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.



And So It Goes: by The Elephant's Child
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Obama’s “Good Deal” is a Self-Serving Fantasy by The Elephant's Child

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Reported: Obama ordered Secretary Kerry to continue talking in Lausanne even though deadline had passed.

LAUSANNE, Switzerland — (Washington Post) “Negotiators from Iran and major world powers reached agreement Thursday on a framework for a final agreement to curb Tehran’s nuclear program in exchange for relief from international sanctions an accord that President Obama hailed as a “good deal” that would make the world a safer place.”

Obama appeared in the Rose Garden to say that the U.S. and its partners “reached a historic understanding with Iran which if fully implemented, will prevent it from obtaining a nuclear weapon.”

Poor Obama, He is so desperate for “a deal” that he has turned over everything the Iranians could possibly want, in return for some vague promises that will be meaningless. Close observers have said that he expects this ‘accomplishment’ to equal Nixon’s opening up China. Instead he may have signed America’s death warrant, and Israel’s.

America is an open society, we hang most of our secrets out on a clothesline for all the world to see — and hackers get a good percentage of the rest. Hardening off our electric grid? EMP attacks? Just yesterday some Russian expert suggested that the best way to end America would be to drop a nuclear bomb on Yellowstone. Not defeat — destroy. When is the last time that The United States of America ever suggested destroying another country?

Obama’s speech in the Rose Garden was so full of straw men that it was embarrassing. He even claimed the authority of a push poll yesterday that asked such a mushy-soft question that both Hitler and Mother Teresa would have signed on. UN Officials have said that Iran is already blocking their efforts to track what is going on in their nuclear program. We not only don’t know how advanced their program is, we don’t know for sure how many facilities they have.

Thomas Sowell wrote today:

The Soviet Union was never suicidal, so the fact that we could annihilate their cities if they attacked ours was a sufficient deterrent to a nuclear attack from them. But will that deter fanatics with an apocalyptic vision? Should we bet the lives of millions of Americans on our ability to deter nuclear war with Iran?

It is now nearly 70 years since nuclear bombs were used in war. Long periods of safety in that respect have apparently led many to feel as if the danger is not real. But the dangers are even greater now and the nuclear bombs more devastating.

Clearing the way for Iran to get nuclear bombs may — probably will — be the most catastrophic decision in human history. And it can certainly change human history, irrevocably, for the worse.

The Iraqi Prime Minister said “We will continue enriching. We won’t close facilities and all sanctions will be terminated.” Obama seems to believe that they are just developing nuclear energy for peaceful domestic purposes. If so, why the intercontinental ballistic missiles? And why, when they are a major oil-producing country, do they need nuclear energy? We don’t even know how close or far their development of a bomb is — Obama is claiming 10 years, too far away to be blamed on him, but other sources say as little as 45 days.

We had a powerful restraint in place. Iran supposedly requires a $130 per barrel price for oil to break even, and the price has dropped below $50. Obama compared himself to Richard Nixon and to John Kennedy negotiating nuclear deals with the Soviet Union, but both of them submitted their agreements to Congress for approval.



Congress Is Supposed to Meddle in the Iran Talks. That’s Their Job. by The Elephant's Child

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Put aside the overheated spat about the wisdom of inviting Israeli Prime Minister Benjamin Netanyahu to address a joint session of Congress this week. The deeper constitutional issue involves the insistence by President Barack Obama that the House and Senate have no business floating sanctions bills that might upset the administration’s negotiations over Iran’s nuclear program. The truth is that there’s nothing remotely unusual going on. Congress has pressured presidents to change their approaches to foreign policy for as long as the country has existed. This sort of interplay among the branches is exactly what the Framers expected.

This is Stephen L Carter, writing for Bloomberg last Thursday. Do read the whole thing. It’s particularly nice to see a professor of law, once again, clarifying the relationship between the executive office and Congress. The people often complain that Congress just seems to fight. Why can’t they just get along, and get stuff done?

Nancy Pelosi supposedly fumed about Congress’s “insult” to the president by inviting Prime Minister Netanyahu to address Congress. Congress does not have to ask the permission of the president to invite anyone they want to speak to them, and Ms. Pelosi knows that perfectly well.

Congress has not only the right to disagree with the President, but it is their duty when they believe he’s off on the wrong track. The founders intended for Congress to debate and fight and expose all sides of the questions before them. Laws are not to be made by presidents, that’s Congress’s job, and laws are not to be made in haste but after the problems have been hashed out to the extent possible.

Professor Carter cites numerous recent examples that make it clear that struggles between the legislative and executive branches have occurred “over how to deal with everything from attacks on U.S. ships by the Barbary states to Russian expansionism in North America.”

This unambiguous history makes it all the more remarkable that members of the Obama administration continue to insist that there is something constitutionally troubling about, for example, the proposed Iran Nuclear Review Act of 2015, which would require the president to submit for congressional approval whatever agreement he reaches with Tehran. “I don’t think there ought to be a formal approval process,” Secretary of State John Kerry said in congressional testimony last month. “I believe this falls squarely within the executive power of the president of the United States in the execution of American foreign policy.”…

We can argue long and hard over the proper contours of the final deal with Tehran. But it’s wrong to suggest that Congress is misbehaving when it insists on protecting its prerogatives. Battles between the executive and legislative branches over foreign policy are as old as the republic. If the outcome of the current fight is a restriction on the freedom of this or a future president to go his own way, that’s a feature, not a bug.

Stephen L.Carter is a professor of law at Yale University, who teaches courses on contracts, professional responsibility, ethics in literature, intellectual property, and the law and ethics of war, and writes good thrillers as well.



The EPA Gets Slapped Down By the Federal Court Once Again by The Elephant's Child

McCarthy testifies before a Senate Environment and Public Works Committee hearing on her nomination to be administrator of the Environmental Protection AgencyFederal Judge Royce C. Lamberth  today warned the EPA not to discriminate against conservative groups in how it responds to open records requests. He said the agency may have lied to the court and showed “apathy and carelessness” in carrying out the law.

He said he could not prove that officials intentionally destroyed documents, but he described as an “absurdity” the way the EPA handled a Freedom of Information Act (FOIA) request from Landmark Legal Foundation and the court case stemming from it—including late last week admitting that it misled the court about how it went about  “searching for documents.”

In a scorching 25-page opinion, the judge accused the agency of insulting him by first claiming it had conducted a full search for records, then years later retracted that claim in a footnote to another document without giving any explanation for how it erred.

“The recurrent instances of disregard that EPA employees display for FOIA obligations should not be tolerated by the agency,” the judge said. “This court would implore the executive branch to take greater responsibility in ensuring that all EPA FOIA requests — regardless of the political affiliation of the requester — are treated with equal respect and conscientiousness.”

This particular ruling can also be seen as a rebuke to President Obama who vowed to run the “most transparent administration in history” but has received constant challenges over how that vow has been carried out. Judge Lamberth made a point of the EPA delay of follow through on Landmark’s request until after the 2012 elections, and said explanations by EPA officials for why they failed to live up to the law “defied reason.”

Mark Levin, Landmark’s president, said it is up to the president to decide how to respond, but people should be fired. Nena Shaw and Eric Wachter, Judge Lamberth said, either lied to the court or showed utter indifference to the law.

Is it proper to send roses to a federal court? Probably not, but this arrogant agency certainly deserves a legal slap-down.



Trey Gowdy On President Obama’s Unconstitutional Immigration Policy by The Elephant's Child

CNSNews.com) – Rep. Trey Gowdy (R-S.C.) has a message for those who may approve of — or even benefit from — President Obama’s unconstitutional immigration policy: “Be careful what you do with the law today, because if you weaken it today, you weaken it forever,” he told the House Judiciary Committee on Wednesday.

Gowdy said the law is the nation’s greatest unifying and equalizing force — “but one person does not make law in a republic.”

President Obama, by doing exactly what he once said he could not do, is not only going beyond the considerable powers of his office; he is assuring that future presidents also will expand the power of the executive branch, thus “threatening the constitutional equilibrium.”

Mr. Chairman, the thread that holds the tapestry of our country together is respect for and adherence to the rule of law. The law is the greatest unifying and the greatest equalizing force that we have in our culture.

The law is what makes the richest person drive the precise same speed limit as the poorest person. The law is what makes the richest person in this country pay his or her taxes on precisely the same day as the poorest person in this country.

The law, Mr. Chairman, is symbolized by a blind woman holding a set of scales and a sword. The law is both a shield and a sword, and it is the foundation upon which this Republic stands.

We think so highly of the law, Mr. Chairman, that in the oath of citizenship administered to those who pledge allegiance to this country — to their new country —  it makes six different references to the law. So attempts to undermine the law via executive fiat, regardless of motivation, are detrimental to the foundation of a democracy.

President Obama, after the November midterm elections I hasten to add, announced one of the largest extra-constitutional acts ever by a chief executive. He declared unilaterally almost 5 million undocumented aliens would receive deferred action under some newfangled definition of prosecutorial discretion. Moreover, in addition to using prosecutorial discretion as a license to rewrite the law, he also conferred benefits on those same people.

You may like the policy. You may wish the policy were the law. But one person does not make law in a republic.

If you enjoy a person making law, you should investigate living in another country, because our Framers did not give us, nor have generations of our fellow citizens all conserved and sacrificed, for a single person to make law in a unilateral way.

So removing consequences for breaking the law is one thing; bestowing benefits such as work authorization and immigration benefits is another.

The president himself recognized his own inability to do this, Mr. Chairman — more than 20 separate times he said he lacked the power to do what he ultimately did.

In 2011, he said this, and I quote: ‘The notion that I can just suspend deportation through executive order, that’s just not the case.’ He told us time and time again, Mr Chairman, that he was not a king.

His position may have changed, but the Constitution has not; and that document is clear and it is time-tested and it is true, and it says that Congress passes laws and it is the responsibility of the chief executive to take care that those laws are faithfully enforced.

Prosecutorial discretion is real and constitutionally valid, Mr. Chairman, but it is not a synonym for anarchy.

As U.S. District Court Judge Andrew Hanen wrote in his recent opinion, DHS does have discretion in the manner in which it chooses to fulfill the express will of Congress. It cannot, however, enact a program whereby it not only ignores the dictates of Congress but actively moves to thwart them.

The Constitution gives the president a lot of power, Mr. Chairman. He’s the commander in chief, he nominates Supreme Court justices, he can veto legislation for any reason or no reason, he can fail to defend the constitutionality of the law, he has the power of pardon. He has a lot of power, Mr. Chairman, but what he cannot do is make law by himself. That is the responsibility of the Congress.

And if this president’s unilateral extra-constitutional acts are not stopped, future presidents, you may rest assured, will expand that power of the Executive Branch, thereby threatening the constitutional equilibrium.

“And the argument that previous administrations have acted outside constitutional boundaries holds no bearing with me. The fact that other people made mistakes is not a license for this executive to do the same thing.

Mr. President, in conclusion, we live in a country where process matters. The end does not justify the means, no matter how good the intentions.

When a police officer fails to check the right box on an application for a search warrant, the fruits of that search warrant are suppressed. When a police officer, even though he has the right suspect for the right crime but he just fails to include one small part of those prophylactic Miranda warnings, what happens? The statement is suppressed, even though you have the right person, even though you have the right crime — because we view process over the end.

And I’m going to say this, and then we’ll finish. I’m going to say this to those who benefit from the president’s policies.

You may be willing to allow the end to justify the means in this case. You may well like the fact that the pres has abused pro discretion and conferred benefits in an unprecedented way.

You may benefit from the president’s failure to enforce the law today, but I’ll make you this promise: There will come a day where you will cry out for the enforcement of the law.

There will come a day when you long for the law to be the foundation of this republic. So you be careful what you do with the law today, because if you weaken it today, you weaken it forever.”



The Character of The President Is Being Exposed For All To See by The Elephant's Child

Goodness, we must have really irritated President Obama with that recent wave election. One might have hoped that it would lead to more cooperation, but he has proved that he has no ability, nor inclination,  to negotiate. It’s plainly his way or the highway. He ‘s gone full tyrant.

We have never before had a president who says essentially— the hell with the Constitution, I’m going to do exactly what I want. We’ve had advice handed down from our first president, and many subsequent presidents, but never one before that behaved like a petulant spoiled child.

What we need to understand is that for the present crop of progressives, the issue is never the issue. Our immigration system is not broken. It is not enforced. Obama wants poor, poorly educated peasants from Mexico and Central America because by giving them work permits and welfare benefits, food stamps, driver’s licenses and other goodies, they will be Democrat Party voters, and make America permanently Progressive and permanently socialist.

Regulating the internet as a public utility to protect users establishes government control over the web, who uses it, and what kind of speech will be allowed.

Threatening public officials if they don’t obey Obama’s illegal executive orders while they are questioned by Congress and the courts is reprehensible.

John Hinderaker, one of the attorneys at Powerline offers “A Modest Proposal For Amendments to the Constitution.” “Barack Obama’s scofflaw administration has revealed some ambiguities or omissions in our Constitution–loopholes, if you will–that should be closed via constitutional amendment, to eliminate the possibility that future administrations may also act lawlessly. I have in mind three amendments that should accomplish that purpose.”

Do read the whole thing, which explains the very brief amendments, and why we need each one. Just a matter of clarifying the wording so even ideologues can understand.

ADDENDUM: Forgive me. I have been stupid. John Hinderaker’s column at Powerline was a gentle reminder that Barack Obama was directly ignoring the Constitution he had sworn “to the best of his ability to preserve, protect and defend the Constitution of the United States.” Mr. Hinderaker was simply offering the exact words of the Constitution as “amendments” that should fix the situations. It was a brilliant idea, and I fell for the joke, hook, line and sinker, without bothering to check his words against the exact wording of the Constitution, for I don’t have it all by heart. I am blushing with shame.

 




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