The whole torture thing shows how fucked the government really is.

[originalpckelly]

1. What is policy? What is law? What separates them from being the same thing?

From Princeton's WordNet:
# the collection of rules imposed by authority; "civilization presupposes respect for the law"; "the great problem for jurisprudence to allow ...
# legal document setting forth rules governing a particular kind of activity; "there is a law against kidnapping"
# a rule or body of rules of conduct inherent in human nature and essential to or binding upon human society
# a generalization that describes recurring facts or events in nature; "the laws of thermodynamics"
# jurisprudence: the branch of philosophy concerned with the law and the principles that lead courts to make the decisions they do
# the learned profession that is mastered by graduate study in a law school and that is responsible for the judicial system; "he studied law at Yale"
# police: the force of policemen and officers; "the law came looking for him"

The first of the definitions appears most applicable here. It doesn't make any difference between the laws of civilized people (international law), the constitutional law (US Constitution), statutory law, or policy/interpretations of statutes. I would argue that out all of the rules imposed by authority, the last group is the most important, it is the point where the rubber meets the road.

2. I submit that the interpretation of the law by the executive branch matters more than any source of rules in society. We have seen this plain truth the law few years. If the executive chooses to promulgate a rule that excepts certain forms of torture from being considered torture under the law, then torture, at least that form of torture, is then for all purposes a legal act.

3. Law is being made by the executive branch, in clear violation of the separation of powers doctrine. While the SCOTUS may have ruled in INS v. Chadha that the legislative branch may delegate authority to the executive, and if it does, it retains no reserve authority, it is absurd on its face to think the court was approving of a direct violation of the separation of powers doctrine. In fact, as one reads that decision, it is the correction of an unconstitutional practice, that of the legislative veto, which violated the procedures and the separation of powers in the US Constitution.

Here's the Syllabus for INS v. Chadha:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0462_0919_ZS.html

8. The congressional veto provision in § 244(c)(2) is unconstitutional. Pp. 944-959.

(a) The prescription for legislative action in Art. I, § 1 -- requiring all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives -- and § 7 -- requiring every bill passed by the House and Senate, before becoming law, to be presented to the President, and, if he disapproves, to be repassed by two-thirds of the Senate and House -- represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure. This procedure is an integral part of the constitutional design for the separation of powers. Pp. 944-951.

(b) Here, the action taken by the House pursuant to § 244(c)(2) was essentially legislative in purpose and effect, and thus was subject to the procedural requirements of Art. I, § 7, for legislative action: passage by a majority of both Houses and presentation to the President. The one-House veto operated to overrule the Attorney General and mandate Chadha's deportation. The veto's legislative character is confirmed by the character of the congressional action it supplants; i.e., absent the veto provision of § 244(c)(2), neither the House nor the Senate, or both acting together, could effectively require the Attorney General to deport an alien once the Attorney General, in the exercise of legislatively delegated authority, had determined that the alien should remain in the United States. Without the veto provision, this could have been achieved only by legislation requiring deportation. A veto by one House under § 244(c)(2) cannot be justified as an attempt at amending the standards set out in § 244(a)(1), or as a repeal of § 244 as applied to Chadha. The nature of the decision implemented by the one-House veto further manifests its legislative character. Congress must abide by its delegation of authority to the Attorney General until that delegation is legislatively altered or revoked. Finally, the veto's legislative character is confirmed by the fact that, when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action in the Constitution. Pp. 951-959.

4. Perhaps it is time for yet another lightning bolt to hit the government and wipe out yet another egregious violation of the basic structure/procedure of the US Constitution.

5. The court ruled that in the absence of a legislative veto, there would only be the possibility of passing a law to produce the desired result, and that this demonstrated the inherently legislative nature of the the veto provision in the law being considered. It also cited Article I § 7 legislative process as the legislative process the Framers intended to be used to make law.

6. I suggest that we should apply the same test to executive orders and legal opinions issued by the OLC. In the absence of executive orders or legal opinions by the OLC, the Congress would have to pass laws in order to change the rules imposed by authority/desired result, and by that test/reasoning, both should be considered legislative in nature.

7. If that is true, then the procedure in Art. I § 7 describing the process of making law should be used in all situations where new laws are made, and the other processes struck down as unconstitutional.