The Budget - is it unconstitutional?

[draggar]

While doing some research for The Wolf Army I was looking into the actual rider that Senators Jon Tester and Mike Simpson added in. I found a copy of the bill here:

http://rules.house.gov/Media/file/PD...AL2011_xml.pdf

If you scroll all the way down to page 290 sec 1713 you will see where the two above mentioned senators added in the "rider":

13 SEC. 1713. Before the end of the 60-day period be14
ginning on the date of enactment of this Act, the Secretary
15 of the Interior shall reissue the final rule published on
16 April 2, 2009 (74 Fed. Reg. 15123 et seq.) without regard
17 to any other provision of statute or regulation that applies
18 to issuance of such rule. Such reissuance (including this
19 section) shall not be subject to judicial review and shall
20 not abrogate or otherwise have any effect on the order and
21 judgment issued by the United States District Court for
22 the District of Wyoming in Case Numbers 09–CV–118J
23 and 09–CV–138J on November 18, 2010.

Take a look at the bolded part - it clearly and openly states that the courts cannot challenge this law.

Doesn't that throw off the "balance of power" especially since the judicial system (courts) primary function is to rule over all laws as stated by the constitution (and not just the laws congress deems OK)?

Without the line item veto (killed late into Clinton's presidential career or early into Bush's) the president had to approve the budget as is. This also means that while this one part of the bill can be challenged, if it is ruled unconstitutional then the entire budget bill has to be thrown out - this shutting down the government and since our congress passed the extremely selfish bill that THEY will get paid but people who need it the most, people on benefits and our military, won't get paid.

[HYHYBT]

It's sneaky, but I think (don't have time to look it up now) that Congress does have the power to do this. And if so, the surprising thing is that they don't put it into everything they pass.

That doesn't mean that challenging this one part would get the whole budget thrown out; the courts aren't limited by the lack of a line item veto. There might, though, be language elsewhere covering that, as there is in New York's recent marriage law.

[Tanasi]

Harry Reid had something similar put in the senate's version of the Obamacare bill. I don't know if it made it through committee or not.
I'd say there's most instances of stuff like this than we know of.

[Andara Bledin]

What we really need is a law that prevents unrelated articles being attached to bills.

You've got a bill for health care? No trying to pass some hinky crap involving mutual funds in there.

You've got a bill for traffic safety? No sticking crap about healthcare in there.

And so on. Enough with the bullshit.

^-.-^

[draggar]

I agree, Andara. It's BS like this thrown into bills that screws anything up. Then, they make the bill thousands of pages long so most people won't even question it so riders like this are easily able to sneak in.

[HYHYBT]

That would only work with cooperation, though, even if it were passed. "Related" is too vague, and for large, complex bills like the health care one (even moreso, of course, for something like the budget, if they ever get around to having one of those again) there is so much that really is related that you can *make* other things relate if need be.

[draggar]

True but maybe if the bill was made so that parts of a bill could be challenged by the people for being irrelevant - and have the courts rule on it. I can see how the line item veto was considered constitutional but if it could be initiated by the people as being irrelevant?

[Panacea]

OK, let's slow down here a bit.

The citation in question does not affect the entire budget. It affects the issuance of a single regulation by the Department of the Interior ONLY, and simply says the courts can't review that regulation prior to its being implemented. It has nothing to do with the budget as a whole. This provision is fairly routine in regulatory matters; it keeps each and every regulation from being dragged into courts by people who don't like the regulation.

Just FYI: The Line Item Veto Act was ruled unconstitutional by the Supreme Court. It violates the Presentment Clause. To get a line item veto, we need a constitutional amendment. That's a long and difficult process, not likely to happen in today's ultra partisan political climate (though I agree it would be great to have one).

Also, a small part of ANY bill can be thrown out as unconstitutional by the courts (this happens ALL the time), but it does not necessarily affect an entire bill or law.

That's happening with the Patient Protection and Affordable Care Act right now (otherwise known as Obamacare). Several senior level courts have ruled the law Constitutional. Others have ruled parts of it unconstitutional. Only one has ruled that the whole law must be thrown out because of one bad provision. The matter will probably be heard by the Supreme Court this term. They can a) decline to hear the case (they probably will hear it though), b) rule the whole thing constitutional, which would end debate on the matter, c) rule the whole thing unconstitutional, in which case back to the drawing board, or d) rule parts of it unconstitutional, which means those provisions would be gone while the rest would remain law.

D is the mostly likely result of a Supreme Court challenge. The mandate to buy health insurance is actually not all that revolutionary, and there is precedent for it. But this is a very conservative Court, and so it's hard to know what exactly they'll do. This Court has made some pretty bone headed decisions lately (like deciding that corporations are people and should get individual rights along with the corporate rights not afforded to private citizens, and that it is OK for governments to seize private property to sell to developers), so it is kinda hard to tell what they will do.

[draggar]

Panacea - do you have law experience / education in the USA?

[Panacea]

Panacea - do you have law experience / education in the USA?

I do legal nurse consulting on the side . . . and I've got a Master's degree in US History as well as my Masters in Nursing

[draggar]

Would you want to look over the petition before I send it out? I have some attorneys who do work for The Wolf Army looking over it now - if you want you can take a look after. It won't be until after Oct 27th (there is another petition fighting this but it is about the wolves and the need for scientific research).

[Panacea]

I wouldn't mind looking at it, though I'm not sure what I'd be looking for exactly. What's the petition about? If you've already got lawyers looking at it, I'm not sure what I could add.

But I would be happy to do so

[draggar]

An additional pair of eyes is never a bad idea, especially from a new perspective. I'll send it to you in a PM when I get it back if there are any recommendations.

[draggar]

I've started a petition over this, please sign and share it. It needs 25,000 signatures in 30 days.

https://wwws.whitehouse.gov/petition...ional/ZsSh2NDM

[Panacea]

I signed it. I don't think they can do what they're trying to do.