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Comment by rainsford | Hacker News Reader

And at least as importantly, people outside the judicial branch aren't legally empowered to determine the constitutionality of laws. Allowing the executive branch and its employees to treat laws as unconstitutional, all on their own, would open up a ridiculously large can of worms.

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Maybe it would, but everyone punting the issue of "is it Constitutional?" to the judicial branch is also a violation of ethics. What if they mess up once?

The Legislature should not pass laws without sincerely believing they are Constitutional, and the Executive should not sign laws without believing they are Constitutional. Bush 43 violated this -- he thought McCain-Feingold was unconstitutional but punted the hard unpopular decision to Someone Else.

I would agree that the legislative and executive branches do have some responsibility to write and sign laws they actually believe are constitutional. Just punting that to the courts does seem like a cop out.

I was talking more about laws that have already been written and signed since we were talking about the actions of the FEC in the context of McCain-Feingold. Absent extreme cases (like death camps or something), I don't think the FEC or its employees would have any legal right (or responsibility) to decide for themselves that McCain-Feingold was unconstitutional. Giving them that power and responsibility is the can of worms I was talking about.

Or if it were allowed, they'd have to be criminally liable for not enforcing a constitutional law in addition to being criminally liable for enforcing an unconstitutional law so it would be twice as ridiculous to expect anyone to be capable of doing their jobs.

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