2nd Term Part X - A link to a fore gone conclusion

[Rover]

Re: 2nd Term Part X - A link to a fore gone conclusion

My first question Bob is "who's paying the guy"? If its nobody, okay I can respect that. If he's signed on as an industry consultant, that might explain the hyperbole.

Reminds me of the Clinton era. Accusations were always coming fast and furious when there was a pending book deal waiting from a right wing media house. Funny how the accusations dried up immediately after it was discovered there was no actual money to be had from said book deals. So, not questioning Tribe's motives yet, but making sure there's no reason to start....

 

[Kepler]

Re: 2nd Term Part X - A link to a fore gone conclusion

My first question Bob is "who's paying the guy"? If its nobody, okay I can respect that. If he's signed on as an industry consultant, that might explain the hyperbole.

He received an "undisclosed sum" from Peabody Energy.

Now, it's fair to say that Tribe may well have made the same argument without the payment.

 

[Bob Gray]

Re: 2nd Term Part X - A link to a fore gone conclusion

How so? You have no idea of my stance on the original issue.

People tend to avoid uncomfortable issues, so your posts to this point, being totally unresponsive to what I posted, make me suspicious. But, hey, I could be wrong and you could be a coal mining industry shill.

 

[Bob Gray]

Re: 2nd Term Part X - A link to a fore gone conclusion

He received an "undisclosed sum" from Peabody Energy.

Now, it's fair to say that Tribe may well have made the same argument without the payment.

At this point in time, I don't think Tribe would flip against his well-known advocacy for environmental causes for a few bucks. It's not like the guy is destitute or something. I don't always agree with him, but he's always struck me as someone who says what he believes.

 

[Kepler]

Re: 2nd Term Part X - A link to a fore gone conclusion

At this point in time, I don't think Tribe would flip against his well-known advocacy for environmental causes for a few bucks.

The odd thing is, that article says he's actually been an advocate for Peabody for years and in other fights. His argument, taken at face value, is that while he's pro-environment he's got procedural complaints with how the EPA levies requirements against the states. The Fifth Amendment argument seems pretty straightforward -- a regulation is a taking without compensation. My reply would be that either completely negates all federal regulation of the private sector or it's wrong, and my money's on the latter. The Tenth Amendment argument is more complicated and I'll defer to somebody who knows the law (UNO maybe?) to 'splain it.

 

[Kepler]

Re: 2nd Term Part X - A link to a fore gone conclusion

People tend to avoid uncomfortable issues, so your posts to this point, being totally unresponsive to what I posted, make me suspicious. But, hey, I could be wrong and you could be a coal mining industry shill.

Curses! You have seen through my carefully-constructed disguise.

I didn't start out to deliberately ignore the EPA issue, I had other fish to fry (I was tweaking you or no reason because right now I am very, very bored). I'm going to go out on a limb and guess that you know from my 32,465 prior posts that subtle misdirection is not my rhetorical style. I'm more a global thermonuclear war man, myself.

I've address the EPA issue below.

 

[FlagDUDE08]

Re: 2nd Term Part X - A link to a fore gone conclusion

The odd thing is, that article says he's actually been an advocate for Peabody for years and in other fights. His argument, taken at face value, is that while he's pro-environment he's got procedural complaints with how the EPA levies requirements against the states. The Fifth Amendment argument seems pretty straightforward -- a regulation is a taking without compensation. My reply would be that either completely negates all federal regulation of the private sector or it's wrong, and my money's on the latter. The Tenth Amendment argument is more complicated and I'll defer to somebody who knows the law (UNO maybe?) to 'splain it.

The feds have been using very loose complements in order to try to circumvent the tenth amendment for years. For example, they justify the drinking age circumvention based upon postal roads.

 

[Kepler]

Re: 2nd Term Part X - A link to a fore gone conclusion

The feds have been using very loose complements in order to try to circumvent the tenth amendment for years. For example, they justify the drinking age circumvention based upon postal roads.

The thing is, the Tenth Amendment adds nothing to the constitution regarding federal powers, so you can't "circumvent" it. The entire underlying principle of the constitution is that the federal government has only those powers positively stated in the constitution either explicitly or implicit in the necessary and proper clause:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional. -- McCulloch v. Maryland

What the Tenth does do is reserve powers actively to the states unless they conflict with federal powers. Again, though, I'd have thought that was implicit in the federal system; hence, the Tenth Amendment doesn't appear to have any real purpose except to reiterate facts which are otherwise apparent.

If I were a Fed Hater, I'd be hanging my hate, er, hat on the Ninth, not the Tenth.

 

[FlagDUDE08]

Re: 2nd Term Part X - A link to a fore gone conclusion

The thing is, the Tenth Amendment adds nothing to the constitution regarding federal powers, so you can't "circumvent" it. The entire underlying principle of the constitution is that the federal government has only those powers positively stated in the constitution either explicitly or implicit in the necessary and proper clause:



What the Tenth does do is reserve powers actively to the states unless they conflict with federal powers. Again, though, I'd have thought that was implicit in the federal system; hence, the Tenth Amendment doesn't appear to have any real purpose except to reiterate facts which are otherwise apparent.

If I were a Fed Hater, I'd be hanging my hate, er, hat on the Ninth, not the Tenth.

Actually, you CAN circumvent it by trying to justify that something which truly should be a state power is somehow a federal power because it's associated with a federal power in the smallest degree. It's called a loophole; I'm sure you've heard of it; people have revolved their lives around it for the last 40 years or so.

I'm not worried about the 9th amendment, as that's used to guarantee that you have the rights expressed in the Bill of Rights, and another person's claim to rights cannot trump your already established claim of rights.

 

[Kepler]

Re: 2nd Term Part X - A link to a fore gone conclusion

Actually, you CAN circumvent it by trying to justify that something which truly should be a state power is somehow a federal power because it's associated with a federal power in the smallest degree. It's called a loophole; I'm sure you've heard of it; people have revolved their lives around it for the last 40 years or so.

The federal/state boundary line is THE ongoing fight in Con Law. It drifts back and forth over time -- the Feds advanced for a time in the 20th century; the states have been recapturing territory since the 80s. This reflects the politics of the justices, with conservatives overall favoring states' rights and liberals favoring federal powers. If the Dems continue to win the White House the states' advance will eventually be checked and even reversed.

Marshall's statement of "means which are appropriate, which are plainly adapted to that end" is by definition open to interpretation, and the ultimate interpreters are the people, via the twice-removed mechanism of electing presidents who appoint justices.

 

[FlagDUDE08]

Re: 2nd Term Part X - A link to a fore gone conclusion

The federal/state boundary line is THE ongoing fight in Con Law. It drifts back and forth over time -- the Feds advanced for a time in the 20th century; the states have been recapturing territory since the 80s. This reflects the politics of the justices, with conservatives overall favoring states' rights and liberals favoring federal powers. If the Dems continue to win the White House the states' advance will eventually be checked and even reversed.

Marshall's statement of "means which are appropriate, which are plainly adapted to that end" is by definition open to interpretation, and the ultimate interpreters are the people, via the twice-removed mechanism of electing presidents who appoint justices.

Recapturing since the 80's my butt. That's when the alcohol stuff went into effect (at least in this state, which was one of the last to be subjected to that unconstitutional harassment).

And I hope you're not trying to use the NMSL as justification, because that was just a straight repeal.

 

[Kepler]

Re: 2nd Term Part X - A link to a fore gone conclusion

Recapturing since the 80's my butt.

You don't think the states have been re-encroaching on the feds' 20th century gains? There are serious people who now openly talk about a return to Lockner. In the 60s and 70s those people would have been institutionalized for their own good.

 

[Rover]

Re: 2nd Term Part X - A link to a fore gone conclusion

You don't think the states have been re-encroaching on the feds' 20th century gains? There are serious people who now openly talk about a return to Lockner. In the 60s and 70s those people would have been institutionalized for their own good.

I personally don't think so. Gay marriage will be the latest, and there's been little going back. In regards to the EPA lawsuit, even the Roberts court has generally upheld the rights of the EPA to draft and impose new regulations. One would think the car industry for example would have sued years ago over fuel efficiency standards otherwise.

 

[Kepler]

Re: 2nd Term Part X - A link to a fore gone conclusion

I personally don't think so. Gay marriage will be the latest, and there's been little going back.

Pro-choice lawyers would argue with you. The last 30 years have been whittling away of reproductive rights in the face of ever growing herpa-derp state power.

Maybe it is better to say that in different avenues the traffic has been moving in different directions than to characterize it as a tide which pulls all coves up or down. Other than choice I think you're right that on social issues the good guys are on a long winning streak, as one would expect when the country as a whole has been growing up. On pro-choice this hangs on the genuine issue of whether a life is involved, while there is nothing but crude rationalization of bigotry in the rearguard sniping against, say, segregation, miscegenation, equal rights for women, or gay marriage.

But in economics I'd say it's pretty undeniable that the highwater mark for federal power has long since passed. Nixon imposed price and wage controls, ferchrissakes.

 

[Rover]

Re: 2nd Term Part X - A link to a fore gone conclusion

Sure, I'd agree on economics with the BIG caveat that the gubmint basically took over the financial, mortgage, and auto industries for a time and dictated how those business were to be run. Lets call that the big F'in crisis exemption.

Abortion rights are going to come to a head with a very interesting case before the court, which is can states ban medicine-induced abortions? If they can't (and the thinking is they can't so long as all applicable waiting periods, age requirements, etc are satisfied) all this nonsense about closing clinics becomes moot.

 

[Kepler]

Re: 2nd Term Part X - A link to a fore gone conclusion

Abortion rights are going to come to a head with a very interesting case before the court, which is can states ban medicine-induced abortions? If they can't (and the thinking is they can't so long as all applicable waiting periods, age requirements, etc are satisfied) all this nonsense about closing clinics becomes moot.

I think the abortion battle will be with us for as long as there is no 100% perfect male contraceptive. Prior to that, the science doesn't matter -- this is a purely religious battle, and religions don't give up regardless of fact (c.f., evolution). Once there is a 100% male contraceptive, abortion disappears except as a vanishingly rare medical procedure after a rape.

 

[Bob Gray]

Re: 2nd Term Part X - A link to a fore gone conclusion

Recapturing since the 80's my butt. That's when the alcohol stuff went into effect (at least in this state, which was one of the last to be subjected to that unconstitutional harassment).

And I hope you're not trying to use the NMSL as justification, because that was just a straight repeal.

Agreed. The states have been on a long losing run, with an occasional outlier. The feds have more and more power and I don't see that ending anytime soon.

 

[Kepler]

Re: 2nd Term Part X - A link to a fore gone conclusion

Agreed. The states have been on a long losing run, with an occasional outlier. The feds have more and more power and I don't see that ending anytime soon.

But the growth of fed power isn't the same as the encroachment of fed over what was formerly state power. A lot of fed growth just reflects the country's growing interconnectedness. Interstate commerce wasn't all that common in the 18th century. Now it's nearly unavoidable. Likewise, lots of government functions benefit from economy of scale -- things like social security would be ridiculously complex and inefficient if there were 50 individual systems. Little by little we're learning the same is true with health care.

You're fighting technology and demographics, not mission creep. If, for example, the US went through a period of population contraction and/or globalization began to reverse and economies became more local, we'd expect to see federal power diminish. That's just fluctuation of the amount of activity within scope, rather than an actual change of scope.

 

[unofan]

The thing is, the Tenth Amendment adds nothing to the constitution regarding federal powers, so you can't "circumvent" it. The entire underlying principle of the constitution is that the federal government has only those powers positively stated in the constitution either explicitly or implicit in the necessary and proper clause:



What the Tenth does do is reserve powers actively to the states unless they conflict with federal powers. Again, though, I'd have thought that was implicit in the federal system; hence, the Tenth Amendment doesn't appear to have any real purpose except to reiterate facts which are otherwise apparent.

If I were a Fed Hater, I'd be hanging my hate, er, hat on the Ninth, not the Tenth.

For the record, the drinking age is enforced through the spending clause. Congress tells the states to set their drinking age at 21 or they'll lose all sorts of federal transportation funds. The postal roads clause has nothing to do with it.

 

[FlagDUDE08]

Re: 2nd Term Part X - A link to a fore gone conclusion

You don't think the states have been re-encroaching on the feds' 20th century gains? There are serious people who now openly talk about a return to Lockner. In the 60s and 70s those people would have been institutionalized for their own good.

I'd love to see your examples on state gains, because there sure as heck haven't been too many that I've seen. And don't count any that are state in name only, and were done under threat of cutting federal funding (which is what happens with alcohol laws).