo that suggested what they were doing was unconstitutional and, when I asked you what article of the constitution it violated, you pled laziness.

Seriously, shut up and do your Fifth Grade homework.

[Yonivore]

ummmm...no, that's not what he said....
Thanks travis, someone in here can read.

[SPARKY]

Here's what the exalted one said:


There is nothing in the Constitution that says Congress cannot pass a law that excepts, from certain other laws (which by the way they pass), another branch of government.

Looking back at the bill in question it clearly would attempt to circumvent the right of the courts to judicial review...

[SPARKY]

He just walked by.

It's a school day is it not?




I never said Congress could circumvent the Constitution. I said there was nothing in the Constitution that specifically prohibits Congress from excepting a branch of the federal government from the laws it passes. They do it all the time.

Yeah but there's that judicial review thing.




In fact, I wish there was a Constitutional provision that specifically prohibited Congress from passing laws by which they, themselves, don't have to abide.

You're the bozo that suggested what they were doing was unconstitutional and, when I asked you what article of the constitution it violated, you pled laziness.

Man shut the fuck up I remember when you claimed to have a Berkley education and all you could come up with was that you once set foot on that campus.




Seriously, shut up and do your Fifth Grade homework.

How about you shut the fuck up you Goddam nutjob?

[Yonivore]

Looking back at the bill in question it clearly would attempt to circumvent the right of the courts to judicial review...
Really? Aside from judicial review being an invention of the Supreme Court (see Marlborough vs. Madison) and not an article of the Constitution, where do you get the impression Congress is trying to circumvent the Judiciary? Did anything in the law restrict public recourse?

[Yonivore]

It's a school day is it not?
You are extremely limited in your perspective on the world.

Yeah but there's that judicial review thing.
As I said, an invention of the Supreme Court not a Constitutional provision.

Man shut the fuck up I remember when you claimed to have a Berkley education and all you could come up with was that you once set foot on that campus.
Not me...you must be thinking of someone else. I've never even claimed to have set foot on Berkley's campus.

How about you shut the fuck up you Goddam nutjob?
How 'bout I don't.

[SPARKY]

Really? Aside from judicial review being an invention of the Supreme Court (see Marlborough vs. Madison) and not an article of the Constitution, where do you get the impression Congress is trying to circumvent the Judiciary? Did anything in the law restrict public recourse?

According to you this is a constitutional republic yet if we followed your reasoning then we could forget about that.

The constitution definitely implies judicial review.

[SPARKY]

You are extremely limited in your perspective on the world.

Oh I'd say I have a decent view of this here world. Be sure to kiss your imaginary son goodnight.




As I said, an invention of the Supreme Court not a Constitutional provision.


It's definitely implied in the constitution. I'm not sure I'd like to live without some judicial check on acts of Congress.



Not me...you must be thinking of someone else. I've never even claimed to have set foot on Berkley's campus.


Heehee. Liar.



How 'bout I don't.

Then don't whine about "personal attacks"...

[Yonivore]

According to you this is a constitutional republic yet if we followed your reasoning then we could forget about that.
First of all, I've never said the term "constitutional republic." We're a republic of states with a constitution that binds us together.

Secondly, support your argument that my reasoning is the road to anarchy or whatever it is you're implying.

The constitution definitely implies judicial review.
Okay, where?

[Yonivore]

Oh I'd say I have a decent view of this here world. Be sure to kiss your imaginary son goodnight.
Okay.

It's definitely implied in the constitution. I'm not sure I'd like to live without some judicial check on acts of Congress.
Again, where? And, no one is saying the checks and balances of the Constitution were ignored. There's a process for doing so. An person, with standing, can bring suit to challenge the constitutionality of the law. That right has not been abridged by this legislation.

Heehee. Liar.
Generally, it's customary to provide evidence of lying when accusing a person of being a liar. When did I ever say I a) attended Berkley or b) only stepped foot on the campus -- by the way, I've never done either and I've never claimed either.

I do think I drove by Berkley once...driving from Sacramento to Saucalito.

Then don't whine about "personal attacks"...
I wasn't whining. I was merely noting your resort to personal attacks when you've apparently no response. Something that is endemic to this board. Have at it...personal attacks don't mean much coming from complete strangers with small brains.

[SPARKY]

Article 3, dawg


I wasn't whining. I was merely noting your resort to personal attacks when you've apparently no response.

As opposed to your use of personal attacks which occur when you've apparently no response.



Something that is endemic to this board. Have at it...personal attacks don't mean much coming from complete strangers with small brains.

Wow. Another personal attack.

[Yonivore]

Article 3, dawg
Duh. Where in Article 3 (for the uninitiated, Article 3 establishes the Judiciary).

As opposed to your use of personal attacks which occur when you've apparently no response.
Never said I wasn't guilty, just that it goes on. However, I generally respond AND throw out a personal attack when I do it.

Wow. Another personal attack.
No, a generalization. Now, if I had said you were a perfect stranger (true) that had a small brain (probably true) then you could have said it was a personal attack.

[SPARKY]

Section 2.

[Yonivore]

Section 2.
Okay, two words, in Section two need to be added to your vocabulary.

#1: The word cases.

#2: The word arising.

[SPARKY]

Yeah so judicial review actually does exist in them thar Constitution. Go figure.

[Yonivore]

Yeah so judicial review actually does exist in them thar Constitution. Go figure.
No. But, please explain.

[SPARKY]

It's fairly self explanatory, which is why this was settled a couple hundred years ago.

[IcemanCometh]

Marlborough vs. Madison

i think you mean Marbury, as in the basketball player, not Marlboro the cigarettes

[SPARKY]

Really? Aside from judicial review being an invention of the Supreme Court (see Marlborough vs. Madison) and not an article of the Constitution, where do you get the impression Congress is trying to circumvent the Judiciary? Did anything in the law restrict public recourse?

:lol

Pretty fucking hilarious for someone who lays claim to being a constitutional expert here on the internets.

[Yonivore]

It's fairly self explanatory, which is why this was settled a couple hundred years ago.
No, it's not. Greater judicial minds than the two having this discussion still disagree over the constitutionality of "judicial review" established by Chief Justice John Marshall in 1803 -- after the ratification of the U.S. Constitution, by the way.

The debate rages. If you want to join a discussion on the matter, I believe you should at least forward an argument as to why you think Article III, Section 2, of the U.S. Constitution, grants the U.S. Supreme Court the authority to invalidate the acts of another branch of Government.

It's a simple request. And, telling me to read Article III, Section 2 and draw my own conclusions because, as you say, it is "self explanatory," won't cut it. I read that and do not see judicial review...nor did James Madison whom, you may recall was one of the framers of the Constitution...and a party to the "case," (<< There's that big new vocabulary word you learned today) as Secretary of State, on which Marshall claimed the right to judicial review by fiat.

I'm going out of my way to demonstrate there is a reasonable opposition to your view. And, in doing so, we've gotten far away from the original question of whether or not the law is constitutional -- a matter that can only be settled in court not by public opinion -- and entered the realm of the constitutionality of judicial review...which, I will not argue exists, but has a poorer chance of receiving constitutional scrutiny than any law Congress could pass.

Think about it. Then, how 'bout arguing your position instead of just haranguing the posters. Because, many more exchanges like the ones we've had and you join my ignore bin...along with Nbadan and violentkitten.

[Yonivore]

:lol

Pretty fucking hilarious for someone who lays claim to being a constitutional expert here on the internets.
Okay, again with your absolute characterizations. When did I claim to be an expert? And, what's funny about what I said?

[Yonivore]

i think you mean Marbury, as in the basketball player, not Marlboro the cigarettes
You're right, it was from memory.

[SPARKY]

You apparently have no problem dismissing other poster's knowledge in regards to constitutional law so I would think that you would have no problem having yours challenged.

Look, I know of at least one attorney who posts here perhaps he'll let you know where the issue of judicial review stands at this point.

But I know, it hasn't been settled in your alternate universe, the one in which the famous case of "Marlborough v Madison" failed to adequately address it

[Yonivore]

You apparently have no problem dismissing other poster's expertise in regards to constitutional law so I would think that you would have no problem having yours challenged.
I haven't seen any expertise and I have no problem being challenged...I've responded to your challenges.

Look, I know of at least one attorney who posts here perhaps he'll let you know where the issue of judicial review stands at this point.
Okie dokie, I'm all atwitter. (I just hope it's not Nbadan or violent kitten because, I'll never see the post.)

But I know, it hasn't been settled in your alternate universe, the one in which the famous case of "Marlborough v Madison" failed to adequately address it
You're the only one to have claimed it was a "settled" matter. I clearly stated that reasonable people still, to this day, disagree over the matter of judicial review.

But, let's see what someone, of some import, had to say contemporaneously to the ruling:

""The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."
Which, by the way, it is less known by the term "judicial review," these days; and more referred to as "judicial activism."

Thomas Jefferson was right.

[SPARKY]

I haven't seen any expertise and I have no problem being challenged...I've responded to your challenges.

Again, to make such a claim you gotta bring something a bit more than 'I know you are but what am I?' Post your credentials.



Okie dokie, I'm all atwitter. (I just hope it's not Nbadan or violent kitten because, I'll never see the post.)

You're the only one to have claimed it was a "settled" matter. I clearly stated that reasonable people still, to this day, disagree over the matter of judicial review.


Yeah, those in "militias" and what not.




But, let's see what someone, of some import, had to say contemporaneously to the ruling:

Which, by the way, it is less known by the term "judicial review," these days; and more referred to as "judicial activism."

Thomas Jefferson was right.


TJ lost that argument. Duh.

You should try a fresh right wing conspiracy nut argument, such as that the Fed is extraconstitutional, in private hands, and/or that it is a conspiracy of a bunch of 'international bankers' to control the nation's money supply.

[Yonivore]

Again, to make such a claim you gotta bring something a bit more than 'I know you are but what am I?' Post your credentials.
Go blow yourself. I think you should post your I.Q. and a photo ID but, that doesn't mean you're going to. You know about as much about me, personally, as you're going to so, get over it.

Hey, disagree, agree, make fun, I don't care...as I've said before, the discussions I have on here are rarely for the benefit of the other party but for the casual reader to come in and maybe, just maybe, see a side of an issue they've yet to consider.

If I've learned one thing in my years of posting in forums, changing minds doesn't happen often...not even if you post your credentials.

By the way, what's your obsession with education?

Yeah, those in "militias" and what not.
Okay. Nice comeback. :rolleyes

TJ lost that argument. Duh.
The argument isn't "lost" until judicial review is granted to the Judiciary by Constitutional Amendment. Until then, it's still ripe for argument and change.

You should try a fresh right wing conspiracy nut argument, such as that the Fed is extraconstitutional, in private hands, and/or that it is a conspiracy of a bunch of 'international bankers' to control the nation's money supply.
Actually, my argument is the Libertarian view. Most Conservatives are for Judicial Review except when it comes to the judicial activism of left-wing whackos like Ruth Bader-Ginsburg.

[SPARKY]

Go blow yourself. I think you should post your I.Q. and a photo ID but, that doesn't mean you're going to. You know about as much about me, personally, as you're going to so, get over it.

Hey, disagree, agree, make fun, I don't care...as I've said before, the discussions I have on here are rarely for the benefit of the other party but for the casual reader to come in and maybe, just maybe, see a side of an issue they've yet to consider.

If I've learned one thing in my years of posting in forums, changing minds doesn't happen often...not even if you post your credentials.

By the way, what's your obsession with education?


What's yours? Every fucking thread has you ripping everyone else in sight for a lack of knowledge of the subject at hand.




Okay. Nice comeback. :rolleyes


'tis rather appropriate given that those are your fellow travelers in this argument.




The argument isn't "lost" until judicial review is granted to the Judiciary by Constitutional Amendment. Until then, it's still ripe for argument and change.

Actually, my argument is the Libertarian view. Most Conservatives are for Judicial Review except when it comes to the judicial activism of left-wing whackos like Ruth Bader-Ginsburg.


Even those left wing wackos like Scalia, Thomas, and Rehnquist are down with it being settled.

[Yonivore]

Just so you know, SPARKY. I've deemed you a troll spoiling for an argument and have placed you on ignore.

Answer if you like but, I won't be reading your vomit anymore.

Well, whatta ya know, I have the credentials to ignore your ass...

[SPARKY]

Walk on home, boy.

[sbsquared]

Maybe both of you should read Mark Levin's new book, "Men in Black." It's about how the Supreme Court is ruining America and I believe he specifically talks about "Marbury vs. Madison."

I haven't read the book, but I plan to soon. Anyway, Levin has thoroughly researched this issue and is quite knowledgeable about the subject. I expect we could all learn something.

Oh, by the way, in my opinion Yonivore got in more hits than Sparky!

[SPARKY]

Oh, by the way, in my opinion Yonivore got in more hits than Sparky!

If you're talking about Js, perhaps.

[Yonivore]

Maybe both of you should read Mark Levin's new book, "Men in Black." It's about how the Supreme Court is ruining America and I believe he specifically talks about "Marbury vs. Madison."
It's on my "to read" list. And, yes, I believe judicial activism (which has its roots in the judicial review concept) is ruining America.

I haven't read the book, but I plan to soon. Anyway, Levin has thoroughly researched this issue and is quite knowledgeable about the subject. I expect we could all learn something.
Review it here. If I read it before you, I'll do the same.

Oh, by the way, in my opinion Yonivore got in more hits than Sparky!
Not that it really matters but, thanks. SPARKY's too emotional and juvenile to take seriously.

[Guru of Nothing]

It's about how the Supreme Court is ruining America

Hmmm... Who can I blame for that?

[SPARKY]

2/9ths of the blame to one side.

7/9ths of the blame to the other...

[Yonivore]

Hmmm... Who can I blame for that?
Chief Justice John Marshall...and the whole line of Congressmen who followed and failed to smack him down before we ended up with idiots like Ginsburg.

[SPARKY]

Souter
Stevens
Kennedy
O'Connor
Scalia
Thomas
Rehnquist

All appointed by left wing commie pinko gay envirowackos.

[IcemanCometh]

i think yonivore hates america

[sbsquared]

I just heard Mark Levin on the Laura Ingraham show. It was quite interesting - I can't wait to read his book. One of the things he proposes is to amend the Constitution so that a 2/3 majority of Congress can override a Supreme Court Decision just like a Presidential veto. Any thoughts?

BTW - I ordered his book from Zooba.com and it only cost $9.95 with free shipping. I should have it next week.