4 ms·

If congress doesn't change something, then that means they have determined no change is necessary. That isn't an invitation for the executive branch (or judici

If congress doesn't change something, then that means they have determined no change is necessary. That isn't an invitation for the executive branch (or judiciary) to overreach. In theory congress could go years without passing a single law, and that would be fine. It would signal that the current laws are sufficient. (As an aside, congress has ceded much of it's lawmaking authority to federal agencies anyway -- so even if they didn't pass any new laws, the legal code will still change every year.)

Angostura 6y ago
> If congress doesn't change something, then that means they have determined no change is necessary. ... and therefore the promise is still in force and should be upheld.
- bilbo0s 6y ago
  True. In this case, either way, half of Oklahoma belongs to the tribe. Congress has not taken it away in the legally prescribed manner, therefore SCOTUS has no choice but to say that until congress does, the promise has to be upheld. Congress has to do its job. Or not. Whichever it chooses. But it can't rely on the courts to do its job. The courts are right to let everything sit exactly where it is, and drop the entire matter back in the lap of congress.
  - kube-system 6y ago
    > In this case, either way, half of Oklahoma belongs to the tribe. If I am not mistaken, this ruling only pertains to the Major Crimes Act[0]. It doesn't mean half of Oklahoma "belongs to the tribe", it just means half of Oklahoma doesn't have criminal jurisdiction for a short list of crimes when they are committed by tribal citizens. 0: https://en.wikipedia.org/wiki/Major_Crimes_Act https://en.wikipedia.org/wiki/Major_Crimes_Act
elliekelly 6y ago
And this is exactly what the court ruled - if Congress intended to withdraw from or change the agreement they’re well aware of how to make that happen. And they didn’t make it happen so they must not have intended to change anything. I would assume (haven’t read the whole opinion yet) that nothing about this ruling now prohibits Congress from exercising their authority to take any further action.
calvinmorrison 6y ago
A recent dissent by Justice Thomas is elucidating. "Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong [the Department of Homeland Security's (DHS)] initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government." . This was his dissent on DACA. Agree or disagree with the program that allows undocumented immigrants to stay and go to school, I don't care. It's not legislative, it's not judicial, it was a program by DHS setup under the last administration. Now the court rules the current administration can't undo the program? It's bizzare. Things like DACA _need_ to be written in stone to avoid forcing the supreme court to become the effective legislator instead of having congress pass a law that enacts it as an actual program.
- amznthrwaway 6y ago
  > This was his dissent on DACA. Agree or disagree with the program that allows undocumented immigrants to stay and go to school, I don't care. It's not legislative, it's not judicial, it was a program by DHS setup under the last administration. Now the court rules the current administration can't undo the program? It's bizzare. This is an inaccurate summary of the decision. The fact that you gave it, after giving an accurate summary of the dissent is very telling. It indicates that only a fool would trust you on political matters as you are a willful liar who does not respect your audience. I eagerly await your correction and apology. Just kidding, I am fully aware that you have no respect for truth, and that you have no central morality.
- war1025 6y ago
  The more I learn about Justice Thomas, the more I like him.
  - deleted 6y ago
landryraccoon 6y ago
> no change is necessary. This could mean a lot of things. Do you mean no change to the law is necessary? SCOTUS is upholding that principle. It is saying that the law as written stands. The Judiciary is not overreaching here. They are doing exactly what their job says - they're interpreting existing laws, not writing new laws.
tony_cannistra 6y ago
I understand your point, but I fear you may misunderstand, because I believe the Decision is in line with your views. The justices' point is that congress, in its inaction, has not enabled the reduction in Creek reservations that has been perpetrated through large-scale disenfranchisement all all levels of governance, actions which are in direct conflict with the reservation treaty signed in perpetuity. For these actions to be legal, Congress must have authorized them. This has not happened and therefore, as the justices rule, these actions are unconstitutional.
- nostromo 6y ago
  No, I understand, and agree with the decision. My disagreement is with people who excuse executive overreach by saying, "congress refused to act." Put another way, they're saying, "I had to work around the law to get what I wanted."
rtkwe 6y ago
> (As an aside, congress has ceded much of it's lawmaking authority to federal agencies anyway -- so even if they didn't pass any new laws, the legal code will still change every year.) Normally this wouldn't be so bad, Congress is bad at making small evidence based changes on a reasonable timeline so instead they setup the rules for making the rules and the goals and instantiate or grant that authority to a division of the executive. Unfortunately it seems the courts have become very enthralled to varying degrees to the unitary executive theory which makes corralling that power more difficult.
intopieces 6y ago
> If congress doesn't change something, then that means they have determined no change is necessary. This not accurate. Congress failing to act due to deadlock does not indicate that either party agrees that no change ought to be made, only that congress couldn’t come to an agreement about how it should be made. To say otherwise is akin to saying that, because you and your husband can’t agree on where to eat for dinner, you must not be hungry. Both parties might believe that a law needs to be changed, but changed in opposite directions: one might want it repealed, the other strengthened.
- bhupy 6y ago
  > This not accurate. Congress failing to act due to deadlock does not indicate that either party agrees that no change ought to be made, only that congress couldn’t come to an agreement about how it should be made. That is actually literally what it means. The way the Union is set up, there is a certain amount of consensus necessary to pass legislation over 50 States across 300+ million people. If there is a deadlock, then it's the system telling you that the consensus isn't met. In a Federal system, this means that the next best place to (try to) pass the law is at the State level, where you may have less of a deadlock.
  - A4ET8a8uTh0 6y ago
    This is by far one of the pieces a lot of people seem to miss. The system was set up for gridlock in hopes that it will temper some of the more dangerous tendencies of powerful and ambitious men.
    - fzzzy 6y ago
      Thanks for this bit of insight. It really explains a lot, and it actually makes sense to me now.
  - intopieces 6y ago
    It does indicate a consensus is not met, and merely that; the GP claimed the this lack of specific consensus on action is actually a form of broad consensus on inaction, a leap in logic that is unfounded because it ignores the political game theory that is employed in obstructionism. It also ignores the fundamental brokenness of the system through a sort of circular logic: things didn’t change since they didn’t need to be changed.
hinkley 6y ago
The judicial branch can decide that a law is not constitutional. It's then Congress' job to find the political will to make the law constitutional. Either by altering it, or amending the constitution. It's a governor on the system. Only the important stuff is supposed to make it past all three branches unscathed. It either has to be something populist - everyone wants it so I won't get voted out of office - or it needs to be worth spending a ton of political power. When Congress is overwhelmingly in favor of a law, they can prevent a presidential veto. But that degree of unanimity is rarely free. It cost people something else, so it better be worth the opportunity cost.

Angostura 6y ago

> If congress doesn't change something, then that means they have determined no change is necessary. ... and therefore the promise is still in force and should be upheld.

bilbo0s 6y ago
True. In this case, either way, half of Oklahoma belongs to the tribe. Congress has not taken it away in the legally prescribed manner, therefore SCOTUS has no choice but to say that until congress does, the promise has to be upheld. Congress has to do its job. Or not. Whichever it chooses. But it can't rely on the courts to do its job. The courts are right to let everything sit exactly where it is, and drop the entire matter back in the lap of congress.
- kube-system 6y ago
  > In this case, either way, half of Oklahoma belongs to the tribe. If I am not mistaken, this ruling only pertains to the Major Crimes Act[0]. It doesn't mean half of Oklahoma "belongs to the tribe", it just means half of Oklahoma doesn't have criminal jurisdiction for a short list of crimes when they are committed by tribal citizens. 0: https://en.wikipedia.org/wiki/Major_Crimes_Act https://en.wikipedia.org/wiki/Major_Crimes_Act

elliekelly 6y ago

And this is exactly what the court ruled - if Congress intended to withdraw from or change the agreement they’re well aware of how to make that happen. And they didn’t make it happen so they must not have intended to change anything. I would assume (haven’t read the whole opinion yet) that nothing about this ruling now prohibits Congress from exercising their authority to take any further action.

calvinmorrison 6y ago

A recent dissent by Justice Thomas is elucidating. "Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong [the Department of Homeland Security's (DHS)] initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government." . This was his dissent on DACA. Agree or disagree with the program that allows undocumented immigrants to stay and go to school, I don't care. It's not legislative, it's not judicial, it was a program by DHS setup under the last administration. Now the court rules the current administration can't undo the program? It's bizzare. Things like DACA _need_ to be written in stone to avoid forcing the supreme court to become the effective legislator instead of having congress pass a law that enacts it as an actual program.

amznthrwaway 6y ago
> This was his dissent on DACA. Agree or disagree with the program that allows undocumented immigrants to stay and go to school, I don't care. It's not legislative, it's not judicial, it was a program by DHS setup under the last administration. Now the court rules the current administration can't undo the program? It's bizzare. This is an inaccurate summary of the decision. The fact that you gave it, after giving an accurate summary of the dissent is very telling. It indicates that only a fool would trust you on political matters as you are a willful liar who does not respect your audience. I eagerly await your correction and apology. Just kidding, I am fully aware that you have no respect for truth, and that you have no central morality.
war1025 6y ago
The more I learn about Justice Thomas, the more I like him.
- deleted 6y ago

landryraccoon 6y ago

> no change is necessary. This could mean a lot of things. Do you mean no change to the law is necessary? SCOTUS is upholding that principle. It is saying that the law as written stands. The Judiciary is not overreaching here. They are doing exactly what their job says - they're interpreting existing laws, not writing new laws.

tony_cannistra 6y ago

I understand your point, but I fear you may misunderstand, because I believe the Decision is in line with your views. The justices' point is that congress, in its inaction, has not enabled the reduction in Creek reservations that has been perpetrated through large-scale disenfranchisement all all levels of governance, actions which are in direct conflict with the reservation treaty signed in perpetuity. For these actions to be legal, Congress must have authorized them. This has not happened and therefore, as the justices rule, these actions are unconstitutional.

nostromo 6y ago
No, I understand, and agree with the decision. My disagreement is with people who excuse executive overreach by saying, "congress refused to act." Put another way, they're saying, "I had to work around the law to get what I wanted."

rtkwe 6y ago

> (As an aside, congress has ceded much of it's lawmaking authority to federal agencies anyway -- so even if they didn't pass any new laws, the legal code will still change every year.) Normally this wouldn't be so bad, Congress is bad at making small evidence based changes on a reasonable timeline so instead they setup the rules for making the rules and the goals and instantiate or grant that authority to a division of the executive. Unfortunately it seems the courts have become very enthralled to varying degrees to the unitary executive theory which makes corralling that power more difficult.

intopieces 6y ago

> If congress doesn't change something, then that means they have determined no change is necessary. This not accurate. Congress failing to act due to deadlock does not indicate that either party agrees that no change ought to be made, only that congress couldn’t come to an agreement about how it should be made. To say otherwise is akin to saying that, because you and your husband can’t agree on where to eat for dinner, you must not be hungry. Both parties might believe that a law needs to be changed, but changed in opposite directions: one might want it repealed, the other strengthened.

bhupy 6y ago
> This not accurate. Congress failing to act due to deadlock does not indicate that either party agrees that no change ought to be made, only that congress couldn’t come to an agreement about how it should be made. That is actually literally what it means. The way the Union is set up, there is a certain amount of consensus necessary to pass legislation over 50 States across 300+ million people. If there is a deadlock, then it's the system telling you that the consensus isn't met. In a Federal system, this means that the next best place to (try to) pass the law is at the State level, where you may have less of a deadlock.
- A4ET8a8uTh0 6y ago
  This is by far one of the pieces a lot of people seem to miss. The system was set up for gridlock in hopes that it will temper some of the more dangerous tendencies of powerful and ambitious men.
  - fzzzy 6y ago
    Thanks for this bit of insight. It really explains a lot, and it actually makes sense to me now.
- intopieces 6y ago
  It does indicate a consensus is not met, and merely that; the GP claimed the this lack of specific consensus on action is actually a form of broad consensus on inaction, a leap in logic that is unfounded because it ignores the political game theory that is employed in obstructionism. It also ignores the fundamental brokenness of the system through a sort of circular logic: things didn’t change since they didn’t need to be changed.

hinkley 6y ago

The judicial branch can decide that a law is not constitutional. It's then Congress' job to find the political will to make the law constitutional. Either by altering it, or amending the constitution. It's a governor on the system. Only the important stuff is supposed to make it past all three branches unscathed. It either has to be something populist - everyone wants it so I won't get voted out of office - or it needs to be worth spending a ton of political power. When Congress is overwhelmingly in favor of a law, they can prevent a presidential veto. But that degree of unanimity is rarely free. It cost people something else, so it better be worth the opportunity cost.