I ran across this article indicating that the Republicans might sue if the law is changed now granting the Governor appointment power. Like Tisei I’m not a lawyer, but my sense is that while the 145-160 has already started and thus we can’t reset the election date, what we do in the meantime is still an open question.
Please share widely!
In 2004 we wanted to do what they are requesting now. I was for it before we were against it? This is a political game and if they weren’t happy with the descion in 04 they should be happy the democrats are changing it back or they guilty of the same accusations they lay upon the democratic party
…you can’t retroactively change a law after it has gone into effect.
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p>In other words, the Law as it existed when Senator Kennedy shed his mortal coil is the law that applies. That law called for a Special Election. There is no provision for an “appointment”.
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p>I actually encountered this in my hometown where the City Council passed a law banning adult-themed stores in certain areas after an adult video store opened next to City Hall. They wanted to drive that guy out. They couldn’t. He was legal when he opened.
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p>This is why, BTW, Senator Kennedy wanted the legislature to change the law before he passed away. He knew they wouldn’t be able to do it after.
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p>So David might not be scared, but as a lawyer, I’m sure he’s aware that a legal challenge to changing the law would take more than 145-160 days to resolve.
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p>i.e. We’re not appointing a Senator, not matter how many groups join a groups asking for a new law.
Says who? As I asked on another thread, what’s the constitutional objection?
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p>Your adult video storeowner isn’t a counter-example, necessarily. He may well have had a good takings claim, or some other constitutional objection to having the zoning law changed once he had set up shop.
Specifically:
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p>No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility..
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p>If changing a law after the fact isn’t ex post facto, I’m curious what do you think is?
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p>I think the MassGOP would challenge any attempt to change the law to allow an appointment, would probably win, and regardless, we wouldn’t be able to have an appointment while the legal issues where laid out.
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p>I’m not sure what the sudden rush is. Senator Kennedy was ill for the first 8 months of this year, and missed all but 2 roll call votes in 2009.
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p>We haven’t had two Senators for the eight months. Why the sudden rush to pass a unconstitutional law?
An “ex post facto law” attempts to make changes that take effect before the law is passed. The proposed law does no such thing. No one is going to be appointed until after such a law is passed. There is no such legal principle that you cannot pass a law that alters an ongoing process as long as it only affects the future.
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…already exists. It has also already come into effect. Hence, a new law that changes the effect of the special election law is “after the fact”.
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p>i.e. You’d be changing the law from one that says “no gubernatorial appointments, only a special election” to something else. You’d change the rules of the game after the game has started, which is a near definition of Ex Post Facto.
And yet, it’s legal, because as I’ve repeatedly explained, the literal definition of “ex post facto” is not what is meant in the constitutional prohibition. See the actual citations to actual Supreme Court cases elsewhere in this thread.
are generally criminal. From a 1995 Supreme Court case:
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p>I doubt the clause applies to this situation.
from the Collins case:
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Why did Kennedy ask for a law change in advance? He knew what Ex Post Facto means. I’ve personally seen Ex Post Facto used in Civil law as well as criminal.
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p>The question is whether the GOP has ANY case, and I think even you have to acknowledge that they do. We’re changing the rules after the game has started.
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p>It’s going to take time to pass a new law, if it passes. Someone will challenge it, it will be blocked, and by the time we sort all this out the Special Election will have happened.
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p>So let’s stop all this silly talk of a new law. It’s not going to have an effect, at least for the Kennedy seat, and well, this was a law Kennedy wanted passed, so Democrats have no one to blame but themselves.
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You’ll have to do better than that. Give me a link that’s more authoritative than what you’ve “personally” seen, because the cases I cited seem pretty clear: the Constitution’s ex post facto bar “applies only to penal statutes which disadvantage the offender affected by them.”
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p>I know you’re upset about the prospect of Governor Patrick getting an interim appointment. But if the legislature chooses to give it to him, there is IMHO no serious constitutional objection. He’ll get his appointment, and it will apply to the vacancy that exists now.
because critical votes for health care reform will be coming up before any election can be held. Every vote is important.
In 2004. You cannot change a law in existence for your own political gain. We’ll have an elected Senator faster than an appointed one with a court fight. If time is of the essence, the special election clock is already ticking. Deal with your own shit-stirred mess.
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p>Both the spirit and the letter of the law provides protection from lawmakers who might abuse their power: by making an act criminal (which is what laws do…) you place people who have committed the act in jeopardy. Lawmakers of many stripes have long recognized this (this is one of the reasons we use latin in law… because a lot of our laws are derived from thinking that occurred first, or were expressed most clearly, by the Romans). But many constitutions and/or political charters around the world recognize that laws change and circumstances differ.
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p>But here the only salient ‘fact’ is what the governor does. And… so far… he’s done nothing official. It is of little relevance how and when the seat became vacant. What’s relevant is what the Governor can and should do about the vacancy. There is not yet an act for which the legislature can retroactively nullify and/or uphold.
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p>Nor, it must be said, does ‘changing’ the law mean complete reversion to the absolute powers of appointment of the previous law. Indeed, as I see it, no law has to be changed at all. The legislature can pass an entirely new law, that in no way interferes with the present, to specify an interim appointment that lasts from the moment of appointment until the special election is ratified. No ‘ex post facto’ exposure whatsoever because the new law will run concurrent to the old: there will be a special election, and meanwhile, we’ll have some representation up in there…
Changing the law to allow for a gubernatorial appointment is not an ex post facto law. However, even if it was an ex post facto law, the Seventeenth Amendment would likely override Article I, Section 10, similar to how the Twenty-first Amendment partly overrides the Commerce Clause in some instances.
is likely against the will of the people. Voters understand what policy priorities they are supporting in electing Ted Kennedy to the Senate. The GOP wants to call an interim appointment hypocritical. What’s so hypocritical about it? MA Dems didn’t want the potential of Romney appointing a Republican with priorities different from that of voters who elected Kerry. Good for them.
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p>Tisei and alike could be viewed as obstructionist and foolish like the GOP with Franken.
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p>This could really be dumb, even for the MA GOP.
Now there’s a sudden rush?
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p>Reid has implied there won’t be a vote this year. Kent Conrad has come outright and said the Obamacare is Dead in the Senate.
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p>So why the rush. Senator Kennedy was absent due to illness for months. When he sent the letter asking for the change, folks on this blog called on him to resign ‘in advance” so a Special Election could be held. No one wanted an appointment.
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p>I understand the sentiment to fulfill Kennedy’s dying wish, but he asked for the change for a reason. He was afraid he wasn’t going to make it, and a Special Election would have be held. He was right.
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p>Yes. It’s true, Kennedy was not on the floor. He wasn’t voting. It’s also true that the last time his vote was needed for something to pass, he showed up. The Senate’s only 100 people; they whip the vote and know ahead of time if his (or Senator Byrd’s) vote is needed.
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p>What you don’t know is how much Senator Kennedy was working the phones, sending notes, or otherwise working on legislative business behind the scenes. You flat out have no idea.
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p>Wrong again. Folks here (myself included) suggested that Senator Kennedy resign ahead of time because the MA General Court hadn’t shown interest in allowing the governor an interim appointment. Many of us were encouraging an interim appointment of a caretaker — someone who pledged (or was legally required) to not run for the special election.
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p>Based on the statements in this post and elsewhere in the thread, you neither understand law nor sentiment. The sentiment is to pass health care reform that expands access to health care for the poor and middle class. The sentiment is to pass progressive energy reform that reduces carbon emissions and oil dependency. The sentiment is to eliminate the discrimination against GLBTs in federal law. The sentiment is not to honor a request of a letter he wrote a few months ago; it’s to have full representation of Massachusetts’ ideas, ideals, and values in Washington.
could muster up a few more wins in state rep races maybe, just maybe, they could have some meaningful input into “How to fill a vacanacy” discussion, but lets face it Republicans have no clout in this state. Why did the Legislature change the law in 04 and why they will do it again in 09 is BECAUSE THEY CAN!. They have the electoral power to do so.
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p>Until the Republican party can put up credible candidates, that can get elected, the Democrats will change the rules as often as they see fit. Get used to it Cal.
The 2010 elections. You folks have outdone yourselves in calling the electorate stupid. We’re remembering this time.
will often get out the “will of the people” when it’s convenient but will quickly lose it on issues like Healthcare and now take out the “politicians have to make their own decisions and if it was simply on popularity we’d have ballots and not representatives”. You can’t have it both ways. So which is it?
May well be “the will of the people”. Surely all these voices against it are not just Republicans.
51%-49% democrats “Will of the people”
90%-10% non-democrat “see you in court”.
Time to wake up folks: There’s dissent in Blueland.
Which is it Tisei.
Not sure this “ex post facto” talk will get us anywhere. The Dems are aware they cannot craft any law that effectively changes or conflicts with the constitutional qualifications for running for US Senate. If they did, that would be a basis for effective litigation. But the reality is that the Dems also have a monopoly in Congress so Reid et al will NEVER call for a decision on any issue that might come down to a single vote. Healthcare? Reid can wait till January to call for the Senate to vote on the final proposal. GOP energies would be better spent finding and funding a credible candidate for the seat.