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Executive Orders

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Can an executive order overrule an ammendment/law?

This is a two-part question. First, can executive orders overrule laws? Strictly speaking, no. But, in practice, sometimes. Executive orders are basically the president ordering his underlings (namely, most offices and agencies of the government) to do or not do something. Often, EO's establish rules where Congress has not made any decision one way or the other (e.g. the EO's which prohibit the CIA from engaging in political assassinations) or to further the intent of a law Congress passed by clarifying its scope/definitions/etc. Occasionally, Congress will write into a law that the president, often when he makes certain findings of fact, can alter, activate, or nullify part of the law by EO. Also, the president can set the priorities and agendas of the government agencies to effectively ignore laws (e.g. law prohibits openly gay americans from being in the military, but the president (if he wanted to "repeal" that law and the Don't Ask Don't Tell policy) could order the military police and legal system to not bring any charges for violating that law). So while EO's may not directly oppose laws, they can be used to effectively modify or nullify a law in some situations.

 

Can EO's overrule amendments (I assume you mean Constitutional amendments)? Again, technically no, but sometimes yes in practice. All acts of the government (laws, policies, orders, etc.) are supposed to be subservient to the Constitution. The Constitution sets out limited powers for the federal government and many of the Amendments create "negative rights" (things the government cannot do to you). So, EO's may not, legally, violate or directly oppose any part of the Constitution. However, the Constitution is not self-enforcing, it is up to the courts to hold the Congress and president to the requirements of the Constitution. However, the Courts have no police force and no army. Their rulings only have effect because the other branches generally obey. But they have no real power to force the president to stop enforcing an illegal EO if he doesn't want to.

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I think you are right the way that i understand it is that under the 14th ammendment congress could overrule the hyde ammendment due to the fact that it deprives pregnant women who are opting for an abortion medicaid am I right in how I understand this?

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As it relates to debate fiat solves any procedural issue. Status Quo policies don't matter. You fiat that it happens and that’s it. We debate a world where it should happen. Not could or would or can or can't but should. If in a debate someone fiats an executive action that would be illegal you can run a disad about something or a critique about how the president should not violate the law but fiat means you don't get to argue he can't because the other team fiats that he did. Now you argue the world of what that looks like; was that good or bad and why.

Congress can make a new law overturning an old one. Prohibition is a good example.

Technically the Supreme Court is supposed to interpret and adjudicate the laws. The Supreme Court does not make the law ever. The Supreme Court never makes an amendment to the constitution or a bill or anything of the sort. They interpret and apply laws that congress or states make. In situations where those laws conflict they interpret how those conflicts need to be resolved.

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Is there someone/body that can overrule an ammendment/law (i.e. the hyde ammendment) besides the Supreme Court?

Oh sure. It's important to note that the Hyde Amendment is just a law, not part of the Constitution. It is popularly called "Amendment" because it was added to a bill in Congress as an amendment. But it is just a law like any other Congress passes. Congress can repeal it with a new law and the President may try to ignore it or not enforce it.

 

Prohibition is not a good example because the 18th and 21st Amendments were Constitutional amendments, not mere laws (the 18th was ratified by the states, even though Congress proposed it, and the 21st was ratified by conventions in the states after Congress proposed it). Just as individual congressmen can propose laws (but that does nothing to guarantee passage), Congress can only propose Constitutional amendments. It has zero power to make them effective; that's up to the states.

Edited by Fox On Socks
clarification

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wait so could congress be like we are going to make a new law that repeals the hyde ammendment?

 

and if so how would that apply to writing a CP?

Like what would the text be?

 

Congress should make a new law that repeals the Hyde ammendment (law)?

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wait so could congress be like we are going to make a new law that repeals the hyde amendment?
Yep. It's that simple.

 

and if so how would that apply to writing a CP?

Like what would the text be?

 

Congress should make a new law that repeals the Hyde ammendment (law)?

Something like that, although (since the lawmaking process requires presidential input as well) you should either broaden it ("The U.S. Federal Government will repeal the Hyde Amendment") or specify how it will pass (if you don't mind a theory argument on whether you can specify that, e.g. "Congress will pass and the President will sign an act repealing the Hyde Amendment" or "Congress will pass, the President will veto, and Congress will override the veto on an act repealing the Hyde Amendment", etc...).

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…the 21st was ratified by the states after a convention process, bypassing Congress completely).

Got this off wiki but I'm pretty sure it's right.

"Congress formally proposed the Twenty-first Amendment, the repeal of Prohibition, on February 20, 1933, (with the requisite two-thirds having voted in favor in each house; 63 to 21 in the Senate and 289 to 121 in the House)"

In my opinion the fact that the states ratified it does not make

Congress can make a new law overturning an old one.
any less true.

The 18th amendment put a lot of people in jail for something that some would say was an amendment and therefore not a law. Many people would consider it a law. I also got this off wiki:

"Considered a very unpopular law, the amendment was subsequently repealed by the Twenty-First Amendment on December 5, 1933. It remains the only constitutional amendment to be repealed in its entirety."

For high school debate I believe it is an excellent example of congress overturning a law because it is well known.

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Got this off wiki but I'm pretty sure it's right.

 

"Congress formally proposed the Twenty-first Amendment, the repeal of Prohibition, on February 20, 1933, (with the requisite two-thirds having voted in favor in each house; 63 to 21 in the Senate and 289 to 121 in the House)"

Sorry, I messed up the history a bit, it's been a while since I studied this (though citing to a Wiki is generally not a good idea). Congress did propose the 21st Amendment, but (unlike the other 26 Amendments), the 21st was then ratified by conventions in the states, not the legislatures.

 

The 18th amendment put a lot of people in jail for something that some would say was an amendment and therefore not a law. Many people would consider it a law. I also got this off wiki:

 

"Considered a very unpopular law, the amendment was subsequently repealed by the Twenty-First Amendment on December 5, 1933. It remains the only constitutional amendment to be repealed in its entirety."

 

For high school debate I believe it is an excellent example of congress overturning a law because it is well known.

There are two different ideas you're talking about at once here. First, the 18th Amendment was law (the Constitution is the highest law of the United States), but it was not a law in the sense of acts of Congress that are then given to the president for his signature or veto. The Constitution trumps the individual laws that are passed under its auspices (Article I).

 

While Congress can do whatever it wants with acts it's already passed, constitutional amendments aren't passed by Congress. They can be proposed by Congress (2/3 of each house concurring), but then it is up to the states to ratify/pass the amendment (needs 3/4 of the states). So Congress could propose that 27th Amendment be repealed, but that proposal has zero legal effect unless ratified by 3/4 of the states. Congress can, by itself, change/alter/abolish previous acts of Congress (laws), even with the President joining, Congress cannot change, alter, or abolish even a single comma of the Constitution.

 

Second, The 18th Amendment did not put anyone in jail. The 18th Amendment permitted Congress to make legislation that punished merchants and distributors of alcoholic beverages, the most well-known of which was the Volstead Act. It was the Volstead Act that put people in jail, not the 18th Amendment.

 

Edit: examples of how Congress can't change the Constitution, six amendments have been proposed by Congress but not ratified by the states. Some of them are still active... http://www.law.emory.edu/law-library/research/ready-reference/us-federal-law-and-documents/historical-documents-constitution-of-the-united-states/amendments-never-ratified.html

 

I'm not certain but I think Congress can under something called "Morgan Powers"
That's not what the Morgan power is. Under Katzenbach v. Morgan, 384 U.S. 641 (1966), Congress can pass laws to further the "the letter and spirit of the Constitution" even if the Constitution doesn't require it. The Constitution creates a floor below which the government cannot go, but Congress can raise that floor to give citizens even more protection than the Constitution requires.

 

In Morgan, the Court (despite have held earlier that the 14th Amendment did not prohibit the states from requiring English tests to vote) decided that Congress could, by law, prohibit the states from requiring English tests under Congress' power to enforce the 14th Amendment's purposes.

 

I think you are right the way that i understand it is that under the 14th ammendment congress could overrule the hyde ammendment due to the fact that it deprives pregnant women who are opting for an abortion medicaid am I right in how I understand this?

First, it's "amendment", only two M's. Second, since the Hyde Amendment is a Congressional law, not part of the Constitution, Morgan doesn't come into play.

 

It's also important to clarify what Hyde Amendment you're talking about. There are at least two. One (Act Nov. 26, 1997, P.L. 105-119, Title VI, § 617, 111 Stat. 2519) allows criminal defendants to recover their attorney's fees from the government when the government engages in "vexatious" or "bad faith" prosecutions. Another, originally passed in the 70's (most recent version is from 1997 at 105 P.L. 78; 111 Stat. 1467) prohibits federal funds from being used for abortions.

 

If you reference "Hyde Amendment," make sure to specify which one.

Edited by Fox On Socks

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