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The problem with trying to read the militia clause in art 1, section 8 as a restraint on war making authority is that provision applies only to the militia, not the army. The militia was a kind of paramilitary force that does not have an exact parallel in the modern world. The declare war clause has to limitations attached to it. Congress, can it seems, declare war for any reason or no reason. The power to declare war is purely political and can be done, constitutionally, for any reason congress thinks proper.
Well, yes who ever is enjoined or fined by the NLRB refuses to comply, then the president could refuse to let the Justice department prosecute. However, it is important to not that would be a much more aggressive assertion of executive power then we see in the DOMA situation. That is, Obama is not refusing to enforce DOMA, he is refusing to defend it in court. For example, the IRS is still not affording gay couples married in one of the states to file taxes as married persons and so on. The practical, as opposed to symbolic effects, of refusing to enforce a federal law or regulation are minimal since congress can simply appoint a lawyer. If the president refuses to enforce a law, it is dead letter since Congress has no police force or jails. Thus, the President refusing to enforce all regulations not enacted by congress would produce a much greater constitutional crisis than DOMA.
That is an interesting idea, it certainly would not work as to all regulatory bodies. That is there are entities, such as the securities and exchange commission or the NLRB who are not under the control of the president. That is to say their members cannot be removed except for cause, and the appointments are staggered and they general have to have a balance of both republican and democratic members. At least as to those entities, the president could not direct them to stop regulating since he has no power to make them do what he wants. I guess as to non-independent agencies the president could direct them to do anything he wants, as non-enforcement of a regulation is not review-able under the administrative procedure. However, were he to actually direct agencies to repeal those regulations, that would be reviewable.
Its an interesting idea, some states use a system some what like that to appoint their judges. The problem with in though is if there is no check at all on whose names go on the list it does not too much to empower then entity that picks the name to check the person who creates the list. So take your example, say we apply your rule to Obama making an appointment to the CFPB. It is pretty easy to come up with a list of 5 rabid consumer protection types, thus leaving the Senate no real choice but to pick the least offensive of 5. Same thing with the NLRB, it is easy to come up with a list of 5 union presidents.
After reading both your and Professor Yoo's comments on this I had a wonder, would a challenge to the legality of an order issued by Mr. Cordray be bounced from court as a non-justiciable political question? Under Baker v. Carr, unless I am missing something, it seems that review of such an action might be problematic.
HalifaxCB: As far as I can see most of these social programs are motivated as much by a desire to maintain social peace as anything else. Too much, you go broke, too little, society falls apart. · Jan 3 at 8:36am
It is certainly true that one has to make trade offs economic efficiency, narrowly understood, and the preservation of social peace. However, in making this trade off it is important to focus not only on the relative value of these goods but also the differential effectiveness of various approaches. That is to paraphrase Professor Epstein said there are smart ways to do transfers and dumb ways. I tend to think the economic reasoning provides a good reason to believe that minimum or living wages are inferior to other methods (i.e. negative income taxes, food stamps, welfare). Additionally, if the types of social disorder one is concerned about is crime, one needs to consider the relative costs and benefits of increase resources to combat those effects directly through better policing and tougher criminal penalties. In the end then, I think the more interesting questions in some ways are not how much to spend, but how and on what.
The professors do not address this point directly, but I think the best answer lies in the fact that we view the relationship between the two political branches (congress and the executive) differently then we view the relationship between the political branches and the non-political branches. We tend to expect that with in pretty broadly defined limits the political branches will use every tool at their disposal to do battle with one another. However, when it comes to the judiciary, which we want to keep independent and free of political interference, we do not see it as appropriate for congress to move against the courts as a method of politically punishing them. This is why we would see cutting the budget of a court in response to a ruling differently than cutting an agency's budget.
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