The Constitutional Crisis Thread

[_EAllusion]

All of all of Trump's high level executive appointments that require Senate approval, Sessions is easily the worst one in my view and the one I've been long-shot hoping could be defeated. Given how close Sessions is to this specific issue, I think the odds of that at least went up a little. He'll be stalled more now at least.

The Indian Removal Act - so named because this was before politicians learned to name things like this the "Indian Prosperity Act" - was just a bill signed by Jackson that authorized negotiation of land exchanges with Native American tribes from areas within state borders to areas west of the Mississippi. There was nothing unconstitutional about it or acting under its authority. The Cherokee leadership agreed to a land exchange off their native lands while under the duress of repeated incursions by American settlers and in living memory of other aboriginal tribes being smashed by advancing Europeans. When a very large % of the Cherokee populace refused to abide the agreement, they were force marched out in what we call the Trail of Tears.

Res Ipsa clearly has studied the rulings surrounding the Jackson adminstration's relationship to the Cherokee, and I will have to go back and read a book on it when I have time to get my bearings. My understanding is the Supreme Court ruled that Georgia lacked the authority to stop settlers from intruding on Cherokee lands and held it withing the federal power. While Jackson had the treaty authority to act, he refused on account of fearing civil war and lack of respect for Indians. This created the conditions in which the Cherokee leadership were pressured out - by Jackson. Res Ispa is conviced I'm mistaken, and I'm back to the drawing board on that one. What I can say is I think my understanding is or at least was recently commonly taught in quality education. I don't think he's disputing that, though. History class is sometimes wrong.

[_moksha]

EA, shall we search posts to see what your position was when Obama acted contrary to his oath of office?

I know how the Deseret News and the Utah Congressional Delegation reacted when President Obama used an Executive Order to create a federal monument out of federal wilderness land, thereby thwarting the Utah desire to possess the land for private sales. They were outraged and demanded his head.

[_EAllusion]

Trump just fired Yates. On the one hand, you were expecting it, but on the other her position is tasked with some vital government functions that either now can't be done or probably just became a lot more complicated until a lackey replacement is found. And Democrats should be fighting Sessions with every tool in their box for as long as they can.

If you were a terrorist bent on attacking the United States, now probably would be a good time. The AG office is empty, America is a powder-keg, and the current admin is an organizational mess. Islamophobic actions in America are the best possible recruiting tool for jihadi terrorists and an attack right now would probably produce a counter-punch of intense Islamophobia.

So, let's hope the peace is kept.

Ok. The lackey replacement was found.

[_Gunnar]

Is there any chance left at all that Jeff Sessions will be rejected by the Senate?

[_EAllusion]

Is there any chance left at all that Jeff Sessions will be rejected by the Senate?

It's very remote. Trump sure didn't help his cause, but defeating the Sessions appointment was a loooong-shot hope to start. All Democrats would have to hold firm and they'd have to pick off 3 Republicans when only Collins looks like she might crack. I wouldn't bet on it.

Manchin is in a vice. He's a Democrat in WV, land of white identity politics where Trump is crazy-popular. He already indicated he would vote yes. If he does, he's going to get primaried hard. Democrat activists are keeping a list on this one and any Democrat who votes for Sessions just made their life a lot harder. If he reverts, it's another moment that will make his tough reelection bid even tougher. The correct calculus is that the odds of harm from the former exceed the later when it comes to this vote, but who knows what political advice he is getting.

[_Res Ipsa]

The Indian Removal Act - so named because this was before politicians learned to name things like this the "Indian Prosperity Act" - was just a bill signed by Jackson that authorized negotiation of land exchanges with Native American tribes from areas within state borders to areas west of the Mississippi. There was nothing unconstitutional about it or acting under its authority. The Cherokee leadership agreed to a land exchange off their native lands while under the duress of repeated incursions by American settlers and in living memory of other aboriginal tribes being smashed by advancing Europeans. When a very large % of the Cherokee populace refused to abide the agreement, they were force marched out in what we call the Trail of Tears.

Res Ipsa clearly has studied the rulings surrounding the Jackson adminstration's relationship to the Cherokee, and I will have to go back and read a book on it when I have time to get my bearings. My understanding is the Supreme Court ruled that Georgia lacked the authority to stop settlers from intruding on Cherokee lands and held it withing the federal power. While Jackson had the treaty authority to act, he refused on account of fearing civil war and lack of respect for Indians. This created the conditions in which the Cherokee leadership were pressured out - by Jackson. Res Ispa is conviced I'm mistaken, and I'm back to the drawing board on that one. What I can say is I think my understanding is or at least was recently commonly taught in quality education. I don't think he's disputing that, though. History class is sometimes wrong.

Indian law was one of the most interesting classes I took in law school. I came very close to specializing in it.

I'm really arguing for some precision about what the court actually did in Worcester v. Georgia. I think all of the context you've talked about is correct. And I suspect you're spot on about Jackson's motivations. And you're certainly right about Jackson's attitude toward and treatment of the Cherokee and other tribes.

If you're not used to sifting through court opinions to identify the holding of a case, opinions, especially from the 1800s and earlier can be confusing. The holding is important because it forms the precedent that, theoretically anyway, is binding I future cases. But the reasoning used to get to the holding isn't always binding. There are very good reasons for that. In this Worcester, the parties were the imprisoned missionaries and the State of Georgia. Neither the federal government nor Jackson were parties. That means that the court had no jurisdiction to order Jackson to do anything. It also means that the federal government didn't present argument (unless it filed an amicus brief) as to the extent of it's duties towards the tribe. For that reason, what the opinion says about the relationship between the federal government and the tribe as part of its reasoning isn't really binding on the federal government.

With that in mind, the issue before the court was whether the state of Georgia had the power to pass a law that required missionaries to get a license from the state before living on Cherokee land. To answer that question, the court had to decide what kind of entities the tribes were. It looks at how the tribes were legally treated before the revolution through the then present. It discussed language in the various treaties, including language that placed various duties on the U.S. Government toward the tribes. But the purpose of that language wasn't to order the federal government to do anything -- it was to help figure out the legal status of tribes. I suspect that the notion of Jackson ignoring the court's order came from lifting language from the opinion without understanding the context. That's not unusual -- happens all the time.

The Supreme Court doesn't usually issue orders in an opinion. It upholds or revers actions of the lower courts. I'd be surprised if there were an order, but if there were, the order would be addressed to Georgia and it would say "release the prisoners." And the only enforcement Jackson could do was to send some muscle down to the prison and break the prisoners out. That's why I keep pushing back on this notion that Jackson's failure to take action to take action against settlers was a violation of anything in the Worcester case.

Worcester is a landmark case in Indian law because it developed the notion that the tribes were sovereigns that the states could not interfere with. That reasoning that I talked about was picked up and used in later cases. So I don't want to give the impression that it wasn't an important case.

I haven't read any treaty language since law school, but I believe that the a United States did have a treaty obligation to defend the Cherokee lands from incursions by settlers. But how do those obligations get enforced? Constitutionally, I don't think Jackson could have constitutionally sent the army down to take U.S. Citizens prisoner and forcibly locate them without a trial. The tribe certainly could have sued the settlers in federal court to have them removed. I suspect they would have won. Then the federal court would have been in s position to try and enforce the order. Jackson also could have ordered federal prosecutors to sue infringing Georgians. But he was under no order to do so. Perhaps the tribe could have sued for a writ of mandamus to force Jackson to take action to remove the settlers. All of those courses of action could have potentially placed Jackson in the position of ignoring a court order, but none of them came about.

[_Jersey Girl]

I wasn't sure where to put this comment, so lobbing it on here. I just got done watching a lengthy press briefing by Sean Spicer. In it, he says (paraphrasing here) the executive order regarding travel/immigration was vetted through the DOJ, so the reason Yates was dismissed was because her dept. had full awareness of the executive order, signed off on it, and then she claimed she couldn't support it because she wasn't sure if it was constitutionally sound.

He said that the executive order was fully vetted through DHS, NSC and DOJ prior to signing/implementation.

[_Chap]

I wasn't sure where to put this comment, so lobbing it on here. I just got done watching a lengthy press briefing by Sean Spicer. In it, he says (paraphrasing here) the executive order regarding travel/immigration was vetted through the DOJ, so the reason Yates was dismissed was because her dept. had full awareness of the executive order, signed off on it, and then she claimed she couldn't support it because she wasn't sure if it was constitutionally sound.

He said that the executive order was fully vetted through DHS, NSC and DOJ prior to signing/implementation.

I'd say, given the record of Spicer and the people he works for, that this claim may require independent confirmation before one considers accepting it as true.

[_Jersey Girl]

I'd say, given the record of Spicer and the people he works for, that this claim may require independent confirmation before one considers accepting it as true.

How do you do that?

[_Res Ipsa]

I wasn't sure where to put this comment, so lobbing it on here. I just got done watching a lengthy press briefing by Sean Spicer. In it, he says (paraphrasing here) the executive order regarding travel/immigration was vetted through the DOJ, so the reason Yates was dismissed was because her dept. had full awareness of the executive order, signed off on it, and then she claimed she couldn't support it because she wasn't sure if it was constitutionally sound.

He said that the executive order was fully vetted through DHS, NSC and DOJ prior to signing/implementation.

Did he explain exactly what he means by "fully vetted?" Did he say who signed off on it in each of those departments?

This document was thrown together in a matter of days. Vetting this from a legal and constitutional standpoint would have taken considerable research and analysis. Color me skeptical.

I mean, should we review all the flat out lies we've had to sor through in the last couple weeks?

I'd say, given the record of Spicer and the people he works for, that this claim may require independent confirmation before one considers accepting it as true.

How do you do that?

Find out who did the vetting and what that consisted of. I mean, these are the guys that say two years of vetting is no vetting. How much time did anyone have to vet this executive order?