American Legal Terms

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Congress can only do what the Constitution allows it to do.

Where does it say that Congress can't ban unfashionable or disruptive political parties.

The President can only do what Congress, under the Constitution, allows him+ [ or her ] +to do.

Doesn't the President have overriding powers over the legislative, and in fact, independent powers vis a vis Congress, as a "separation of powers" system of government might have, meaning that The President can only do what Congress, under the Constitution, allows him to do. is not quite on ball?

There's no such thing as a referendum of the American people in the constitution. Some states do have provision for referenda.

That's something I find interesting. Referendums, and the view of the popular vote, of common majority vote (so very, very important in countries such as Switzerland, apparently), have no place in the USA at the federal level.

The Constitution?

Is there nowhere in the Constitution to ban parties?

I'll add that Lincoln's Emancipation Proclamation was also under the preseident's war powers. It didn't free any slaves in territory controlled by the United States; it declared that slaves in territory in rebellion would be free as of such and such a date. The idea was to create a force of potential opposition to the Confederacy within the Confederacy, so it could be done within the war powers of the president.

Lincoln would certainly not have had the power under the constitution to free slaves within territory controlled by the United States. It took a constitutional amendment to do that. (Although they had earlier been freed by act of Congress, with compensation for the owners, within the District of Columbia, directly controlled by the federal government.)

Where does it say that Congress can't ban unfashionable or disruptive political parties.

It is silent on the subject. That means Congress is not allowed to do it.

You might construe the First Amendment as forbidding Congress to ban a party:
>Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There have been assorted court cases testing free speech and peaceable assembly. Generally, to be restricted there must be a "clear and present danger." There must be an advocacy of immediate illegal action, not just advocacy of something distasteful. "We need a revolution to establish Communism" is protected. "The revolution starts tomorrow; pick up your guns at the warehouse" is not.

A 1969 case held that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

Doesn't the President have overriding powers over the legislative

You may be thinking of the presidential veto. If both houses of Congress pass a bill, it doesn't become law until and unless the president signs it. But if he vetoes it, Congress can still enact the law with a 2/3 majority of each house.

You're right that I overstated things in saying that the President can only do what Congress allows him to do. (I'm going to go on saying "him". Understand "or her" to be included if you like, OK?) For example, Congress can't take away the President's power, granted by the Constitution, to appoint judges and ambassadors etc. (with the advice and consent of the Senate). But where there's no explicit grant of authority to the president in the constitution, then he can't do what Congress has forbidden him to do.

He can try, and there has been litigation in this area, much of it having the name Nixon somewhere in the caption.

It's also true that Congress can't delegate to the president powers that are reserved to Congress by the constitution. Up until the 1930s, courts struck down a fair amount of legislation on these grounds; more recently the courts have been friendlier to legislation granting extensive authority to the president. But I bet if Congress were to pass a bill allowing the president to set income tax rates, the courts would strike that down. That's not likely to happen, of course.

Referendums... what are the relevance of these to the American people (at least, at the Federal level)?

The Constitution?

Is there nowhere in the Constitution to ban parties?

There are no national elections, even for president. Each state holds its own elections, even for president and vice president. Congress gets to set the day for Presidential elections, but that's all.
>The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

"Chusing the electors" gets complicated. It's part of the whole Electoral College thing which is outside this thread. Just assume that the time and day for chusing electors means "presidential election day."

States and local entities (cities, counties etc.) usually hold elections on the day set by Congress, since it makes things easier. But they don't have to. They could have only presidential voting on that day and pick some other day to vote for governor, Senator, Member of Congress or dog catcher.

So, since there are no national elections, there are no national referendums. Some states and localities allow referendums, as Vinny notes, but not all do. IN California,
>Pursuant to article II, section 9, of the California Constitution, a referendum is the power of the electors [voters] to approve or reject any statute enacted by the Legislature. A referendum cannot be used on urgency statutes, statutes calling elections, or statutes providing for tax levies or appropriations for current expenses of the state.

Thanks.

So there is nowhere in the Constitution to ban parties?

Is there nowhere in the Constitution to ban parties?

I think nutrax already said that the constitution doesn't mention parties.

And I think it's safe to say that if Congress could have banned the American Nazi party or the Communist Party it would have.

One reason the Constitution is silent on political parties is that in 1789, when the Constitution was ratified, political parties as we know them really did not exist. There were political factions or groups, but they operated more like clubs or present-day lobbyists.

In any case, the constitution is pretty explicit about the powers of Congress. In effect, it says "Here's a list of what Congress is supposed to do. If it's not on the list, you can't do it." As I mentioned, it is silent about political parties (or any other political group for that matter) so Congress can't do anything about them.

The amendment I quoted about freedom of speech and peaceable assembly is part of the first 10 amendments, known as the Bill of Rights. A number of people felt that "If it's not on the list, you can't do it" was not explicit enough, so they immediately proposed a series of amendments that guaranteed a bunch of basic rights. One of the causes of the American Revolution was that the Brits had some laws that prohibited people from getting together to discuss how pissed off they were with the British government and maybe we need a change here. So the first amendment included rights of free speech & assembly.

You could argue that the formation and operation of a political party is a peaceable assembly.

At various times, there have been laws that attempted to control free speech, especially in time of war. You shouldn't speak well of the enemy or say the US is wrong--that sort of stuff. The Sedition Act of 1918 was used to harass the Communist Party into the underground. But that law was unpopular and it was repealed in 1921. It withstood one court challenge as to its constitutionality, but it is generally assumed it would not withstand a challenge today.

Hello everybody again
Is there any project to add more amendments to the Constitution in the near future?
How does an amendment work to get to be a valid amendment/ bill then law?