Category Archives: Separation Of Powers

Happy Constitution Day

Constitutionalconvention

Two Hundred Twenty Two years ago in Philadelphia, the Constitution Convention in Philadelphia completed it’s work.

At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results, and as Benjamin Franklin emerged from the long task now finished, asked him directly: “Well Doctor, what have we got, a republic or a monarchy?” “A republic if you can keep it” responded Franklin.

222 years later, Mrs. Powell’s question, and Franklin’s response, remain undecided.

Do yourself a favor — read The Constitution, and then ask whether we’re still following it the way the Founders intended, and whether we’re going to be able to keep the Republic that Franklin was talking about.

Where’s The Authority ?

Walter Williams asks a question that, unfortunately, nobody in power bothers to ask anymore:

A president has no power to raise or lower taxes. He can propose tax measures or veto them, but since Congress can ignore presidential proposals and override a presidential veto, it has the ultimate taxing power.

The same principle applies to spending. A president cannot spend a dime that Congress does not first appropriate. As such, presidents cannot be held responsible for budget deficits or surpluses. That means that credit for a budget surplus or blame for budget deficits rests on the congressional majority at the time.

Thinking about today’s massive deficits, we might ask: Where in the U.S. Constitution is Congress given the authority to do anything about the economy?

Or, more specifically, where is the Federal Government given the authority to bailout private lending institutions, bailout failing auto companies, and take over the health care industries ?

I’ve searched high and low in Article I, Section 8 and I sure as heck can’t find it.

Of course, I’m probably not using the modern translation.

Government Abandons Lying; Resorts To Pure Naked Threats

I’m at a loss. I don’t know what world can justify this, and can only hope that my readers will be just as appalled as I am, because I have nothing to add.

WASHINGTON (AP) — Former Treasury Secretary Henry Paulson testified on Thursday that he pressured Bank of America Corp. last year to go through with its plans to buy Merrill Lynch but didn’t tell the bank’s chief to hide potential losses from shareholders.

Paulson acknowledged that he warned the bank’s CEO, Kenneth Lewis, that Lewis could lose his job if he dropped the deal. Paulson also said he pledged government aid to the bank but declined to put that promise in writing because the details would have been vague and would have to be disclosed publicly by the Treasury Department.

In testimony to the committee, Paulson said he told Lewis last year that reneging on his promise to purchase Merrill Lynch would show a “colossal lack of judgment.”

Paulson said that “under such circumstances,” the Federal Reserve would be justified in removing management at the bank.

“By referring to the Federal Reserve’s supervisory powers, I intended to deliver a strong message reinforcing the view that had been consistently expressed by the Federal Reserve, as Bank of America’s regulator, and shared by the Treasury, that it would be unthinkable for Bank of America to take this destructive action for which there was no reasonable legal basis and which would show a lack of judgment,” Paulson said.

Paulson said he believed his remarks to Lewis were “appropriate.”

Federal Reserve Chairman Ben Bernanke has denied threatening to oust Lewis and said he never told anyone else to, either. But another Fed official suggested otherwise in an e-mail obtained by House investigators.

Jeffrey Lacker, president of the Richmond Federal Reserve Bank, said in a December 2008 e-mail that Bernanke had planned to make “even more clear” that if Bank of America backed out on the deal, “management is gone.”

Paulson said Bernanke never asked him to relay the message. But, he added, he believed he was expressing the Fed’s opinion that dropping the deal “would raise serious questions about the competence and judgment of Bank of America’s management and board.”

I’ve previously covered this type of activity by Paulson & Bernanke here and here.

Charles Lynch Sentenced to 1 Year and 1 Day in Prison

Read the news story here and reason‘s coverage here. The video below is Lynch’s response:

While I’m not happy that Mr. Lynch is doing time for legally dispensing marijuana under California’s compassionate use law, he certainly could have received a much harsher sentence (up to 100 years). U.S. District Judge George Wu should be commended for finding an exception to the 5 year mandatory minimum sentence and reducing it to a relatively reasonable sentence of 1 year. That’s probably the best he could do under the circumstances.

There is however, one person who can correct this injustice perpetrated by the Bush Justice Department: President Obama. I urge all those who support the Tenth Amendment to join me in calling on President Obama to pardon Charles Lynch. Federalism is a much larger principle in this case than medical marijuana or even the war on (some) drugs. The State of California (whether one agrees or not with using marijuana for medicinal purposes), passed a law the federal government did not like. This law does not violate the U.S. Constitution and is, therefore, beyond the reach of the federal government according to the Tenth Amendment.*

Furthermore, President Obama and his Attorney General Holder have both said on several occasions that the federal raids on these dispensaries would end provided the operators are not violating both state and federal law. A full pardon of Charles Lynch would go a long way toward reversing a bad policy from the previous administration.

» Read more

Is It Time For A Federalism Amendment ?

Law Professor Randy Barnett thinks so:

In response to an unprecedented expansion of federal power, citizens have held hundreds of “tea party” rallies around the country, and various states are considering “sovereignty resolutions” invoking the Constitution’s Ninth and Tenth Amendments. For example, Michigan’s proposal urges “the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States.”

While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.

Article V provides that, “on the application of the legislatures of two thirds of the several states,” Congress “shall call a convention for proposing amendments.” Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.

An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.

In essence, Barnett argues that states can use the threat of a Constitutional Convention to force Congress to propose an Amendment to the states for ratification. This method worked to some effect in the early part of the 20th Century when Congress finally acted on what became the 17th Amendment after thirty-one states had passed resolutions calling for a Constitutional Convention to consider such an Amendment. Barnett contends that it could work again.

While the specific text of Barnett’s proposed Amendments, which you can find in the article linked above, is interesting and worthy of further discussion, I think there are several problems with his proposal.

First, his suggestion that the states play a game of Constitutional “chicken” with Congress by issuing a call for a Constitutional Convention raises all of the objections to that route that Brad and I noted nearly three years ago. Namely, this:

America was fortunate in 1787 in that we had men like Madison, and Hamilton, and Washington, and Franklin who produced a document that, to this day stands as the blueprint for the best system of government yet devised. I shudder to think what would happen if a Convention were called and populated by the likes of Schumer, Pelosi, Frist, Reid, Specter, and Kennedy.

And that’s precisely what could happen under Barnett’s proposal. What if, instead of caving in to the states on a Federalism Amendment, Congress decides to call their bluff and let a Convention go forward ? Does anyone really think that the end result of such a convention would come even close to what Barnett is suggesting ? I don’t, and I don’t want to take that risk.

The other problem with Barnett’s proposal is pointed out by his Volokh Conspiracy co-blogger Ilya Somin:

I am far less optimistic than he is about the likelihood that state governments will support such a massive reduction in federal power. Randy writes that “States have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people.” In reality, however, many state governments have a great deal to lose because they receive massive quantities of federal subsidies (equivalent to some 20-30% of their total budgets; see Table B-86 here) that would mostly be cut off by Section 3 of Randy’s proposed amendment. The states got some $450 billion in federal funding in 2008, and are likely to get even more this year. Right now, most states are very happy to take federal stimulus money, and many would like to get even more. State governments also often support federal regulation of private activity. John McGinnis and I discuss the reasons why state governments often favor broad federal authority in greater detail in this article. If the states really did have “nothing to lose” from imposing tight constraints on federal power, they probably would not have allowed the latter to grow to its current bloated size in the first place.

You need to look no further for evidence in support of Somin’s argument than the news coverage of Governors, Mayors, and other local officials who paraded to Washington in the weeks after Obama’s Inauguration to ensure that they got their piece of the stimulus pie. For the most part, these local and state leaders want federal money because, without it, their citizens would have to bear to full cost of all those state programs they’ve implemented — and that would lead to fiscal, and political, disaster for the powers that be.

As Somin notes, Barnett may have a point that a Federalism Amendment may have the salutary effect of giving the tea party movement something to rally around that is more productive than just “hate Obama” and “vote for Republicans,” but as a practical suggestion it seems to be sorely lacking.

Gov. Rick Perry’s Tenth Amendment Stance: Principle or Political Pandering?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. – Amendment X – Powers of the States and People. Ratified 12/15/1791.

Texas Governor Rick Perry (R) in his support of HCR 50, a resolution reaffirming Texas’ Tenth Amendment rights has reinvigorated not only the debate over state’s rights but also the ultimate “nuclear” option of a state’s right to secede from the U.S.

On April 9th, Gov. Perry explained his reasoning behind supporting the resolution.

    Gov. Rick Perry’s Tenth Amendment Stance: Principle?

Gov. Perry, speaking at a Tea Party event on April 15th went a step further telling the crowd that the day could come where Texas could decide to secede.

“We’ve got a great union. There’s absolutely no reason to dissolve it. But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that. But Texas is a very unique place, and we’re a pretty independent lot to boot.”

Christy Hoppe, writing for The Dallas Morning News, calls the notion that Texas has a right to secede a “mythology.”

“The fact is, the treaty under which Texas joined the U.S. provides that it could be divided into five separate states. But it is not empowered to leave the union, a question that the Civil War seems to have settled once and for all.”

Left leaning blogs such as Texas Liberal also agree that the question of secession was “settled” with the Civil War and goes even further stating that Gov. Perry’s statements are “treasonous.”

On further inspection, the idea that individuals on the Left would call the question of secession settled should not be surprising at all. When taken to its ultimate conclusion, the philosophy of the Left is “might makes right.” If a majority of people can be convinced they have the right to pick the pockets of a minority of taxpayers, for example, then by all means. In their collectivist world view, “the majority rules;” individual rights must always take a back seat to the will of the majority.

The question of secession was by no means “settled” by the Civil War (or the War Between the States if you prefer), at least not in a sense which recognized the rule of law. Abraham Lincoln made a choice between upholding the U.S. Constitution and preserving the Union. With his suspension of the writ of habeas corpus, and other civil liberties we normally take for granted, Lincoln chose the latter*. The state’s rights issue was “settled” from the barrel of a gun in a period of U.S. history we now call “Reconstruction.”

Beyond this “settled history” argument, it seems to me that if the federal government violates the Tenth Amendment and ignores the sovereignty of the states, it stands to reason that the states can ignore the dictates of the federal government (which is really all Gov. Perry is trying to do). The Tenth Amendment was a guarantee to those who were concerned about states losing sovereignty to a stronger federal government. After all, it wasn’t that long ago that they had secured their independence form Great Britain, why would they want to surrender sovereignty to a new authority?

Over time, the Tenth Amendment was ignored by the courts and the congress. The aftermath of the Civil War practically changed the term “The United States” from an “are” to an “is.” And with the passage of the Seventeenth Amendment in 1913, the states lost the ability to be represented at the federal level. For all practical purposes, the “United States of America” could be more accurately referred to as “The United State of America.”

These facts of history do not make the notion of either state’s rights or secession “mythology” by any means. The Declaration of Independence makes the case for “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another…” Thomas Paine’s “Common Sense” makes a similar case as does John Locke in his “Two Treatises of Government.” There is no shortage of political theory which supports Gov. Perry’s claim that states (and people for that matter) have the right to seek self determination and dissolve or separate themselves from oppressive government.

    Gov. Rick Perry’s Tenth Amendment Stance: Political Pandering?

Gov. Perry’s sudden concern for state’s rights does have me wondering about his motives. As I’ve pointed out above, this erosion of Tenth Amendment rights has been happening since before the text of the amendment’s ink dried. The federal government did not just start undermining state sovereignty when Barack Obama was sworn into office on January 20, 2009.

I can’t help but wonder how concerned Gov. Perry was when his predecessor, George W. Bush, moved from the Texas Governor’s Mansion and into the White House imposing unfunded federal mandates such as No Child Left Behind? On what side of the state’s rights debate did Gov. Perry fall when the Ashcroft/Gonzales Justice Department argued successfully before the Supreme Court that Angel Raich could not use marijuana for her medical conditions pursuant to California law on the theory of interstate commerce**?

Some of Perry’s critics believe that his sudden Tenth Amendment convictions have more to do with political pandering than principle (and they may have a point). Gov. Perry is looking to face Sen. Kay Bailey Hutchison in the 2010 Republican Primary Governor’s race. What better way to win support than to promote state’s rights at a Tea Party event? Who knows, perhaps with all of the state’s rights and small government rhetoric he’s espousing, small government minded Texans will forget about his executive orders forcing 11 year-old girls to receive HPV vaccinations?

While it is great to hear someone of Gov. Perry’s stature stating that there are limits to federal power, it would be a lot easier for me to accept as genuine if it wasn’t his party that was out of power in Washington.

» Read more

Meet The New Unitary Executive, Same As The Old Unitary Executive

The Obama Administration is adopting some of the same legal theories that President Bush used to enhance the powers of the Presidency:

A federal appeals court rejected the Obama administration’s attempt Friday to stop a judge in San Francisco from reviewing a challenge to the wiretapping program ordered by former President George W. Bush.

Hours later, President Obama’s Justice Department filed papers that appeared to defy the judge’s order to allow lawyers for an Islamic organization to see a classified surveillance document at the heart of the case. The department said the judge had no power to enforce such an order.

As Glenn Greenwald notes, in doing so the Obama Administration is adopting the same legal arguments that the Bush Administration was criticized for:

[The Obama Administration is arguing that] there is only one branch with the power to decide if these documents can be used in this Article III court proceeding: The Executive. What the President decides is final. His decision is unreviewable. It’s beyond the reach of the law. No court has the authority to second-guess it or to direct the President to comply with a disclosure order. That’s the mentality — and even the language — drawn directly from the earliest Yoo Memorandum that created the theoretical foundation for what would be the omnipotent presidency:

Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

In the context in which Obama is now invoking this theory, think about what it means: if, as happened here, the President breaks the law, then he can just label the relevant evidence “classified” and refuse to turn it over to a court which is attempting to rule on the legality of the President’s actions. Once the President decrees that a court is barred from reviewing the relevant evidence because the President claims it is “classified,” that’s the end of that. It’s irrelevant that courts rule that the documents should be usable or even that Congress has created all sorts of mechanisms to enable federal courts to use classified information in judicial proceedings

Apparently, it’s okay now that a Democrat is doing it.

Change we can believe in !

H/T: The Crossed Pond

In Defense Of The “Filibuster”

Ezra Klein, who is a majoritarian:

Rather, I’d argue that the central question is “legitimacy.” We have a party-based electoral system that, particularly in the Senate, pushes towards a relatively even division of power. The question then becomes whether we’re more comfortable with the consequences of a system where the minority can block good policy or the majority can pass bad policy. I’d prefer the latter: The policies of politicians we voted for have more democratic legitimacy than the system’s structural preference for inaction. Elections should be about the bills passed by the majority rather than the obstructions erected by the minority.

Samuel Johnson said that patriotism is the last refuge of a scoundrel. Democracy, as a fellow collectivist rather than individualist ideology, is similar. Democracy is the refuge of prom queens and the “in” crowd.

I’ve contrasted the difference between libertarianism and democracy before:

Libertarianism isn’t anti-Democracy. In fact, the statement itself is nonsensical. Libertarianism is a moral system, valuing individual liberty as it’s highest ideal. Democracy is a form of government, consisting of majority rule. Or, to make it more plain, liberty is an end, democracy is a means to an end.

But unfortunately, it’s not that simple. You hear many quotes from Libertarians deriding democracy. Doug said it yesterday. Thomas Jefferson was the one who said “A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.” Libertarians are fearful of democracy. If a statement that libertarianism is anti-democratic is nonsense, why do so many libertarians make these types of statements about democracy?

But the points still stand. Having liberty as a goal is not inconsistent with using democratic processes in your government. In fact, you can clearly see that our system of government has some democratic processes, created by the Founding Fathers who feared democracy just as much as modern libertarians. As I said earlier, though, democracy is a means, not an end. Democracy can— and has— been used to improve liberty. But it has also been used to take liberty away. Nothing exhibits this more clearly than the 18th and 21st Amendments. Democracy infringed people’s liberty, but it was democracy that restored that liberty.

So Ezra Klein wonders whether it’s better that a minority can block good policy or a majority can enact bad policy? Given the “stickiness” of bad policy (Ezra, in another post, suggests that corn and beef subsidies aren’t so wonderful but that there are structural incentives to retain them) one would think that inhibiting bad policy would be a good goal for either side of the aisle.

So let’s stipulate a few general principles:

  1. Government, by definition, is coercive.
  2. Most government “programs” (here defined as positive government acts rather than simple regulatory prohibitions or laws) expand the state and curtail personal liberty — at least to the extent that they must be paid for by non-voluntary means.
  3. Therefore, government action is more likely to reduce individual liberty than increase it.
  4. Finally, to a libertarian (one whose first principles are towards individual liberty), it is best to inhibit government action.

Ezra Klein believes government is a critical enabler of individuals, and thus he believes that government should be encouraged to act. Libertarians believe government is an inhibitor of individual liberty, and thus government should be proscribed from acting except where absolutely necessary.

The American Constitution is largely designed to proscribe government action except where it is provably justified. Libertarians, at least in the spirit of this sense (though often for our own reasons) suggest that inhibition of new government action unless it can be justified beyond purely majoritarian means is beneficial to our end (liberty). These are different first principles, of course, from someone who believes in majority rule. However, I highly doubt he’s highly enthused by California’s Prop 8 result from last November. As any libertarian will tell you, that’s what you get when you value majority rule over freedom.

What does it mean for the filibuster? The filibuster is a way to temper the actions of a legislature — to ensure they don’t simply run roughshod over their opponents every time they get an inkling of power. In essence, it’s a way to help minimize the ability of a small majority to enact bad legislation. And good legislation, of course, should be good enough to overcome a filibuster — after all, the stimulus he wanted still got passed, did it not?

Lawsuit Filed Alleging Hillary Clinton Is Ineligible To Serve As Secretary Of State

Judicial Watch, which was a thorn in the side of the Clinton Administration back in the 1990’s, has filed a lawsuit alleging that Hillary Clinton is ineligible to serve as Secretary of State:

WASHINGTON — A conservative watchdog group filed a lawsuit Thursday arguing that Hillary Rodham Clinton cannot legally serve as secretary of state, even though she was sworn in last week.

The suit is based on an obscure section of the Constitution on compensation for public officials, the emoluments clause. The clause says no member of Congress can be appointed to a government post if that job’s pay was increased during the lawmaker’s current term.

Clinton was serving in Congress when the secretary of state’s salary was raised to its current level of $191,300. So that Clinton could take the post, Congress last month lowered the salary to $186,600, the level when she began her second Senate term. A similar tactic has been used so that several other members of Congress from both parties could serve in the Cabinet.

Judicial Watch, which has pursued several suits against Clinton and other officials over the years, argues there can be no exceptions to the clause.

The group says that Hillary Clinton is “constitutionally ineligible” to be secretary of state until 2013, when her second Senate term would expire. She resigned from the Senate to take the Cabinet post.

A copy of the lawsuit can be found here, and it’s fairly straightforward.

Judicial Watch is representing a long-time State Department employee who alleges that it he would be damaged by being required to take orders, and act under the direction of, a Secretary of State who is ineligible to serve. Assuming that this is sufficient to get around the inevitable standing issues, the Constitutional argument is fairly straightforward:

  1. Article I Sec. 6, Clause 2 of the Constitution states that a sitting Senator or Representative cannot be appointed to a civil office for which the compensation was increased during the time that they served in the legislature
  2. On three separate occasions since Hillary Clinton began serving her second term in the Senate, the salary for the Secretary of State was increased by Executive Order.
  3. Therefore, by a strict reading of the emoluments clause, Hillary Clinton cannot be Secretary of State until at least 2013.

On the other side of the argument, there is the fact that, prior to the time that she took office at Foggy Bottom, Congress instituted a so-called Saxbe Fix — lowering the salary of the Secretary of State to where it was at the beginning of Clinton’s then-current Senate term. This is the same “solution” that was used when this issue came up in the past, although the last time it was tried Senator Robert Byrd pointed out that the so-called fix didn’t fix anything. (Of course, Saxbe was a Republican, and when Hillary’s nomination came before the Senate, Byrd voted yes)

As I noted when this controversy first arose, the Constitutional argument against Clinton’s eligibility is rather clear:

If the words of the Constitution mean what they say, then it seems fairly clear that Hillary Clinton is Constitutionally ineligible from serving as Secretary of State. Is it a dumb rule ? Probably, just like it’s a dumb rule that someone like Arnold Schwarzenegger couldn’t serve as President of the United States merely because he was born in a foreign country. The way to deal with dumb rules, though, isn’t to ignore them, but to change them via the method that the Constitution provides.

>However, I don’t see this lawsuit going anywhere for a very simple reason:

[N]o Federal Court Judge is going to say that Barack Obama cannot have the Secretary of State of his choice.

And that goes double for any Judge on the Court of Appeals, or any Supreme Court Justice.

Perhaps I’ll be proven wrong, but I doubt it.

Cross-posted from Below The Beltway

Blagojevich Gets the Boot

Fox News Reports:

Illinois senators stripped Gov. Rod Blagojevich of power Thursday in the final act of a political drama that handed the reins of state government to his estranged lieutenant governor, Pat Quinn, and likely will end Blagojevich’s career in politics.

Senators voted unanimously to convict Blagojevich and bar him from holding political office in the state again. Shortly after the vote, Quinn was sworn in as Illinois’ new governor.

The outcome was never in doubt. In fact, Quinn went to the state Capitol earlier in the day to prepare to be sworn in.

I haven’t been following this story as closely as others but the fact that only one person in either house of the Illinois Legislature voted in support of the Governor tells me that they really had the goods on the guy. It’s not often that legislators agree on anything particularly in matters of impeachment which are usually decided along party lines.

If a picture is worth a thousand words…

…then here is something that should dovetail nicely with Doug’s post below:

Obama_flag

Picture source: REUTERS/Jason Reed

h/t: Radley Balko, who also posted a video that was pulled just a few minutes ago. It featured a bunch of celebrities (so I know, it shouldn’t be taken seriously) but it included the line “I pledge to be a servant to our President.” Creeped the hell out of me.

Remember, We’re Inaugurating A President, Not Coronating A King

Words of wisdom:

Men( and any woman will tell you this ) are just men. Some are good, some are bad, but they all have their flaws. Let us not forget that he is a man, and only a man and that any man who holds the office will someday leave it. Let us pray he does not begin to actually believe the good things that people say about him. Let us hope that he also does not believe the bad things that people will say. Let us deeply wish that he doesn’t care one way or the other, because in the end he was elected to lead, not to be loved and adored or dare I say – worshiped.

The new President is a man,just a man, and there is a real majesty to that fact. The majesty is that a man of no real consequence can be the President if the people so decree. Come what may, we will decide in four years whether to renew his contract to serve us and in eight years he will voluntarily leave the office to his predecessor. This is what the Constitution holds. That is the core of the Oath taken for the office. That is the essential majesty of the office; that so much power,once achieved is to be given up in an orderly fashion. For like the life of a man, it is designed to be temporary, lest it be mistaken by others for a mask of holiness. Being President doesn’t make you a better man than the rest of us, it simply reveals to everyone what you already were back when you were just a man. Some men find this humbling, others shrink from the image it brings, others accept the burden and do the best they can, comforted in the fact that it is only temporary and relief will surely come to them in the end.

Let us all be wary of the day when any man is elevated above the office, not for how the process of deification can elevate the man into being something he is not, but how it lowers the rest of us into being something less than men.

Barack Obama is no better than you or I. His ideas are no more valid or correct than yours or mine.

The mindless worship I am seeing from a good many people today is troubling.

Originally posted at Below The Beltway.

Do We Even Need Congress Any More?

Signing statements were wrong enough… Now Bush is saying “if Congress won’t do it, I’ll do it myself“:

Under mounting pressure to act, the Bush administration said Friday it was ready to step in and prevent the U.S. auto industry from collapsing after the Senate refused to pass a rescue bill endorsed by the White House and congressional Democrats. The most obvious source of help was the Wall Street bailout fund.

“The current weakened state of the economy is such that it could not withstand a body blow like a disorderly bankruptcy in the auto industry,” White House press secretary Dana Perino said.

Treasury spokeswoman Brookly McLaughlin said, “Because Congress failed to act, we will stand ready to prevent an imminent failure until Congress reconvenes and acts to address the long-term viability of the industry.”

The Bush administration has repeatedly said the Wall Street bailout fund should not be used for emergency aid to the automakers because it was designed to restore stability to the financial sector. But with the Senate’s action, Detroit’s supporters looked to the White House for help.

I think I’ve seen this before. My son isn’t quite old enough to use this tactic, but I think most children figure it out pretty quickly. If Mommy says no, go ask Daddy.

This is how an imperial presidency behaves. Bush believes that he should be able to get what he wants, and that Congress exists to enact his goals into law. When they don’t see it the same way, rather than accepting that a legislature (which should rightfully hold the purse strings) has decided not to play along, he simply decides to do it anyway.

If this is the way things work, isn’t Congress just there for show?

“Aha!”, you say, “Bush won’t be around more than another month, so things will get better when we don’t have someone who wants to expand Presidential authority!” Think again:

President-elect Barack Obama said he was disappointed that the Senate failed to act. “My hope is that the administration and the Congress will still find a way to give the industry the temporary assistance it needs while demanding the long-term-restructuring that is absolutely required,” he said in a statement.

Well, President-elect, Congress pretty clearly said they’re not going to do it. Does that grant the President authority to do it anyway? Would your answer be any different if you weren’t the President-elect?

I think what Obama’s saying, since it’s such a short remaining tenure for his predecessor, is this: “I’m not a believer in the strong executive powers that Bush has taken. However, I can no longer argue against them, because I see a lot of wonderful ways to use them myself.”

Congress may be useless, but I don’t in any way support the President simply doing an end-run around their responsibilities when he doesn’t like what they have to say.

Barack Obama Says The Constitution Is Flawed, And He’s Right

In what seems to be a follow-up to yesterday’s kerfuffle about Barack Obama’s comments about the Warren Court and redistribution of wealth, there’s now an audio clip of him from the same radio program discussing what he called a “fundamental flaw” in the Constitution:

I think it’s a remarkable document…

The original Constitution as well as the Civil War Amendments…but I think it is an imperfect document, and I think it is a document that reflects some deep flaws in American culture, the Colonial culture nascent at that time.

African-Americans were not — first of all they weren’t African-Americans — the Africans at the time were not considered as part of the polity that was of concern to the Framers. I think that as Richard said it was a ‘nagging problem’ in the same way that these days we might think of environmental issues, or some other problem where you have to balance cost-benefits, as opposed to seeing it as a moral problem involving persons of moral worth.

And in that sense, I think we can say that the Constitution reflected an enormous blind spot in this culture that carries on until this day, and that the Framers had that same blind spot. I don’t think the two views are contradictory, to say that it was a remarkable political document that paved the way for where we are now, and to say that it also reflected the fundamental flaw of this country that continues to this day.

Obama was referring, quite obviously, to those provisions of the Constitution that not only protected slavery, but enshrined it. First, there’s the infamous 3/5th’s clause in Article I, Section 2:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The provision in Article I, Section 9 that prohibited Congress from banning the slave trade before 1808:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

And, the provision in Article IV that required the return of fugitive slaves who managed to escape into non-slave states:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Each of these provisions enshrined and perpetuated an institution that constituted a gross violation of individual and violated the very principles upon which this nation was founded. It was a stain that ate at the very soul of the country and didn’t get erased until the blood of 600,000 men had been shed.

So, in that sense, <strong>Barack Obama is absolutely right when he says that the Constitution was “fundamentally flawed.”

And, you know what ? It still is.

For example, the Interstate Commerce Clause has been used to do far more than regulate commerce between the states. The Necessary and Proper Clause has been used to find powers for Congress and the President that exist nowhere in the Constitution. The Ninth and Tenth Amendments are, thanks largely to the vagueness of their language, largely unenforceable. Congress’s monetary powers have been ceded to an unelected Federal Reserve Board. And don’t even get me started about the flaws in some of the Amendments.

Don’t Forget to Study Before the Final!

I just received my mail-in ballot a week or so ago. The ballot, with multiple choices with arrows to be filled out next to each choice, reminds me of taking standardized tests back in the day. Some tests were easier than others but I knew that if I did not study, one of two things could happen: (1) I could get lucky and answer enough of the questions correctly to pass or (2) I could possibly fail.

In a way, the general election is a final exam. Whether one “passes” the exam or not depends on whether s/he votes according to his or her principles. In order to increase your chances of voting according to your principles, you must study.

I am disgusted with the Republican and Democrat parties. When going over my ballot, my first instinct was to vote Libertarian in every race with a Libertarian candidate. I had studied all of the ballot measures and was satisfied that I could make intelligent choices there, but I hadn’t researched the candidates below the presidential level*. In the U.S. House race, I found three choices: the incumbent Diana DeGette (D), George Lilly (R), and Martin Buchanan (L). I knew that DeGette supported the bailout so she was never an option. Buchanan is a Libertarian and his positions he posted on his website are indeed Libertarian.

So why not just support the Libertarian you ask?

Regardless of how much I despise the Republican and Democrat parties, I make an effort to learn about the individual candidates and their positions before making a choice. Much to my delight and surprise, I found the Republican, George Lilly to be a “Ron Paul Republican.” I knew that there were such individuals running in this election but I never thought I would have had an opportunity to vote for one!

Now, I know that an endorsement from Ron Paul is not necessarily all it’s cracked up to be but take a look at Lilly’s positions posted on his website:

Please join me in RESTORING the Constitution, and together, let’s:

1. RESTORE the economy — free up business from onerous outdated regulations.

2. RESTORE proper use of the military (136 nations have U.S. military presence.)

3. RESTORE integrity to the treaty process to protect America’s interests first.

4. RESTORE individual privacy and say “no” to the Real I.D. Act.

5. RESTORE high quality medical care at affordable prices.

6. RESTORE checks & balances — the executive branch has gotten too powerful.

7. RESTORE integrity in the campaign financing process.

8. RESTORE integrity to the dollar — re-institute the gold standard. Watch this YouTube video!

9. RESTORE integrity to the tax system — rein in the I.R.S.

10. RESTORE and retain rights to unregulated health supplements & the Internet.

The following will be my top priorities in Congress:

1. Create a level playing field for Americans who receive the benefit of Workmen’s Compensation, mandatory health insurance, retirement benefits, taxes, OSHA, EPA etc. and calculate that into the cost of the products manufactured so that any foreign country not providing the same benefits to their employees would have to pay a tariff on their imported products to equal that amount.

2. Support a bill that calls for a single subject on all spending bills.

3. Oppose unconstitutional spending in the form of corporate subsidies.

4. Oppose unconstitutional spending in the area of education so that “No (every) Child Left Behind” is abolished.

5. Hold the Federal Reserve to account for their corruption of the dollar which has driven up the price of everything way beyond what any normal person can even consider affording!

While I have some concern about his #1 priority being a little on the protectionist side, I certainly applaud his willingness to stand up for the Constitution and against big government**. He’s not purely libertarian but in my estimation, he’s at least as libertarian as Ron Paul.

Having learned about George Lilly’s positions, most of which I agree with, I am very glad I had taken the time to make an informed choice. Now my choice was between the Ron Paul Republican and the Libertarian. Who should I choose?

Most things being equal, I decided to support Lilly. As a practical matter, the Republican Lilly would have a much better chance of unseating DeGette than the Libertarian Buchanan. I have not seen any polls regarding the District 1 race, but I suspect that in a district which seems to worship the ground Barack Obama walks on, DeGette will be difficult if not impossible to beat. If most of the libertarian vote goes to Buchanan, we’ll almost certainly re-elect a tax and spend Democrat to another term.

This is why I urge everyone to study each race before casting a vote***. Put emotions aside and “think the vote.” Though the electorate as a whole may fail the exam, we should each make the effort to pass individually.
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Just What Was The Administration Threatening Recalcitrant Representatives With? Martial Law?!?

I hope that Representative Sherman is the victim of a bad game of “telephone”. If he is not, if the administration really did threaten to impose martial law if the bill weren’t passed, then the time has come for us to cast out the vipers in Washington D.C.

Hat tip to The Crossed Pond and Dispatches from the Culture Wars

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Welcome to the U.S.S.A.

For those of us who value the concept of life, liberty, and property, there doesn’t seem to be much reason to be optimistic for America’s future. Last week we saw one government (taxpayer) bail out after another. The price tag seems to grow a couple of hundred billion dollars each day (depending on which figures one chooses to believe); by some estimates the taxpayers will be on the hook for over $1 trillion. According to the Libertarian Party, $1 trillion could buy the following:

• To buy everybody living in Los Angeles at least one Lamborghini Gallardo.
• To buy 88,052, 394′ custom mega yachts; enough to stretch around ¼ of the world.
• To buy everyone living in Belize and Malta a Manhattan apartment.
• To get half of the Democratic Party into a fundraiser for Barack Obama at the $28,500 admission price.
• To give one out of every two men in the United States a Men’s Presidential Rolex watch.
• To buy every woman in the United States a Tiffany Diamond Starfish Pendant.
• To get two Mitsubishi 73″ HDTVs for every household in America.
• To buy four copies of The Office: Season Four on DVD, to every person on earth.
• To send everybody in America on an all-inclusive vacation to Tahiti (and some people can stay a few extra days).

Anyway you want to look at it, $1 trillion is a lot of money ($3, 278 for every man, woman, and child in America).

And how do our so-called leaders wish to ultimately “solve” this problem which they have created? More government, of course! Joe Biden is calling on “the rich” to do their “patriotic duty” to pay more taxes, not only to pay for the already bloated federal government (which grew by leaps and bounds under the so-called compassionate conservative George W. Bush) but also to pay for the government programs that he and Barack Obama wish to impose on us (programs such as fighting global poverty among others).

But it gets even worse than that. The current Secretary of Treasury Henry Paulson has proposed that he should have the absolute authority to purchase any mortgage-related assets as he sees fit (obviously with our money). Section 8* of the proposal reads as follows:

Sec. 8. Review.

Decisions by the Secretary pursuant to the authority of this Act are non-reviewable and committed to agency discretion, and may not be reviewed by any court of law or any administrative agency.

Section 9 puts a time limit on this absolute power provision but even placing this much power in the hands of one person for a two-year term is a very frightening thought. Perhaps the one good thing about having power hungry politicians in congress in both parties is that they would likely not support this measure as it would take power away from them.

Welcome to the U.S.S.A. What’s left of our free market system is all but dead. While one can make a libertarian case for both John McCain and Barack Obama in certain aspects of their policy proposals, neither are what I would call champions of capitalism (to put it mildly). Personally, I don’t find the arguments for McBama to be persuasive. I will proudly support Bob Barr knowing full well that he will not win this election and knowing full well that whomever wins, we will be in for difficult times.

Is America’s best days behind her? Is there any way that we can restore our Republic to what it once was?

As always, the answer will depend on how “We, the people” will respond.

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Government Reefer Madness Update: Lynch Receives 100 Year Sentence

This is an update to a post I wrote in late June. Maybe its time to propose some sort of “fully informed jury” legislation and demand a return to federalism?

Do we really need a leader?

The always thought provoking J.D. Tucille of ‘The Disloyal Opposition’ answers this question with an emphatic , No!

Both major presidential candidates have made it quite clear that — policy differences aside — they’re running to be national leader and they want to be assessed on their readiness to take the nation’s helm.

That’s a shame, because if there’s anything this country does not need, it’s a leader.

In fact, the whole idea of national leadership in a republic of free, self-governing people was intensely distasteful to the founders. In his book, The Cult of the Presidency, Gene Healy points out:

Indeed, the term “leader,” which appears repeatedly in Madison, Hamilton, and Jay’s essays in defense of the Constitution, is nearly always used negatively, save for one positive reference to the leaders of the American Revolution. The Federalist is bookended by warnings about the perils of popular leadership: the first essay warns that “of those men who have overturned the liberties of republics, the greatest number have begun their career by paying obsequious court to the people, commencing demagogues and ending tyrants.” The last essay raises the specter of disunion and civil war, ending with the “military despotism of a victorious demagogue.” For the Framers, the ability to “move the masses” wasn’t a desirable quality in a president — it was a threat.

Free countries don’t need leaders because their citizens lead themselves. The inhabitants of free countries are disparate individuals with varying values and preferences, all wanting to go in a multitude of different directions. The role of the government in a free country is to protect the borders and prevent the citizens from getting too rough with one another, and otherwise let people find their own way as best they can.

Many of our problems are caused by leaders who insert themselves in the voluntary interactions between consenting adults. We would be far better off if they limited themselves or playing Simcity or Civilization and left us alone.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

States Rights — Petty Oppression Better Than Widespread Oppression?

I’ve long said that I only support democracy so much as democracy improves individual rights. Likewise, I only support federalism and states rights so much as they improve individual rights. Federalism is a means, and liberty is an end.

And as this story shows, local government doesn’t always lead to more libertarian ends than we get from Washington:

BLACK JACK, MO (AP)
Another unmarried couple is being told by a suburban St. Louis town they’re not welcome.

A man, his girlfriend and her three children recently bought a house in Black Jack in north St. Louis County. But because Toi Pruitt and Joe Pulliam and the children don’t meet the town’s definition of a family, they couldn’t get an occupancy permit.

In 2006, Black Jack revised its definition of a family after initially refusing a permit for Fondray Loving, Olivia Shelltrack and their children. That family had filed a federal lawsuit.

The new ordinance allows unmarried couples as long as the children are related to both. None of the children are related to Pulliam.

The city attorney says he’s willing to fight for the ordinance in court.

To be fair, there are advantages to local power. It’s far easier to oust politicians on a local level, and it’s far easier to leave a locality that doesn’t respect your rights when it’s a city-sized rather than a nation-sized geographical area.

But it can often be harder to change laws like this in local areas, for two reasons. First, these types of infringements occur every day, and often go unnoticed by the media and even fellow townspeople. Because these issues don’t reach a level where the general public is aware, they don’t have the incentive to change the law. Second, simple bigotry may account for a town that democratically prefers to infringe upon the rights of unmarried couples to buy and occupy property. In that case, even if the majority of the town understands that a situation like this is occurring, they may not care.

Remember, “states rights” is but one tactic, that can sometimes lead to greater liberty when it is used in opposition to federal government infringement of rights. But it’s a double-edged sword. Your local government can infringe upon your rights and damage your life just as thoroughly as the federal government can, and it’s just as wrong. Liberty is the end, and we should not lose sight of this goal in our search for tactics that may improve it.

Hat Tip: Radley Balko

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