American Elephants


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.

 



A Reminder, In Your Words Mr. President: “That’s Not How Democracy Works” by The Elephant's Child

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The year is 2011, and election coming up, the president is making lots of speeches and fundraising. On May 10, President Obama spoke at Chamizal National Memorial Park in El Paso Texas. He vowed to “keep up the fight” to pass comprehensive immigration reform through Congress, because the immigration system was broken. (Not broken. The immigration laws simply are not enforced).

He assured the audience that the border fence was essentially complete, (if  “essentially complete” means that 84 miles of the mandated double fencing have been built of the 1,933 miles of our border with Mexico). That pertains to compliance with the Secure Fence Act of 2006.

Then he added:

“Sometimes when I talk to immigration advocates, they wish I could just bypass Congress and change the law myself, but that’s not how a democracy works,” Obama said. “What we really need to do is to keep up the fight to pass genuine, comprehensive reform. That is the ultimate solution to this problem. That’s what I’m committed to doing.”

Back in the halls of Congress, it is Jeff Sessions who once again spoke of constitutional government in defense of American workers in a clarifying speech yesterday on the Senate floor:

A number of things have been happening today with regard to the funding of the Department of Homeland Security. There’s been a lot of spin about that and that somehow the Republicans are blocking the funding of the Department of Homeland Security. This gives new meaning to the word “obfuscation,” I suppose, or “disingenuousness.” The truth is, the House of Representatives has fully funded the Department of Homeland Security. It’s provided the level of funding the President asked for. It’s kept all the accounts at Homeland Security as approved through the congressional process. It simply says, but, Mr. President, we considered your bill, this amnesty bill that will provide work permits, photo IDs, Social Security numbers, Medicare benefits. You can’t do that. We considered that and rejected it. So we’re not going to fund that.

Now, the President has told us and his staff that they have across the river in Crystal City, they’re leasing a new building and this building is going to hire a thousand workers, paid for by the taxpayers of the United States, part of Homeland Security. Are those thousand workers going to be utilized to enforce the laws of the United States? Are they going to process applications for citizenship or visas? No. Those 1,000 people, costing several hundred million dollars, in truth, those people are going to be processing and providing these benefits to people unlawfully in America… (Read on below)

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What Did Obama Mean By “Fundamentally Transform”? by The Elephant's Child

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Most of us are apt to divide the world up into the good guys and the bad guys. Opposites.  Simplistic thinking, of course. No nuance. (when did that word slip into the daily vocabulary?) Winners and losers. Short and tall, rich and poor, hard-working and lazy, handsome and ugly, cruel and kind, smart and stupid. It helps us to understand those things we encounter in the world, we can modify our judgment later.

World War II was clear — Allies and Axis, and the Cold War — Communists and the Free World. Things began to get confused with the War in Vietnam. Protesters couldn’t decide who were the good guys and who were the bad guys. Jane Fonda has never been forgiven for her stupidity, but she was not alone among the far left. It was a confusing time, and when the Draft was ended, surprisingly so were the protests.

Questions today on the internet ask “Is Obama a Christian?” and “Is Obama a Muslim?” But those are the wrong questions. Obama has given every indication of signing up with the bad guys, the Axis, the Communists, and those who oppose our country. His dislike for the Israeli prime minister is obvious; his distaste for the United Kingdom is clear; his support for a deal with Iran; his support for the Muslim Brotherhood; for the deposed president of Egypt; inability to reach a status of forces agreement with Iraq; Benghazi; refusal to help the dissidents in Iran, and in Syria; and the silly outreach to Cuba; and the support for most anti-American governments in South America.

There is a pattern.  A pattern which is behind Rudy Giuliani’s asking if the president loves America. One would think that the media would be somewhat aware of the direction of the entire Obama administration, instead of dissolving in wrath when someone actually notices. (Or is that why the media boiled over —they’re beginning to notice?)

I think he is just doing exactly what he said he would do: attempt to “fundamentally transform the United States of America.” Everybody was so excited with the idea of the first black president, the mellow baritone voice, the moving phraseology “Yes We Can!,” “We are the ones we’ve been waiting for!,” that they didn’t really pay any attention to what he actually said that he wanted to do. I don’t think he is trying to destroy the country, he just wants to “fix” it.

We are paying the price for our inattention. And it’s up to us to find out exactly what he meant by “fundamentally transform.” It matters. It matters a lot.



Abraham Lincoln Was Born on February 12, 1809. by The Elephant's Child

Reprinted from 2011

I liked it better when we celebrated Lincoln’s birthday and Washington’s birthday separately. When it is “President’s Day.” and a three-day weekend, nobody remembers. And you and your children must remember this man. He saved the Union, and freed the slaves.

To understand America, you need to understand the Gettysburg Address (Vanderleun)

This picture emphasizes Lincoln’s height, although his lean body and the top hat emphasize it even more. He was 6’4″, tall today, but not unusually tall. Average height in the 1860s must have been much less. George Washington was 6’2″ and considered very tall.




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