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Cruz vs. Rubio and the Constitution

By Harold Pease, Ph. D

The December 15, 2015, Republican Presidential Debate featured a stark clash between the only two Hispanics running from either party, both also the sons of immigrants to this country. A successful bid would make either our first Hispanic president. But on the National Defense Authorization Act (NDAA) and the Bill of Rights they are on opposite ends, one opposing the other supporting.

A question with respect to the extremely controversial, largely on constitutional grounds, NDAA should have been a top news item in the presidential debate for three reasons: first, it had just been approved by both houses of Congress and was then on the President’s desk for his signature, second, a new president (presumably one of the debaters) would inherit the power to detain indefinitely and without trial American citizens he or his military suspected was a terrorist threat, and finally, all this in light of the ISIS terrorist attack in San Bernardino by one of our own. It wasn’t. Amazingly no commentator in any of the debates has asked about the NDAA.

It would not have come up at all had not Senator Marco Rubio accused rival Senator Ted Cruz of having voted against it every year since its inception in 2011 and accurately assumed that Cruz would veto it were he the president. Senator Cruz responded, “I oppose the federal government having the authority to detain U.S. citizens permanently with no due process. I have repeatedly supported an effort to take that out of that bill.” Rubio countered, “If you’re an American citizen and you decide to join up with ISIS, we’re not going to read you your Miranda rights. You’re going to be treated as an enemy combatant, a member of an army attacking this country.” Senator Rand Paul attempted several times to have input in support of the Cruz position but was not allowed.

So why is this an issue? It is the word “suspected.” In the United States you are presumed innocent until proven guilty. And there is also the damage to the Bill of Rights.

In the NDAA is a provision authorizing the military, under presidential authority, to arrest, kidnap, detain without trial, and hold indefinitely, American citizens thought to “represent an enduring security threat to the United States.” Simply stated it defied Habeas Corpus (your constitutional right not to disappear at the hand of government) Article I, Section 9, the Posse Comitatus Act of 1878 (preventing the military from having a law enforcement function in the United States), and essentially gutted large portions of the Bill of Rights especially amendments 4, 5, and 6 with secondary damage to 1, 2 and possibly 8. It is the single most dangerous law passed by Congress in U.S. History. No freedom or constitutional advocate should be supportive of punishment without trial.

Many seem not to understand that a non-specific definition of terrorism, such as that noted above, can easily be turned into a revolving definition of terrorism and used to wipe out either an opposing party or philosophy. Imagine being arrested, kidnapped, and secretly shipped to Guantanamo Bay (or some other undisclosed location) for defending the Constitution. Such is possible under the NDAA. Republican President Richard Nixon used the IRS to persecute his political enemies in the 1970’s, as has Democratic President Barack Obama in the last seven years. Neither political party is without fault on this issue.

Perhaps Tea Party Senator Ted Cruz said it best when he proudly told his constituents: “Today I voted against the National Defense Authorization Act. I am deeply concerned that Congress still has not prohibited President Obama’s ability to indefinitely detain U.S. citizens arrested on American soil without trial or due process. The Constitution does not allow President Obama, or any President, to apprehend an American citizen, arrested on U.S. soil, and detain these citizens indefinitely without a trial.” We agree and that is why the National Defense Authorization Act of 2015 is still dangerous, still unconstitutional and still unacceptable in a free country!!

Republican Senators Lindsey Graham and John McCain pushed NDAA through the Senate in 2011 and Democrat President Barack Obama, promised to veto it, then reneged on the promise and signed it. It largely nullifies the Bill of Rights for those accused. No freedom or constitutional advocate should be supportive of punishment without trial. In the 2016 presidential race only Ted Cruz and Rand Paul, from either major political party, have voiced opposition to it. Presumably all other candidates favor it. Senator Rubio consistently voted for it and is probably the most outspoken 2016 presidential contender, from either major political party, advocating it. As such it is unlikely that, if elected president, he could fulfill the oath of office to “preserve, protect and defend the Constitution of the United States.”

The Trump Phenomenon Explained

By Harold Pease, Ph. D

The establishment media is baffled. They have influenced presidential elections since Woodrow Wilson by how they cover candidates—even more so with the advent of television. First, by limiting coverage to but two political parties of normally many offering presidential candidates in every contest. Essentially, if they do not give coverage you or your party does not exist. Second, the media shows preference by time given, comments supporting or not, questions asked or not, and placement in debates (whomever gets coveted center stage automatically gets more spotlight coverage) and etc. The first election is always the medias as they alone define serious candidates.

Collectively the establishment media has attempted to show Donald Trump as, a joke—certainly not a serious candidate, not a real conservative, a flip-flopper on the issues, anti-women, anti-immigration, insulting to everyone, a braggart, only into himself, least likely to beat Hillary Clinton, only attractive to white males, and not in touch with reality with respect to the Middle East, and more. They may be correct in some or all of these assumptions, and the constant barrage of but a third of these charges would have easily destroyed previous candidates. So why not Trump?

The establishment (sometimes prefaced by money or eastern) is likewise baffled. For over a hundred years, since William McKinley they, with the help of the media that they largely own, have propelled into power politicians sympathetic to their interests in both parties so that their interests get attention no matter which of their two political parties, Democrat or Republican, gets elected. Control of foreign policy is never out of their hands.

They oppose nationalism favoring coalition governance. Problem solving is much preferred on the world level, as in the UN, or in regional governments, NATO, the European Union and eventually the American Union. They push for international trade agreements that reduce U.S. sovereignty (NAFT, GATT, and most recently the Trans-Pacific Partnership). Perpetual war feeds the “Industrial Military Complex” President Dwight D. Eisenhower warned us to avoid. They benefit from increased power and money. They universally oppose an audit of the Federal Reserve, which they have controlled since 1913, and their support for foreign aid has never faltered, regardless of which party is in power. They destroy anyone not supportive of these things. So again, why not Trump?

The answer to why not Trump is almost too obvious. In the items mentioned above both parties look too much alike. Most Americans know that something is wrong—really wrong. Today Independents, those refusing to align Democrat or Republican, is about 40%, stronger than either party. Most Americans feel lied to by both parties and the media. Presidents from either party are strongly disliked by the time they finish their second term. The people feel deceived when they elect politicians to restore the Constitution and the economy and these same politicians appeared to join the other side as soon as they arrived in Washington D.C. Many have wondered the value of their vote outside “the lesser of two evils” philosophy.

Enter Donald Trump who mostly says what others were afraid to say, beginning with illegal immigration. Our Mexican friends have indeed invaded our country and taken, not just the jobs Americans did not want, but the ones that they do want as well. They have entered every field and their illegal children, being bilingual, are now favored in most other jobs. When a politician says that he will build a fence to help preserve their jobs almost no one believes him. Trump is a builder, has built magnificent structures, and is believed.

Simply put the media, the establishment, and the political parties have lost their credibility. The more the establishment or media gang up on Trump the more his following grows. He even tells off the media. His bravado is even somewhat refreshing from the Bush’s, Clinton’s, Boehner’s and McConnell’s. To return to yet another Bush, even though he is loaded with establishment money and has placed more television ads with that money than all others of both parties put together, is not going to happen. Nor is it likely for others favored by the establishment like Chris Christie, or John Kasich. The establishment has recently switched from Jeb Bush to Marco Rubio but even he, having run the second most number of television ads, has not gained the trust and traction equal to the money spent.

The establishment opposition to Trump certifies another factor in his favor. He is not one of them. He will not be control by them, as have his predecessors from both parties. Nor will any special interest group control him, as he takes no money from them. This may be the first time in 120 years that this is the case. Only the Constitution should guide and restrain him—not the moneyed establishment.

This brings up another factor in his favor, also not mentioned by the press. Most Americans believe that the economy is on a crash course. No country can long endure when more money is spent than taken in. No candidate understands the economy better than Trump having worked successfully with it for decades. He has the most incentive to get it back to a sound base than any other candidate, or even you or I; we lose hundreds when it goes, he loses billions.

The Trump phenomenon is essentially a rebellion against the media and the establishment by a population tired of being manipulated every four years into staying with the same failed internationalist foreign policy presented by establishment candidates of both parties.

Yes, States Can Refuse Syrian Refugees

By Harold Pease, Ph. D

More than half of the states, as of last report, have placed restrictions on Syrian Refugees entering their states until the federal government can show a better screening program to insure that our Muslim sympathetic president has screening programs in place to screen out potential radical Islamic extremists. Most of the states came on board after the tragic slaughter of French citizens on November 13, 2015, by radical Islamic extremist terrorists, at least one a Syrian refugee. Can they do so? Seemingly all establishment media “experts” say no but a deeper understanding of the Constitution, in the tradition of the Founding Fathers, says yes.

Those who say no primarily center their argument on a Supreme Court ruling and a 1980 law. Hines v. Davidwitz reads in part: “the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution.” Proponents next use the Refugee Act of 1980 which gives the President power to accept refugees facing “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” into the United States. This is even more so in an “unforeseen emergency refugee situation.”

Yes, national powers are left with Congress and the President operating together. The problem is, the president has a history of refusing to enforce existing national law on illegal immigration and to consult with Congress on this matter operating entirely unilaterally, even going around Congress on executive amnesty. Confidence in this President to defend our borders is at an all time low—much lower than any prior president. Yes, when the Refugee Act of 1980 was passed it was a procedural process that Congress gave to the President allowing him to initiate action when these circumstances exist without coming back to them, but this time such is complicated by several factors. The enemy of the world today is radical Islamic extremists. These people cite the United States as their number one enemy and our intelligence community tells us that they may have infiltrated the Syrian refugee population that would come into the states. The real question than is do states have the right to protect their people from a Muslim sympathetic president who refuses to do so?

The most proper response from Congress is to immediately rewrite or rescind the Refugee Act of 1980 returning this power to them, as it is not a presidential power listed in the Constitution under Article II. Predictably a veto would follow. If an override is not successful then the House of Representatives could use the purse powers, Article I, Section 7 to defund immigration from Syria.

Failing these measures the States, under Federalism, the concept of dual sovereignty upon which our republic is based, could constitutionally use the Doctrine of Nullification to refuse compliance to obey this ill-advised mandate. This is normally suggested when the federal government exceeds the listed powers in Article I, Section 8 thus forcing the states to use Amendment 10 which identifies powers not listed in the Constitution as belonging to them. In this case it is suggested when the federal government seemingly intentionally refuses to protect our borders and the states believe they must do so to protect their citizens. It becomes a matter of national survival.

The Doctrine of Nullification has several historical precedents. Thomas Jefferson and James Madison attempted to nullify The Alien and Sedition Acts in 1798 created by their Federalist Party predecessors. These authors penned the Virginia and Kentucky Resolves objecting on the basis of the unreasonable empowerment of the president and the attack on the First Amendment, particularly freedoms of speech and press. The bill was designed to last only until 1801, (Federalists did not want it used against them should they lose the next election) thus the issue died naturally assisted by resistance of these states.

Next to use the Nullification Doctrine was South Carolina with respect to the 1828 “Tariff of Abominations,” believed by them and neighboring states to be unconstitutional. Opponents to it declared it to be “null and void” within their border and threatened to take South Carolina out of the Union if Washington attempted to collect custom duties by force. President Andrew Jackson prepared to invade the state. A compromise Tariff of 1833 gradually lowered the tariff to acceptable levels and the issue faded away.

The third attempt was with respect to The Fugitive Slave Act of 1854 just prior to the Civil War. Several northern states, led by Wisconsin, refused to accept the portion of the Compromise of 1850 requiring them to return to the South fleeing slaves. Enough states followed and the federal government lacked the will to fight its own. That is the secret. More recent uses of the Doctrine of nullification include: Federal medical marijuana laws are openly defied by many states. Twenty-three states and the District of Columbia currently have laws legalizing marijuana in some form. States’ refusal to implement the Real ID Act, passed years ago, is a form of nullification. When enough states say no, the feds back away.

Yes a deeper understanding of the Constitution does justify the use of the Doctrine of Nullification but there exists other resistance measures that are more common and that first should be tried.

Birthright Citizenship does not exist in the Constitution.

By Harold Pease, Ph. D

Amazingly Presidential Candidate Donald Trump is right; birthright citizenship does not exist in the Constitution. The establishment media, including Fox News, jumped all over Mr. Trump like a swarm of Africanized honey bees over a pot of honey, attempting to portray him as ignorant on the Constitution. Although he may be on many other things, he is dead right on this part of his recently released immigration plan. Even Bill O’Reilly, on the O’Reilly Factor, ignorantly castigated him on this point. Trump held his ground that the 14th Amendment never authorization birthright citizenship. The ignorance of the establishment press is overwhelming.

Although most of us have great sympathy for those who were infants or born here when their parents illegally crossed the border and have lived here all their lives and know no other country, the 14th Amendment for the casual reader seems to validate such: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” A more careful read, however, shows that such was specifically denied, consider the phrase “subject to the jurisdiction thereof.” The purpose of the clause was to guarantee citizenship to freed slaves and their descendants after the Civil War.

The concept of “anchor” babies refers to those whose parents are illegal immigrants into the United States and while here have a baby. That baby then inherits full citizenship and even the right later, as an adult, to sponsor his/her own illegal parents in their quest for citizenship. The debate for or against the practice of allowing citizenship for babies of illegal’s born in the U.S. rages on with virtually no one going to the source of the alleged authority—the crafters of the 14th Amendment of the Constitution.

Senator Jacob Merritt Howard, architect of the 14th Amendment, actually structured the Amendment (one of two defining the legal status of freed slaves after the Civil War, the other being the 13th which gave them freedom) to prevent that very interpretation. He said: “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign minister accredited to the Government of the United States, but will include every other class of persons.”

It was he who insisted that the qualifying phrase “subject to the jurisdiction thereof” be inserted into Section I. Those sneaking across our borders in the cover of darkness are clearly foreigners, and not subject to the jurisdiction of the United States, and thus are specifically exempted from citizenship. Notice the exclusion of babies born of ambassadors while here as well. The record of the Senate deliberations on the 14th amendment shows this to be the view of the Senate.

There is no such thing as automatic citizenship from this amendment without serious distortion of it. In fact, Lyman Trumbull, co-author of the 13th Amendment outlawing slavery, addressing the definition of the phrase “subject to the jurisdiction thereof,” asked, “What do we mean by complete jurisdiction thereof? Not owing allegiance to anybody else. That is what it means.”

Those crossing our borders illegally have jurisdiction or allegiance elsewhere and thus cannot have citizenship. How can a child of such a parentage have what his parents clearly do not have? How many are born illegally in the United States per year? Statistics are difficult to validate but the Pew Hispanic Center study estimated 340,000 in 2008 alone. If they in turn are used as sponsors for their parents in their quest for citizenship such could be a million per year.

Citizenship was denied some of my ancestors. Native Americans owed allegiance to their Sioux or Apache or Blackfoot, or whatever, Indian nations and thus were not yet “subject to the jurisdiction thereof” of the nation they sought citizenship in. Certainly one must cease to be at war or conflict with the newly embraced country. This was not granted until 1924 when this requirement was satisfied.

Many of our Mexican friends send portions of their checks home to Mexico and plan to return to their native land upon retirement with pensions and/or social security sent to their “first” country from the country they extracted the wealth—the United States. Some vote in Mexican elections from here. It is indeed hard to argue that they are not instead subject to the jurisdiction of another land other than the United States–and most admit it. Unfortunately for them the U. S. Constitution specifically denies such citizenship.

To the many “bees” from both political parties, and the establishment press, who wish to destroy Mr. Trump’s presidential ambitions, you will have to look elsewhere. On this issue he is on solid constitutional ground as expressed by the Founders of the 14th Amendment.

The biggest affront to the Constitution since FDR

By Harold Pease, Ph. D

November 16, President Obama announced his executive amnesty in a live address to the nation. After the American people soundly rejected his policies on November 4th, he had the audacity to address us in prime time fashion defiantly rejecting existing law and placing himself above Congress on immigration law. This, after he argued more than two dozen times on different dates in multiple places that he had no constitutional authority to do so, even arguing at one time that he would have to be an emperor to do so. He knows precisely what he is doing to the Constitution. Such action makes him a threat to the document and to liberty.

This is the biggest affront to the Constitution and the separation of powers doctrine since FDR attempted to pack the Supreme Court February 5, 1937, so as to control it, because it rightfully declared so much of what he did unconstitutional. President Obama’s rule changes violated two parts of the Constitution, the separation of powers between the three branches of government housed in Articles I, II, and III, and his responsibility to “take care that the laws be faithfully executed,” as noted in Article II, Section 3. These are serious, even impeachable, violations and should be challenged.

Americans now must depend on Congress to defend itself for posterity against executive tyranny. Senate Majority Leader-Elect Mitch McConnell must publicly denounce this executive takeover of their sole right to make all law (Article I, Section I) by rejecting, until the President rescinds his unconstitutional decree, every single nomination or appointment that the President puts forward for the next two years— except for critical national security positions. To do otherwise would be too weak a response to the President’s extreme power grab.

The House of Representatives, presently led by John Boehner, must follow with a public condemnation of executive tyranny with the announcement that they cannot, and will not, fund the President’s attempt to confiscate their sole power to make all law.

This power grab is not without his having warned us. In his recent State of the Union Address he boldly threatened to replace the legislative branch of government by doing it alone, through executive orders, if they did not do as he wished and in a timely fashion. Such is unprecedented and totally unconstitutional. Today, through the perversion of the executive order process, presidents makes half as many laws (decrees if you prefer) as does the Legislative Branch—about three a week. The practice is killing liberty and making Congress irrelevant.

President Obama told the United Nations General Assembly on September 24 2014, “On issue after issue, we cannot rely on a rule-book written for a different century,” presumably referencing the U.S. Constitution. The obvious dig on being restricted to a document “written for a different century,” shows a definite lack of respect for the Constitution that he swore by oath to “preserve, protect and defend” (Article 11, Section 1). Ironically the Constitution is designed to harness presidents just like him, and his predecessor George W. Bush, but it will never work if the party in power runs interference for their own constitutional abuser.

Taking over Congress’s law making function in Obama’s case is intentional. He must know that it is based upon human nature and natural law, which do not change from century to century. Man and governments are still beset by the same sins as expressed in all ages. There will always be those that wish to rule over others. Government will always attempt to grow its power. There will always need to be a list of the things governments can do and they will always need to be harnessed to that list. There will always need to be a division of power. And there will always be those who wish to use the force of government to redistribute the wealth so that they can, in effect, purchase elections by “gifting” voters. The magic of the Constitution is that it, outside defense, does not distribute benefits to anyone.

These are the reasons that it is said to be outdated by those who wish to take from us our liberties. President Obama’s problem with the Constitution is that it designedly restricts him from doing whatever he pleases and thus his belittling and embarrassing comment about it before the world. The “rule book written in a different century” is still as relevant as before. What we need today are presidents and legislators that love and use it as first consideration instead of party. In this quest we are embarrassingly in short supply in both political parties.
Noticeably absent this time in protecting the Constitution, with respect to the 200-plus year process of making law, is the Democratic Party. Some even defend him. To my many friends therein, don’t you realize that by letting your party distort this process to get a gain that you face a Republican president unilaterally doing the same thing to you down the road using the same arguments that you now use to protect Obama? Can’t you see that the rule of law was to protect all of us and that the Constitution must remain pure or one day neither party will have it? The Constitution must be above party. This is why all elected officials swear an oath to protect and preserve it.

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.

Obama warned against violating the Constitution, again

Harold Pease, Ph. D

President Barack Obama acted as though he was unaware of the overwhelming rejection of his policies, which he had insisted were on the ballot this election, in one of the largest mid-term election defeats in the last 100 years. He came out of the gate with a renewal of his long-time threat of legalizing illegal immigration by himself through executive order before the end of the year. He referred to it as taking “care of business.” “I can’t wait another two years,” he defiantly threatened Congress.

Both branches of Congress returned their own warning if he made law independent of them. The new Senate Majority Leader Mitch McConnell countered that his doing so would be comparable to “waving a red flag in front of a bull.” House Speaker John Boehner warned, “When you play with matches, you take the risk of burning yourself—and he’s going to burn himself if he continues to go down this path.”

There is nothing more clear nor basic in the Constitution than the separation of federal power into three branches, one to legislate, yet another to execute that law, and a third to adjudicate possible violations, when contested, of that law—a division of power held “sacred” until the last few decades. The Constitution reads: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”(Article I, Sec. I).

The Executive Branch has no authority to make law—any law!!!! Executive Orders are constitutional only when they cite a single, recently passed law of Congress, where that law needs a statement of implementation by the executive branch. Presidential Directives, a type of Executive Order, differs only in defining how that law, passed by Congress, will be implemented. Neither type is to alter, or defy, law formerly passed by Congress.

For years some in Congress have been working on what is called the Dream Act that would extend amnesty and place millions of illegal immigrants on a course toward full citizenship. Lacking popularity, twice it has failed to get the majority vote of both Houses of Congress required by the Constitution thus leaving existing immigration law unchanged; once, between 2008-2010, when the President’s party controlled everything except the Judicial branch. He had his chance and was unable to even sell it to his own majority party.

A president can only suggest a need for new law in his State of the Union Address, and either sign or veto a law passed by Congress, which then, if vetoed, must be overridden by a vote of 2/3rds of both Houses to become law. That is it. Candidate Obama understood this when first ran, he said, “Congress’s job is to pass legislation. The president can veto it, or he can sign it.” This is the law of the land and the Constitutional procedure violated by Barack Obama, as President, June 16, 2012, when, failing to get a favorable vote from Congress on legalizing illegal immigration, openly defied Congress and the Constitution by ordering a like measure to that defeated, implemented anyway. Thousands of illegals avoided deportation as a result.

This is the most open case of contempt for Congress and the Constitution and the President knew it. In March 28, 2011, he said, with respect to the idea of nullifying Congress on the deportation issue. “The notion that I can just suspend deportations just through executive order, that’s just not the case, because there are laws on the books that Congress has passed.”

So why did he “flip-flop” and knowingly violate the Constitution? Obama saw an inept Congress that has not placed any restraint on his previous unconstitutional executive orders. He brilliantly also saw a way to “buy” the Hispanic vote. If the Republicans resisted he had a powerful campaign issue. His argument for the violation, “It is the right thing to do.” But this has nothing to do with the fact that he usurped the powers given only to Congress, and in the most contemptuous way possible, and established a precedent for the continued nullification of Congress. Moreover, he also violated his oath of office to “preserve, protect and defend the Constitution of the United States”(Article II, Sec. 1, Clause 8). His failure to do so was “a high crime,” an impeachable offense, which action should have been introduced with bipartisan support with 100 signatures in the Senate and 435 in the House. This issue should have been that clear but unfortunately party loyalty is higher than constitutional loyalty. Will he defy Congress again?

The “waving red flag” mentioned by Mitch McConnell and the “playing with matches” noted by John Boehner should refer to the full use of impeachment powers by the House and the Senate if the President attempts to nullify existing law by his executive order. Democrats too must recognize that executive orders making law weakens the sole power of Congress to make all law and places us on the road of government by decree or edict of one man. We must choose the Constitution over party. How does a president’s defiance of Congress differ from what a king or dictator does? It doesn’t. The Constitution is there to protect all parties and all citizens from arbitrary and caprices rule. Please let it work.

Dr. Harold Pease is a syndicated columnist. To read more of his weekly articles, please visit www.LibertyUnderFire.org.