So Impeach Him

Wednesday, July 2, AD 2014

If the Legislature shall fail to pass legislation that the President deems essential, the President shall have the authority to unilaterally pass such legislation via Executive Order. – US Constitution, Article II, Section 5, as envisioned by Barack Obama.

One would think that, having unanimously been rebuffed by the Supreme Court yet again for executive overreach, President Obama would be somewhat chastened. Of course the person who thinks that obviously doesn’t know Barack Obama.

President Barack Obama appeared equally annoyed and frustrated with House Republicans on Tuesday, dismissing their recent threat of a lawsuit and promising to continue with the executive actions that have so bothered the GOP.

“Middle-class families can’t wait for Republicans in Congress to do stuff,” Mr. Obama during a speech along the Georgetown waterfront. “So sue me. As long as they’re doing nothing, I’m not going to apologize for trying to do something.”

Since there is no imaginary codicil in the Constitution that permits the President to act unilaterally, even if “middle-class families” can’t wait, President Obama is technically quite wrong. Leaving aside the dubious analysis that middle-class families are anxiously awaiting some kind of immigration reform, the President’s self-congratulatory statement about trying to do “something” is constitutionally and politically noxious.

The constitutional problem is obvious. We still liver under a republican form of government, one that is largely built upon the foundation of checks and balances and separation of powers. To concentrate powers into one hand is to set a course for tyranny. As our constitutional scholar of a President has no doubt read:

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Reading a little further down, Madison writes, “In republican government, the legislative authority necessarily predominates.” Yes, the legislature is to be dominant, with the president afforded necessary checks to make sure that the legislature doesn’t get out of control. But that check on the legislatures comes in the form of a veto pen. The president’s power is essentially a negative one, ensuring that the Congress does not abuse its constitutional authority. Notice, however, that Madison does not prescribe an affirmative check to the presidency. He does not advocate  – nor would almost any of the Framers – presidential ability to act outside of Congressional authority (save in times of rebellion) on his own initiative. The president’s job is to restrain Congress, not for him to get out hand himself when he doesn’t like legislative inaction.

The policy aspect of Obama’s arrogant message is that at least he is doing something. It doesn’t really matter what he is doing or whether what he’s doing actually works, but the main thing is he’s doing something. And that sums up the progressive movement in a nutshell. “Don’t just stand there, do something” has been the official motto of the progressive movement for the past century. The details are of niggling importance. That the proposal might, at best, be unhelpful and, at worst, deprive citizens of their liberty, is not given much consideration.

Of course Obama is merely treading in the same path as progressive presidents that have preceded him. Woodrow Wilson (aka the reason we shouldn’t allow Ph. Ds in the White House, says this Ph. D) wanted to radically re-orient the American polity towards a Prime Minister model. FDR threatened to expand the size of the Supreme Court until he got what he wanted. President Obama is simply acting out the aspirations of Wilson, FDR and their many progressive boosters. Congress? Bah, unhelpful. The Supreme Court? Bah, we’ll just ignore those old codgers.

Unfortunately the president’s arrogance is justified. After all, what is Congress going to do? Speaker Boehner’s going nowhere lawsuit is a futile and pathetic attempt to reign in Obama. Republicans may very well sweep the midterm elections, but we all know that this president is not going to be impeached, and assuredly will not be removed from office. No, President Obama will certainly still be in office until noon on January 20, 2017. So he can taunt Congress all he wants knowing full well that they can’t and won’t do anything to him, and that a large chunk of the public doesn’t even care that this is happening.

Please don’t take this as yet another criticism of those feckless Republicans. Admittedly their options are narrow, and they are narrow because of the reckless fecklessness of Congressional Democrats. There was a time in this country when it was thought that we had in essence four parties: Congressional Democrats and Republicans, and then the Presidential Democrat and Republican parties. All members of Congress jealously guarded their own powers and protected the institution, even when presidents of the same party were sitting in the Oval Office. Those days are gone. There is really nothing short of premeditated homicide caught on film that would spur Congressional Democrats to join in any impeachment proceedings, and even then it might only be a 50/50 vote in that caucus. This is a bipartisan problem to some extent, though the progressive left is even more invested in the idea of a single, centralized authority benevolently guiding us towards utopia.

That is why I think Jonah Goldberg’s criticism of Charles Murray’s piece, in which Murray tries to distinguish between the liberal left and the progressive left, hits the mark. Murray is somewhat right that there is a distinction to be made between “liberals” on the left who, while they agree with the favored policy choices of the progressive left, nonetheless deplore the tactics employed, especially as regards to the stifling of dissent. Yet these liberals don’t kick up too much of a fuss when those tactics achieve their preferred policy outcomes. I don’t see too many liberals complaining about executive overreach – well, not when the overreach is coming from the hands of Barack Obama.

And so here we are, with a president openly thumbing his nose at the republican form of government, and roughly half of the country is yawning at or cheering on this development.

Mr. Franklin’s sage wisdom echoes through the ages.

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38 Responses to So Impeach Him

  • I think the distinction Murray is trying to make is generational. George McGovern is dead and Nat Hentoff is real old. As for the succeeding cohorts, fuhgeddaboutit.

    As for the President, do you detect a note of petulant rage that there are people and impersonal forces that thwart him? Do not most of us get over that by age 53? Is there not a clinical name for that?

    ‘Roughly half the country’ would be about 41% thereof with a declining secular trend. Truman, Nixon, Reagan, Clinton, Bush – it never really got any better for them from this point forward (quite the contrary in the case of three of the five). It did for Eisenhower, but this point in his tenure was just after the end of a sharp recession and his party still got shellacked in the 1958 federal elections. Wagers when BO is at the end of the line, 2/3 of the public will have had quite enough of him.

  • do you detect a note of petulant rage that there are people and impersonal forces that thwart him?

    No doubt, Art. The man has got to be one of the most thin-skinned people to ever hold that office. He is not somebody who likes to be challenged, as is evidenced by the way he has constructed his cabinet and network of advisers. For all the grief that GWB received from the left, he was clearly someone who not only only tolerated but even seemed to promote some level of dissension among his advisers. This president – not so much.

  • The legislature can bring any executive to heel through the power of the purse-strings.
    If the executive can neither raise nor spend money, it is reduced to impotence. Many a British monarch was brought to heel by parliament threatening to refuse supply.

    Perhaps, they could start with a motion to reduce the President’s salary and expenses to, say, $100 a year.

  • Congratulations on writing “reckless fecklessness”. It was a truly honorable act. I feel elevated simply by cutting and pasting it.

  • Sometimes I’m a poet, and I don’t even know it.

  • Obama is calling their immigration bluff, isn’t he? The establishment Republicans want “comprehensive” immigration “reform” too, and so have no words with which to tell him why doing nothing is better than doing something. No principled position they hold as a party. Jeff Sessions has been trying to feed them their lines, but…

  • Perhaps, they could start with a motion to reduce the President’s salary and expenses to, say, $100 a year.

    We have a bicameral legislature, with the upper house run by a man who has managed to accumulate a net worth of $6.7 million after nine years of small-city law practice and forty years of public employment. Among his more choice interventions in public discussion was to accuse the Republican presidential candidate of being a tax cheat sans details (though we can now guess the DNC has operatives in the IRS) and to accuse Koch Industries of being nefarious agents of influence.

    (This last is the partisan Democratic meme d’annee. Of the top 16 contributors over the last generation to campaigns and political parties, 12 favor the Democratic Party and 4 regard politicians as fungible. The top Republican contributor is number 17, which shells out 1/3 of what the top Democratic contributor does. The Democratic intertubez are obsessed with the contributor ranked 60, Koch Industries. As Alinsky said, “Pick the target, freeze it, personalize it, and polarize it. ” Sad to say, the political opposition has turned into a hate group. Not happy we over here).

  • “Sometimes I’m a poet, and I don’t even know it.”

    You could have employed alliteration. But, it would be unacceptable in this forum.

    The zero can’t be impeached. He enjoys a 99% approval rating from the lying, liberal media and owns 100 million government dependents/employees that he feeds and clothes.

  • I like the idea of reducing the salary. Donald answered my question a few weeks ago about why impeachment won’t work. I also think we could let him know we are cutting the money to ex presidents…. and other benefits too, like special security forces once they are no longer in office. Presidents need to realize their is real life with the rest of us once they are out of office. They really think they are special. 🙂 and, especially for Obama, that “I am special” seems to be the root of the defiance problem he exhibits when it comes to following the rules.
    It irks me that he went to MN to stump for Al Franken for some of the sound bites we were treated to a few days ago, like a campaigner. Going to MN is sweet and easy for him…I think we should redirect Air Force One to Brownsville or Tucson and ask him to get out and stump there.

  • A president’s salary and expense budget can’t be reduced during his term. Any change in compensation could only apply to the next administration.

  • I also think we could let him know we are cutting the money to ex presidents…. and other benefits too, like special security forces once they are no longer in office. Presidents need to realize their is real life with the rest of us once they are out of office.

    1. Build a records center in Kansas City and move the archival material there. Then deed the physical plant and the gew gaws of those presidential libraries over to the county government in question and never build another one.

    2. Remove the grandfather clause which requires perpetual security details for presidents serving prior to 2001 (the Bushes get 10 years). Richard Nixon lived the last 6 years of his life without a security detail and if it worked for Nixon, it works for the rest of them. IIRC, Harry Truman went round without one in spite of the assassination attempt against him which killed a member of his detail. We could have paid for home health aides for Ronald Reagan. He did not need cops looking after him. Was Lady Bird Johnson’s life ever in danger? Why did she have 37 hours of 24/7 protection, and why did Henry Kissinger and Stansfield Turner receive none?

    3. Pay for some secretaries to answer the mail they get.

    4. Withhold from them some of their pay as retirement savings. No need to have an actuarially unsound pension. Few of them were bad earners and all but two recent occupants were in late middle age, old, or wealthy when they took office. Maybe Clinton have behaved better if he needed that law license of which he was stripped.

  • Obumbler does not care what opinion polls say about him. He will do what he wants to do. He has his backers and they will support him no matter what.

  • Thank you, Paul Zummo.
    When a president acts outside of the U.S. Constitution, he violates his oath of office.
    Obama has promised us everything and forgets to keep his promises.
    Obama blatantly announces that he will violate his oath of office and act outside of the Constitution
    Let the Executive Orders Obama writes be the grounds for impeachment. In them, Obama has arrogated to himself powers that are not constitutionally his. It is past time.

  • Impeach him? Maybe necessary.
    As you say though, good luck with that one.

  • “The legislature can bring any executive to heel through the power of the purse-strings.”

    They can, but they won’t. Remember last year’s “government shutdown”?
    Obama knows very well that all he need do is wait for the media to make a laughing stock of the Republicans, then they’ll capitulate.

  • The house republicans need to be “impeached” at the ballot box this Nov. Through their obstruction they have caused more damage to this country then any executive order. They have not done the job they were elected to do and they deserve to be removed.

  • “Through their obstruction they have caused more damage to this country then any executive order.”

    Utter rubbish on stilts. The House of Representatives have sent many bills to the Senate with needed reforms and Harry Reid has made certain each and every one dies in the Senate to prevent Obama having the political risk of vetoing common sense legislation.

  • The house republicans need to be “impeached” at the ballot box this Nov. Through their obstruction they have caused more damage to this country then any executive order. They have not done the job they were elected to do and they deserve to be removed.

    Obstruction of what? What’s so urgent, John?

  • Everything that that Siegmun guy just wrote is bu!!$#!+.

  • Obama’s progressive agenda is a tragic fiasco. Sorrowfully, the oversupply of resentful/wrathful and ignorant/unintelligent people, like Siegmun, continues to expand.

  • We talk disdainfully of sound bites, but it is obvious that they work! Too many people by into the bite-size bits I’ misdirection that are fed to them daily

  • “Buy in” to sound bites

  • “The zero can’t be impeached. He enjoys a 99% approval rating from the lying, liberal media and owns 100 million government dependents/employees that he feeds and clothes.”
    100 million government dependents/employees whom he feeds and clothes are fed and clothed by “We, the people…”. Obama does nothing. The feeding and the clothing will go on in the next election cycle because the taxpayers feed and clothe the government dependents/employees…and Obama and more than some other criminal takers, like Obama. Perhaps some people buy into Obama’s lies about he, himself, doing these wonderful acts of charity, but Obama’s lies come with the threat of, the constant threat of, this charity ending, so reelect Obama for more lies and threats, especially if Obama institutes euthanasia. Then it will surely end…abruptly.
    Abortion and euthanasia are the foundation of Obamacare. Someone will never need surgery, if he is dead.
    Our Constitutional Republic will go on, long after Obama and Hillary and their lies about Benghazi, “you can keep your doctor, your insurance and have a 30% decrease in premiums.
    “We,” the taxpayers need to rid ourselves of liars, manipulators and Chief Executive Executive Orders.
    God created all things and keeps them in existence. “We, the people” made our government and keeps it in existence.
    “…governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.” fromThe Declaration of Independence

  • Everything that that Siegmun guy just wrote is bu!!$#!+.

    If you begin with the assumption that ‘the job they were expected to do’ was to be an extension of Mr. Siegmun’s will or BO’s will, I guess it makes a sort of sense. Of course, few of their voting constituents actually think that. Given past experience, I suspect Mr. Siegmun will be quite disappointed this November.

  • Legislation enacted by Congress during the period running from 2009 to 2011 included the stimulus (a waste), Obamacare (fiasco) and Dodd-Frank (latent fiasco). Maybe we are better off if they are on vacation.

  • “Legislation enacted by Congress during the period running from 2009 to 2011 included the stimulus (a waste), Obamacare (fiasco) and Dodd-Frank (latent fiasco). Maybe we are better off if they are on vacation.”
    The stimulus was a carefully ochestrated giveaway to those who would support Obama. Nancy Pelosi’s husband, who owns Star Kissed tuna, was given a stimulus. Solyndra was a payback in vengeance for the solar industry.
    You are correct Art Deco, the stimulus was a waste for the people, but it was a boon for Obama.

  • Has anyone found my “r” from orchestrated?

  • Siegmund,

    The truth about the source of legislative obstructionism. (A quick hint, its not Republicans.):

  • It’s rright here, Mary.

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  • Oh, Thank You, Mike. I was afraid that I would have to become a Chinaman.

  • “But can’t he borrow the power to do these things?”
    Of the 923 Executive Orders written by Obama, this one, 11921 actually disables Congress. Who will enable Congress once Obama has shut Copngress down?
    -EXECUTIVE ORDER 11921 allows the Federal Emergency Preparedness Agency to develop plans to establish control over the mechanisms of production and distribution, of energy sources, wages, salaries, credit and the flow of money in U.S. financial institution in any undefined national emergency. It also provides that when a state of emergency is declared by the President, Congress cannot review the action for six months.
    In six months Obama can run this country into his bank account. If the people are all dead, the country will belong to Obama.

  • In addition, June 9, 201, Executive Order 13575 Rural Councils allows the government agents to come onto private farms and confiscate them if the agent does not like the way the farm is being run, or the government may not like the owner of the farm.
    The Fifth Amendment, the takings clause allows eminent domain, the taking of private property for public use with just compensation. Public use became public purposes without the change having been ratified by three quarters of the states. Public purposes has now become complete usurpation of private property at the whim of government without just compensation. Very few people knew of this because of Weinergate
    Obama also took control of all other executive orders, Clinton’s taking of all public lands and waterways. Very few people knew because of Monicagate. It was adultery stratigically placed to allay the people’s fear of totalitarianism.
    And so it goes. Very few people knew or learned of this because of all the promises of benefits to look the other way. “We, the people” have lost our country to a very small man’s opinion and greed for power to rule the world.
    Clinton was reelcted by the million illegals he made legal. Perhaps the 500,000 illegals made legal by Obama might just make him emperor, but in effect, Obama already did that in EO 11921. Just saying.

  • “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”
    – See more at:

    So, impeach him.

  • 1 Kings 8 Then Samuel told all the words of the Lord to the people who had desired a king of him.
    “And he will take your fields and your vineyards, and your best olive-yards, and give them to his servants.” Rural Councils Executive Order 13575
    “Moreover, he will take the tenth of your corn, and of the revenues of your vineyards, to give his eunuchs and servants.” The stimulus
    “Your servants also and handmaids, and your goodliest young men, and your asses he will take away, and put them to his work.” Executive Order 11921
    “Your flocks also he will tithe, and you shall be his servants.” Taxation without representation, constituency denied, religious liberty denied, freedom of conscience denied. (10- 22)
    So, Impeach Him.

  • In the bush, witch doctors wear hideous masks, do violent contortions and shriek incantations to ward off evil spirits.
    In Washington D.C , the only incantation a citizen has to permantently ward off evil spirits is impeachment.
    Obama, Clinton, Bill and Hillary, have impeached themselves. It is up to “We, the people” to make it permanent, document it in the public domain, so that their Executive Orders to denude the people of their sovereign rights and others of their real estate, become empty words, so that these unauthorized, usurped authorities have no validity in and out of the Constitution.
    So that the oaths that they have taken and violated impeach them. Murder of the Constitution has no statute of limitations.
    So Impeach Him.

The Congress Party Needs to Step Up

Saturday, July 14, AD 2012

The frequency with which the Obama administration has gone rogue and completely ignored Congress’ will seems to increasing at an exponential rate. I fear that by the end of the campaign Obama will be issuing executive fiats on a daily basis. The latest: gutting welfare reform.

The landmark welfare reform law President Bill Clinton signed in 1996 helped move nearly 3 million families off the government dole — the result of federal work requirements that promoted greater self-reliance.

Yesterday the Obama administration gutted those federal work rules, ignoring the will of Congress by issuing a policy directive that allows the Department of Health and Human Services to waive the work requirements for the Temporary Assistance for Needy Families (TANF) program. “The result is the end of welfare reform,” wrote Robert Rector and Kiki Bradley of The Heritage Foundation.

Surely there was a provision in the legislation that permitted the president to grant such waivers, right? Yes. And no.

Today the Obama administration issued a dramatic new directive stating that the traditional TANF work requirements will be waived or overridden by a legal device called a section 1115 waiver authority under the Social Security law (42 U.S.C. 1315).

Section 1115 allows HHS to “waive compliance” with specified parts of various laws. But this is not an open-ended authority: All provisions of law that can be overridden under section 1115 must be listed in section 1115 itself.

The work provisions of the TANF program are contained in section 407 (entitled, appropriately, “mandatory work requirements”). Critically, this section, as well as most other TANF requirements, is deliberately not listed in section 1115; its provisions cannot be waived. Obviously, if the Congress had wanted HHS to be able to waive the TANF work requirements laid out in section 407, it would have listed that section as waivable under section 1115. It did not do that.

Remember all those crocodile tears during the Bush years about the unitary executive? Leaving aside the fact that critics completely misrepresented the doctrine and its application, it seems the left has no problem with a president truly implementing the unitary executive doctrine. Only this time instead of the President being supreme within the Executive branch, he is evidently supreme over the entire federal government.

There will of course be no repercussions from this action. While it might be cathartic to pound the keyboard about the spineless Republicans, no amount of caterwauling can change the fact that the overwhelming majority of Democrats will ensure that no corrective action is taken. It was hard enough to get a contempt vote in the House against Eric Holder. Do you think the Democrats will really allow a serious investigation, or even more?

And that’s a true pity. There used to be a time when partisan identification was almost secondary to institutional concerns. Congressmen valued the independence and authority of their own branch of government, and simply sharing party affiliation with the president didn’t prevent Congressmen from jealously guarding their prerogatives. Inter-branch rivalries were an essential element in safeguarding our republic. Today that is gone. The same committee (Oversight) that has been commendably fastidious in investigating Fast and Furious will lay down like neutered dogs should Mitt Romney win the presidency. The committee was sure loath to investigate President Obama when controlled by Democrats two years ago.

This is truly a bi-partisan issue. Congress has completely abandoned its role as an independent, co-equal branch of government. The very fact that we are so consumed by the presidential campaign is a sad reflection of how pre-eminent the presidency has become.

Congressional Democrats should be just as furious as Congressional Republicans over Obama’s actions, regardless of how they feel about the policy. Wouldn’t it be nice if Congress as a whole regained a sense of institutional pride and reasserted their place in the federal framework? Sadly that’s as realistic an expectation as hoping that John Boehner will become John Rambo.

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21 Responses to The Congress Party Needs to Step Up

  • Thomas Jefferson, “The greatest danger to American freedom is a government that ignores the Constitution.”

  • But, he’ll put you on a morphine drip when he decides you’re to old for spend for your health care because dead people don’t vote.

  • An interesting campaign tactic by Team Obama. This ties in nicely with advertising food stamp availability on novella commercials on Spanish language stations. The Obama campaign is running explicitly on a platform of ever increasing government dependence. Well, since Obama has made a complete hash of the economy, I guess life as a perpetual dependent and guest of the US taxpayer is the best he has to offer in order to attract voters.

  • I would not look forward to the prospect of agricultural policy being dictated by some latter-day Jamie Whitten. I think your post is misconceived. Congress has ample regard for its institutional prerogatives, it is just that they are jealous of privileges that are discretely beneficial to each as individual actors, not of powers which aid in the execution of constitutional function. Congress could do a great deal, and has done flat nothing, to contain the misfeasance of the appellate judiciary. This last has been ongoing for nearly 60 years.

    I will offer an alternative hypothesis: we suffer from an almost comprehensive loss of a sense of common spaces and common rules. This loss is not at all symmetrical and a great deal of our political contention can be understood as a struggle between those who recognize common spaces and common rules and those who have a reflexively proprietary attitude toward all elements public life and understand law as a tool to be used in power games.

    You can see how this plays out practically. Consider the try-every-door process by which occupational guilds are harnessed for the culture wars. The American Bar Association and the American Academy of Pediatrics are two organization which can for this reason no longer be taken seriously. Earlier this year, we saw it taken to its witless extreme when a conference of high school yearbook and student newspaper staffs was treated to a ‘key-note’ speech by an obnoxious professional pooftar. We have standard-issue Democratic pundits (e.g. Prof. KC Johnson) arguing that appellate courts have a moral responsibility to manufacture and impose on the rest of us ‘gay’ ‘marriage’. We have a professor at the University of Texas who conducted a perfectly ordinary piece of longitudinal research being subject to an investigation for misconduct because of a letter of complaint from a fag blogger. The courts are ours, the news rooms are ours, the arts and sciences faculties are ours, the public schools are ours, the professional guilds are ours.

    And the legislative bodies. Remember Peter Jennings referring to the 1994 federal election as a voter’s temper tantrum? Does that make any sense at all? You have competitive elections, sometimes you win and sometimes you lose, right? To the Democratic cognoscenti, evidently not. The laws passed by that Congress are not binding because control of that body had been stolen from its rightful owners. Hence this asinine order.

    The order is also an indication of the degree to which the Democratic Party is a vehicle for the helping professions. Actually resolving, containing, and ameliorating social problems is of no account. Erecting public bureaucracies of helping and caring is the real show, all staffed with salaried employees who are relieved of the necessity of working for supervisors in commercial enterprises (which produce goods and services people will voluntarily purchase).

  • George Will’s take years ago on the lodestar of the Democratic Party:

    Leave no Social Worker Behind.

  • This is a clarion call to the men and women of the United States of America: make a stand NOW. You must make a peaceful and civil stand now! When you stand you shall stand upon the Constitution. We The People must say enough is enough! We have had enough of the Executive branch going around the Legislative Branch.

    President Obama’s motivations matter not. The results of his actions matter not. The methods that Obama has used to impose his will are unacceptable. We have a Law and limits on Executive power for a reason. Look at the DOMA Law, the Immigration issue, and not this welfare issue. The more people there are on welfare, the less money there is for everyone on the welfare rolls. By allowing the States to ignore the searching-for-work requirement yes more people will jump on the welfare rolls. This will mean less money available for them and the people already on the welfare rolls.

    The Law excluded the Search-for-Work requirement from being waived for a reason. Now, without
    Congressional action, President Obama and his administration has rewritten the law. In doing so he and his admin. have violated the checks and balances. They have made law without the consent of the Legislature.

    He may have the purest motives. His motives don’t change the fact that he is acting more like a Ruler than a Leader. Who do YOU, the People, want running the USA? A ruler or a leader:

  • These people don’t care about the poor. They care about control.

    Their goals are not so much socio-economic reform. They are intent on replacing the ruling elites, of course, with themselves.

  • This is a huge deal. A lot of things that get coverage in an election year aren’t, but the legal and practical impact of this unilateral decision is huge.

    The problem is, during what’s called the “silly season” of a political campaign, everybody denounces everything equally loudly. The president says that the private sector is doing just fine, and the conservative politicians and bloggers make an outcry. Every jobs report, an outcry. Something like this that really matters, the same people are going to gripe about it, but will anyone else notice? Every time one side makes a fuss, the other side denounces them as just making a fuss – and they’re often right. To this day I can’t figure out if Fast and Furious or Holder’s contempt charge really mean anything. I wish there were a way to underline the things that really matter.

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  • Art Deco: “I would not look forward to the prospect of agricultural policy being dictated by some latter-day Jamie Whitten. I think your post is misconceived. Congress has ample regard for its institutional prerogatives, it is just that they are jealous of privileges that are discretely beneficial to each as individual actors, not of powers which aid in the execution of constitutional function. Congress could do a great deal, and has done flat nothing, to contain the misfeasance of the appellate judiciary. This last has been ongoing for nearly 60 years.”
    Start with Executive Order Rural Councils 13575 Which arrogates to the Executive Branch the power to come onto private farms (without permission or invitation or notice) and dictate and/or confiscates, unless it approves of the way the farm land is utuilized. In the Jubilee Year the land was to rest. The land was to lay fallow and the people were to eat of the aftergrowth. Rural Councils will confiscate every piece of private property in America.
    In other Executive Orders, Obama has ordered the Judicial Department to enforce all Executive Orders fifteen years old. Clinton placed all free lands and waterways under the exclusive control of the Executive Branch of Government.
    All free lands and waterways, all public property is owned in joint and common tenancy by each and every citizen in whole and in part.

    “I will offer an alternative hypothesis: we suffer from an almost comprehensive loss of a sense of common spaces and common rules.”
    And rightly so,…because the sense of common spaces and common rules have been wrenched from our freedom, leaving every American citizen with words without meaning or substance and not protected by law . What good is a feel good law that requires no response from our elected officials or a law that has already been abrogated by an Executive Order?

  • Phoenix Matthias:
    I read your website and there is a well balanced exposition of the truth.

  • Rousseau warned of this long ago

    “As soon as public service ceases to be the chief business of the citizens, and they would rather serve with their money than with their persons, the State is not far from its fall. When it is necessary to march out to war, they pay troops and stay at home: when it is necessary to meet in council, they name deputies and stay at home. By reason of idleness and money, they end by having soldiers to enslave their country and representatives to sell it…

    The better the constitution of a State is, the more do public affairs encroach on private in the minds of the citizens. Private affairs are even of much less importance, because the aggregate of the common happiness furnishes a greater proportion of that of each individual, so that there is less for him to seek in particular cares. In a well-ordered city every man flies to the assemblies: under a bad government no one cares to stir a step to get to them, because no one is interested in what happens there, because it is foreseen that the general will will not prevail, and lastly because domestic cares are all-absorbing. Good laws lead to the making of better ones; bad ones bring about worse. As soon as any man says of the affairs of the State, “What does it matter to me?” the State may be given up for lost.”

  • Pretty soon, people will decide to stop working & just go on welfare but, of course, many of us wouldn’t choose that option. There’s nothing wrong to be on welfare if it is necessary but to give a waiver to job requirements is pandering to those people, encouraging them to vote for him. Every week, he panders to groups by giving away taxpayers money. There’s no stopping this guy unless he is defeated in November.

  • Michael,

    Military conscription was only the norm in this country from 1940 to 1973. We had a great deal of history before and after that and have so had since. It would be impractical to attempt to run any but the smallest municipalities through town meetings, which is why it is not done.

  • I’ll just add that nothing that has happened in this country over the past century or so is due to not following Rousseau closely enough. Quite the contrary.

    I would certainly never suggest that Congress needs to oversee the policies it votes for. That’s what the Executive Branch is for. All I ask is for Congress to take heed of its own institutional independence. It’s a fool’s hope, I know.

  • This post has a tag called Checks and Balances.
    I loved learning that checks and balances were part of this government. I had confidence that our government could not go far off from logic and reason, went about the things of life, until I started hearing the words ‘deficit’, ‘deficit spending’, and most lately 2008 ‘bail outs’, ‘national debt’, numbers in trillions, not to mention social engineering and legislation of same.
    Looking forward to ‘cut back’ and ‘balancing budget’ especially by means of checks and balances because currently there is no apparent scale, order, logic or reason that has any virtue.

  • All I ask is for Congress to take heed of its own institutional independence. It’s a fool’s hope, I know.

    But they do take heed of their institutional independence, just not in the service of the integrity of the law or political process. Their taking heed is Jamie Whitten dictating who can use the washroom at the Agriculture Department, dozens of appointments held up on the whim of Richard Shelby, Daniel Rostenkowski and Barney Frank writing favors for their clientele into federal tax law and banking law, federal district courts and prosecutors’ offices reduced to dumping grounds for patronage, Ted Stevens being Ted Stevens, and watersheds being mauled in the service of press releases and brochures.

  • On the way home from Mass this morning I read the bumpers stickers: “Praise Dog”, “Obama 08”. Begging for our civil, constitutional, unalienable rights, is not working. The only strategy is IMPEACH, IMPEACH, IMPEACH. IMPEACH Brennan and Blackmun posthumously, for violating the Supreme Court’s constitutional commission to uphold the inviolable right to Life in Roe v. Wade. Stupid does not get compensation. IMPEACH Obama before Obama gets another turn at being the INFANT BUTCHER. IMPEACH Obama before Obama arrogates to himself the power to annihilate the human person in body and soul, eradicate the U.S. Constitution and replace it with the Marxist Manifesto and impose a one world government under the world bank. IMPEACH Obama for taking the oath of office to uphold the Constitution and delivering it into the hands of unelected individuals and himself to destroy the sovereignty of the American citizen, the sovereignty of the American Nation, the Sovereignty of the Supreme Sovereign Being and the Holy Catholic Church. When God is attacked, every human being, as the creation of God, is attacked. When the Catholic Church is attacked, all human beings are attacked.
    People cannot defend themselves against such unjust laws as Obamacare, Prayer ban, and infanticide because there is no law in these impositions of lies and crime. Legalizing crime is not possible. Decriminalizing crime is not possible. Crime against God and man are criminalized in our founding principles. Obama must be IMPEACHED, so that those demons praising dog wrongfully and refusing to praise God rightfully cannot rule in America.

  • Oh, Did I say IMPEACH? Power is the only language Obama understands. IMPEACH NOW BEFORE BLOODSHED.

  • You could have also mentioned the Chief Justice who in his Obamacare decision made it clear that John Marshall was overstepping his bounds when declaring that the SCOTUS had the duty to review the Constitutionality of Executive and Legislative Branch actions.

    This is what happens when local and state politics are marginalized. In the past pols had to answer to their state parties. When their Federal service ended they almost always returned to their State. This gave a certain practical and psychological independence to Congress people serving at the Federal level. Now they are all creatures of a national media and fundraising system that can either lift them or hound them wherever they go. So blue dog Dems willingly walked the plank since they would at least get to be bundlers and lobbyists or media types in the future.

  • When a president signs a bill or passes a law that is not constitutional he commits perjury upon the oath that he took to uphold the TRUTH, the whole TRUTH and nothing but the Truth and the Constitution for the United States of America, “so help me God”. When any representative or senator votes for a bill or passes a bill or law that is unconstitutional, he too, commits perjury against his oath of office. In both cases, because these elected officials represent their entire constituency, especially the president of the United States of America, these people commit treason against the nation, our founding principles, their constituency and their oath of office. IMPEACH

Separation of Powers is sooooooo 18th Century

Monday, December 19, AD 2011

Good or bad, this is what you get with Newt Gingrich:

GOP presidential frontrunner Newt Gingrich said Congress has the power to dispatch the Capitol Police or U.S. Marshals to apprehend a federal judge who renders a decision lawmakers broadly oppose.

Gingrich says if there is broad opposition to a court decision, Congress should subpoena the ruling judge to defend his or her action in a hearing room.

When asked if Congress could enforce the subpoena by sending the Capitol Police to arrest a judge, Gingrich assented.

“If you had to,” Gingrich said. “Or you’d instruct the Justice Department to send the U.S. Marshall.”

Gingrich cites the 9th Circuit’s decision that reciting the Pledge of Allegiance is unconstitutional as a prime example of why such a reform would be necessary.  It’s easy to use examples like this of judicial indiscretion in order to justify such drastic action.  Yet what of judicial interventions where the Court and not the legislature is acting in accord with the Constitution?  I can think of several examples where conservatives cheered – rightfully – when the Supreme Court overturned an act of Congress.  In US v Lopez, US v. Morrison, and Citizens United v. FEC, just to name a few cases, the Supreme Court acted on the side of the Constitution as opposed to Congress, and did so presumably against the majority will.  As we speak the Supreme Court is set to hear arguments about the individual mandate and other aspects of Obamacare, and once again conservatives (again rightfully) will be hoping for the Court to rule against the democratically elected branches.

No one is more aware than me of how out of control the judiciary has been, particularly since the age of FDR.  What Gingrich and other populist-conservatives fail to appreciate is that the judiciary’s wholesale assault against the Constitution is but a symptom of what plagues this Nation.  After all, how did we wind up with a judiciary willing to disregard the Constitution?  They didn’t just appear out of magic.  Years of progressive education instilled these judges with an attitude that the Constitution is a “living, breathing” document that ought to bend to the whims of the age.  More importantly, it was democratically elected leaders like FDR who put these men and women on the courts.

Furthermore, it is odd to suggest that one of the ways to stop the politicization of the judiciary is to further politicize the judiciary.  Will judges act as independent arbiters of the Constitution if they know they are going to be hauled before the legislature for making the wrong call?

Long story short, I don’t think Gingrich is entirely wrong to highlight the problems of the judiciary.   It absolutely must be a theme of this and any federal campaign.  But Gingrich is missing the forest for the trees in singling out the judiciary when it’s an entire political philosophy – and, for that matter, political party – that is the problem.

Another thing that strikes me about this statement is how unrealistic it is.  Even if Gingrich becomes president and has resounding Republican majorities in both Houses there is virtually no chance that anything like this will happen.  This is mere bombast.  Now, it is perhaps an exercise in rhetorical exaggeration used to highlight an important issue.  But ultimately this reveals a problem that goes beyond Newt, and it is the absurdity of our presidential campaign system.  Each candidate feels compelled to offer pie in the sky proposals in an effort to appeal to some constituency.  Even more troubling is that the underlying attitude is that the president is some kind of emperor as opposed to the chief executive of a constitutional republic.  Even though this particular proposal is likely going nowhere, it is a sad fact that the presidency has become a hyped up institution that has grown well beyond the powers outlined in the Constitution.  So the ultimate irony is that while Newt is proposing a radical plan under the guise of restoring balance to the Constitution, he is only furthering the imbalance of the Constitution and the respective powers of each branch of government.  And while the Star Wars prequels may have been otherwise useless, at least they taught us a valuable lesson about trying to “restore balance” to anything.

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31 Responses to Separation of Powers is sooooooo 18th Century

  • So… steroid use in a private enterprise, subpoena away, but a judge rules dogs are persons while fetal humans aren’t, and no explanation is needed. *wry smile* I know you’re probably totally legally correct, it just strikes me as funny; either it’s a punitive type thing, in which case why can it be applied to normal people who haven’t done a crime, or it’s supposed to be an information thing, in which case loonie judges have a special right to not answer questions. (Unlike, say, managers of large businesses.)

  • (I have got to get around to writing that difference-between-fair-and-right post on parenting.)

  • I’m probably the worst person to use the steroid example with because I thought that whole affair was farcical.

    Obviously Congress should have the authority to investigate criminal malfeasance in the other branches, and impeachment for corruption and criminal matters is an undeniable right. But if Congress should start digging around on what are matters of interpretation, then you’re butting up against the separation of powers.

    That being said, it’s also true that the judiciary should not be treated as the final arbiter of what is and is not constitutional, and I should have emphasized that in the post. Congress should have some oversight authority – but to be honest I’m not one hundred percent certain how far they should go. Gingrich’s proposal goes too far in one extreme, but maybe at least it’s the germ of an idea that prompts more cooperation.

  • Of all branches, Congress has been the most deferential to judicial decisions. By intent, of course – they want to leave the unpopular calls to those who do not need to fight for re-election. Congress could perhaps use its impeachment power a little more for truly off-the-wall decisions, but then individual Congresscritters would have to take a public stand, wouldn’t they?

  • I’m probably the worst person to use the steroid example with because I thought that whole affair was farcical.

    Why I used it, actually. I’m sure there was a perfectly reasonable series of events that resulted in it… but DANG.

    C Matt’s response seems reasonable…though unlikely.

    Shouldn’t there be some sort of way to hit these “I made the ruling because it’s Historic!” rulings?

  • If any Republican is elected president, Kennedy will retire, Roe will be overturned, and all talk of reshaping courts will dissipate.

  • The Founders did what they could to block the effects of “Original Sin” – even if they did not name it such- by separating the three powers of government, based on their 18th century experience of the Old Country and their own there in the Colonies with the Monarch George 111. We shall continue to see the pendulum swing and the seesaw teeter-totter as each branch grabs power or tries to correct the imbalance ofthe other , as that branch sees it. The “unredeemed” – those who have not addressed the Dragon living in the dark recesses of our own cave, and making a pact with it – will not bring peace if they have no peace and will only create or perpetuate a system whereby the Dragons will roar and puff smoke and fire.

  • I find striking that Americans talk incessantly about judicial overreach but don’t even twitch at the forays into Congressional authority by the Executive Branch. Yes, the Judiciary needs to stay in its own turf but it is the general assault on liberties through the Codes of Federal Regulations, agency memoranda, and Executive Orders that most frighten me.

  • but it is the general assault on liberties through the Codes of Federal Regulations, agency memoranda, and Executive Orders that most frighten me.

    Yes, yes, a thousand times YES! Every administration has been bad in this regard, but the current one seems to view the Constitution as nothing more than an inconvenience to be ignored.

  • I find striking that Americans talk incessantly about judicial overreach but don’t even twitch at the forays into Congressional authority by the Executive Branch. Yes, the Judiciary needs to stay in its own turf but it is the general assault on liberties through the Codes of Federal Regulations, agency memoranda, and Executive Orders that most frighten me.

    I must run in odd circles… I’ve been hearing a LOT about this, for years. Of course, I also have lived in places that took the brunt of the “endangered species act” type stuff, including a nice little old retired couple that lost the right to use their home because they refused to kill the endangered bird that was living there before he was spotted.

    People complain about what touches them.

  • Your observation about noticing what touches you is well placed. I never imagined that freedom of religion would be an election issue for me but it will be so in 2012.

  • In Planned Parenthood v. Casey, Justice Scalia summed up what is wrong with the modern judiciary:

    “What makes all this relevant to the bothersome application of “political pressure” against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here – reading text and discerning our society’s traditional understanding of that text – the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality, our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v. Weisman, 505 U.S. 577 (1992); if, as I say, our pronouncement of constitutional law rests primarily on value [505 U.S. 833, 1001] judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school – maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but the confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. JUSTICE BLACKMUN not only regards this prospect with equanimity, he solicits it. Ante, at 943.”

  • I disagree with G-Veg and Paul. While I disagree with many executive orders and regulations as a matter of policy, rarely do I see them as an unconstitutional encroachment on another branch’s powers or unconstitutional at all. To me this is just the conservative’s expression of the same conceit normally held by the Left, which is if I disagree with something it must be unconstitutional. While the Framers (most of them anyway) may not have envisioned or preferred a large and intrusive federal government, they embedded that possiblity via the commerce and necessary & proper clauses. Perhaps the Framers employed imperfect language given their intentions, but words have consequences.

    I do agree with Donald regarding the Supreme Court. Of the three branches, this so-called (by Hamilton) “least dangerous branch” has been the most mischieveous for the reasons outlined so well by Justice Scalia. In my view the Framers did not anticipate the inevitability and implications of Marbury v. Madison and for that reason did not properly foresee the need for more effective constitutional checks against Supreme Court misbehavior.

  • Mike,

    There is no constitutional justification for many of the actions and guidelines put forward by the likes of the EPA and other elements of the bureaucracy. Granted, Congress is partly to blame for abdicating responsibility, but these agencies have accumulated vastly more power than what was envisioned even by the legislators who okayed them coming into existence.

    While the Framers (most of them anyway) may not have envisioned or preferred a large and intrusive federal government, they embedded that possiblity via the commerce and necessary & proper clauses.

    The misinterpretation of the commerce clause and the 14th Amendment has been carried out equally by all three branches. That the Framers did not predict how horribly future generations would twist the plain meaning of the constitutional text is no fault of theirs. We now have a president who really doesn’t even pay lip service to the document. This isn’t a matter of just disagreeing with policy. Oh, sure, the administration’s policies are awful – it just so happens that a lot of what this administration does doesn’t come close to passing constitutional muster.

  • The fear was expressed when the Leislatures’ term limits were voted by the people that the bureaucrats in the several states would have too much power. I am no longer liivng in the USA but I feel that, at the federal level, one term of five years for a POTUS and severe restrictions on the number of terms for serving in Congress, two years is too short for the cost of re-election today for the House would help. The exorbitant cost today, the heavy reliance on lobbyists’ gifts and the Supreme Court decision to not limit corporate donations, and allow them anonymously as “fictional” persons has destoyued the idea of a democratic republic.

  • Paul,
    We’ll just have to disagree with the plain meaning of the commerce clause. While you may well be right as to its “intent” (though discerning the intent of a legislative-type body is tricky stuff to say the least), the plain meaning strikes me as quite expansive unfortunately, and plainly broad enough to justify the Congressional creation of the EPA as well as its empowerment to promulgate regulations.

    Or we could employ the Illinois term limits model: one term in office followed by one term in prison — seems to working ok.

  • and the Supreme Court decision to not limit corporate donations, and allow them anonymously as “fictional” persons has destoyued the idea of a democratic republic.


    You mean the case where they ruled you can’t censor a movie because it has political content?

  • Foxfier, I believe he’s talking about Citizens United.

    Because, as we all know, constraints placed on campaign donations have worked such incredible wonders. /sarc

  • With respect Mike, I think Administrations directly and unconstitutionally encroach on congressional prerogatives all the time. The previous administration did so in its war on terror and the present on its war on faith. I believe that most of the New Deal and of the War Powers Act are direct assaults on the Separation of Powers and, thus, on the Constitution.

    It may well be within Congress’s authority to declare citizenship and nationality to be factors that must be considered in making visa decisions. It most assuredly isn’t the Administration’s role to add levels of review beyond those established by Congress. It may well be among Congress’s powers to tax and spend to sure up the economy. It most assuredly isn’t among a President’s powers to levy new taxes.

    It is not within either of their powers’ to abrogate the First Amendment of the Constitution of the United States.

  • I read that ILL joke recently. No one as I said in my first post has a system to overcome greed, power and other addictions that tend to destroy humans and our instiutions. Original sin gets us all.
    I do not understand the “HUH” comment re the corporate donations. Did I misunderstand the ddecision ?

  • I do not understand the “HUH” comment re the corporate donations. Did I misunderstand the ddecision ?

    I’m afraid you did, yes; I suspected you meant CitUnited, since the way you phrased it is in line with the lib spin, but wasn’t sure.

    Short summation: the government side argued that there was nothing legally wrong with censoring a movie, or book, because of political content. They’re not centrist by any means, but this article has enough stuff for you to find more, if you like. Sorry I can’t find a better source, cleaning house.

  • Thank you. I squirmed when you suggested I am a lib! Shall research that further, thanks for taking the time to reply.

  • Whoops, looks like Foxfier was right about the case FR Francis was referring to. My bad.

  • Thank you. I squirmed when you suggested I am a lib! Shall research that further, thanks for taking the time to reply.

    No insult intended! Seeing as I class most of the media as lib, and that’s all I hear out of them, it’s not really indicative of anything but not having heard about the gov’t lawyer actually telling the supreme court “sure, we could ban a book because it’s got political content.” (Part of why I mock Banned Books week is that there was NOTHING on that that I saw….)

    Point of blogs, no?

  • I think that Gingrich’s position is a little bit different. From the Face the Nation transcript, it looks as if he was talking about making judges testify in the context of impeachment proceedings. He was talking mainly about each branch’s responsibility for obeying the Constitution. His choice of examples presumed that the listener would understand that Dred Scott was wrongly decided – and maybe that was a mistake on his part. He could have made it clearer that Dread Scott was both manifestly wrong and Constitutionally wrong.

    So I get Paul’s point. But as a practical matter, if a Southern Republican said that the Dred Scott decision was narrowly wrong, he’d be run out of town.

  • There is no constitutional justification for many of the actions and guidelines put forward by the likes of the EPA and other elements of the bureaucracy. Granted, Congress is partly to blame for abdicating responsibility, but these agencies have accumulated vastly more power than what was envisioned even by the legislators who okayed them coming into existence.

    1. The budget for composing and enforcing federal regulations (as opposed to the federal police and prison services or tax collection) is generally quite small. (~$20 bn) This is somewhat obscured because agencies like the FCC and EPA have dual mandates which encompass regulations, patronage, and works projects. (About a tenth of the budget of these two is devoted to strictly regulatory tasks).

    2. Techological adaptation has been such that an escalating proportion of transactions occurs between parties in different states. In addition, effluvia can injure whole watersheds or be transported in currents which do not respect state jurisdiction.

    3. A notable exception to the above concerns aspects of labor relations and retail trade. A great deal of what goes under the heading of ‘civil rights legislation’ would not survive a rectification of jurisdictional responsibilities. Sounds like fun.

    Should note Robert Bork’s observation that the culture in the legal profession and the haut bourgeoisie is such that judicial review is no longer compatible with self government. He is right.

  • I had not left the USA when that decision was announced by the ” Supremes.” I do recall when 44 broke protocol to chastise them in the State of the Union message and my hero Scalia showed disapproval. I should have pursued it then. Glad to be enlightened, I read the summary online.

  • “I think that Gingrich’s position is a little bit different.”

    Much media spew “is a little bit different” from reality.

    Media mouthpieces have been busted passing untruths about Gingrich on numerous occasions, this is another.

    One can always count on the Establishment Media to be a source of error about the Church; I see I must add Gingrich to the list of subjects on which they cannot be trusted.

  • ME:

    Please name one subject wherein the media’s definition of “news” is NOT that distortion, distraction, exaggeration, fabrication, misdirection, omission which serves the regime’s war against our liberties and our property/pursuit of happiness.

  • TS-
    kitty rescues?
    Never mind, just remembered my city has no-warrant searches by anyone authorized by the animal control agency if you’ve got a registered pet, to protect the fluffy kitties.

Unilateral War Making by the Executive (Updated)

Friday, June 17, AD 2011

The Congress shall have Power . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; – Article I, Section 8

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. – Article II, Section 2

It’s not a good feeling agreeing with Dennis Kucinich.  Finding myself on the same side of an issue as Kucinich makes me seriously reconsider my opinion.   But as they say, even a bind, deaf, paralyzed, rabies-afflicted squirrel finds a nut every now and again.

It’s less distressing to disagree with Charles Krauthammer.  He’s usually spot on, but he tends to go off the rails when it comes to foreign policy.  Not always, mind you, but in Krauthammer you can see the legitimate difference between neoconservatism and traditional conservatism.  Last night he had this to say about the War Powers Act and President Obama’s war hostilities kinetic military action in Libya:

KRAUTHAMMER: I understand why Congress wants to retain prerogatives, as does the president. I’m not surprised that Durbin would act this way. I am surprised that so many Republicans are jumping on the war powers resolution. They will regret it. If you have a Republican in office, you have isolationists Democrats trying to restrain his exercise of his powers under constitution and the Republicans aren’t going to like it.
I would not truck in war powers resolution. I have also think the administration’s defense of what it is doing is extremely week and misguided. Obama’s answer essentially is well, the resolution is out there. But it’s not relevant because it isn’t really a war, which is absurd.

BAIER: We’re not in hostilities.

KRAUTHAMMER: Right. What he should say I, like my other predecessor, I do not recognize the legality of this act and its authority over the presidency. That’s where he should make his stand.

BAIER: When he was Senator Obama he spoke the opposite.

KRAUTHAMMER: And as a president he is implicitly supporting the resolution saying it doesn’t apply here. It implies if it were a real war, as he pretends it’s not. I have to comply. No president ought to do that.

I agree with him with regards to Obama’s duplicity.  I also share his skepticism about the War Powers Act.  But he’s wrong about the rest.

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14 Responses to Unilateral War Making by the Executive (Updated)

  • Obama criticized Bush for the wars in Iraq and Afghanistan, then he does worse in Libya, and uses the Orwellian phrase, “Kinetic Military Action.” But the main stream media and the proudly liberal won’t see this hypocrisy, or seeing it, won’t acknowledge it.

    If the news media acts this way now so far from the 2012 election, then what will happen as the election draws nigh? Is there any hope of defeating this godless man of murder and depravity?

  • I have no doubt that the War Powers Act is an unconstitional infringement on the powers of the President as Commander in Chief. I also have no doubt that, absent an emergency, any President who goes to war without Congressional authorization is a fool.

  • It is only an issue if the president has an (R) behind his name.

  • I see this as two issues:

    1. What does the Constitution mean? Difficult question.

    2. What is the de facto law? Easy. The President can ignore the War Powers Act and do whatever he wants outside the US for as long as Congress will pay for it. That’s always been the de facto law.

  • The War Powers Resolution seems to be another attempt by the legislature to codify Retroactive Ratification. Alexander Linn suggests that it is a “realigning” of the war powers, that “in passing the Resolution, Congress sought to set parameters on the Executive’s ability to commit military forces to combat. The Resolution codified limitations on the ability of the executive branch to initiate unilaterally or to engage in military hostilities.” The form of the resolution itself suggests that Congress’ efforts were expended more to “define” than “realign.” (Alexander C. Linn, International Security and the War Powers Resolution, 8 Wm. & Mary Bill of Rts. J. 725 (2000).

    The Resolution affirms that the President, acting as Commander in Chief, my direct military action after a Declaration of War or with specific Statutory Authorization. Since both of these circumstances are spelled out in the Constitution of 1787, they cannot be a “grant” of such authority to the President. He already has such authorization. Only with the addition of a “national emergency created by an attack upon US interests” did the legislature stray beyond the established grounds of the original constitution.

    Congress asserted a check on this last point in that the President was thereafter required to “consult” with Congress “in every possible instance” before deploying troops and regularly through the deployment. Loose construction of the Resolution aside, this last point seeks to capture the breadth of presidential inroads on legislative powers. There is a close corollary to Retroactive Ratification in the consulting requirement, but the up-front determination of when a “national emergency created by an attack upon US interests” occurs. Critically, the limitations proscribe no particular type of presidential war power exercise, not even those exercised against Americans at home such as were illustrated in Korematsu, Kimball Laundry, and Youngstown. Linn suggests that “[n]otwithstanding that the President’s modern control over war conflicts with the Framer’s intent, the problem is not the increase in executive power. There are compelling reasons the Executive to hold a quantum of war power that contradicts the Framers’ intent.” Linn seems to suggest that the Constitution itself is not the benchmark of presidential power. This is to say that our constitutional jurisprudence, however muddled, holds the keys to limiting the powers of a runaway executive.

    Even Hamilton would have cringed at that notion.

    The War Powers Resolution places on the Executive the burden only that he must report what he has done to Congress within 48 hours and the need for deployment, the constitutional and legislative authority, the scope, and the duration of hostilities thereafter. More significantly, the President receives a 60 day “grace period” during which he can engage in military action without authorization and an additional 30 days if there is an “unavoidable military necessity.” If Congress fails to order the executive to pull back, their acquiescence can go on indefinitely.
    It does not appear that the War Powers Resolution places any new burdens on the President since our written constitution and our constitutional jurisprudence already placed similar limits on the executive. Perhaps the Resolution is little more than a touchstone for public discourse. If so, it serves more to subtly illustrate the underlying constitutional principles that the Congress is, by the text of the Constitution, the preeminent institution of government and that, however much presidential powers may lay claim to law making powers, he is still bound by an older order.

  • If the War Powers Act is unconstitutional it is because it delegates too much power to the President to initiate hostilities, not because it impinges on his powers as commander in chief.

    The practical reality, of course, it much as RR stated.

  • Congress only has the power of the purse over the military. The President is clearly commander-in-chief under the Constitution of the military. Congress has no more power to instruct the President as to what may be done with the military than the President has power to compel Congress to appropriate funds for the military. Congress of course, whenever it wishes, has the power to deny funding for specific military operations. Since this is difficult to do politically, we have flapdoodle like the War Powers Act, which is a simple attempt by members of Congress to avoid the heavy lifting of denying funds if they wish to terminate a military operation.

  • The item that is missing from most every discussion is just what is a “State of War”. A Declaration of War creates a State of War. There has always been lawful armed conflict existing outside a formal State of War. The War Powers Act attempts to deal with involvement in armed conflict outside of a formal State of War.

    1. A Sate of War can only exist between two independent countries. Declaring war is recognizing the other party as an independent country. The big example from American History is the Civil War. The North never declared war on the South, doing so would have recognized the legitimacy of the southern states succession. Instead Congress declared the southern states were engaged in an insurgency against the proper government.

    2. A State of War is between two countries as a whole every citizen of one is an enemy of the every citizen of the other. Take Libya, whatever the goals are we are supporting a faction in civil war we are not saying that evey Libyan is an enemy of every American.

    3. A State of War can only be formally ended by a peace treaty. It is somtes commented that a formal declarion of war is not so much an authorization to fight but a refusal to talk and let the issue be settled by arms.

    A declarations of war is clearly inappropriate for intervening in acivil war such as Libya. Given the nature of a State of War, modern nuclear weapons and the wording of the UN Charter formal declarations of war are pretty much obsolete.

    The clear meaning of the Constitution is that only Congress has the ability to declare a formal State of War.

    Lawful conflict outside of a State of War falls into a rather fuzzy boundary between Legislative and Executive powers. The War Powers act could only work with good faith cooperation between Congress and the President which we don’t have. The problem now is that th President did not seek that coopeation.

  • I hadn’t thought of that Hank, but wouldn’t it be better if we used a more literal definition of “state of war” as this would probably be more true to the founders’ meaning; keep in mind this is a term they don’t actually use. I can see your point though, about undeclared military excursions throughout early US history.

  • Ike

    Thank you. The definition I gave has been customary international law for several centuries, it can’t be ignored and is probably what was meant by the framers since almost all wars then were declared. I think there is in practice a domestic law “state of war” which applies in cases where a formal declaration is not appropriate. The War on Terror and Iraq War resolutions created this for their respective actions, but there is no resolution for Libya. Thus a problem.

  • Once hostilities commence, Congress has limited authority other than the purse, as Don said. It’s before hostilities commence where Congressional power is at its height, and that’s what I am concerned with here.

    Hank raises a good point, worthy of its own post. Modern warfare is certainly something different than what existed at the time of the Framing. So where do we draw the line? To me it boils down to this question: are we comfortable with the Executive taking unilateral action of this nature? Occasional air strikes are one thing, but in this specific situation where America has pledged military support to a long-term (not just a few strikes) military engagement, even if it’s another country’s civil war, Congress ought to approve before we proceed (or continue). No, this is not a declared war in the traditional sense, but it crosses the line into an area where it is within Congress’s legitimate Constitutional authority to intervene.

  • “Congress only has the power of the purse over the military.”

    You need to reread the constitution.

    Being the commander in chief doesn’t mean you have plenary authority to initiate hostilities (the commander in chief of Canada, for example, is Elizabeth II). If you look at the original understanding of the constitution it is quite clear on this point. The President has the authority to repel invasion, but to actually initiate hostilities he needs congressional approval. In practice it hasn’t been that way for a long time, but the same could be said of many other constitutional provisions.

  • “In practice it hasn’t been that way for a long time,”

    That will do for the understatement of the week! Whatever the initial intention of the Framers was, from the beginning the Constitutional provision granting to Congress the power to declare war has not acted as a restriction on the power of the President to use the military, as amply demonstrated by Presidential use of the military during the first 20 years after the drafting of the Constitution to wage war against Indian tribes, google battle of Fallen Timbers, foreign powers, France and the Barbary Pirates, and internal insurrections, the Whiskey Rebellion. If any of the Framers said a peep against any of this, all done without a formal declaration of war, I am unaware of it. A wise president will make certain that Congress supports such efforts, but it is clearly not required under the Constitution that he obtain such approval from the Congress, let alone seek a declaration of war, before using the military to engage in a war.

  • This is why I said it’s better seen as 2 separate issues, the academic question of constitutionality and the reality of the de facto law.

    On most other issues, one can sue to enforce the Constitution so the academic and the practical are one and the same. But how to conduct foreign affairs is a political question which the courts do not entertain on the merits. It extends, not only to military matters, but diplomatic as well (see, Goldwater v. Carter). Courts have heard and dismissed these kinds of cases before. Scalia, when he was on the DC Circuit, wrote the decision in Sanchez-Espinoza v. Reagan dismissing a war-powers-based challenge to US intervention in Nicarauga on the grounds that it was a “nonjusticiable political question.”

Elections Have Consequences – Tax Cut Edition

Thursday, December 9, AD 2010

I’ll leave it up to others on the blog to discuss the merits of the compromise on taxes and unemployment benefits recently reached between President Obama and Congressional Republicans.  For what it’s worth, I’d probably vote for it were I a member of Congress (shudder), but I do think that the Republicans could have pushed a little harder on certain measures.

What fascinates me as a student of American history are some of the reactions, and also some of the reactions to the reactions.  First of all,  Congressional Democrats have rejected the measure in a non-binding caucus vote.  This has caused Jim Geraghty to ponder:

I understand the White House line is that today’s rejection is part of the “normal process.” Really? Is it normal for a majority of the president’s own party to vote against deals he makes?

Normal?  No.  But I think this is a positive development in a way.

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4 Responses to Elections Have Consequences – Tax Cut Edition

  • Actually, I do have one idea: Bring ALL the troops home, cut military spending in half, close 700 bases around the world and raise the draw bridges.

    Without getting into the merits of this idea, do you really believe that this would save $5 trillion?

  • Paul, “compromise” may be de riguer in politics and “another example of the Constitution in action,” as you put it, but in other spheres of life it is an ugly word.

    The Irish poet Yates once wrote, “You know what the Englishman’s idea of compromise is? He says, Some people say there is a God. Some people say there is no God. The truth probably lies somewhere between these two statements.”

    And, from George Jean Nathan: “A man’s wife is his compromise with the illusion of his first sweetheart.”

  • Well Joe, we can go on pretending that the President of the United States is not a Democrat, and therefore the GOP would be free to push whatever policies it so chooses, or we can wake up and smell reality. The tax cuts are going to expire in 21 days, and do you have another means by which to convince a President I’m willing to bet you’d consider a socialist to allow the tax cuts to continue?

  • I am apolitical, Paul. I have no love for either party. These fiscal bookkeeping games are beyond my ability to grasp, nor anyone else’s. Administrations for decades have been fine-tuning tax policy and the result is always the same: the haves get more, the have-nots less. I have no solution, of course, and I don’t think it lies in any one philosophy, left or right. As a collector of Social Security solely, it has no effect on me either way and I have no inheritance to leave upon my demise.

    Actually, I do have one idea: Bring ALL the troops home, cut military spending in half, close 700 bases around the world and raise the draw bridges. We’d save $5 trillion and could have universal health care, buy a new car for everyone who didn’t get one from Oprah and still have enough left over for a pretty good weekend in Vegas.