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The question is: Whether the States should have access to immediately challenge the federal government’s enacting of laws and rules that fall outside the limited powers provided to the federal government by the States under the Constitution?

It appears that the federal government created by and empowered by the States has now trumped the collective States in matters of redress as redress pertains to the federal government’s enumerated powers.  For a State or States to challenge the federal government’s violation of its enumerated powers, it or they must go to the lowest federal court and get in line just as you or I might have to do.  The States created the federal government and empowered it in a limited way for the good of the collective states, yet States are routinely treated by Congress and the supreme Court (supreme is lower case as it is in the Constitution) as having the same status as an individual citizen.  Below is an excerpt from the Constitution and one from subsequent federal law.

Our United States Constitution, Article III Section 2, states: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction…”

What is original jurisdiction? “original jurisdiction n. the authority of a court to hold a trial, as distinguished from appellate jurisdiction to hear appeals from trial judgments.” (Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill.)

However, the United States Code (federal law) 28 USC § 1251 – Original jurisdiction;  states – see Cornell law:

(a)The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.

(b)The Supreme Court shall have original but not exclusive jurisdiction of: 

  1. All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
  2. All controversies between the United States and a State;
  3. All actions or proceedings by a State against the citizens of another State or against aliens.

Why should the States, as the founders of the federal government and having only relinquished some of their powers – providing limited powers to the progeny of the union of the states – be relegated to normal and customary standing in the court system, when matters between the States and the federal government generally deal with sweeping Constitutional  issues of an immediate nature?

The relegation of the States to second class status versus the Federal Government began in 1877, when the supreme Court ruled it did not have exclusive original jurisdiction over matters between the states and the federal government, but that inferior courts (known as tribunals in the Constitution) also had original jurisdiction.  Since the supreme Court has no Constitutional authority over inferior courts (tribunals), this decision should have been challenged at that time by Congress and the executive branch – it was left unchallenged.

Per the Constitution only Congress can establish and ordain inferior tribunals (courts).  At that time and through today, the supreme Court had and has no authority to establish or ordain inferior courts as having original jurisdiction.  Subsequently in the late 30’s and early 40’s Congress which ordains and establishes these inferior courts decided to put this into the U.S. Code.  Upon seeing this in the U.S. Code, the supreme Court created its rule 17 – original jurisdiction.  They then cited U.S. Code, which was based on a supreme Court ruling as the reasoning.  The country had now created a circular firing squad.

Now let’s talk about standing. 

Definition from Nolo’s Plain-English Law Dictionary: “The right to file a lawsuit or make a particular legal claim. Only a person or entity that has suffered actual injury has standing to seek redress in court. For example, an advocacy group may not file a lawsuit challenging the constitutionality of a statute on its own; there must be a plaintiff who has actually been harmed by the statute.”

While “standing” goes back to the Byzantine Empire and maybe prior, the use of standing in the United States has been defined by the supreme Court.

From the Cornell law website we find this excerpt (…At the Federal level, legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law…).  Here is another case where the States cannot immediately seek redress against an action that is perceived to be outside the limited powers.  Instead, the States have to standby waiting for the federal action to actually cause damage which may affect millions of citizens and billions of dollars,  In fact, legal actions taken because the federal government is outside of the limited powers need to be allowed before the federal government’s actions become interwoven with the fabric of the nation. It is an exigent circumstance that only the States can rectify in the Court.  

Essentially, what the federal government, including the supreme Court, has done is find ways to preempt the States and preempt their limited powers.  Should not the States as the founders of the federal government in a limited way, be given “super-standing” in all matters related to the powers of the federal government under the Constitution, as the grantor’s of that power?  There is precedent that Congress has modified “standing” under federal law in the past.

We need one law, one amendment to the U.S. Code, granting the states permanent and perennial original jurisdiction in the supreme Court.  This is as provided under the Constitution.  We need to prohibit inferior courts from hearing any case or action where a State or States challenge the limited and enumerated powers of the federal government.  On behalf of the States, we also need to eliminate the need for standing created by damages, by providing the States with super-standing in all such matters – meaning they can bring a challenge at any time after enactment on behalf of their citizens. In the case of the States, we can modify standing to be based upon upon enacted law or regulation.

The supreme Court might continue to rule that inferior courts also have original jurisdiction with the States, in violation of the Constitution, but the federal inferior courts will not be able to act, under federal law.  Remember that Congress establishes and ordains the inferior courts and the supreme Court does not.  Thus the supreme Court will be forced to hear such actions as they will be the only remaining court in the land with original jurisdiction on matters between the States and the federal government in matters of enumerated powers. 

Again the question is: Whether the States should have access to immediately challenge the federal government’s enacting of laws and rules that fall outside the limited powers provided to the federal government by the States under the Constitution?  I think yes!

 

 

 

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Tax the rich! The rich must pay their fair share! No more private jets! We keep hearing these refrains from our President and others on the left.  Is our debt problem caused by the rich?  Is our deficit problem caused by the rich?  Is our spending problem caused by the rich.  Recently, I happened upon an interview of a gentleman named Robert Frank.  He wrote a book call “Richistan”.

It seems that he took a pencil to paper to calculate the affect on our deficit and debt “taxing the rich”to solve our problem of spending would have.  His calculation is stunning and would suggest that our President and the left need to break out their calculators – their solution simply does not work. I have always believed that the left attended the voodoo school of economics and maybe I am correct.  Really, the far left progressives are not as much concerned about economics as they are about insuring that the few dictate to the many, how to live, how to work, and how to play – economics and facts just get in their way.

  • In the interview, Mr. Frank was asked “If we reverse the Bush tax cuts would that solve our problem.
  • His answer: this would yield $100B annually against our $1.65T annual deficit.

 

  • What if we taxed all those folks making $250,000 annually and up at a 100% tax rate – take all their earnings?
  • Answer: this would yield $900B annually, but would still leave us short of the $1.65T annual deficit.

 

  • What if we confiscated all the wealth of the Forbes list of wealthy Americans?
  • Answer: This would net $1.6T and would solve the deficit for only one year.  (deficit, under our spending ways is annual)

 

  • How about if we were to end that corporate jet depreciation?
  • Answer: This would yield a couple billion against a $1.65T deficit.

We owe more than $14 Trillion and add to that debt at the rate of $1.65 Trillion annually.  We are increasing our debt at nearly 12% per year.  When will the reckless spending end?  We need to end the spending before we have any hope of lowering our debt.  To lower our debt we need a surplus every year and not a $1.65T deficit.  In Washington they are wringing their hands over proposals that might yield $2Trillion over ten years.  They do the Irish Jig if they achieve a 1% cut from the spending growth rate.  These “great” plans will not solve our annual deficit.  More taxes will not solve our deficit.  Only sustained substantial spending cuts are the answer.

We, the federal government, should be taking from the economy – the taxpayers – just enough to provide the basic obligations of the federal government as found in the Constitution.

 

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