Saturday, March 20, 2010
America's lawbreaking Congress
By Robert F. Turner (Robert F. Turner served as acting assistant secretary of state for legislative affairs in the Reagan administration and is a professor at the University of Virginia)
As a scholar who has studied and revered the Constitution for more than four decades, watching the be -havior of our Congress in recent years has been all too often a depressing experience. One wonders whether some legislators have even bothered to read the Constitution, or if the problem is they simply don't care about the oath they took to support it.
While doing research for my doctoral dissertation many years ago, I had the pleasure of reading extensively from the Annals of Congress, notes from Cabinet meetings of early presidents, and a great deal of other historical material while seeking to understand portions of our Constitution. In the process, I found myself marveling both at how remarkably well-read the Framers were - encountering frequent references to the writings of Locke, Montesquieu, Blackstone, Vattel, and other prominent 17th- and 18th-century thinkers - and also at the high principles repeatedly expressed by members of both political branches of our government when novel issues surfaced.
Whether in the executive or legislative branch, our Founding Fathers were anxious to reach conclusions that were consistent with the meaning of the new Constitution and respected the powers of the other branches and the people. George Washington would suggest that an issue be put off for several days to permit Cabinet members to ponder decisions that might affect future interpretations of the Constitution, and James Madison raised similar cautions in Congress.
Sadly, the latest parliamentary shenanigans in the House, to pretend that the Senate health care bill has already been signed into law so that the (non)law can be "amended" immediately to secure enough House votes for passage, is but par for the course. It is no better than Senate Majority Leader Harry Reid's attempt to use Congress' rule-making power to deny future Congresses their constitutional right to repeal or amend a previous law by majority vote. Section 3403 of the bill passed by the Senate provides: "It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment or conference report that would repeal or otherwise change this subsection." The Constitution can't be changed by statute, and it certainly can't be changed by amending House or Senate rules.
Article I, Section 7 of the Constitution sets forth detailed requirements for the making or amending of a law specifying that "Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary" shall be presented to and approved by the president (or enacted over his veto) - so as to prevent unprincipled legislators from bypassing the procedural necessities by the kind of semantical chicanery currently being contemplated by House leaders.
In the Congressional Record dated June 11, 1976, there are lengthy remarks by my former employer, Sen. Robert P. Griffin, explaining why "legislative vetoes" - statutory provisions that also violate Article I, Section 7 by giving legal effect to acts of one or both legislative chambers without ever being submitted to the president - are unconstitutional. During that debate, Mr. Griffin asked me to briefly explain the constitutional issue to one of his Senate colleagues who had not yet voted. After politely listening to me for a few minutes, he cut me off and explained: "Well, you may well be right. But it is the job of the Supreme Court to decide whether a statute is unconstitutional. My job is to vote for bills I think are in the best interest of my constituents." I was briefly tempted to remind him that he had sworn a solemn oath to support the Constitution and that the court was there as a safety valve to make certain legislators did not err in their constitutional interpretations, but from his expression it seemed clear thatwould have served no purpose but to annoy him.
Seven years later, by a 7-2 decision, the Supreme Court in the landmark case of INS v. Chadhaechoed Mr. Griffin's analysis and struck down legislative vetoes as unconstitutional. But Congress didn't seem to care. Although Justice Byron White began his Chadha dissent by noting that the court had "sound[ed] the death knell for nearly 200 other statutory provisions ... operating on such varied matters as war powers," Congress wasn't listening.
Less than two years ago, the bipartisan and blue-ribbon National War Powers Commission - including among its distinguished members such stalwarts of legislative power as Lee Hamilton, Abner Mikva and Slade Gorton - made specific reference to the legislative veto in Section 5(c) of the 1973 War Powers Resolution in unanimously concluding both that the statute was unconstitutional and that it should be repealed.
But on March 4 of this year, House Judiciary Committee Chairman John Conyers and 16 of his colleagues introduced a legislative veto expressly pursuant to Section 5(c) pretending to direct the president to withdraw all U.S. armed forces from Afghanistan. (One wonders if any of them were aware that on Aug. 17, 1787, the Constitutional Convention rejected a proposal that Congress be given the power to end war because it had the power to commence it. After a brief debate, the idea was defeated by a vote of 0-10.)
Sadly, such flagrantly unconstitutional legislative vetoes have been more the rule than the exception since the Supreme Court in 1983 held them to be unconstitutional. Indeed, since that decision was handed down, Congress has enacted far more than 500 new legislative vetoes, each time thumbing its nose at the Constitution and the Supreme Court. Legislative vetoes are by far the most common reason for presidential "signing statements" refusing to execute flagrantly unconstitutional legislative acts.
At some point, if we are to have any chance of preserving our magnificent Constitution, the American people are going to have to start saying "no" and holding legislators accountable at the polls for violating their oaths of office. The senators and representatives we elect were intended to be servants of the people, not a special class of aristocrats empowered to rule our lives while remaining aloof from the very laws they enact. Writing in Federalist No. 57, James Madison assured the American people that one of the checks against legislative abuse of power was that Congress could "make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society." One can only wonder what the Obamacare vote would be if it applied to members of Congress and their staffs.
After nearly four decades of watching our elected representatives flaunt their solemn duty and evade the burdens they impose upon the rest of us, I have finally concluded that the time has come to start voting against incumbents who behave as if they are the rulers rather than the servants of the American people.
We've Landed in Alice's Wonderland
"But I don't want to go among mad people," Alice remarked.
"Oh, you can't help that," said the Cat: "we're all mad here. I'm mad. You're mad."
"How do you know I'm mad?" said Alice.
"You must be," said the Cat, "or you wouldn't have come here."
(Alice's Adventures in Wonderland)
It appears America has become that mad land Alice stumbled upon down the rabbit hole. There is so much about American society that no longer makes any sense. Up is down, black is white and right is wrong. We've witnessed the implementation of programs, policies and court opinions over the last several decades that defy commonsense and logic. And there appears to be no end in sight to the madness.
Consider that FDR's New Deal created a government with an insatiable appetite for more money, more federal workers and more bureaucracy which are expended in the most wasteful manner. Lyndon Johnson's Great Society programs incentivized unemployment and created generational dependence on government handouts. Jurists became activists by ignoring the Constitution and legislating from the bench.
There exists in Washington, D.C., today, a political climate that considers business evil, hard work to be without virtue, and individual liberty and freedom a plague that must be eliminated. Time after time, government bureaucrats, politicians, academia, major news organizations and the cultural elite demonstrate themselves to be out of step and out of touch with the American people and their values. Consider the following juxtapositions.
A country whose national character is typified by the great melting pot is continually being redefined by individuals who promote racial, ethnic, religious, and gender division.
Elected officials who literally swear an oath to support and defend the U.S. Constitution casually break that very same oath.
Servicemen and women who are fighting a determined foe in Iraq and Afghanistan are undermined by service chiefs who announce the military's number one strategic priority is not winning these wars but instead to achieve diversity in the ranks.
The Internal Revenue Service -- placed in the hands of a Treasury Secretary who is a bona fide tax cheat -- implements tax policy written by a House Ways and Means Chairman who is also a tax cheat.
American businesses have shed millions of jobs due to inane economic policies while billions of taxpayer dollars are spent to subsidize "green jobs" that lead to nothing other than bloated government bureaucracy.
Washington, D.C. power brokers treat the AIG bailout as a national security matter by covering up details at the same time that the CIA's counter-terrorism policies are widely publicized as if they were part of a national advertising campaign.
Hundreds of billions of dollars are spent purchasing foreign oil while domestic oil fields lie fallow.
In Congress, the term "cut" is not a decrease in spending but is instead only a slight reduction in an expected spending increase that is well-beyond the inflation rate.
Government employees are among the most handsomely compensated in America even though the public sector is the most dysfunctional and inefficient component of our economy.
More HERE (See the original for links)
Obama Turns Over America's Oil to Russia
The Obama administration is poised to ban offshore oil drilling on the outer continental shelf until 2012 or beyond. Meanwhile, Russia is making a bold strategic leap to begin drilling for oil in the Gulf of Mexico. While the United States attempts to shift gears to alternative fuels to battle the purported evils of carbon emissions, Russia will erect oil derricks off the Cuban coast.
Offshore oil production makes economic sense. It creates jobs and helps fulfill America's vast energy needs. It contributes to the gross domestic product and does not increase the trade deficit. Higher oil supply helps keep a lid on rising prices, and greater American production gives the United States more influence over the global market.
Drilling is also wildly popular with the public. A Pew Research Center poll from February showed 63 percent support for offshore drilling for oil and natural gas. Americans understand the fundamental points: The oil is there, and we need it. If we don't drill it out, we have to buy it from other countries. Last year, the U.S. government even helped Brazil underwrite offshore drilling in the Tupi oil field near Rio de Janeiro. The current price of oil makes drilling economically feasible, so why not let the private sector go ahead and get our oil?
The Obama administration, however, views energy policy through green eyeshades. Every aspect of its approach to energy is subordinated to radical environmental concerns. This unprecedented lack of balance is placing offshore oil resources off-limits. The O Force would prefer the country shift its energy production to alternative sources, such as nuclear, solar and wind power. In theory, there's nothing wrong with that, in the long run, assuming technology can catch up to demand. But we have not yet reached the green utopia, we won't get there anytime soon, and America needs more oil now.
Russia more sensibly views energy primarily as a strategic resource. Energy is critical to Russia's economy, as fuel and as a source of profit through export. Russia also has used energy as a coercive diplomatic tool, shutting off natural gas piped to Eastern Europe in the middle of winter to make a point about how dependent the countries are that do business with the Russians.
Now Russia is using oil exploration to establish a new presence in the Western Hemisphere. It recently concluded four contracts securing oil-exploration rights in Cuba's economic zone in the Gulf of Mexico. A Russian-Cuban joint partnership will exploit oil found in the deep waters of the Gulf.
Cuba has rights to the area in which drilling will be conducted under an agreement the Carter administration recognized. From Russia's perspective, this is another way to gain leverage inside what traditionally has been America's sphere of influence. It may not be as dramatic as the Soviet Union attempting to use Cuba as a missile platform, but in the energy wars, the message is the same. Russia is projecting power into the Western Hemisphere while the United States retreats. The world will not tolerate a superpower that acts like a sidekick much longer.
The Heat is On: Congressman’s Office Says Constituent Calls Are ‘Harassment’
Yesterday, I decided to call Rep. John Garamendi’s (CA-10) office in Washington, D.C. He’s my representative and I wanted to voice my opposition to the Senate Health Care Bill. I spoke with a female staffer and politely told her that, while I support health care reform, I oppose the Senate Bill because it wasn’t true “reform.” She said the Congressman thinks it’s a good bill and that he campaigned on health care reform. I told her I knew that. I also mentioned that I voted for him. When I tried to give her specific reasons why the Senate Bill would harm our system rather than reform it, she refused to listen. She said she was very busy and hung up on me. Being the persistent person that I am, I kept calling back. Each time I tried to finish my point, she hung up.
I called one more time. This time she said, “If you call one more time, we will notify Capital Police.” I asked why my conduct warranted involving federal law enforcement agents. She said I was “harassing” her. I tried to explain that trying to convince a representative to change his or her vote didn’t constitute “harassment.” Before I could fully explain, she hung up again.
I called back. This time, I asked to speak to her supervisor in order to report her repeated hanging up as well as the threat she made. I was placed on hold. Thinking I was holding for her supervisor, I was shocked when a Federal Agent with the Capital Police picked-up the telephone. At first, the Agent was curt with me. He claimed I was harassing Mr. Garamendi’s staff by continually calling after being told to stop calling. I asked him when it became a federal crime to lobby a congressman. He said that it wasn’t but it was a crime to “harass” congressional members and staff pursuant to 47 U.S.C. 223. I told him I was an attorney (which I am) and that I would research the statute he had cited.
After researching 47 U.S.C. 223, I called Mr. Garamendi’s office again and asked to be transferred back to the Capital Police Agent. The Agent picked up the phone and I explained to him that the statute he cited was not controlling since it only prohibits people from calling with the specific intent to harass. I further explained that I was simply trying to voice my concerns with the intent of getting Mr. Garamendi to change his mind, not to harass his staff. The Agent eventually agreed with my position and said he would call Mr. Garamendi’s office and instruct his staff that I was within my rights to call my congressman and voice my concerns.
After I hung up, I realized that this story should be told. Besides being an attorney, I’ve also had the privilege of serving this great country in the United States Marine Corps. Having seen the ugly legislative process the Senate Bill had been through, I saw this as not just another tactic to pass the Senate Bill at all costs, but also as an affront to our liberties.
While I’m fortunate enough to be able to legally challenge what happened today, others aren’t. The sad part is the democrats know this. They know that Americans unfamiliar with federal jurisprudence can easily be silenced when threats to involve federal agents are made. They know that most Americans don’t want trouble and they’ll go away rather than face the possibility of having to explain themselves to federal agents. That’s why I found this tactic appalling, as a Marine, as an attorney and as a proud American.
During my final contact with Mr. Garamendi’s staff, it was confirmed to me that he would vote for the Senate Bill no matter what. I was told that I was wasting my time by calling. Mr. Garamendi is a junior member of the House of Representatives. He was just elected via a special election last November. He has made it clear that he is willing to forsake his constituents in order to please the Speaker of the House.
Speaker Pelosi has said that she will stop at nothing to get the Senate Bill passed. She publicly stated that she would “pole vault over a wall” if barriers stood in her way. While that may be an amusing spectacle, it is indicative of what happened to me today. Apparently, threatening Americans with federal crimes to silence them is the latest tool in Speaker Pelosi’s dirty bag of tricks.
In the coming days, I’m sure more stories will develop illustrating the “win at all costs” tactics being employed by democrats. It’s these tactics that have appalled a majority of Americans to the point that the Senate Bill has overwhelmingly been rejected by the American people. When we try to explain that to Speaker Pelosi’s Caucus, we are threatened with criminal sanctions. We are told to shut up or face federal agents. Such treatment may be acceptable in the former Soviet Union, but it’s repulsive in the country I love and served. Is this hope and change?
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The Big Lie of the late 20th century was that Nazism was Rightist. It was in fact typical of the Leftism of its day. It was only to the Right of Stalin's Communism. The very word "Nazi" is a German abbreviation for "National Socialist" (Nationalsozialist) and the full name of Hitler's political party (translated) was "The National Socialist German Workers' Party" (In German: Nationalsozialistische Deutsche Arbeiterpartei)