American Elephants


There is a Growing Crisis in Our System: A Shifting In the Balance of Power. by The Elephant's Child

Jonathan Turley is socially liberal, but a very independent thinker and constitutional scholar.  He is a professor at the George Washington University Law School. Here he  is testifying before the House Judiciary Committee about the GOP lawsuit against the President. He believes it should go forward, and that it is important for it to do so.

“It is important to remember that people misconstrue the separation of powers regularly. It is not there to protect the institutional rights of the branches. It is there to protect individual liberty. It was created by the framers to prevent any branch from abrogating enough power to be a danger to liberty. It is not about you; it is about the people you represent.”

The video is fairly short and very worth your time.

 



The House Will Sue The President For Failing To Observe The Separation of Powers. by The Elephant's Child

Budget Talks Deteriorate Amid Republican Identity Shift On Tax Increases
House Speaker John Boehner told his colleagues on Wednesday that the House of Representatives will sue the executive branch of the government to defend the Constitution’s separation of powers. The Speaker, said the Wall Street Journal, is showing more care that the laws be faithfully executed as the Constitution demands than is President Obama.

The Congress, Mr. Boehner said in his memo to the House, is suffering institutional injury  under Mr. Obama’s “aggressive unilateralism” which is a pretty fair description of his governing philosophy. When the president suspends or rewrites laws across health care, drug policy, immigration laws, and so much else— elected legislators are stripped of their constitutional role.

The basic reason behind this step is Mr. Obama’s flagrant contempt for regular political order. For example, he has unilaterally revised, delayed or reinterpreted the Patient Protection and Affordable Care Act on his own thirty-eight times.

Everyone would prefer that the Congress and the President would settle their disputes through the customary political debates and arguments. House members represent the people of their district by population, and are closest to the public for they must face reelection every two years. A senator represents a whole state. The president represents all the people of the country. It was designed by the Founders to slow things down, so that poorly considered laws were not enacted in haste, in the hopes that would result in better law.

In the current climate, potential laws are not getting through Congress. The lapdog media would blame it all on the Republicans, but the blame lies directly in the hands of the Majority Leader of the Senate—who refuses to allow laws passed by the House to even be voted on. That’s not the way it’s supposed to work.

The Founders did not consider the possibility that a future president might pay no attention to his oath of office, or just take the law into his own hands. They assumed that a president’s honor and character would mean that even when he disagreed, he would abide by the rules.

“The major reason to involve the judiciary in this case is Mr. Obama’s flagrant contempt for the regular political order,” said the Wall Street Journal.

This president does not feel restrained by the Constitution that he swore to uphold. When Congress will not pass the laws that he wants, as he has said, “I’ve got a phone and a pen.” He will just take action on his own by “executive order.”All presidents have used executive orders from time to time, but none have ever used executive orders to rewrite laws duly passed and signed into law.

Far from a partisan caper, this implicates the foundation of the U.S. political architecture. The courts generally presume that individual Members of Congress lack the “standing” to make a legal challenge, but Mr. Obama is stealing inherent Article I powers that no party other than Congress can vindicate. Mr. Boehner said he will seek a House vote authorizing the lawsuit and put it under the direction of the Bipartisan Legal Advisory Group.

A single Congressman may not have standing, but Congress has the institutional standing to sue the president and are thus asking a constitutional question that has not been joined at the courts. More than a few judges and Supreme Court Justices seem to be concerned that Mr. Obama’s conduct is undermining the rule of law and political accountability. Just this week, the Supreme Court slapped down the EPA for defying the plain language of the law in the name of anti-carbon policy. More rebukes may be coming with cases about recess appointments and the ObamaCare contraception mandate.

Last summer, Mr. Obama proclaimed that “in a normal political environment” he’s ask Congress to fix laws such as ObamaCare, but since the House disagrees with his priorities, he’ll just go ahead and fix them himself without legislative consent. But then again, the president can hardly get through normal comments to the press without proclaiming that he is the President of the United States or The Commander in Chief. President Bush often said that “he was the Decider,” but that was not a proclamation of his importance, but a humble expression of the weight of the decisions that he must make. There’s a significant difference.

Thanks to Mr. Boehner, the courts will get a chance to weigh in on whether Mr. Obama or his successors can exercise imperial powers.

 



Obama Threatens to Veto Any Bill That Requires Him to Follow the Law! by The Elephant's Child

On Wednesday, the House of Representatives passed the “Enforce the Law Act,” a bill designed to push back against the numerous unilateral moves the Obama administration has used to circumvent the law. There are several different bills directed at the same problem.

H.R. 4138 sponsored by Rep.Trey Gowdy (R-SC) would authorize the House or Senate to sue the executive branch for failing to enforce laws, and provide an expedited process for moving through federal district courts. The bill is one of several the House GOP is pushing to combat “the imperial presidency.”

Five Democrats joined Republicans to pass the bill by a 223 to 181 vote.

President Obama has altered ObamaCare at least 20 times so far. As he said, he has a pen and a phone, and if Congress won’t do what he wants he’ll just go around them. Most recently millions of people have been exempted from the individual mandate due to a convenient change in the rules.

The administration also has announced that individuals would be able to keep their so-called “substandard” health insurance plans that do not comply with ObamaCare until October 2017!

When Congress refused to pass the Dream Act, Obama unilaterally instituted it by creating a “deferred action” program for  young illegal immigrants.

Democrats, for the most part, leaped to the defense of the President, ignoring the separation of powers and the Constitutional law-making function of Congress and the law-enforcing function of the executive.

Liberal law professor Jonathan Turley testified at a House hearing last month that America is at a “Constitutional tipping point.”

“The fact that I happen to think the president is right on many of these policies does not alter the fact that I believe the means he is doing [it] is wrong, and that this can be a dangerous change in our system,” the liberal law professor said. “And our system is changing in a very fundamental way. And it’s changing without a whimper of regret or opposition.”

I think there’s quite a bit of regret and opposition. The problem is that Congress does not have “standing” before the court to sue the president, and force him to enforce the laws as written, passed and signed.

Obama, on the other hand, threatens to veto any Republican bills that require him to follow the law.

The administration strongly opposes H.R. 4138 because it violates the separation of powers by purporting to permit the Congress to challenge in court the exercise by the President of one of his core constitutional functions — taking care that Federal laws are faithfully executed.

In other words Congress is violating the separation of powers by trying to make Obama stop violating the separation of powers. He’s arguing that because Article II leaves it to the president to faithfully execute the law, only Obama gets to decide whether he’s “faithfully executing the law” by selectively ignoring portions of it that benefit him politically.

The bill will, of course, die in the Senate. But the threat of a veto gives conservatives another reason to get their base excited about voting in November, and Obama once again made himself look silly.



We All Need Reminding From Time to Time: by The Elephant's Child

constitution-signing

From Bernard Bailyn’s The Ideological Origins of the American Revolution:

“At the Philadelphia convention, with exquisite care and with delicate nuances, they devised a complex constitution that would generate the requisite power but would so distribute its flow and uses that no one body of men and no one institutional center would ever gain a monopoly of force or influence that would dominate the nation.”

In every generation, we need to remind the people of the care and wisdom that went into the making of the Constitution. It has worked for 286 years, and remains unique among nations in its establishment by “We the People,” and the limited powers that it grants to the government. And it is up to us to remind our representatives in government of its meaning, and to insure that our schools teach its history and its meaning .

See also: Catherine Drinker Bowen’s Miracle at Philadelphia



Other Voices: by The Elephant's Child

“…it’s worth noting … that there is something fundamentally unpatriotic in the yearning to fundamentally transform your country. I love my wife. Inherent to loving her is loving her for who she is. Gentlemen, turn to your wife and say, “Honey, I love you completely. It’s just that I want to fundamentally transform you into someone else.” See how that plays out. If you want to fundamentally transform the object of your affection so that it conforms to your fantasies, that is not love…” –Jonah Goldberg, National Review

Psychologically (as well as rhetorically), the individual mandate is very important to the left.  Obamacare is all about coercion—about forcing people to do things they don’t freely choose to do—and the individual mandate serves as its coercive core.  It’s what allows Obama to grasp onto the thinnest reed of legitimacy when describing Obamacare as offering “universal coverage,” despite the CBO’s estimate that, even after ten years and $1.8 trillion, Obamacare would cover less than 45 percent of the uninsured (at the whopping cost of $72,000 per newly insured person).  That’s a far cry from “universal coverage.”  But one can think of it—and describe it—as “universal,” so long as one is forcing every American, as a matter of federal law, to do the government’s bidding.  Without the individual mandate, Obamacare would cease to be “universal coverage,” even in the sense of being universally coercive, and would simply become “45 percent coverage.”  That would be demoralizing to the left. Jeffrey H. Anderson, Weekly Standard

…the implication from Democrats that once a bill becomes a law, it is as indelible as the Ten Commandments, etched into rock by the hand of God Himself, is precious when we consider the source. The Democrats, after all, mounted a 10-year campaign against the “Bush tax cuts,” and did so despite defeat after defeat on the issue. Those tax cuts joined a long line of laws that the country later substantially revised or repealed entirely. A partial list includes: the Clinton tax increases, portions of the Reagan tax cuts, the Gulf of Tonkin resolution, portions of the Kennedy tax cuts, the gold standard, portions of the National Labor Relations Act, Prohibition, the direct election of senators, the Sherman Silver Purchase Act, innumerable tariff schedules set during the 19th century, the three-fifths clause, the Kansas-Nebraska Act, the Missouri Compromise, the Second Bank of the United States, the original rules of the Electoral College, the Articles of Confederation, and, of course, the rule of King George III. Jay Cost, Weekly Standard

… it is widely presumed that the president’s wishes should serve as the baseline for the debate. This makes little sense. Yes, the president can veto anything he doesn’t like. But so can the House. Why is it incumbent upon the House to come up with a platform that the president likes and not vice-versa? After all, the House is at the top of the fiscal hierarchy, followed closely by the Senate, and then, last and very much least, by the president, who, remember, is supposed primarily to concern himself with foreign affairs. Sure, Barack Obama may have won election to head up the executive branch. But, this being a constitutional republic not an parliamentary monarchy, that doesn’t give him carte blanche over legislative and fiscal matters. The idea that there is anything wrong with the House demanding fiscal and legislative concessions from the executive branch is absurd. Especially, perhaps, when the point of contention is a deeply unpopular piece of legislation and the matter at hand is fiscal. Charles C.W. Cooke, National Review

…they paled in comparison to the dishonesty of the president’s central claim, which was that the attempt to link defunding to the debt-ceiling fight is illegitimate because Obamacare has “nothing to do with the budget.” I struggle to imagine how the president could have kept a straight face when he said this. This is a law, remember, that was crowbarred through Congress with the questionable use of reconciliation, a parliamentary procedure that is reserved exclusively for budgetary matters; a law that was sold as a deficit-reduction measure; a law that contains a significant spending component, including a 5-10 percent increase in the size of the federal budget; and, alas, a law that boasts a central mandate that was upheld (rewritten) by the Supreme Court as a tax, thus ensuring that any changes to the penalties must be approved by the House. “Nothing to do with the budget”? This is what we call a lie…Charles C.W. Cooke, National Review



Secrets, Conspiracy, Rumors And A Lack of Transparency. by The Elephant's Child

North by Northwest

In the first two years of his presidency, Barack Obama had an easy relationship with Congress, for both houses were controlled by Democrats, and what Obama wanted, Obama got. In the second two years, Republicans won a solid majority in the House of Representatives, and the president faced opposition. Mr. Obama has made it clear that he doesn’t like disagreement.

Republicans are deeply worried about the administration’s profligate spending, and worry that raising taxes, as they agreed to in January, will put the nation back into recession. Mr. Obama believes that spending is the way to economic growth.

The president’s arrogant attempts to go around Congress and the excessive flow of regulation from the administration have alarmed administration watchers. Promises of “transparency” have proven to be ephemeral.

Answers about the “Fast and Furious” gunrunning scandal have not been forthcoming. Sensitive security information about the bin Laden raid was released to the media for political purposes. Obama told Defense Contractors to hide scheduled layoffs until after the election, breaking the law.

The attack on the Benghazi compound and the death of the ambassador, his technology aide, and two former SEAL team members was covered up, blamed on an obscure video, the filmmaker imprisoned on spurious charges, amid charges that the administration made no effort to save their lives during a seven-hour battle. The president was disinterested and went to bed, as did the Secretary of State.

It came to light that the president has a “kill list” of terrorists who could be eliminated by drones. A terrorist in Yemen who was killed turned out to be an American citizen. His young son who was an American citizen was also killed. Lots of questions were raised. Does the president have the authority to kill an American citizen, even if he is a suspected, or known, terrorist? Are there rules? And what are they?

News report: Homeland Security ordered 450 million rounds of ammunition for its 65,ooo armed personnel. In 2011, the FBI ordered up to 100 million bullets for its 13,913 agents.  A tragic mass shooting at Sandy Hook Elementary School brought demands to end “gun violence.” Posturing politicians like California’s Dianne Feinstein went after “assault weapons,” though no one could identify just what an assault weapon is — it seems to be entirely cosmetic. Americans saw this as an effort to repeal the Second Amendment, and rushed to gun dealers to buy weapons and stock up  on ammunition. What did you expect?

President Obama made a series of nominations for major cabinet offices, and chose, for Defense, a former enlisted man who believes in eliminating nuclear weapons and seems not to understand our recent wars at all. Obama fired, or encouraged the departure of two of our top generals. And for CIA he chose a man who was apparently involved in running a secret operation in Benghazi that affected the attacks there, and who seemed incapable of answering simple direct questions.

The Department of Homeland Security bought 7,000 5.56 x45 NATO personal defense weapons (real assault weapons), both automatic and semi-automatic. DHS has also purchased 2,717 MRAP (Mine-Resistant Ambush-Protected) vehicles with gun ports, for use on American city streets. Why?

Overarmed federal officials are increasingly employing military tactics as a first resort in routine law enforcement. They are employing heavily armed SWAT teams against harmless, frequently innocent civilians who are accused of non-violent civil or administrative violations. Deroy Murdock  enumerated some of the victims of over-armed military style agency attack.

If these separate actions and incidents have made many Americans a little paranoid,  it’s hardly surprising. Governments have been brought down for less.

When Americans demand “transparency,” they actually mean it. The President and all his minions and our representatives in Congress work for us. They are not autocrats entitled to keep their actions secret. The oaths they take to defend the Constitution are not matters of tradition, but promises they make— in return for the offices we allow them to hold temporarily. They need to explain their actions. They are responsible to us.

The government has no money of its own. The funds they squander so carelessly came out of our pockets, and represent a vacation we couldn’t afford, a neglected repair for the house, a needed new appliance that will have to wait for another year. We didn’t elect them to “fundamentally transform” the United States of America. We elected them to preserve, protect and defend. and they’ve been doing a lousy job of it. We want straight answers, and ethical behavior.

Senator Rand Paul had some questions about John Brennan, the nominee to head the Central Intelligence Agency. He wrote to Mr. Brennan requesting some clarification of administration attitudes toward their powers of authorizing drone strikes against a U.S. citizen on U.S. soil , and without trial. This came in the wake of considerable talk about the use of drones in the United States, and the execution with a drone of an American Citizen and his family in Yemen. The administration handed the question over to Attorney General Eric Holder, who was incapable of giving a straight answer, as was nominee Brennan.

So Rand Paul filibustered the nomination. Eric Holder could not clarify the distinction between what is a matter of due process and what is war-making and subject to the rules of war. Democrats would not give a “Sense of the Senate” that drone attacks could not be made on American citizens on American territory.

It is to be hoped that the administration will gain some understanding of the problems that have been caused by their own lack of transparency, their refusal to give straight answers to straight questions, and a general arrogance that proclaims that they are our betters and are not answerable to us.



This Imperial President Is Above Mere Laws by The Elephant's Child

The White House seems to have an odd relationship with the separation of powers. The 2010 mid-term election when Republicans took over control of the House of Representatives was a sharp rebuke to the administration and congressional Democrats. Rather than understand that as a call for more cooperation and bipartisanship, Obama saw it as a sign that he should just go around Congress, accomplishing his goals by executive orders and agency regulation.

The Friday night news dump showed that Obama had exceeded his own guidelines. He decided that he would ignore the restrictions of Congress’s Palestinian Accountability Act with a “waiver.” He made the decision to pour American taxpayer dollars —$192 million — into the coffers of the Palestinian Authority despite its being illegal. This was first printed in the foreign press (AFP), where many of the more interesting things about this administration first appear.

Congress mandated that no funds may be made available to the Palestinian Authority until it ends its terrorist activities and an independent audit is conducted of its finances. White House spokesman Tommy Vietor said it would ensure “the continued viability of the moderate PA government.” This is the same moderate government which has tried to form a pact with Hamas. He added that “the PA had fulfilled all its major obligations, such as recognizing Israel’s right to exist, renouncing violence and accepting the Road Map for Peace.”

In the real world, the PA is not only not moderate, but has reneged on all its commitments. The whole thing is a blatant  lie.

Obama’s thinks of himself as an imperial president, above mere laws. His rant against the Supreme Court in the wake of the ObamaCare hearing was a disgrace. The Supreme Court is a fully equal branch of the government to the executive branch, and they decide what is Constitutional — not the president, who was a part-time lecturer on the 15th Amendment at the University of Chicago —not a professor of Constitutional Law.

Obama instructed Secretary of State Hillary Clinton to inform Congress of the move, on the grounds that “waiving such prohibition is important to the national security interests of the United States.” Embarrassing.

Former federal prosecutor Andy McCarthy suggests that Congress should slash the executive branch’s budget— perhaps with a treble damages rule. Will they do it? remains to be seen, but unless they respond definitively, the imperial presidency will continue. Obama doesn’t think anyone will dare to do so.

 



The President is Playing Politics With The Constitution and the Law. by The Elephant's Child

Unable to allow Republicans to dominate the news with the Iowa Caucuses,  President Obama traveled to Shaker Heights, Ohio to give a speech at the high school, on the economy.  What made the news was not the soaring rhetoric, but the fact that the President of the United States announced his intention to act in total and utter disregard to the U.S.Constitution, which he solemnly swore to preserve, protect and defend. He said:

When Congress refuses to act and as a result hurts our economy and puts people at risk, I have an obligation as President to act without them.

The President’s power over what are called “recess appointments” comes from Article II, section 2, of the Constitution, which grants him the authority “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” As John Yoo points out,”the Senate adjourns for short periods of time, and the question becomes when does an “adjournment” become long enough to turn into a “recess?”

In the past Attorneys General and Presidents have thought that an adjournment would have to be longer than at least 10 days to become a “recess.” In the Founders’ day, it took a long time to get from Philadelphia to their home states and back by horseback, and it was pretty clear. The Senate is not officially in adjournment, but is holding “pro forma” meetings, where little or no business is conducted,  to prevent Obama from making exactly such appointments. This is a tactic that Harry Reid used to prevent George W. Bush from making “recess” appointments.

It is the Senate who decides whether or not they are in session,  it is not up to the President. He cannot decide the legitimacy of the actions of the Senate, nor can the Congress have the right to decide whether the President has thought long enough about granting a pardon. Separation of powers is an important and essential characteristic of our Constitution, and not only protects the authority of each branch of government, but acts as a brake on their actions.

Roger Pilon of the Cato Institute says that the president, under Article II, section 2, may make temporary recess appointments — but only when the Senate is in recess. Mr. Pilon said:

All of Obama’s appointments yesterday are illegal under the Constitution. And, in addition, as too little noted by the media, his appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) is legally futile. Under the plain language of the Dodd-Frank Act that created the CFPB, Cordray will have no authority whatsoever.

He added: “So what is this? It’s politics — Chicago politics, plain and simple.  If any doubt remained, three years into his presidency, that Obama is a master demagogue, with class warfare as his central tool, this incident should dispel it.

Richard Epstein adds that” within the framework of the current law, …it is for the Senate and not for the President to determine whether the Senate is in session. The usual view in all cases is that the internal rules of each institution govern its operations, and for the President to say that the Senate is not in session when the Senate says that is is, introduces a set of constitutional confrontations that we would be far better off doing without.”

Epstein questions the whole idea of “recess appointments,” though he agrees with John Yoo on the Constitution and the law.  It’s a thoughtful discussion.

The Supreme Court has held that the National Labor Relations Board cannot operate with only two members, so the question of legitimate appointments will not go away. Neither the President’s appointments to the NLRB nor his appointment of Richard Cordray to the Consumer Financial Protection Bureau will have any authority, so there will be more court cases. Anyone who disagrees with rulings by these people will be free to ignore them or to sue.

Press secretary Jay Carney said today that :

We hope to work with Congress to continue to take action on that to continue to grow the economy and create jobs. Separate from that, and this was the case last year and will be the case this year, we can’t wait for Congress to act.  And when Congress refuses to act, and Republicans choose the path of obstruction rather that cooperation, then the president is not going to sit here, this gridlock in Washington is not an excuse for inaction.

He’s going to take the actions that he can take using his executive authority to help the cause here, to help Americans deal with this challenging economy.  And they can be small, medium or large actions and they don’t have to be just executive authority actions.

If you pay attention to the President’s actions and not his rhetoric, it’s clear that he has no idea how to improve the unemployment situation. Business has pointed out that ObamaCare is the number one reason for business’ reluctance to hire. Obama has essentially shut down the energy sector and thousands of potential jobs because he is pursuing a green fantasy. His agencies cannot stop piling on regulations that make for an uncertain business climate. Our corporate taxes are the highest in the world. It’s no wonder that business looks to conducting their business where they are better treated.

The late Walter Wriston said it very clearly:

Capital will go where it is wanted and stay where it is well treated.  It will flee from manipulation or onerous regulation of its value or use and no government power can restrain it for long.

You might copy that off and send it to your Congressman or Occupy protester.




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