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View Diary: NDAA Military Detention of US Citizens Breaks Through to Major Media. Not American One, the BBC. (21 comments)

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  •  Now you are asking good questions (0+ / 0-)

    The fact is many states already have federal recall laws, Arizona, Colorado, Louisiana, Michigan, Montana, Nevada, North Dakota, Oregon, Washington, and Wisconsin.  

    And you are right, the Constitution is constructed as a straitjacket limiting the powers of the government, not the powers of the people.  

    The right of the people of a state to recall federal legislators is firmly grounded in the Tenth Amendment which "reserves" all powers not specifically enumerated as the preserve of the federal government "to the states...and to the people."  

    The Constitution requires an "affirmative prohibition," in court language, in order for a power to not be included in the Tenth.  So your scenario where the a state could enact laws whereby a state legislature or a governor could pull back its senator is within this.  

    Basically the Constitution supports the view that who a state sends to represent its citizens is their business, as long as he or she is elected and the state does not unilaterally change the term of office or the age/residency requirements from what the Constitution stipulates.

    Funny how people who seek to be sticklers to the Constitution on recall are not sticklers on what it says about  the "right to a speedy and public trial, by an impartial jury," which the NDAA seeks to eliminate.

    more info: "For States With No Federal Recall Law"

    http://recallthetraitors.blogspot.com/...

    •  You need to reread the Constitution. (1+ / 0-)
      Recommended by:
      FG
      The fact is many states already have federal recall laws, Arizona, Colorado, Louisiana, Michigan, Montana, Nevada, North Dakota, Oregon, Washington, and Wisconsin.  

      Many states still have laws on the books banning sodomy, fornication, and interracial marriage too. Doesn't mean those laws are in effect. States can have as many unconstitutional laws as they'd like on the books, as long as they don't actually put them into practice.

      The Constitution requires an "affirmative prohibition," in court language, in order for a power to not be included in the Tenth.

      Please present a citation from case law to that effect, stating that the Tenth Amendment operates in such a blanket fashion, whereby everything not explicitly prohibited by the Constitution is understood not to be governed by it.

      So your scenario where the a state could enact laws whereby a state legislature or a governor could pull back its senator is within this.

      I don't think you'd like where that leads. Suppose Wisconsin's state government—now completely dominated by Republicans—were to pass such a law, thus enabling Scott Walker to unilaterally remove anyone whose vote he didn't like from the state's congressional or Senate delegation. Would you still agree that that was a constitutional action?

      Furthermore, how does the notion that state law should somehow supersede the Constitution's setting the length of terms for Senators and Representatives, particularly given that the Constitution (as we shall see) doesn't actually cede any authority whatsoever to state governments for the election of members of Congress?

      Basically the Constitution supports the view that who a state sends to represent its citizens is their business, as long as he or she is elected and the state does not unilaterally change the term of office or the age/residency requirements from what the Constitution stipulates.

      Except that the Constitution doesn't support that view in the slightest. In fact, in Article I, Section 4, the Constitution specifically states:

      The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

      (The "chusing Senators" part is a holdover from when state legislatures, not direct elections, chose Senators.)

      Even a sympathetic reading of the Tenth Amendment, in which a state would be allowed to go forward with a recall, would run smack dab into that clause—as the Constitution would also empower Congress to simply decide to override the state's recall election date and hold the election on Election Day 2012.

      Additionally, Article I, Section 5 states:

      Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members

      That pretty clearly gives Congress the authority to oversee federal elections.

      Furthermore, what is a recall but a state "unilaterally chang[ing] the term of office" for a representative or Senator? The person who had been elected to a two-year or six-year term is now having his or her term cut short by the state—which, as has been shown above, can be overruled by Congress as to Congressional elections.

      "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist." --Dom Helder Camara, archbishop of Recife

      by JamesGG on Mon Jan 09, 2012 at 02:03:33 PM PST

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      •  No. (0+ / 0-)
        Furthermore, what is a recall but a state "unilaterally chang[ing] the term of office" for a representative or Senator?

        Recalling an individual senator in the middle of his term does not change the term in general.  The replacement serves out the remainder of the term, like Scott Brown is only serving out the remainder of Ted Kennedy's term then is up for re-election next year, for  the same term as before, 6 years.  Yours is the kind of strained reasoning used by DC hacks to imply that senators are some kind of royalty who cannot be recalled, according to the Constitution.  But you need to twist and turn every which way to say how the Constitution says that, because it doesn't.  

        And again, if you are such a stickler for the Constitution, why are you not outraged at the overturn of the Bill of Rights?  I'd say it is the larger issue.

        •  Congress runs Congressional elections. Period. (0+ / 0-)
          Recalling an individual senator in the middle of his term does not change the term in general.  The replacement serves out the remainder of the term, like Scott Brown is only serving out the remainder of Ted Kennedy's term then is up for re-election next year, for  the same term as before, 6 years.

          Except that Ted Kennedy's term ended because of his death, which left the Senate seat vacant. There is no Constitutional provision permitting a Senate seat to be made vacant by recall election—and even in the incredibly unlikely event that the Tenth Amendment were interpreted as anarchically as you'd prefer, as I point out, Congress could use their power to alter all regulations concerning the election of members of Congress simply reset the date for the recall election to be on the member of Congress's regular reelection date, thus making the recall null and void in practice if not in principle.

          You cannot deny the basic fact that the Constitution gives all powers over administrating the election of members of Congress to Congress itself, even explicitly giving Congress the power to override any state law on the matter. Even in the unlikely event that a court agreed with you that recalls were currently permitted under the Tenth Amendment, Congress would need to do nothing more than simply pass a law saying "you can't recall members of Congress" and all legal authority to recall Congressmembers would be taken away from the states.

          Yours is the kind of strained reasoning used by DC hacks to imply that senators are some kind of royalty who cannot be recalled, according to the Constitution.

          Royalty doesn't serve limited terms of office, and isn't elected directly by the people.

          Senators are elected by the people to serve six-year terms, not to serve at the pleasure of the people or the state government or anyone else. If the founders of the country had intended otherwise, we would have some indication somewhere in the Constitution, Federalist Papers, or records of the Constitutional Convention; that no such indication exists is a pretty good indication that six years meant just that, six years.

          The Constitution quite simply doesn't say what you want it to say, and doesn't permit what you want it to permit. It's ironic that you accuse me of "twisting and turning every which way," when you are the one trying to suggest that the Constitution permits something it doesn't in fact permit.

          "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist." --Dom Helder Camara, archbishop of Recife

          by JamesGG on Mon Jan 09, 2012 at 02:28:58 PM PST

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        •  Also... (0+ / 0-)
          Recalling an individual senator in the middle of his term

          I've pointed this out to you before, and yet you persist in using gendered language that excludes 52% of Americans from Congress, and rhetorically erases 17 Senators and 76 US Representatives. Not every representative or Senator is described by the pronoun "he." Use more gender-inclusive language in the future.

          "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist." --Dom Helder Camara, archbishop of Recife

          by JamesGG on Mon Jan 09, 2012 at 02:33:23 PM PST

          [ Parent ]

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