American Elephants


Is The Constitution Dead? Did It Die While We Weren’t Paying Attention? by The Elephant's Child

Constitution

This lovely paragraph is in Myron Magnet’s review of Philip Hamburger’s Is Administrative Law Unlawful? in City Journal, the magazine of the Manhattan Institute:

The world-historical accomplishment of the American Revolution, and of the Constitution that came out of it, Hamburger notes, was that they turned upside-down the traditional governmental model of “elite power and popular subservience.” Americans “made themselves masters and made their lawmakers their servants” through a Constitution that they themselves had made. They observed laws that had legitimacy because they themselves had consented to them, through representatives whom they themselves had chosen. And “they made clear that not only their executives but even their legislatures were without absolute power.” Citizens claimed for themselves the liberty to do anything that the laws didn’t expressly forbid, and that freedom richly nourished talent, invention, experimentation, specialization—all the human qualities that are the fuel of progress and modernity.

It struck me that much of what drives the Left is contained in that paragraph. What the Left aims for is elite power and popular subservience. Obama, today, in response to a Republican sweep of the 2014 election, has decided, instead of making an effort to work with Congress in a bipartisan manner, to conduct foreign policy and legislate all on his lonesome. Politicians, by their very nature have a healthy dose of self-esteem, and they choose their rhetoric carefully to place their accomplishments or lack of accomplishments in the best possible light. That’s just natural. But insisting that because you are President of the United States you can do whatever you want to do by executive order, ignoring the tripartite nature of our Constitutional government, is just wrong.

The Constitution lodges all legislative power in Congress, which therefore cannot delegate its lawmaking function. It is, Hamburger says, “forbidden for Congress to pass a law creating an executive branch agency that writes rules legally binding on citizens—for example, to set up an agency charged with making a clean environment and then to let it make rules with the force of law to accomplish that end as it sees fit. The power of the legislative’ as the Founding Fathers’ tutelary political philosopher, John Locke, wrote, is   ‘only to make laws and not to make legislators.’ And if Congress can’t delegate the legislative power that the Constitution gives it, it certainly cannot delegate power that the Constitution doesn’t give it—namely, the power to hand out selective exemption from its laws, which is what agencies do when they grant waivers.”

James Madison, architect of the Constitution saw the separation of powers as an essential bulwark of American liberty. Administrative agencies, however, make rules, carry them out, adjudge and punish infractions of them, and wrap up legislative, executive and judicial powers in one noxious unconstitutional mess. Judicial power cannot be delegated as legislative power, the Constitution puts all of it in the judicial branch. Unlike real judges, administrative judges carry out the policy of their agency, as set and overseen by their department chief or the relevant cabinet secretary who in turn oversees him. This is not a court, and not a law, and not legal. Yet they can and do order  parties to appear before it, and extort millions of dollars in settlements, force companies to allow inspectors to enter their premises without warrants, and impose real criminal penalties. It can even kill a whole industry, as Obama’s EPA is attempting to do to the coal industry and the coal-fired power industry because the President mistakenly believes the carbon dioxide they emit is the cause of global warming.

Elites, particularly Leftist elites, do not like the Constitution which restrains their grasp for power. Many have accused Barack Obama of wanting to be a king. He laughs it off, and tries to pretend that his executive orders and executive notes and memorandums and signing statements are all perfectly constitutional, and adds, of course, that Bush did it.

Constitutional government is by its nature slow, designed to force new laws to be discussed and argued about, which will incline them to be better written and better law. But Congress, at some point got lazy, and felt it would speed things up if they just handed the administrative function in its entirety off to the assorted agencies of the government.

Thanks to Obama, we have a prime example of the failure of that whole endeavor in the Environmental Protection Agency. Good intentions come up against the nature of bureaucracy which is to grow and elaborate their mission and enhance their power. The Clean Water Act has long since accomplished it’s intent, and the EPA is vigilantly attempting to extend its regulating power to the trickles that flow into the ditches that flow into the creeks that flow into the streams that eventually flow into the “navigable waters,” the big rivers, that were originally given into their oversight. That’s pure power grab.

Congress must take back the legislative power assigned to it, agencies must shrink drastically in size, authority, and reach. They are not allowed to make law, administer law, investigate and judge law and assign penalties. Things have gotten so far out of whack that most, if not all, agencies have their own swat teams.

Part of the problem is that judges don’t know or understand the intricacies of the underlying facts of that which the agencies are attempting to regulate. Congress told the EPA that the navigable waters of the United States should be reasonably clean. The courts don’t necessarily understand where the dividing line for “enough” should fall.

Even while adhering to Supreme Court precedents about administrative power, they “remain free—indeed, [the courts] are bound by duty—to expound the unlawfulness of such power.” And at some point, Hamburger expects, the Supreme Court will have to man up and frankly state that what the Constitution says is the supreme law of the land.

And the people are going to have to let their representatives know that we care about the Constitution and our freedom, and are opposed to the administrative state.



A Petulant President Attacks His Critics in Congress, And Ignores the Ayatollah Who Calls Him a Liar. by The Elephant's Child
April 14, 2015, 6:52 am
Filed under: Politics | Tags: , , ,

In the fading days of his presidency, Mr. Obama clearly believes that he can determine American foreign policy all by himself. At the Summit of Americas in Panama City, the president was bad-mouthing America again, as he so readily does when abroad. But he was particularly annoyed that anyone would disagree with his unilateral outreach on Cuba, Iran and Climate Change. He was especially annoyed that Senator John McCain would dare to point out that the Ayatollah Khamenei disagreed drastically with Secretary of State John Kerry’s interpretation of the “framework” nuclear accord.

In fact it was the Ayatollah Khamenei who accused the White House of “Lying,” being “deceptive.” and having “devilish intentions”, according to multiple published accounts and posts of his own twitter feed.

Khamenei also disputed the key terms Obama administration officials have said were agreed upon in principle. Economic sanctions will not be phased out once Iran’s compliance has been “verified,” according to the Ayatollah. Instead, Khamenei said that if the U.S. wants a deal, then all sanctions must be dropped as soon as the agreement is finalized. Khamenei also put strict limits on the reach of the inspectors who would be tasked with this verification process in the first place.

President Obama held a press conference in Panama City, and announced huffily;

“That’s not how we’re supposed to run foreign policy, regardless of who’s President or Secretary of State. We can have arguments, and there are legitimate arguments to be had. I understand why people might be mistrustful of Iran. I understand why people might oppose the deal—although the reason is not because this is a bad deal per se, but they just don’t trust any deal with Iran, and may prefer to take a military approach to it,” Mr. Obama said.

But when you start getting to the point where you are actively communicating that the United States government and our Secretary of State is somehow spinning presentations in a negotiation with a foreign power, particularly one that you say is your enemy, that’s a problem. It needs to stop.”

It was the Ayatollah who first claimed that the Obama Administration was “spinning” what was in the framework, but Obama dismissed his remarks as posturing to protect his political position, and American critics should just shut up because the only alternative is war.

Secretary of State John Kerry on “Face the Nation” described the nuclear agreement with Iran as a  “global mandate” issued by the United Nations. “Congress assisted by passing sanctions.” Kerry said the State Department didn’t want the Iran talks to fall prey to partisan bickering in Washington.”We’ve earned the right to complete this without interference, and certainly without partisan politics.” Earned the right?

We don’t know how close or far the Iranians are to a nuclear bomb, or if they already have one. Our intelligence has always been surprised when a nation suddenly tests a nuke. They didn’t know it was imminent. The Obama Administration seems to believe that it would be fine for Iran to become a nuclear power. That if so, they would just become another state possessing nukes like us and Britain and France and Israel.We all get along and don’t worry about each other.

If Iran wants to dominate the Middle East, they could just control the warring tribes and we wouldn’t have to worry about interfering. But Iran is not just another country, but the world’s most active sponsor of terrorism around the globe, They are impelled by passionate religious fervor, and believe that Armageddon or the final battle would bring about the return of the Mahdi followed by eternal bliss. The Ayatollah Khamenei is dying of cancer. Does he want to get things settled within his life span?

The UN inspectors know they haven’t seen all the Iranian facilities, and they don’t know for sure if they even know how many there are. A military book talked about an EMP bomb. And there is Death to America Day, and the cry shouted by all every Friday after prayers. Our negotiators don’t seem to understand the basics of negotiation — negotiating from strength, and walking out if you don’t get some cooperation. It seems to be the Iranians who are negotiating from strength. But it is Americans and Israelis who will pay the price of Administration blundering.




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