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Politics : View from the Center and Left -- Ignore unavailable to you. Want to Upgrade?

To: JohnM who wrote (178845)	1/7/2012 11:52:59 PM
From: Bread Upon The Water	Read Replies (3) \| Respond to of 541701

It's the difference, IMHO, between a procedural argument prevailing over a substantive one. Often in the law one doesn't get to argue their substantive case if they are procedurally incorrect. For instance, a plaintiff will sometimes be knocked out of court because they don't have the "standing" to bring the complaint. A tax payer will ofter try to sue the US Government claiming he has a vested interest in an issue because he is a taxpayer. But Courts often throw these kind of cases out before they are argued on the merits simply because the taxpayer doesn't have a specific interest in the outcome. His standing is too "remote" from the issues at hand. {This is just an example of one way procedure can trump substance.; there are many others} So the substantive issues you raised, the merits of the case, might not even get to be discussed because of procedural bars. I, myself, think the Senate should sue the executive branch asking for injunctive relief against the same (asking that the President's appointments be stayed) on the basis he didn't have the authority to act. In other words the first argument should be framed not in terms of why the President acted, but whether he had the power to act in the first place. However, I can see that in this particular instance, the merits of the President's actions might be inextricably intertwined with the procedural arguments regarding lack of authority to act. It may turn out the these type of substantive issues are ones that could imbue the President with some kind of authority to act in absence of an in fact sitting congressional body. A very interesting and complex case.