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Comment by awinder | Hacker News Reader

Gay marriage was determined to be a constitutional right by a conservative Supreme Court (judicial ruling), versus this being an executive order from Obama. Trump has previously said he plans on throwing away all of obamas executive orders, which he can do on his own. That said Obama is now working with trump to transition govt and taking a much more active role in it due to trumps team being under prepared, so who knows. Maybe pieces like this that trump doesn't really care about live on. Hard to say, it's a brave new world in US politics.

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It's fairly complex even for executive orders; depends on how they were implemented. Some are purely the president's prerogative, in which case the next president can do whatever they want as well. But quite a few are Congress having delegated to the executive branch implementation of some provision (Congress loves to craft fairly vague laws and delegate the details to administrative rulemaking by various agencies). In that case there are certain required rule-making processes that have to be followed, such as public comment periods, cost-benefit analyses, appeals, etc. The president can direct an agency to implement a particular preferred approach, but it has to make it through this process to become binding regulation, and a subsequent president would have to go through the same process to reverse it.

>>Congress loves to craft fairly vague laws and delegate the details to administrative rulemaking by various agencies

I can't quite tell from your tone if you're implying that this is a bad thing, or if you're of the opinion that Congress is shirking on their duties when they do this. I read it like, "'Congress just LOVES to pass vague laws so others have to step in' /sarcasm." My apologies if I'm misreading your tone.

For posterity, just to be clear, this is definitely a good thing here. In the case of, for example, the environment, which this post is about: Members of Congress are not experts in every field, so it makes more sense to pass a law called the Clean Air Act requiring protection of the air with some parameters, and then letting the experts at EPA fill in the details. In this case at least, it's not Congress shirking their duties, but rather the way it should work. i.e. Congress issues laws requiring general things, and the experts at the various federal agencies fill in the details with regulations (though obviously it doesn't always work perfectly).

Administrative agencies encourage Congress to micromanage the economy, passing regulations full of loopholes, instead of passing categorical bans on harmful things or practices.

Also, I don't think administrative agencies are constitutional. They're a fourth branch of government not described in the constitution.

The powers of administrative agencies come from their organic enabling act, which is passed by congress. In many cases, agencies cannot pass categorical bans on harmful things or practices because they don't have that ability.

Regarding your second point, at this point that's not really debatable. SCOTUS has consistently ruled that admin agencies are constitutional within the legislative intent of Congress. Where agencies act ultra vires, beyond their power, SCOTUS will frequently rule what they did unconstitutional. But they are in themselves constitutional, and saying otherwise smacks of the same arguments people make when they say that income taxes are illegal. i.e. it discredits the person making the statement.

> Regarding your second point, at this point that's not really debatable. SCOTUS has consistently ruled that admin agencies are constitutional within the legislative intent of Congress.

There is a difference between what the courts have ruled and what the constitution actually says. The significance of the difference being that when the courts have it wrong, you can sometimes convince them to change their minds. Or at some point different justices are appointed with different opinions. Roe v. Wade is long-established precedent but that doesn't mean it hasn't been a major consideration when appointing justices to the Supreme Court.

And there is a completely reasonable way to have "administrative agencies" without making them part of the executive -- you make them part of the legislature, in the nature of the CBO. The difference being that after they propose new rules, Congress would vote to approve them or not. Which in most cases could be a rubber stamp but it would give Congress the opportunity to say no when it matters, and get the executive branch entirely out of the rulemaking business.

There are a lot of scholars who think the current administrative state is not constitutional. The Supreme Court upholding administrative agencies are not well reasoned. Two are New Deal era cases, and Mistretta is a results-oriented bit of hand waving: "Applying this "intelligible principle" test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives."

Obviously the practical needs of Congress has no bearing on whether a delegation of legislative power is constitutional.

Can you name a few of these scholars? This is a body of legal thinking I've never been exposed to before. I'd like to see who/what you're talking about.

Gary Lawson wrote the Administrative Law textbook we used at Northwestern: http://www.jstor.org/stable/1341842?seq=1#page_scan_tab_cont....

It's not just a question of what expertise the legislative has or doesn't have. Just like software you'd ideally want to work on laws in an iterative fashion. It's incredibly unlikely that a law, especially complex laws like the Affordable Care Act, work perfectly so it makes sense to go over it after you've seen it's effects and make corrections.

In the current political environment that's not really an option, so you pass on power to the executive and states to make changes instead.

Roe vs Wade was also a Judicial ruling, and yet that appears under threat.

The power of the supreme court to interpret laws allows them to change, appear and be dismissed as time goes on.

While Trump does not directly attack gay marriage, if he nominates judges who are against the women's right to choose, I am concerned they will also be against things like gay marriage, my argument is most people against that right are very religious and thus also against marriage being equal.

> Roe vs Wade was also a Judicial ruling, and yet that appears under threat.

Roe v. Wade was decided by a conservative Supreme Court with three Nixon appointees (two of which voted for it). The right was reaffirmed during another conservative Supreme Court in Casey.

I don't think the votes are there to overturn Roe. Even if Trump manages to nominate Justices to replace both Scalia and RBG, I don't see Roberts voting to overturn it. He said during his confirmation hearing it's settled precedent. Alito kinda reluctantly said the same thing: http://www.washingtonpost.com/wp-dyn/content/article/2005/11....

Most people don't know this, but Roe v. Wade as a landmark case for two reasons. The first, of course, was that it took the ability to regulate abortions away from the people's representatives, the legislatures. Second, it created a right to privacy in the Constitution. Already, the abortion regulations set up by the Supreme Court are becoming obsolete with new procedures being developed, such as partial-birth abortion, which is why the courts should not legislate.

I most oppose the right to privacy created by the court. I am not against a right to privacy, if someone wants to put one in there. But to find a right to privacy in the Constitution through the "penumbras and emanations" is really just making it up whole cloth, which I oppose.

As for gay marriage, again, it should be up to the states. There is no Constitutional right for gays to marry. First, because marriage is not a right (although procreation is). Second, for the purpose of marriage, gays are not equal: it is impossible for them to procreate, which is the purpose (but not a requirement) of marriage.

My purpose is not to re-litigate these issues, but to say that many feel these cases were badly decided so they should be overturned, not just because we oppose those issues on a religious basis.

> There is no Constitutional right for gays to marry.

There is no Constitutional right for anyone to marry. Full stop.

There is a Constitutional right for equal protection under the law.

Even as someone who agrees Roe is doctrinally problematic, I think Obergefell is a straightforward equal protection issue. Marriage as a construction of the state has always primarily been about property rights, not procreation. In the Anglo system it is seen as quasi-contractual. In a system where church and state are seperated, that's the relevant purpose of marriage. Gay marriage bans violate equal protection because they preclude gay couples from entering into those economic arrangements.

Procreation is a red herring. If the government wanted to encourage procreation, it would tie the benefits of marriage to actually raising (which both gay and straight couples can do). The fact that marriage isn't tied to child raising suggests any putative arguments based on that are pretextual.

Marriage is more than property rights. We have deeds for that. I list the principle reasons for marriage, including devising property.

The state does limit marriage, in part for procreation. For instance, the limits on the degree of consanguinity are to prevent birth defects. There are also age restrictions, which relate to the ability to give birth. So, in a sense, it is tied to procreation.

Marriage as a state-sanctioned construct is almost entirely about property and other legal rights. You cannot achieve the effect of marriage using a combination of other legal constructs. For example, even a prenuptial agreement cannot fully divest a spouse of rights in property acquired during marriage. Moreover, you cannot create things like spousal privilege contractually.

In contrast, child-rearing works more or less the same whether or not the couple is married. The rights and obligations attendant to children arise out of the parental relationship, not the marriage. About the only practical parental right tied to marriage that I can think of is the legal presumption in most states that a woman's husband is the father of any child she has during marriage.

Age restrictions on marriage have little to do with childbearing, as they are almost invariably set many years after the point where a woman can bear children, and depart from the (awful) historical norm of women being married off as children --- and as property --- as soon as they reach that age.

If you were casting about for further evidence for your argument that marriage is more about the sanctity of procreation rather than about property rights, I think you've hit on something here that harms that argument.

The 9th amendment explicitly says that just because a right is not enumerated in the constitution, doesn't mean it isn't there. I.e. individual rights are protected by the constitution whether they were spelled out or not. I can't think of a better indication from the framers that the document was intended to be interpreted liberally, to err on the side of individual rights rather than legislative power.

The purpose of the bill of rights was to restrict government. So, the framers did not want their list to limit rights of the people. That is the purpose of the 9th Amendment (especially read in light of the 10th Amendment). Yes, there are ways to add rights: the states can add their own rights, and there is a process for amending the Constitution to add more rights. However, judicial interpretation is not one of them.

Procreation is not the purpose of marriage.

Some religious groups might hold that claim, but in this country we do not recognize one religious group over another; i.e. one group's claims about the purpose of marriage have no weight over anyone else's.

In western civilization, marriage is the structure of procreation and has been enshrined in the law since the 1200s, notwithstanding any religious beliefs. Procreation encompasses many facets: sexual selection, child rearing, passing property to progeny, recognition of the paternal family line. All of these are governed by the state through marriage laws in order to further the policy of procreation, the natural survival of our species.

In the Bible, Paul justifies marriage as a way of controlling the sexual desire so it does not lead to the sin of fornication. But he does not seem to care about procreation.

Sexual selection is one of the principles I mention. Sexual context may be a better term. But my argument is secular, not religious. I am referring to American common law, English common law, and its predecessors, not the Bible.

I think it's safe to wager that the original purpose of marriage was indeed procreation, curbing reproductive fraud and providing stability for families. Then it got hijacked by religions and then by countries and what it is today nobody even knows anymore...

Another theory is marriage is about economics. Combining the wealth, power, and influence of 2 families.

Gay couples procreate the same way many straight people do. Sperm or egg donors, surrogates or adoption. Before marriage equality many states didn't recognize two party adoptions. Which left gay families in precarious positions.

Presumably at some stage it will be possible for female couples to have babies using artifical mechanisms. Would you consider this to be suffcient for marriage? Does the procreation have to be natural?

That is a good question that I have thought about. My first response is to wait until that happens; law does not deal with hypotheticals. Also, you are only talking about female gays, not male, so how do you write the law? As technology progresses, the laws will have to catch up. At this point, I would say that true homosexual procreation (genetic material from each parent) would probably remove that rationale for excluding them from marriage. But then, you would have to re-define marriage in a whole new way. A better place to do that would be in the state legislatures.

As long as we are re-defining marriage, I have always thought the idea of marriage for life was old-fashioned. I think a marriage contract should last 20 years, or until the youngest child reaches 18, renewable, of course.

"Second, for the purpose of marriage, gays are not equal: it is impossible for them to procreate, which is the purpose (but not a requirement) of marriage."

This an extremely biased statement. Just because a person is gay doesn't mean that they have different biology than a person who is not.

I'm not a Trump supporter in any way, but reading his 100 day plan, it actually says he'll throw out all unconstitutional executive orders by Obama. It is a little bit ambiguous, but could be read several ways—either he's saying executive orders are unconstitutional, or he's giving himself a very vague and general way to throw out stuff he doesn't like and not others.

Who is supposed to decide on which of these is unconstitutional or not, if not the Supreme Court and if the Supreme Court decides that what stopped the Republicans from going to court earlier? Surely they would have, if the thought they'd get anywhere.

He says it because it sounds better on the surface than just throwing out all executive orders, which doesn't make sense anyway. He'll just throw out what he doesn't like and claim that those are unconstitutional.

This is a weak appeal to moderates and nothing more.

I agree that seems likely, and I agree it's not the President's place to determine constitutionality, I've just been noticing a lot of people stating that Trump is planning to throw out all of Obama's executive orders, and that isn't necessarily what he specifically said.

It is the duty of every branch of the US Government to follow the constitution, so they are all required to determine constitutionality. Most, if not all US Presidents have made statements on the constitutionality of bills brought before them to be signed, and they have often refused to enforce laws they believe are unconstitutional.

You're right of course. Nevertheless I think actions speak louder than works. The Republican party is not known for being hesitant or compromising. If they'd actually believe Obama's executive orders to be unconstitutional, they would've done more than complain.

They're not doing more though, so I can only conclude that they're not at all convinced that they're unconstitutional.

To be fair though I have no idea what Trump is thinking, I don't think anybody really does. He might actually believe what he's saying in this instance.

s/The Republican party/both parties/g

They don't want to be to aggressive so that when their team is in control they can utilize that power.

This is an affliction of both parties and to take a more philosophical view, "power corrupts".

One of the meta-arguments for smaller, less powerful government, is to minimize abuse of power or shift it more locally (state, muni) where the abuse can be more visible if not contained.

Good rule of thumb: Don't advocate for a power or control that you wouldn't be comfortable with in the hands of your political opponent. Unfortunately I think that the Democrats and the Republicans are more comfortable with passing many powers back and forth between them rather then eliminating them.

I read that as an escape clause, and I think a lot of his proposals have similar clauses. Except for a few examples, I think most of his proposals could actually be done in a centrist/progressive/liberal way. It's all going to come down to what he and his staff want to do, and what they can get Congress to agree to.

http://www.npr.org/2016/11/09/501451368/here-is-what-donald-...

http://www.npr.org/2016/11/10/501597652/fact-check-donald-tr...

Hope he works with him to ban NSA spying on its own citizens. I doubt it though; he's had eight years and hasn't done it.

Trump has nominated Mike Pompeo as CIA director. Pompeo would like to expand government surveillance, and feels Edward Snowden should receive a death sentence.

"Congress should pass a law re-establishing collection of all metadata, and combining it with publicly available financial and lifestyle information into a comprehensive, searchable database. Legal and bureaucratic impediments to surveillance should be removed."

https://en.wikipedia.org/wiki/Mike_Pompeo#National_security

He's pro-torture.

https://www.libertarianinstitute.org/foreign-policy/new-cia-...

This disgusts me.

>That said Obama is now working with trump to transition govt and taking a much more active role in it due to trumps team being under prepared

Where are you getting this information? Trump's team has not spoken with the mainstream media at all since winning the election. Anything that has come out is a direct statement, otherwise it is just complete here-say.

And how is Obama taking a "much more active role" by running off to Germany? It's very clear that Trumps rhetoric has sent Merkel into a panic, and her own comments towards Trump have been less than diplomatic.

At least try to hide the fact that you are a Hill shill.

I'm surprised HN doesn't automatically bounce green-bean posts containing the word "shill".

Arguendo, it's not clear what "Hill" partisans hope to gain by shaping this particular narrative. She got beat, again, she's done. Obama is probably concerned with his "legacy", so maybe there's some shilling to be done there...

Oh boy /pol is leaking into HN. Anyone have a mop?

Pro Tip: Try not to accuse people making counter-points of being shills.

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