More Obama Lawlessness

In our previous article, we pointed out the unlawful actions of President Obama in his use of recess appointments. Two other unconstitutional practices of modern Presidents are the misuse of “signing statements” and “Executive Orders”, and Obama has abused this practice more so than any of our previous Presidents.

Signing Statements

In an era of multi-thousands page “comprehensive legislation” and “omnibus spending bills”, laden with irrelevant amendments that plunder our treasury and expand the control of government over our lives, Presidents started using Signing Statements to express their disapproval of segments of the legislation. Occasionally they will express in the statement their intention to not enforce certain portions of the bill because they either believe them to be unconstitutional or bad policy.

The Constitution is quite clear as to the duty of the President in respect to his approval or disapproval of legislation passed by Congress.

“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.” (Art. 1, Sec. 7, Para. 2)

A primary responsibility of the President is to defend the Constitution. When a President signs a bill he believes to be unconstitutional or contains amendments that are unconstitutional, he is not fulfilling that responsibility. The same is true if he allows the bill to become law by neglecting to sign it for a period of ten days. If a Signing Statement by the President indicates that he believes any part of the bill to be unconstitutional or that certain requirements of the bill are bad policy, therefore he does not intend to enforce those he disagrees with, he is confessing to an intention to commit an impeachable act. Article II, Section 3 requires of the President that … “he shall take Care that the Laws be faithfully executed”.

A bedrock principle of a constitutional republic is that all laws apply equally to everyone, not just the peons in the general public. If the President believes any part of a law to be unconstitutional, it is his responsibility to return it to Congress along with his clearly stated reasons why he believes it to be unconstitutional. Once a law is signed by the President it becomes the law of the land until it is either repealed by Congress or declared unconstitutional by a court. The President does not have the prerogative of deciding which laws he will or will not enforce. If Congress overrides the veto of an unconstitutional bill, the members of Congress who voted to override it should be noted by the voters and turned out of office in the next election. These same principles apply to many Executive Orders as well.

Executive Orders

The power of the President to issue “executive orders” is an implied power common to all executives in or out of government. Just as executive orders in the private sector apply only to those employees under the supervision of that executive, executive orders issued by the President are binding only on the employees of the Executive Branch of government. They are not legally binding on the Legislative or Judicial Branches. Neither are they binding on employees of state and local governments or on the public at large. To consider them so is a violation of the constitutional doctrine of “separation of powers”.

Any executive order enforced on the general population by the police powers of the state becomes a despotic decree and should not be tolerated in a constitutional republic. The first sentence of the body of the Constitution clearly states that,

“All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” (Art. I, Sec. 1)

Several of the Republican candidates have expressed their intent to issue executive orders — if elected — nullifying all or portions of laws already on the books. While this may sound good as a campaign promise and is well received by many conservatives; for the reasons stated above, it should be disturbing to all constitutional conservatives and possibly a dis-qualifier in the primary elections.

The unconstitutional use of recess appointments, signing statements and executives orders by Presidents are violations of the Constitution and of their oath of office. In fact, they are serious enough to be considered as impeachable offenses. More on this later.

Sestak debacle may be more important than it appears

The Joe Sestak affair offers another opportunity to peek underneath the curtain at the sleazy underbelly of Washington and Chicago politics.  On Friday both the White House and Rep. Joe Sestak released statements to the press, following the political tradition of releasing information concerning any potential political scandals at the start of a holiday weekend in the hopes that no one will be paying attention.

In a February, 2010 interview, Sestak claimed that the White House had offered him a “high-profile” White House job if he would end his plans to challenge party-jumping Arlen Specter for the Pennsylvania Senate Seat in the primary elections.  Interest in the incident has been dormant until this week when it suddenly bubbled to the surface as a national issue.

Early speculation was that the offer was for a job as Secretary of the Navy (Sestak is a retired Admiral). In the Friday statement released by the White House, WH Counsel, Robert Bauer refuted the claim, stating that the offer was only an unpaid position on a presidential advisory board. In return for the unpaid advisory position, Sestak would remain in his position as the Congressman of Pennsylvania’s Seventh Congressional District and not challenge Specter in the Pennsylvania Primary.

The Democratic hope is that by the job being only an unpaid advisory position the American people will consider it as no big deal and the whole affair will be quickly forgotten. In a blog post today, Kansas City Star editorial page columnist, Barb Shelly expressed that hope in a column titled “Sestak job offer scandal deflating rapidly”. In it she says, “I hear the sound of air leaking out of this scandal balloon. Political horse-trading isn’t exactly a novel concept in Washington, and it’s hard to equate an offer for an unpaid position, however prestigious, to bribery”.

Not so fast, Barb. Even if we accept the idea that the White House would consider the offer of a non-paying advisory job as an adequate bribe for a sitting Congressman with his eye on bigger things, there are still some questions that deserve answers. I will leave the political and legal wrangling to the Legal Eagles and Party Hit-men for now. An even more important issue for the American people is the perversion of the Constitution and the contempt for its requirements shown by the White House in making the offer. This aspect seems to be completely overlooked by the media and the political class.

Article I says, “1.6.4 No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; 1.6.5 and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The purpose of these two clauses is to maintain the separation and independent status between the branches of government. Clause 4 was sidestepped by Obama when he appointed Hillary Clinton to the office of Secretary of State by having her serve as Secretary at the same salary that was in place at the time of her election to the Senate. Only a few people raised the issue at the time and it was soon forgotten. The Sestak offer is a little more difficult to explain away.

If the rumor of  an offer of a job as Secretary of State is true and Sestak had accepted, it would have constituted an outright bribe that could not be defended. In taking the job, it would be necessary for Sestak to resign his house seat and withdraw from the Senate race making it a quid pro quo offer. Bribery is an impeachable offense under the clear language of Article II, Section 4 which states “The President, Vice President and all civil officers of the United States shall be removed from office on impeachment for, and conviction of treason, bribery or other high crimes and misdemeanors.”  Since the offer originated with Obama, he is the one that would be at risk of impeachment.

In denying the Secretary job offer and instead admitting to an offer that would let Sestak serve in the House while also holding an office in the Executive Branch, Obama is admitting to a clear violation of clause 5 above. The fact that the position is unpaid and only an advisory position is immaterial. The purpose of these two clauses is to prevent one branch of government from being in a position to coercively influence decisions made by another branch. Although there may not be a salary involved, serving on a board in the Executive branch would ultimately makes the President Sestak’s “boss” which is a clear violation of both the letter and the spirit of the Constitution.

While the “Sestak affair” may well be dismissed by the media and the Democrats as insignificant, like the sexually predatory inclinations of Bill Clinton, or the amateurish burglarizing of a political opponent’s office by Richard Nixon’s operatives, it could also be setting up the American people to endure another impeachment spectacle if the Republicans gain control of Congress in the November elections. In this case, it may be worth it because it would, at least temporarily, stop Obama’s headlong push of America into socialism and if successful, remove him from office.

U.S. Cities Continue Conspiracy to Violate Constitution

An increasing number of City Councils, County Boards, fraternal and business groups, and left-wing activists groups are passing resolutions calling for a boycott of Arizona businesses. The left has gone all out to derail Arizona’s effort to assist the Federal Government in its enforcement of immigration law.  All of these groups have two things in common. First, they are all dominated by progressive idiot elitists. Second, they all display a disdain for, or ignorance of our Constitution. It is precisely this type of behavior that the “commerce clause” in the Constitution was intended to prevent.

Article I, Section 8, Clause 3, gives Congress the power to…“regulate commerce… among the several states.” The key words here are “regulate” and “commerce”. When politicians run across one of these two words, their eyes turn green with a lust for power, their brain cells turn to mush and they conjure up all types of esoteric meanings to apply to them. They become beside themselves in imagining all the possibilities for using these words to abridge our liberties and control our lives.  Their true meaning however, are not all that complicated.

The dictionary defines “regulate” as “control by rule, principle, or system”. There are thousands of regulators in our every day life— beside the bureaucrats from Washington. Traffic signals regulate the flow of traffic. Faucets, meters and valves regulate the flow of water. Regulators of one type or another regulate the flow of electricity to our appliances. To clearly understand the meaning of the word “regulate“ and its limits, imagine the faucet on your bathtub. Its purpose is to regulate the proper flow of hot and cold water into the tub. When you turn the faucet off, it no longer acts as a regulator. Instead, if functions as a blocker preventing the flow.

Commerce also has a simple and easy to understand meaning for everyone except politicians.  It simply means “trade”. When the Constitution was written, the phrase “regulate commerce among the several states” simply meant to “make it regular”. Under the Articles of Confederation, states were free to regulate trade between them as each saw fit. Many states, in order to protect craftsmen and businesses in their own state, prohibited the importation of certain goods from other states or placed tariffs on them that discouraged their purchase. State laws under the Confederation became a hodgepodge of taxes, tariffs, boycotts, restrictions and anti-trade policies that crippled the economies of the various states and hindered the growth of commerce.

The commerce clause was placed in the Constitution to eliminate this problem and establish free trade between the states; no more; no less. It is the responsibility of the Federal Government to make uniform rules governing interstate trade to facilitate the free flow of goods and services between them. That is the constitutional limits on the power of Congress to regulate commerce. Instead of criticizing and berating the State of Arizona for illustrating the Federal Government’s failure in its constitutional duty to protect our borders, it should be coming down on the state, city and local governments for conspiring to interfere with the free flow of commerce between the states. It certainly should not be encouraging boycotts.

When the President of the United States gives a foreign Head of State a platform for publicly criticizing one of our sovereign states and encouraging domestic protest, as he did this week, while it may not rise to the Constitution’s definition of treason, it certainly comes close to an impeachable offense for dereliction of duty and malfeasance in office. When Congress invites that same Head of State to speak to a joint session of Congress and then gives him a standing ovation when he repeats the same criticism, as it also did this week, it is a betrayal of the American people and ample reason to remove them from office at the next election.

Burris vs. Reid

The controversy over the appointment of Roland Burris as the Senate replacement for President-Elect Barack Obama is another reminder of how far we have strayed from the constraints imposed on Congress by the Constitution.  It also provides a good object lesson for the American people.  Politically the appointment of Burris to replace Obama in the Senate is a messy tangle of political intrigue.  Constitutionally it is simple and straightforward.

Burris was appointed by Illinois Governor Rod Blagojevich.  Blagojevich has been accused by Patrick Fitzgerald, the U.S. Attorney of attempting to sell the Senate seat for personal gain.  However, Blagojevich has not been indicted or convicted.  The State Legislature has expressed the intention of impeaching the Governor, but thus far have not done so.

Until Governor Blagojevich resigns or is impeached by the Legislature, he is still the legal Governor of Illinois and entitled to exercise all the duties of that office.  One of those duties is to appoint a replacement Senator to fill out the term of Barack Obama.  Amendment 17 to the Constitution provides two methods for filling Senate vacancies.

(3) “When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: (4) Provided, that the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”  ~Amendment 17, Section 1, clauses 3 and 4.

Regardless of the ethical challenges Blagojevich may be afflicted with, the appointment was legal and, according to the Constitution, should stand until the voters elect a replacement, either through a special election or when the term expires in 2010.  Since, according to this Amendment, only the Governor is empowered to issue a “Writ of Election” and he has not indicated a willingness to do so, it seems we are stuck with Burris.  If the Legislature has not already given the Governor appointment authority by a prior statute, their only recourse seems to be obtaining a Writ of Mandamus forcing the Governor to call an election.  In the meantime Burris is the legally appointed interim Senator.

Senate Majority Leader, Harry Reid has stated that he would not allow Burris to be sworn in when he arrives in Washington, and when Burris showed up January 6, he was refused admittance.  The question then becomes, on what Constitutional ground does Reid stand?  A good place to start would be with the office of “Senate Majority Leader”.

The office of Majority Leader is not a Constitutional office.  The Constitution authorizes the Senate to elect a President Pro Tem and any other officers they deem necessary. However, the Constitution does not authorize the Senate to assign Constitutional powers to those officers.  The only Constitutional officers of the Senate are The President of The Senate and the President Pro Tem to serve in the President’s absence.

Article 1.3.6 “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”

Article 1.3.7 “The Senate shall choose their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.”

By tradition the office of Senate President has become ceremonial, with the Vice-President taking the chair only on special occasions.  However, this practice is not born out by the Constitution or the early history of the office, particularly the Vice-Presidencies of John Adams, Thomas Jefferson and John C. Calhoun who served as Vice-President and President of the Senate under two separate Presidents.
(For more on this see “Thomas Jefferson’s Advice to Sarah Palin” and “Sarah Palin as President of the Senate”.)

The intention of the Founders was that the office of President of the Senate should be the second highest office in the government, next to the President.  This is the logical conclusion from three Constitutional facts.  (1)  The title itself implies executive authority.  (2) The President of the Senate is the only nationally elected officer in the Legislative Branch.  (3)  The Senate is charged with legislative responsibilities effecting the nation as a whole, such as the ratification of treaties, and the ratification of Executive Branch appointments, including Justices of the Supreme Court.  In addition the Senate is established as the court for trying impeachments.

It is inconceivable that the Founders should intend that the Senate Executive should be someone beholden to a political party and not necessarily the welfare of the nation.  The practice of allowing the Senate Majority Leader to function as President of the Senate is clearly unconstitutional and the usurpation of responsibilities assigned by the Constitution to the Vice-President.

Further evidence of this is found in the early history of the Republic.  John Adams, the first Vice-President under George Washington ruled the Senate with an iron hand.  So much so that the Senators rebelled near the end of his first term causing him to modify his management style.  Thomas Jefferson, who served as the second Vice-President under John Adams counts his years as President of the Senate as the most important years of his political career.  He credits his opposition to the Federalist majority in Congress with saving the Constitution and the Republic.

Harry Reid’s refusal to allow Burris to take the oath of office clearly oversteps his authority, leaving the question as to whether the entire Senate has the authority to refuse to seat him.  Reid gives as his reason the belief that Burris is unqualified for the position because of the controversy surrounding his appointment.  The Constitutional authority for making such a judgment is based on Article I, Section five which states “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…”

The function of a judge is to apply the law or rules to the case at hand, not to make up the rules, or legislate new laws.  The Constitutional qualifications for a Senator are three in number, (1) at least thirty years in age, (2) nine years a citizen of the United States and (3) an inhabitant of the state at the time of his election or appointment.  The fourth implied qualification is that he be legally elected or appointed.  Article I, Section 3, Clause 5.

Senator Burris meets all of these qualifications and therefore he is the Junior Senator from Illinois.  After he is sworn in a super-majority of the Senate may expel him, but only after showing he has engaged in misbehavior.  Article I, Section 5, Clause 3. In this case as in hundreds of others the Senate is attempting to circumvent the Constitution for political purposes.

Supreme Court vs. Constitution

By default, the Supreme Court is the final arbiter of the meaning of the Constitution.  Its edicts become the law of the land until they are reversed by a later court or overturned by a constitutional amendment.  They must be obeyed, or else we cease to be a nation of laws and become one of anarchy.

We should bear in mind however, that the opinions of the court are just that—opinions.  In cases of special importance to the welfare of the nation, Justices are often in strong disagreement.  In modern times the court is often split 5-4 on major decisions and in a democracy, the will of the majority always prevails, even when it is wrong.

History has shown that not all majority opinions are in the best interest of the country.  Justices are subject to the same frailties as their fellow citizens.  No matter how hard they may try, influences from their social, political, or moral orientation often creep into their understanding of the Constitution and its application to the facts.  Donning the black robes of office does not automatically bestow on them super-human wisdom.

While the decisions of the Supreme Court become the law of the land, they are not the “supreme” law of the land.  The Constitution reserves that honor for itself.  However, the Constitution has no way of defending itself against those bent on undermining its authority.  Congresses and Presidents have always attempted to “stack” the court with Justices who share their worldview.  This is extremely difficult to do, however, because of the infrequency of retirement or death.

Roosevelt attempted to influence the Court against opposing his “New Deal” legislation by threatening to appoint additional Justices more in sync with his policies.  His proposal was to add an extra Justice for every sitting Justice over the age of seventy.  At the time that would have brought the number of Justices to sixteen.  It is doubtful if Congress would have gone along with his plan, nevertheless, afterwards the court that had previously ruled most of his New Deal legislation unconstitutional, suddenly changed direction and began to see them as constitutional.

While every public official at the local, state and national levels of government takes an oath to defend the Constitution against all enemies, foreign and domestic, in practice few of them do.  The task of defending the Constitution, in the final analysis, falls to the people.  This is difficult to do since federal judges are appointed for life terms “during good behavior”.  (Article III.1.2)

One of the two remedies in the Constitution for errant Judges who violate it is impeachment.  That is one of the reasons why the power of impeachment was given Congress rather than the Court.  Hamilton made this clear in Federalist 81.

“….the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. …There can never be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations….it affords, at the same time, a cogent argument for constituting the Senate a court for the trail of impeachments.”

This particular passage is referring to the possibility of the Supreme Court encroaching upon the authority of Congress.  When the Court nullifies a law passed by Congress and signed by the President that is within the bounds of the Constitution they are clearly encroaching on legislative powers.  When the Court “finds” a hidden meaning in the language of the Constitution to justify the creation of new law (legislating from the bench) they are both violating the Constitution and encroaching on the power of the legislature as well as the power of the people.

The prospect of Congress using the power of impeachment, however, is practically non-existent, especially when so many in Congress display contempt for the Constitution on a daily basis.  Aside from a massive number of citizens lobbying Congress for impeachment in particularly egregious cases—which isn’t likely to happen either—the only other constitutional remedy is an amendment to the Constitution.

The best place for the public to defend the Constitution is at the legislative level.  It is up to us to monitor proposed legislation and petition our representatives to get unconstitutional laws killed before they are passed. Those who still insist on passing such laws should be voted out of office at the earliest opportunity.  There is also some hope for the effectiveness of public outcry on the Court.  The liberal Justices most likely to disregard the Constitution have, in the past, shown a definite awareness of public opinion and a desire to appease it.

The only two weapons the public possesses for the defending of the Constitution are the power of the vote and the power of petition.  These are most effective when arrayed against the Legislative and the Executive Branches.