So what’s new in DuhSantistan?

I bet you the clowns applauding this wouldn't accept our next Democratic governor suspending a bunch of Republican prosecutors and replacing them with liberals. Really despicable what the Republican Party has become.

 

If that was the law, I’d challenge the statute and get a declaration it was unconstitutional, not hope a prosecutor decides he has the unilateral power to decide it isn’t the law.

And the flip side of that is, if I was state attorney and put out a statement that says “Shall not be infringed means shall not be infringed, so we aren’t prosecuting any weapons crimes here. Felon in possession, unlawful carry, brandishing, carry in a school, illegal machine gun, whatever, I don’t care. Don’t bring that arrest report to me, because I’m going to cut ‘em loose,” something tells me you wouldn’t be falling all over yourself to tell me that’s my prerogative.

In any event, in practice the bar prosecutors are being held to here isn’t a terribly high one: it literally consists only of don’t be dumb enough to sign written statements in your official capacity saying you have a blanket policy of not enforcing Florida law.

When a prosecutor purports to have a blanket policy of non-prosecution, it turns the constitutional order of the state on its head.

Could you really tell me with a straight face that anyone intended for the three ways to get rid of a state law to be:
1. Repeal by both houses of the legislature, subject to gubernatorial veto.
2. Declaratory and injunctive relief from a court, subject to appellate review.
3. The unilateral, entirely unreviewable decision by a single county officer that he doesn’t want to apply it.

 

That's a non-answer. We both know you would applaud prosecutors who refused to enforce that blatantly unconstitutional law.

That's your prerogative. If the people who elected you don't like it, they can recall you or not reelect you.

And yet, that's what people are in fact electing a prosecutor to do. The idea that we must play stupid and the prosecutor should play coy just so you can justify DeSantis's bad behavior is absurd.

Except the third way doesn't get rid of a state law.

 

It's dumb politics too. He should occasionally drop his authoritarian actions and rhetoric and do something that demonstrates that he serves everyone in the state, not just right wing zealots.

I liked a few things he did early in his tenure. Then he decided to out-Trump Trump with all these authoritarian measures that do nothing but divide us.

I now think DeSantis is as dangerous as Trump, because he's actually implementing the authoritarian playbook. His own police force "monitoring" elections?!?

 

Disagree. While I completely agree that a prosecutor has discretion to exercise, their function isn’t to sit as a judge of the wisdom or constitutionality of laws. Those functions are assigned to the legislature and the judiciary, respectively. There’s a difference between exercising discretion (even if you do so quite judiciously) and simply saying that the law won’t be applied in your circuit.

To me, a prosecutor here is analogous to a state agency under the rule prohibiting a state official or agency from asserting the unconstitutionality of state law - a prosecutor refusing to enforce state law because he believes it is unconstitutional is invading the province of the judiciary just as surely as the attorney general was when he refused to allow the cabinet sitting as the State Board of Equalizers to hear a tax appeal because he thought the procedural statute was unconstitutional. And the fact that a prosecutor can be voted out of office shouldn’t be anymore of an answer than it was with respect to the attorney general (who is equally capable of being voted out).

 

It's amusing how far out to extremes the right has to take things in an attempt to make a point. I will give you some credit, at least you didn't have your imaginary prosecutor declaring baby rapists wouldn't be prosecuted in his jurisdiction.

Thankfully the Florida Constitution has Article I Section 23 to protect us from overreaching governors and the "whackos." I only wish the framers of the US constitution had the foresight to see what was coming if a small, but extreme segment of the population managed to gain control of SCOTUS.

 

I couldn't agree more! Its really sad where we are....again. We as a country seem to periodically go through these convulsions of idiocy.

 

What you're saying literally conflicts with the oath of office Florida law requires elected officials to take.
Statutes & Constitution :View Statutes : Online Sunshine
I,_____________, a citizen of the State of Florida and of the United States of America, and being employed by or an officer of and a recipient of public funds as such employee or officer, do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida.
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He's wielding the power to incarcerate people. The idea that a prosecutor has no duty to determine the constitutionality of his actions in deciding how and whether to enforce the law is ridiculous.

Exercising prosecutorial discretion is different from exercising judicial review.

 

Obvious you were never a prosecutor. I was asked to read this during my job interview and before I walked into a courtroom for the first time after I was hired...in all places, the 13th Judicial Circuit in and for Hillsborough County, Florida where I proudly served for 6.5 years. We were expected to live up to this.:


Standard 3-1.2 Functions and Duties of the Prosecutor
(a) The prosecutor is an administrator of justice, a zealous advocate, and an officer of the court. The prosecutor’s office should exercise sound discretion and independent judgment in the performance of the prosecution function.

(b) The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. (emphasis added) The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.

(c) The prosecutor should know and abide by the standards of professional conduct as expressed in applicable law and ethical codes and opinions in the applicable jurisdiction. The prosecutor should avoid an appearance of impropriety in performing the prosecution function. A prosecutor should seek out, and the prosecutor’s office should provide, supervisory advice and ethical guidance when the proper course of prosecutorial conduct seems unclear. A prosecutor who disagrees with a governing ethical rule should seek its change if appropriate, and directly challenge it if necessary, but should comply with it unless relieved by court order.

d) The prosecutor should make use of ethical guidance offered by existing organizations, and should seek to establish and make use of an ethics advisory group akin to that described in Defense Function Standard 4-1.11.

(e) The prosecutor should be knowledgeable about, consider, and where appropriate develop or assist in developing alternatives to prosecution or conviction that may be applicable in individual cases or classes of cases. The prosecutor’s office should be available to assist community efforts addressing problems that lead to, or result from, criminal activity or perceived flaws in the criminal justice system.

(f) The prosecutor is not merely a case-processor but also a problem-solver responsible for considering broad goals of the criminal justice system. The prosecutor should seek to reform and improve the administration of criminal justice, and when inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, the prosecutor should stimulate and support efforts for remedial action. The prosecutor should provide service to the community, including involvement in public service and Bar activities, public education, community service activities, and Bar leadership positions. A prosecutorial office should support such activities, and the office’s budget should include funding and paid release time for such activities.

Standards for the Prosecution Function

 

How do you square that with the public official standing doctrine? Since at least 1922, at least a ministerial officer in Florida can’t assert the unconstitutionality of Florida law.

 

I have never been a prosecutor, but the bolded is exactly the point: there’s a material difference between exercising discretion and saying that there is never an appropriate circumstance to apply the law. The first is his job, the second is usurping the power of the legislature.

 

It's (1) inapplicable to our debate and (2) wrong as a matter of law.

 

There isn't a material difference. Saying you won't prosecute because a law is unconstitutional is an exercise of discretion. It's not usurping the power of the legislature. The legislature isn't responsible for enforcing laws.

 

Hypothetical here: Congress passes a law over the President's veto that says any noncitizen who has ever expressed a negative opinion about the United States or any member of its government must be immediately deported. The President orders DHS not to enforce the law because it's unconstitutional.

You're saying that DHS can't do that. You're saying the President has no right to order that. Yet, if he doesn't, he subjects people to a violation of their rights and harm that might well be irreparable. The President's fidelity is to the Constitution, not an unconstitutional law. Why would it be different for a prosecutor?

 

Different hypothetical:

Say Congress passes a law that provides procedures for receiving and counting electoral votes (let’s call it the Electoral Count Act of 1887). The Vice President believes it’s unconstitutional because he believes the Twelfth Amendment vests the power to receive and count electoral votes in him exclusively in his capacity as the president of the Senate. And his ultimate oath is to uphold the US Constitution over statutory law to the extent they conflict.

You’re telling me he should refuse to follow the Electoral Count Act and instead exercise his constitutional powers as he understands them by ruling on the validity of electoral votes himself?

Because that’s the extreme of the danger of empowering government officials to decide the constitutionality of laws they are charged with implementing - it fundamentally undermines the rule of law, and invades both the powers of Congress to make laws and the judicial review function of the judiciary to be the principle arbiters of constitutionality.

Government officers acting in their official capacities are acting on behalf of the government, and it unequivocally should not (and arguably cannot) be the position of the government that it’s own laws are invalid - to the degree that they believe them to be unwise, there are procedures to change them. When you argue that those government actors should determine the constitutionality of laws on their own, you are making them laws unto themselves.

Personally I do not think there is value in returning our legal system to one that is entirely reliant on filing writ petitions to attempt to compel government officials to do what the law directs them to do.

 

The Twelfth Amendment doesn't give the Vice President the power to decide what electoral votes count. I consider it far more dangerous to believe that the executive branch is compelled to enforce unconstitutional laws than to believe the executive branch is free to not enforce unconstitutional laws.

The Constitution is a higher source of power than statutory law. If they are to act on behalf of the government, they must not engage in acts that violate the Constitution. That is their duty. Laws that violate the Constitution are void.

But let's be clear, I'm not arguing that we should have a free for all of government actors deciding what is and isn't constitutional. I'm arguing that elected officials who possess discretion, enforcement authority, and policymaking ability have the discretion, and indeed the duty, not to engage in unconstitutional acts.

I err on the side of liberty and protecting constitutional rights, so that's not an outcome I fear. It would be better than our current system of rampant constitutional violations. Governor DeSantis is especially skilled in the art of violating the Constitution.

 

Fair - saying you won’t enforce the law because you don’t agree with it is usurping the power of the legislature. Saying you won’t enforce the law because you believe it is unconstitutional is usurping the power of the judiciary.

 

No, it's exercising your enforcement discretion as a member of the executive. Your interpretation of the law doesn't bind anybody but the people who answer to you. It doesn't bind your successors. It doesn't bind other enforcement authorities. That's what distinguishes it from judicial review.

 

The issue is that, in the case of all of the clearly unconstitutional hypotheticals, there’s an easy remedy: it should not be at all difficult to enjoin their enforcement.

But this is tougher because of what motivates it - disagreement with the judiciary. Why is he vowing not to enforce it? Because he suspects that the branch charged with determining constitutionality will find that it is not unconstitutional.

It’s an attack on the basic idea of judicial review, and is bluntly little more than nullification - to paraphrase Marbury, it is emphatically not the province of the executive branch to say what the law is.

I actually think this is an interesting question and urge you to read the Florida Supreme Court’s opinion in Atlantic Coast Line Railroad v. Board of Equalizers: https://cite.case.law/fla/84/592/

One of the hypotheticals they raise is an interesting point - a power in executive officers to determine constitutionality effectively nullifies the veto override procedure in lawmaking, at least in the situation where the veto is due to perceived unconstitutionality. In that circumstance it doesn’t matter whether the Governor vetos the law with a message saying he believes it is unconstitutional or not, because even if his veto is overridden he would just be bound to ignore the law anyways, so it makes no difference whatsoever whether he vetos it or signs it.

 

If they find it's not unconstitutional, that will be the law in Florida, no matter how wrong and dishonest it is. Warren will retain the enforcement discretion to decide how and whether to enforce that law in his jurisdiction.

And it can actually be quite difficult to enjoin the enforcement of a law, particular if it's one people don't want to risk violating due to the severe consequences.

No, it's simply the nature of enforcement discretion. You keep conflating judicial review with enforcement. They're different things.

I urge you to read up on the history behind why that case happened. It'll demonstrate exactly why that decision and its progeny are wrong. It's a result of judges trying to fiercely defend their little fiefdom during the Lochner era.

Yeah, except for the part of the governor not having life tenure. If he vetoes it and the veto isn't overridden, it doesn't become law. If he signs it, it becomes law. Even if he refuses to enforce it, his successor can choose to enforce it. Additionally, there are likely other officers who can enforce it in the governor's stead.