American Elephants


The President Has Again Tried to Circumvent the Constitutional System of Lawmaking. by The Elephant's Child
May 12, 2015, 5:06 pm
Filed under: Politics | Tags: , , ,

Among the publications of the Hoover Institution is an online magazine called Peregrine, which includes short pieces by Hoover fellows. This one about Obama’s use of his executive power by William Suter is particularly interesting:

President Obama is not the first President to use his executive power aggressively. President Lincoln used an Executive Order in 1861 to suspend the writ of habeas corpus. The Supreme Court held that his action was unconstitutional. President Franklin D. Roosevelt attempted to change the composition of the Supreme Court of the United States in 1937 in order to gain favorable votes for his New Deal legislation. His “Court packing” plan was rejected by Congress and the voters. President Truman seized steel mills in 1952 to avert a strike because the mills were needed to support the Korean War. The Supreme Court held that his takeovers were unconstitutional. Previously, Truman acted courageously by issuing an Executive Order in 1948 that desegregated the armed forces. In that instance, he was on solid legal ground because the Constitution states that the President is the “commander in chief of the Army and Navy.” President Obama attempted to make three recess appointments to the National Labor Relations Board in 2012 when the Senate clearly was not in recess. His reason for doing this was that the Senate would not confirm his nominees. He acted as though he was the first President to be treated rudely by the Senate. Not so! His crude attempt was an insult to the Constitution. The Supreme Court, in a unanimous decision, held that his appointments were void.

Congress also uses its power aggressively. An example is the Senate’s late-night manipulation of rules to pass the Patient Protection and Affordable Care Act (“Obamacare”) in 2010. That embarrassing episode rivaled the famous 1972 Olympic Gold Medal basketball game when three seconds were mysteriously added to the clock, enabling the Soviet Union to defeat the United States. …

President Obama, emboldened by his record of changing laws – including provisions of the Affordable Care Act – decided in November 2014 to bring about his vision of immigration reform, not through Congress, but by use of executive fiats. For years, he maintained that he had no legal authority to change immigration laws. The sweeping election wins by Republicans a few weeks earlier apparently caused the President to change his mind. The largest category of people affected by the President’s executive “Presidential memos” is an estimated population of five million illegal immigrants who have been in this country for five or more years and have children who are U.S. citizens or permanent legal citizens. If they pass a background check and pay their taxes, the President offers a 3-year temporary status of “deferred action” regarding deportation along with work permits. The President’s purported legal authority to do this is his power of prosecutorial discretion. Prosecutors have such authority in individual cases, but no one can seriously think that authority is applicable on such a grand scale. What the President is doing is refusing to execute the law. He has no more authority to do this than he would to exempt corporations from paying income taxes. He cannot change the law.

As one writer put it, “This move by President Obama is not a sign of righteous impatience; it is proof that he has failed at that most basic of tasks – working with Congress.” The President has created a constitutional crisis when there was no need to do so. That is regrettable. (emphasis added)



James Madison, 4th President of the United States, Architect of the Constitution. by The Elephant's Child
April 29, 2015, 9:19 pm
Filed under: Politics | Tags: , , ,

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                                                                                                                                                                                                                                           James Madison wrote in Federalist No. 51

This policy of supplying by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. In private affairs, arranging for ambition to counteract ambition would conduce to prosperity, as the emerging discipline of political economy was arguing. In public affairs it would give mankind a better chance than ever before to overcome the great political difficulty: to “first enable the government to control the governed; and in the next place oblige it to control itself”

In Federalist No. 55, Madison after taking up and attempting to refute hypothetical questions about how the Constitution’s checks and balances might prove too weak to prevent this or that abuse Madison finally throws up his hands. Yes, the “auxiliary precautions’ that make ambition counteract ambition will help sustain a republic But, no, a nation of devils will not form a successful republic, no matter how intelligent they are or how well their state is organized. “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust” Madison wrote, “so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence  of these qualities in a higher degree than any other form.

Did we assume too much, presupposing the existence of qualities in human nature that justify esteem and confidence? And they are missing? What then?



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.



Just What Is The “Office Of The President Of The United States?” by The Elephant's Child

Reposted from 2010.

When George Washington was elected President, there were so many questions. A Republic was something completely new to the Americans.  What they knew was monarchy, and a very opulent monarchy at that.  They definitely didn’t want to go back to the pomp and circumstance of England.  The new office of the President of the United States needed importance, respect, dignity and what exactly? The people did not rebel against a King in order to establish a new monarchy.Congress insisted on a salary of $25,000, a huge sum for the time.  Washington accepted it reluctantly, but he spent nearly $2,000 of it on liquor and wine for entertaining.  He had, of course managed an army and a plantation.  In fact, Mount Vernon had more staff than his presidency did.

“Washington was keenly aware that whatever he did would become a precedent for the future. How often should he meet with the public? How accessible should he be?  Could he have private dinners with friends?  Should he make a tour of the new states?”  He sought advice from those closest to him, including his vice-president, John Adams and Alexander Hamilton, his Secretary of the Treasury.  The only state occasions that any of them were familiar with were those of European monarchies.

“Hamilton thought that most people were ‘prepared for a pretty high tone in the demeanor of the Executive,’ but they probably would not accept as high a tone as was desirable.  “Notions of equality,” he said, were “yet…too general and too strong” for the president to be properly distanced from the other branches of the government.” Gordon Wood tells of the dilemmas.

“When Washington appeared in public, bands sometimes played “God Save the King.” In his public pronouncements the president referred to himself in the third person.  His dozens of state portraits were all modeled on those of European monarchs.”

We can be truly grateful that Washington was so aware that he was establishing precedent, and so careful of what he said and did.  He was setting an example, and everything he did was intended to hold the new nation together, to form a more perfect union.

One simple problem was what to call the president.  John Adams had discussed the problem with his colleagues in Massachusetts.  They called their governor “His Excellency”: should not the president have a higher title?  Adams thought only something like ‘His Highness’ or ‘His Most Benign Highness’ would answer.  Washington was said to have initially favored “His High Mightiness, the President of the United States and Protector of Their Liberties.” The Dutch leaders of the States-General of the United Provinces called themselves “Their High Mightinesses” and they were leaders of a Republic.”  Madison managed to get his fellow congressmen to vote for the simple republican title “President of the United States.” And that was that.

Washington was relieved when the title question was settled.  But “he still was faced with making the institution of the presidency strong and energetic.” In fact, said Gordon Wood, “the presidency is the powerful office it is in large part because of Washington’s initial behavior.”

Gordon S. Wood: Empire of Liberty; A History of the Early Republic, 1789-1815



Your Taxes Are Going Up, And That’s Only The Beginning. by The Elephant's Child

I wish you a Happy New Year in spite of an upcoming year that is not promising.

We dropped over the fiscal cliff at Midnight, and then the Senate passed their 157 page fiscal cliff bill which everybody passed without reading it. Didn’t anyone learn a lesson about passing unread bills? Obama is triumphal because he accomplished his two main goals. He stuck it to the Republicans and can now call it ‘a tax cut’ that he delivered to the middle class (Don’t fall for that pathetic meme), and he forced Republicans to forgo their insistence on not raising taxes.

Republicans want to keep taxes low for everyone, because low taxes will help the economy to grow. New layoffs have been coming at a furious rate as more small businesses let workers go, or shift more of their workforce to part-time to avoid the massive fines imposed by ObamaCare on those companies who have more than 50 workers. People and businesses respond to incentives. The rich will rearrange their finances, or move to a location more friendly to capital. Businesses will invest in more labor-saving devices — more telephone trees, robotic voices, more automated check-out stands, more factory innovations that save the cost of labor and it’s benefits. And although taxes will go up, the revenue will not yield as much as expected.

Republicans recognize government jobs as just another expense that will require increased taxes from the public, and yes, the middle class. They believe in smaller, less complicated government that regards its tasks as those enumerated in the Constitution, rather than one that feels it’s role is regulating our showers, our lightbulbs, our appliances. (Did you know there are new regulations for dishwashers that reduce energy and reduce the amount of water used from 6.5 gallons down to 5 gallons. This will, of course dramatically raise the cost of a dishwasher, and you will not have it long enough to realize any savings in either water or electricity).

Republicans don’t believe that it is the government’s task to control health care, nor to tell the healthcare industry just what care they may give to a patient. Republicans believe a lot of stuff that is very hard to explain in short slogans or clever bumper stickers. They think deeply about their philosophy, the meaning of the Constitution, and the maintenance of liberty.

Democrats believe in the maintenance of power. Theirs. They want to win.

Their fondest desire is to end the Republican party and all its influences. Including the U.S. Constitution, singularly restrictive on what powers are granted to the government by the American people. Democrats don’t like those restrictions that Republicans are always nattering about.

Obama has not the slightest intention of cutting back on spending in any way. He doesn’t see any reason for doing so. Economist Alan Reynolds remarked that “Barack Obama does not understand economics and refuses to listen to anyone who does.”

The nonpartisan Congressional Budget Office puts it this way:

“With the population aging and health care costs per person likely to keep growing faster than the economy (gross domestic product), the United States cannot sustain the federal spending programs that are now in place with the federal taxes (as a share of GDP) that it has been accustomed to paying.” $1 in spending cuts ($15 billion) for every $41 billion in tax increases ($620 billion).

The compliant (suck-up) media has accepted the Obama narrative that it it’s only Republican rigidity that makes negotiations so difficult and leads to deadlock, because Republicans want to protect the rich. This means that there is even less incentive for Obama and Congressional Democrats to engage in genuine bargaining. But the media has not performed their job as government watchdog for many years.

We are not getting a genuine debate that we deserve. The president is lying about having cut a trillion dollars from the budget. He increased it by a trillion. The President is playing ugly Chicago politics in the national arena. And Chicago, the murder capital of the country, is the nation’s most dysfunctional city. Obama’s already overbearing arrogance will swell even more. No leadership. No understanding.

You can’t have Big Government and low taxes. Doesn’t work. The president will have to come after the middle class, because that’s where the money is. The payroll tax returns. They’re already talking about your 401-ks as a source of revenue. More to come.



Four More Years? by The Elephant's Child

The Constitution Is Under Attack! by The Elephant's Child

*The Constitution of the United States of America is 225 years old and in all that time amended only 27 times. It is the oldest constitution in the world, and has served us remarkably well.

So when all these other countries are writing constitutions and organizing new governments, how come they all form parliamentary governments of one sort or another? Even our very own Supreme Court Justice Ruth Ginsberg advised the Egyptians that if they were going to write a new Constitution, they ought to imitate the constitution of South Africa, which is precisely 16 years old. James Lileks explains  Justice Ginsberg’s appreciation for the South African Bill of Rights.

When French President Valery Giscard d’Estaing wrote the new constitution for the European Union, he studied the Constitution of the United States carefully, and wrote a constitution described as “a badly organized 855 page, 156,447 word document written at a 16th grade level”. It was elsewhere described as” the Constitution of a Dictatorship.”

It’s not too hard to figure out. Constitutions are written by politicians. Our Constitution is a document that says “We the People” grant these limited powers to the government, and anything else we reserve to ourselves. What politician is going to go for that kind of official limitation on their power? Some of us might say that politicians do a pretty good job of gathering power to themselves in spite of the limitations of the Constitution, and we’d be right. But the Constitution guarantees us a hearing when the politicians have gone too far, and we can call them to account.

Governments don’t want a populace that can talk back. When our new government was first formed, European countries were horrified. It was inconceivable to them that we should so elevate the common man. They had centuries of the Divine Right of Kings, and landed aristocracy, peasants and shopkeepers. Remember what an earthquake it was in the Middle East when triumphant Iraqis went to the polls to vote, men and women, and waved their purple-stained fingers in the air for newsmen to photograph.

The president and all officers of the government as well as the Congress and the Courts take an oath to preserve, protect and defend the Constitution. Obama’s aggressive disregard for any constitutional limit on what he wants to do has had the effect of sending Americans back to the Constitution. Conservative complaints are directed to all areas of Obama’s policy, foreign, economic and social. The fear that Mr. Obama was changing the rules led to the founding of the Tea Party movement.

On foreign policy, Obama’s claim that firing rockets in Libya were somehow not a war was troubling. Obama’s hiring of all sorts of ‘czars’ to manage aspects of national policy without congressional approval was disturbing. The notion that Obama could decide whether or not Congress was in session or in recess so he could make recess appointments of  someone who could not get Congressional approval, angered many. The administration’s argument that the protections of the First Amendment  do not extend to the Catholic Church’s freedom of conscience, while simultaneously granting freedom from participation to Muslims is sure to engender another Constitutional challenge. The administration’s EPA has been losing one court case after another, so there has been some welcome check on the agency’s activities.

Ordinary Americans who had never previously  heard of the Commerce Clause are perfectly capable of understanding the argument that if the federal government can require a citizen to buy a product in the marketplace, there is nothing that the citizen cannot be forced to do. How startling then, to discover that way too many liberals could not grasp that argument.

Liberals do not like the Constitution and would prefer to have it rewritten. They would much prefer a document that spells out the rights that the government grants to citizens and one that puts no limits on what government can do. Then they can all work for government, and they could keep the rest of us from disagreeing with them. Not my idea of Utopia, but I don’t believe in unicorns either.

* The marvelous Michael Ramirez daily comes up with perfect visual analogies. I don’t know how he does it, but you can see his work daily at Investors.com, and even purchase his book on his best political cartoons. A wonderful record of what we were thinking at a particular moment in time.

ADDENDUM: Here is Obama, agreeing with me about liberals Constitutional preferences. He goes even farther, to state that the Constitution should certainly contain rights about redistribution of wealth. At least this was his opinion on
January 6, 2011.




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