Judge Alito....
QUOTE: ART 3, SEC 2 "EXCEPTION CLAUSE" .... UNRESOLVED ???
RESEARCH:
====================
-------- Original Message --------
Subject: Question Presented:
Date: Wed, 11 Jan 2006 06:56:53 -0800
From: Veritas Veritas@uci.net
Question Presented:
How can the President put himself above the law {Nemo est supra leges} and abrogate, bypass or circumvent the clearly established will of Congress to effectively nullify the Posse Comitatus Act and send hither swarms of military officers to harass our people, and eat out their substance?
The King can effectively do indirectly what he can not do directly by a simple matter of ‘Creative Accounting’ according to a 1986 Memorandum by Deputy Assistant Attorney General Samuel Alito:
Memorandum Opinion for the Deputy Attorney General, from Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal Counsel, Assignment of Army Lawyers to the Department of Justice, 10 OP. OFF. LEGAL COUNSEL 115 (1986).
Assignment of Army Lawyers to the Department of Justice: (The Department of Justice may appoint Army attorneys as special attorneys or Special Assistant United States Attorneys enabling them to perform litigation functions assigned by law to Department of Justice attorneys, provided, however, that the salaries and expenses of Army lawyers so serving must be paid from the Department's own appropriation. The Department of Justice may use Army attorneys, performing the functions traditionally performed by "agency counsel," to assist the Department in its litigation functions; Army attorneys assisting the Department in this capacity may be paid with Army funds and need not be formally detailed to the Department. The use of Army lawyers to assist the Department of Justice may violate the Posse Comitatus Act where they perform prosecutorial functions involving direct contact with civilians, unless such Army lawyers are detailed to the Department on a full-time basis and operate under the supervision of Department personnel. August 22, 1986); http://www.loc.gov/rr/law/nominations/alito/10opolc115.pdf
Cf.
Posse Comitatus Act of 1878 20 Stat. L., 145 June 18, 1878 CHAP. 263 - An act making appropriations for the support of the Army for the fiscal year ending June thirtieth, eighteen hundred and seventy-nine, and for other purposes. SEC. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section And any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment.
10 U.S.C. § 375 (Restriction on direct participation by military personnel) (The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.);
18 U.S.C. § 1385 (Use of Army and Air Force as posse comitatus) (Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. Editor's Note: The only exemption has to do with nuclear materials (18 U.S.C. 831 (e));
32 CFR 501.4 (Employment of Troops in Aid of Civil Authorities) (Martial law) (Martial law depends for its justification upon public necessity. Necessity gives rise to its creation; necessity justifies its exercise; and necessity limits its duration.); http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/cfr_2002/julqtr/32cfr501.4.htm
Nam: No one can do that indirectly which cannot be done directly {Nemo potest facere per obliquum quod non potest facere per directum}; The thing speaks for itself {Res ipsa loquitur}; and that class of authority, infra:
Bailey v. Alabama, 219 U.S. 219, 244, 31 S.Ct. 145 (1911) (What the state may not do directly it may not do indirectly.) http://laws.findlaw.com/us/219/219.html
Heiner v. Donnan, 285 U.S. 312, 329, 52 S.Ct. 358, 362, 76 L.Ed 772 (1932) (This court has held more than once that a statute creating a presumption which operates to deny a fair opportunity to rebut it violates the due process clause of the Fourteenth Amendment. For example, Bailey v. Alabama, 219 U.S. 219, 238, et seq., 31 S. Ct. 145; Manley v. Georgia, 279 U.S. 1, 5-6, 49 S. Ct. 215. 'It is apparent,' this court said in the Bailey Case (219 U.S. 239, 31 S. Ct. 145, 151) 'that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions.' If a legislative body is without power to enact as a rule of evidence a statute denying a litigant the right to prove the facts of his case, certainly the power cannot be made to emerge by putting the enactment in the guise of a rule of substantive law.); http://laws.findlaw.com/us/285/312.html
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In Marbury v. Madison, Chief Justice John Marshall, writing for the Court, said--in effect--"You're right that the law in question says we have the power to issue such orders if someone approaches us directly, but the problem is that this law is unconstitutional. Congress can't give us that power because it is prohibited by Article III of the Constitution, which says:
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
"This means," Madison in effect continued, "that we the Court have original jurisdiction (i.e., people get to approach us directly) only in a limited number of cases and in all other cases we have only appellate jurisdiction (i.e., people will have to work their way up through the courts). When Congress said we could issue the kind of order you're after, they were adding an item to our original jurisdiction which the Constitution says should belong to our appellate jursidiction. Therefore, what they said was wrong. The law is unconstitutional. Too bad. So sad. You're out of luck."
This seems like a blazingly bad argument to me because there is a big honking EXCEPTION written into the Constitution itself. What the relevant provision says is: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction . . . with such exceptions . . . as the Congress shall make."
It seems to me that in writing the Judiciary Act of 1789 the Congress was making one of the exceptions that the Constitution said it had the power to make by adding a new item to the list of things that belonged to the Court's original jurisdiction.
I've done a little searching around on the web and found some practical arguments why this is a bad idea (e.g., the Court would be overwhelmed with people petitioning it to issue such orders to government officials), but this is not an argument addressing what the law says.
Could any legal scholars out there point me to a discussion of the exceptions clause in Article III and why it would or would not affect the Court's ruling in Marbury v. Madison? I can think of ways to argue this issue back and forth, but I'd like to read some professionals kicking the issue around.
MORE DISCUSSION:
http://www.jimmyakin.org/2004/05/is_that_it_for_.html
............
APFN "THE LAW"
http://www.apfn.org/apfn/thelaw.htm
QUOTE: ART 3, SEC 2 "EXCEPTION CLAUSE" .... UNRESOLVED ???
RESEARCH:
====================
-------- Original Message --------
Subject: Question Presented:
Date: Wed, 11 Jan 2006 06:56:53 -0800
From: Veritas Veritas@uci.net
Question Presented:
How can the President put himself above the law {Nemo est supra leges} and abrogate, bypass or circumvent the clearly established will of Congress to effectively nullify the Posse Comitatus Act and send hither swarms of military officers to harass our people, and eat out their substance?
The King can effectively do indirectly what he can not do directly by a simple matter of ‘Creative Accounting’ according to a 1986 Memorandum by Deputy Assistant Attorney General Samuel Alito:
Memorandum Opinion for the Deputy Attorney General, from Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal Counsel, Assignment of Army Lawyers to the Department of Justice, 10 OP. OFF. LEGAL COUNSEL 115 (1986).
Assignment of Army Lawyers to the Department of Justice: (The Department of Justice may appoint Army attorneys as special attorneys or Special Assistant United States Attorneys enabling them to perform litigation functions assigned by law to Department of Justice attorneys, provided, however, that the salaries and expenses of Army lawyers so serving must be paid from the Department's own appropriation. The Department of Justice may use Army attorneys, performing the functions traditionally performed by "agency counsel," to assist the Department in its litigation functions; Army attorneys assisting the Department in this capacity may be paid with Army funds and need not be formally detailed to the Department. The use of Army lawyers to assist the Department of Justice may violate the Posse Comitatus Act where they perform prosecutorial functions involving direct contact with civilians, unless such Army lawyers are detailed to the Department on a full-time basis and operate under the supervision of Department personnel. August 22, 1986); http://www.loc.gov/rr/law/nominations/alito/10opolc115.pdf
Cf.
Posse Comitatus Act of 1878 20 Stat. L., 145 June 18, 1878 CHAP. 263 - An act making appropriations for the support of the Army for the fiscal year ending June thirtieth, eighteen hundred and seventy-nine, and for other purposes. SEC. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section And any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment.
10 U.S.C. § 375 (Restriction on direct participation by military personnel) (The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.);
18 U.S.C. § 1385 (Use of Army and Air Force as posse comitatus) (Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. Editor's Note: The only exemption has to do with nuclear materials (18 U.S.C. 831 (e));
32 CFR 501.4 (Employment of Troops in Aid of Civil Authorities) (Martial law) (Martial law depends for its justification upon public necessity. Necessity gives rise to its creation; necessity justifies its exercise; and necessity limits its duration.); http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/cfr_2002/julqtr/32cfr501.4.htm
Nam: No one can do that indirectly which cannot be done directly {Nemo potest facere per obliquum quod non potest facere per directum}; The thing speaks for itself {Res ipsa loquitur}; and that class of authority, infra:
Bailey v. Alabama, 219 U.S. 219, 244, 31 S.Ct. 145 (1911) (What the state may not do directly it may not do indirectly.) http://laws.findlaw.com/us/219/219.html
Heiner v. Donnan, 285 U.S. 312, 329, 52 S.Ct. 358, 362, 76 L.Ed 772 (1932) (This court has held more than once that a statute creating a presumption which operates to deny a fair opportunity to rebut it violates the due process clause of the Fourteenth Amendment. For example, Bailey v. Alabama, 219 U.S. 219, 238, et seq., 31 S. Ct. 145; Manley v. Georgia, 279 U.S. 1, 5-6, 49 S. Ct. 215. 'It is apparent,' this court said in the Bailey Case (219 U.S. 239, 31 S. Ct. 145, 151) 'that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions.' If a legislative body is without power to enact as a rule of evidence a statute denying a litigant the right to prove the facts of his case, certainly the power cannot be made to emerge by putting the enactment in the guise of a rule of substantive law.); http://laws.findlaw.com/us/285/312.html
=======================================
In Marbury v. Madison, Chief Justice John Marshall, writing for the Court, said--in effect--"You're right that the law in question says we have the power to issue such orders if someone approaches us directly, but the problem is that this law is unconstitutional. Congress can't give us that power because it is prohibited by Article III of the Constitution, which says:
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
"This means," Madison in effect continued, "that we the Court have original jurisdiction (i.e., people get to approach us directly) only in a limited number of cases and in all other cases we have only appellate jurisdiction (i.e., people will have to work their way up through the courts). When Congress said we could issue the kind of order you're after, they were adding an item to our original jurisdiction which the Constitution says should belong to our appellate jursidiction. Therefore, what they said was wrong. The law is unconstitutional. Too bad. So sad. You're out of luck."
This seems like a blazingly bad argument to me because there is a big honking EXCEPTION written into the Constitution itself. What the relevant provision says is: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction . . . with such exceptions . . . as the Congress shall make."
It seems to me that in writing the Judiciary Act of 1789 the Congress was making one of the exceptions that the Constitution said it had the power to make by adding a new item to the list of things that belonged to the Court's original jurisdiction.
I've done a little searching around on the web and found some practical arguments why this is a bad idea (e.g., the Court would be overwhelmed with people petitioning it to issue such orders to government officials), but this is not an argument addressing what the law says.
Could any legal scholars out there point me to a discussion of the exceptions clause in Article III and why it would or would not affect the Court's ruling in Marbury v. Madison? I can think of ways to argue this issue back and forth, but I'd like to read some professionals kicking the issue around.
MORE DISCUSSION:
http://www.jimmyakin.org/2004/05/is_that_it_for_.html
............
APFN "THE LAW"
http://www.apfn.org/apfn/thelaw.htm
