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A brief rant about the separation of powers - Phil's Rambling Rants
September 23rd, 2004
04:39 pm

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A brief rant about the separation of powers

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From:tigertoy
Date:September 24th, 2004 05:16 pm (UTC)
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Isn't the Stadium-formerly-known-as-Comiskey in the city limits?

I can't any anything more to the details of why the law in the Schiavo case was tossed out, but it was, and I do think everyone knew it would be.

In any case, the only reason I mentioned the Schiavo case at all was it happened to be in the headlines on the same day as the House vote on not allowing the courts to hear challenges to the Pledge. I could bring up other examples (the so-called partial birth abortion ban and the attempts to ban Internet porn come to mind), but the real point under discussion was legislators who pass laws they know damn well will be struck down, and whether boiling in oil is sufficient or they should be staked to a fire ant hill for a week beforehand. Hyperbole aside, there are times Congress needs to be cited for contempt of court for the laws they pass.
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From:billroper
Date:September 24th, 2004 09:02 pm (UTC)
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The new stadium is owned by the Illinois Stadium Authority, which is a government body, so they aren't subject to that law. See how simple it is? :)

As far as, for instance, the partial birth abortion ban, well, Congress went to substantial trouble to attempt to document in both the bill and its legislative history that this was a procedure that was never necessary in order to preserve the health of the mother, all in an attempt to persuade the Supreme Court that the law shouldn't be struck down. We will eventually find out whether or not they were successful.

The point that I'm making is that legislators don't generally pass laws with the expectation that the courts will strike them down, contrary to your impression. Sometimes, yes, but not generally. In fact, there was a strong expectation in many quarters that the Supreme Court would strike down the McCain-Feingold campaign finance reform bill based on the restrictions it places on free speech, particularly on political speech, which is one of the areas of free speech most deserving of protection.

As you may have noticed, they didn't strike it down. Surprise!
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From:tigertoy
Date:September 24th, 2004 10:27 pm (UTC)
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I never claimed that most legislation, or even a significant percentage of legislation, is knowingly unconstitutional; I just claimed that they do it far more often than I like or than I think they should be able to get a pass on. More than once in any given legislator's career is clearly too often -- doubly so when it's the same issue they've already been smacked down on once.

If we're going to get into a debate about the merits of McCain-Feingold, we need to start a new string. Maybe I'll write an entry about my thoughts on the subject one of these fine days.
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