The problem with this suit is the counter-argument could easily win the case by saying prayer could be to any "gods" or the "god" of self. Yes, people can actually pray to themselves. So, since it's universal, and non-discriminatory, the suit will be a waste of tax payers money and the day will continue to be recognized by all Americans in their own way.

Except it's not universal or non-discriminatory because not all of us hold a notion of god.

And, please read the Constitution.

I suppose they should take the actual sentence "certain inalienable rights endowed by our creator" out of the constitution then.

We don't need to, since there is no such phrase in the Constitution.

You can disagree all you want, but "explicitly" is explicitly not in there, for exactly that reason. Again, that was the problem with the Articles of Confederation. Again, see McCulloch v. Maryland. You are at liberty to think McCulloch was wrongly decided, but in order to do that you'd have to overturn so much of the law that has been decided since 1819 that our governmental system wouldn;t even make sense anymore..

Necessary and proper isn't a blank check to do anything and everything, but it does vastly expand on the enumerated powers, and really makes the "explicit" idea make no sense.

As far as appealing to the Tenth Amendment (you said ninth, but that one is about non-enumerated rights; the Tenth is the one about delegated powers and the states), that's a hazy proposition at best. It was probably the weakest amendment from the beginning (being basically a truism), and with a few notable exceptions (like commandeering of the state legislature/executive a la New York v. United States and Printz v. United States; and the basic ill-defined idea from Gregory v. Ashcroft that if state decisions are going to be displaced, it has to be pretty specific), Garcia v. San Antonio Metropolitan transit Authority eviscerated almost all substance that the Tenth has accrued over the intervening years. It may indeed be the case that the Tenth Amendment makes no sense.

Anyway, all of that only applies to Congressional powers anyway. Executive powers aren't defined by the Constitution at all, and Judicial powers are mostly not defined either (other than the "cases and controversies" requirement).

If the President declaresd a Day of Prayer, there's probably nothing legally that can be done about it. Yeah, it's a violation of the First Amendment. But with much of the President's powers, there's nothing you can do other than vote for a different guy next time.

That's moot anyway, because the National Day of Prayer was an act of Congress. Yeah, it's unconstitutional. I'm not arguing that. What I am arguing is that there's absolutely nothing that can be done about it (other than voting for people that will repeal it), because unless tax dollars are being spent on it, you'd have a hard time finding a plaintiff with standing to sue.

Its a bit nervy and reckless of the gov't to let the fundies monopolize such a "Day." The only possible pseudo-justification for it would be that it was interfaith and inclusive (or even that "prayer" may be interpreted to include meditation or philosophical contemplation if you prefer). It will be interesting to see if any challenges come up in court, or if we get demands for a Day of Skepticism or Day of Reason. How about Einstein Day or Darwin Month?

In fact, the Constitution absolutely does not "explicitly" enumerate powers- the Articles of Confederation did, and that was a problem. The "necessary and proper" clause alone blows the idea of "explicitly enumerated powers" out of the water.

Anyway, I agree that a national day of prayer is extremely Constitutionally suspect at best, but it wouldn't even make any sense in our legal/Constitutional system for "the burden to be on them to prove it's Constitutionality." Maybe once it gets into court the burden can fall that way, but until then? There's just no mechanism for it under the Constitution other than Congressional restraint (yeah right) and the political system (i.e., don't vote for people who support a national day of prayer).

It's just the reality of the way the system works.

The problem with the potential unconstitutionality of the national day of prayer is that even if it is unconstitutional, someone would have to sue to make it stop, and to sue you'd have to show a concrete and particularized injury of some sort (so that you would have standing). "My calendar made me think about God when I didn't want to" is not enough. "I don't like living in a ocuntry that supports religion and I shouldn;t have to" is also not enough.

You can't sue based on your undifferentiated share of an injury generalized to everyone.

However, there is an exception for the establishment clause- you can, as a taxpayer, sue to make the government stop using tax money in support of religion. SO if any tax dollars get spent on the NDP, someone just has to sue and show it is in violation of the 1st Amendment. It won't necessarily make the day go away (it could, if you sued for injunctive relief, but more probbly the result of such a lawsuit would only result in an injunction against spending tax money on it).