Atty. DemPGH -vs- The Pacific

[DemPGH]

I want to start by saying that in no way whatsoever do I personally or politically disapprove of the Governor. He's done a fine job, and in reducing the number of Pacific councillors from five to three he has acted in the best interest of the region. However, to reduce legislators without properly amending the Pacific's Constitution (Third) is most likely illegal, and moreover sets a dangerous precedent. We need to get a decision on this from the courts.

Therefore, I would like to bring a suit that argues that it is illegal to use an executive order to amend the Constitution in such a way. NOTE: I am not arguing that it is philosophically an overreach, which it may be, but that it is an overreach in this case due to what the law says.

The executive order in question reads:

EXECUTIVE ORDER NUMBER 2

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This amendment to the constitution shall become in effect at midnight, December 12, 2013, to coincide with the December Pacific elections.
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The law reads:

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The process described in this section must happen for the constitution to be amended.

[sentinel]

The Pacific is a mess.

[Bacon King]

THE LIBERAL COURT HEREBY RECOGNIZES THE CASE OF DEMPGH V. THE PEOPLE'S REGION OF THE PACIFIC (Case BK0005).

The plaintiff is asked to file his brief with all due haste, but no later than 72 hours from now unless need for additional time is aptly demonstrated. As the office of Defender of the Pacificans is vacant (I think?), Governor Politics Junkie is requested to appoint someone so that the defendant can be officially represented in this trial.

The issues of the trial:

• Given that the Governor's Executive Order powers are not limited by statute, and in the case of Seatown v. PJ (BK0004) were deemed to be not hindered by the text of the Pacific Constitution, do any limitations of that authority exist that are applicable to this case?
• Is there any general rule this court can apply regarding the Constitutional limitations on Gubernatorial Executive Order powers? Like, is it that the Governor can ignore the Constitution, but not actively change it, or what?
• Is the section of the Constitution quoted in the OP the only mechanism through which to amend the Constitution?
• If the court rules in favor of the plaintiff what do we do regarding the current elections? Is it kosher to just have another election to fill the last two spots or do we have to have a new election that is explicitly picking five councilors?

[President Tyrion]

I wish to file a brief.

Also, the position of Defender of the Pacificans is currently held by the esteemed and able DemPGH, but he is not so esteemed nor so able as to be able to argue a proper case against himself. I assume PJ would need to pursue separate counsel, or choose to represent himself.

[Bacon King]

For me to be plaintiff and defense would be a conflict of interest, and there may be a federal law concerning that.

They passed it right after I tried it

[PJ]

I will file a defense brief, but Tyrion is welcome too as well. I'm not sure if he's filing one for the plaintiff or defendant though. I'll file the brief tomorrow.

[DemPGH]

Brief of DemPGH, Atty.

In establishing limits on executive orders, we must first start here in 1.2 of the Third Pacific Constitution:

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The only authority higher than the Pacific's Constitution is the federal Constitution. It seems that an executive order cannot make new law, which I think was pretty clearly done here. An executive order's purpose is to work within existing law to expedite the processes of government or to handle administrative matters not in conflict with the law, but not to actually make law. As mentioned before, the process to amend the constitution is contained in 1.6:

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That's the law. The Governor is not allowed to simply change the Constitution. The process described above is that the Pacific Council by vote must approved changes to the constitution after which 2/3 of Pacific citizens must also approve of the change. "May be amended" refers to the vote of the Pacific Council. In order for ratification to take place, the citizens of the region must approve. Then, and only then, is the constitution amended. That did not happen in this case.

Is there another way to amend the Third Pacific Constitution? No. The only other reference is in 3.4:

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This simply emphasizes that a majority of the Council is required to be present and to vote, and I infer that it refers to the Pacific's constitution (not the federal one).

What should be done if the decision is in favor of the plaintiff?

I recommended that voters preference at least five. Thus far, every voter has preferenced at least five, and so what should happen is that five councillors should be seated as normal. I do not see that it is necessary to hold another election and so forth. Simply seat the required number until the constitution can be amended legally.

[President Tyrion]

I am willing to file on behalf of the defendant. PJ, I assume, will file his own brief, as well. Are there any objections to that?

[PJ]

I am willing to file on behalf of the defendant. PJ, I assume, will file his own brief, as well. Are there any objections to that?

I will file my own brief as well.

[Bacon King]

I am willing to file on behalf of the defendant. PJ, I assume, will file his own brief, as well. Are there any objections to that?

Nope

[Bacon King]

Waiting on two briefs... Ill give 24 more hours.

[sentinel]

BACON BACON BACON

[President Tyrion]

Sorry for the delay. I've been in finals mode.

DemPGH is right in noting that there is certain supremacy built into the constitution. However, it should be noted that amendments to the constitution are in fact protected by that same supremacy; it follows that if we find PJ's actions to be acceptable, then executive orders, by the definition of this court, would be allowed to "make" law. As it stands, the role of the executive order has not been explicitly defined. I draw your attention to Article 4, Section 3, Clause 4 of the Pacific constitution:

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I now draw your attention to a definition of the word "define":

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Essentially, we are in a position where the powers of the executive have not been defined, which in this case can be determined to imply that statue has failed to limit said powers, and thus the aforesaid executive order power is in fact limitless.

I now turn to the case Seatown v Politics Junkie. The ruling of this judge, the Decider of All, noted:

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Precedent suggests that implicit temporary revocation of the Regional Constitution is perfectly legitimate. It follows that explicit revocation of the Constitution might also be upheld by precedent, unless this Court desires to create a legal difference between covert and overt actions.

As such, I see no reason that Governor Politics Junkie's actions should be overturned at this time.

[PJ]

I will have my brief ready tomorrow. Sorry, finals have been weighing me down as well.

[President Tyrion]

To add on to my brief, since I forgot something, I'll note that the amendment process in the Constitution reads:

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Emphasis mine. The passage outlines a process of amending the constitution, but nowhere does it state that such a process is exclusive. The right to amend the constitution in other manners, should there be other manners, isn't specifically outlawed, and is implicitly reserved by anyone who might have that power.

[DemPGH]

Time for argumentation? Okay. It's fun.

I would counter by arguing that the Constitution does not say that statute must be the only avenue by which to limit executive orders. Rather, the Constitution grants the legislature the power to limit executive order by statute; as such, the Constitution clearly implies that executive orders are not absolute or above the Constitution.

"May," as I explained earlier, is a word that expresses contingency. The Constitution may be amended [only] if the criteria listed are met. It would be like me saying, "You may have this book if you pay me for it." That does not mean that there is some other way to obtain the book - it means that if you want it, you have to pay me for it.

[President Tyrion]

Time for argumentation? Okay. It's fun.

I would counter by arguing that the Constitution does not say that statute must be the only avenue by which to limit executive orders. Rather, the Constitution grants the legislature the power to limit executive order by statute; as such, the Constitution clearly implies that executive orders are not absolute or above the Constitution.

Well, statute is explicitly stated to have the power to define executive orders. I would say that there's nothing stopping you from, say, amending the constitution to reduce the powers of executive orders, for example. But, if we are to state that executive orders are currently almost entirely undefined, except in the case of abortion, there's nothing saying that an executive order is NOT an avenue by which the constitution might be amended. Demonstrably:

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Emphasis mine. I don't believe that the constitution, as presently written, really should be read as to implicitly include the word "only." The book example is telling, because there are certainly other avenues by which to acquire the same book, although not necessarily that copy. If it is that copy in question, the person might respond, "Well what if I do your chores for a month?" By not saying "may only", I do think that the person who has the book opens himself or herself up for that kind of response.

[PJ]

Well, my brief is similar to Tyrion's, but I will file it anyway.

Looking at the case Seatown vs. Politics Junkie, specifically Decision BK0004, we can see the current the current legal status of executive orders:

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Executive Order PGEO3 was ruled constitutional by this ruling. This means, that since no executive order restrictions are in place, there are no restrictions on executive orders amending the constitution.

In addition this executive order is entirely temporary as previously stated, and introduced into the council as an official amendment.

I do plan on actually getting this amendment passed through democratically once the election is over. However, there was no possible way to get the amendment passed before the election, so an executive order was needed. As far as allowing other office holders to be councillors, I would be opposed. This would lower the activity within their respective offices. I am confident the Pacific can function with three councillors for the time being. Having other office holders hold positions in the council would eliminate the need for the Pacific to exist all together, and if it comes to that, it just strengthens the argument for regional consolidation. This will also make it more difficult for new members to get involved.

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I motion to move this amendment to the top of the queue.

Time for argumentation? Okay. It's fun.

I would counter by arguing that the Constitution does not say that statute must be the only avenue by which to limit executive orders. Rather, the Constitution grants the legislature the power to limit executive order by statute; as such, the Constitution clearly implies that executive orders are not absolute or above the Constitution.

"May," as I explained earlier, is a word that expresses contingency. The Constitution may be amended [only] if the criteria listed are met. It would be like me saying, "You may have this book if you pay me for it." That does not mean that there is some other way to obtain the book - it means that if you want it, you have to pay me for it.

In response to this, I don't believe we can imply that the constitution states anything. I would agree that this executive order would be unconstitutional if the word "only" was inserted in the sentence, but it is not.

Lastly, I would like to make a statement about this executive order's necessity. I cannot currently find enough candidates for a 3-person council, let alone a 5-person council. In its current state, only 2 councillors are needed to ratify amendments. If the court rules in favor of the plaintiff, 4 people will be needed to ratify amendments, something this region simply does not have the ability to do.

Decision BK0004: https://uselectionatlas.org/FORUM/index.php?topic=182476.0
PGEO3: https://uselectionatlas.org/AFEWIKI/index.php/Pacific_Governor_Executive_Order_3

[DemPGH]

It would be highly unreasonable to expect a constitution to list things you cannot do. That's not even the purpose of a constitution.

A constitution is a contract. Contracts specify obligations. "May" and "if" work together; "may" implies permission. "You may leave the room if you can get through the door." Likewise, the contract may be amended IF the described process happens. It's just semantics.

I'm going to try to find another solution to this problem. If the Governor can create law with an executive order, then we don't need legislatures.

[Bacon King]

THE LIBERAL JUSTICE OF THE PACIFIC COURT HAS REACHED A VERDICT IN THE CASE OF DEMPGH V. THE PACIFIC (Decision BK0005)

1. The Third Pacific Constitution, regarding its amendment procedures, uses the word "may" rather than "shall" which implies that alternative methods of constitutional amendments are acceptable. However, no other methods are currently stated so within the bounds of the Pacific Constitution there's only one way to amend it and that procedure was not followed.

2. While the Governor's Executive Order authority is currently not limited by statute, thus giving his decrees an authority equal to constitutional provisions (and thus can effectively suspend specific clauses when needed), this authority is itself derived from the Constitution. It is thus impossible for him to amend the Constitution using this authority. Imagine if he passed an executive order that removed his authority to give executive orders? Or if he passed an executive order affecting the judicial authority of the Liberal Court and its oversight authority which determined the potential scope of the Executive authority in the first place? That would cause a paradox. While the Governor may ignore the Constitution, his authority to do so is derived from the Constitution, so he must act within the legal framework it establishes. He may ignore, but not change, the Constitution.

3. Therefore, the legal number of councilors is five. An injunction is hereby placed on the recent election until a following summary judgement will determine how that issue shall be handled.

BE IT RESOLVED,

BACON KINGMAN, ATTORNEY AT LAW
PACIFIC JUSTICE OF THE LIBERAL COURT
THE DECIDER OF ALL

[Bacon King]

IN RE MEMBERSHIP OF THE PACIFIC COUNCIL, THOSE WHO REPRESENT THE PEOPLE (BK0006)

PRELIMINARY SUMMARY JUDGEMENT

1. Three people got elected when five people were supposed to be elected.

2. Both sides agree three is a number more conducive to regional activity than five and it's very bad for the region to have inactive legislators.

3. The People of the Pacific Region deserve, and have a Constitutional right to, an active, capable, and functional government.

4. To promote those ends, the Liberal Court of the Pacific Region hereby declares that the number of Pacific Councilors shall be capped at three until such time as it is no longer necessary to do so. The three Councilors elected last weekend are the entirety of the Pacific Council. This cap is effective immediately, and may only be removed by:

• Judicial Order
• Executive Order
• Majority vote of the Pacific Council

THIS JUDGEMENT (BK0006) IS PRELIMINARY. 24 HOURS IS ALLOWED FOR OBJECTION BEFORE IT TAKES EFFECT.

[DemPGH]

No objections from me! If I may say so, I find the decision exceedingly wise, and we can proceed with three until things pick up or we're consolidated. Very good.

A general note here: this weekend through Christmas will see very limited activity from me; hopefully that's understandable. So as time allows we can get back to business.

[President Tyrion]

All is well that ends well!

[Bacon King]

The verdict of the preceding summary judgement (BK0006) is now in effect. As there were no objections, any citizen who seeks to overturn this decision must do so via a full suit against the Pacific Region (and honestly if you have a good argument I'm all ears). The Pacific Council shall henceforth be temporarily limited to only three members so that regional government remains functional. This cap will remain in place until it is removed by executive order, judicial order, or majority vote of the council iself (note that any of the three branches of regional government may unilaterally remove the restriction at will).

BE IT RESOLVED,

BACON KINGMAN, ATTORNEY AT LAW
PACIFIC JUSTICE OF THE LIBERAL COURT
THE DECIDER OF ALL