I’d prefer a military coup, but the military culture is all wrong. Generals lack cult of personality.
Aren’t state powers qualified–made non-absolute–by the fact that there are areas in which federal power is supreme? Meaning state power is not plenary?
I don’t think there is a single entity with plenary power in the political makeup of the US, at least, not on the definition of “plenary” you offered.
Not only is federal law supreme, but also there are some areas where the states cannot go. Article 1, Section 10, of the Constitution lists many such matters, including treaties and coining money. So it’s hard to see the states’ sovereignty as plenary, unless you argue that it’s plenary within their areas of jurisdiction.
No power exercised by any enitity is literally without limit.
An often-used example is the power of the President to grant pardons. This power may be used without review, for the benefit of any person or class of persons. Once granted, a pardon may not be revoked, and since double jeopardy applies, the pardon essentially removes any chance of punishment for the crime.
The President’s pardon power is thus said to be plenary.
But even so, it is not literally without limits, even though the word does refer to limitless reach. The President cannot pardon impeachment, future crimes, or crimes not against the laws of the United States – a state conviction for armed robbery is out of his reach.
So the word “plenary” is properly used to describe state police powers, as a Google search will readily confirm, even though the literal application of “limitless” is not met.
And that’s exactly correct. The difference is that teh states start out with their areas being, “Everything,” and then lose what is ceded exclusively to the federal government, The federal government starts with, “Nothing,” and then gains only what the Constitution specifies its powers are.
In other words, for federal legislation, we must always answer, “What part of the Constitution gives Congress the authority to make this law?” When states legislate, the question is, “Has the state lost the ability to legislate in this particular area?”
I wouldn’t agree with that assessment for Canada. The Fathers of Confederation were putting our Confederation together during the US Civil War, when it was not at all clear that the US model was viable. They accordingly tried to develop a different model from the US system. There are several differences between the two systems:
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Canada is a constitutional monarchy, not a republic, with governments based on the principle of responsible government;
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the reserve power goes to the federal government, via the “peace, order and good government” power, rather than to the provinces - we don’t have an equivalent of the 10th Amendment;
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the legislative powers of the provinces are assigned (and thus limited) by the Constitution - whether you accept Bricker’s definition of plenary or not, I wouldn’t say that it describes the Canadian provinces. Canada has three lists of powers: one federal, one provincial, and one shared between the two levels of government. Later federations such as India and the Federal Republic of Germany have followed this model, rather than the US model of a single list of federal powers, and a reservation to the states of the rest.
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the federal government has a veto power over provincial laws, called the disallowance power. This power has not been used very much in recent years, but in the first 30 years or so of Confederation, the federal government used it quite liberally.
Australia, on the other hand, did follow the US model more closely, leading to the comment that Australia has a “Washminister” system of government.
I’m also not sure that your comment is an accurate description of the development of the German federal republic, which was heavily influenced by the legislative model of the German Empire. One notable feature of the German federation is that the roles of the fedearl and Lander governments is quite different from that in either the US or Canadian models. If the German federation, the federal government has the bulk of the legislative power, while the Lander have the bulk of the administrative power. They also have some legislative powers, of course, but part of their constitutional jurisdiction is to administer the federal laws. See Part VIII of the [Basic Law pdf].
Out of curiousity, when where these limits created? With the exception of impeachment, none of them exist in the Constitution. I assume it was by SCOTUS decisions. If you could point me in the right directions, I’d appreciate it.
“Crimes against the United States” also exist in the Constitution. Art II, Sec 2: “…and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
Future crimes: Ex Parte Garland, 71 U.S. 333 (1866), discusses the use of a pardon for offenses not yet committed; the pardon can come before even the indictment, but can’t be before the crime is committed, else the pardon power would become a power to dispense with the law entirely.
Did you leave Oklahoma without the intention to return permanently? If so, and if you have settled in another state, you are no longer a citizen of Oklahoma, but instead of your new state (give or take a few quirks).
Has anyone ever challenged the constitutionality of a mass pardon, like Jimmy Carter’s 1977 amnesty for draft-dodgers? Could a President, in theory, pardon everyone who was ever arrested for federal drug charges in one mass pardon?
Cases have examined ancillary issues like whether a pardon must be accepted to be valid (Burdick v. US) and whether it includes contempt of court (Ex Parte Grossman). So it’s no surprise that, yes, someone challenged Carter’s pardon effort.
In Daughtrey v. Carter, 584 F. 2d 1050 (DC Circuit 1978), we learn that “twelve retired military officers and enlisted men, one active duty military officer, one civilian former prisoner of war, the minor child of a prisoner of war who died in captivity, one civilian, wives of two of the military appellants, and two members of the United States House of Representatives” joined forces to contend that President Carter exceeded his pardon power with the blanket amnesty.
All of their claims were dismissed for lack of standing.
Yup.
I agree with the decision in that case. But based on the logic given, it seems almost impossible for anybody to ever argue that they have standing in a pardon issue (with the exception of somebody like George Burdick or Vuco Perovich who is the recipient of the pardon). How is somebody going to be able to claim that any pardon decision effects them enough to give them standing?
As far as I know, there is no such thing as standing regarding a pardon. A President’s power to pardon is absolute, and cannot be limited or overruled by a court.
It’s a Mafia, because once you’re in, there’s no getting out.
No. As Bricker explained earlier, there are a number of judicially enforceable limits (e.g. can’t be prospective, can only be for federal crimes, etc.). Thus, the question regarding standing is quite relevant, as the question is who could challenge a pardon that crosses one of those lines. Perhaps the victim of the crime?
I believe Australia, Canada, Mexico, Brazil, etc. might have issues with that description.
NP - allready addresed
Unless you’re Asian/Pacific or Hispanic, in which case they don’t care if you leave, because you were never going to be part of the family anyway.
I think any judge would deny such a claim. Pardons are part of the legal process - and a very fundamental one as it’s explicit in the Constitution.
Yes, I meant states.