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.
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.
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.
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.
Harold Pease, Ph. D
Clearly our borders are not protected when children can cross, reportedly unaided: if children, then anyone. If anyone then we cease to be a country. Historically borders define a country, when they cease to exist, or to have meaning or respect, the country soon also ceases to exist.
The first sentence of the Constitution, the Preamble, charges the federal government with the responsibility of providing for the common defense. All common defense powers (except the Commander and Chief component) are then listed as powers of Congress in Article I, Section 8. Protecting the border is clearly the responsibility of the Congress—who makes all the law. The executive branch enforces the law as written and understood by the Congress.
Clearly there exist laws forbidding illegal entry and clearly the executive branch has not, and is not, protecting the border. But such can be said of all presidents since before Ronald Reagan, although failure is more blatant now. I have told my students for 25 years that there would never be an effective southern border because neither political party really wanted one. I repeat this prediction today. The argument that our borders are too long to protect is easily dismissed when we reflect that the Chinese successfully kept barbarians out of China for hundreds of years by building the Great Wall without the aid of cranes, giant earth-moving trucks or any other technological marvels. Today, if we really wished to restrict entry, motion detectors, electric fences and drones could stop most, if not all the traffic.
I have consistently argued that The Council on Foreign Relations—-the most powerful special interest group in the United States– with vast influence in both parties and also in the establishment media, would not endorse any candidate for president pushing for a real border. A border where both countries had real security aimed at preventing passage. They have another plan called the North American Union patterned after the European Union.
This plan calls for the amalgamation of Mexico, the United States and Canada into first an economic union through NAFTA, the North American Free Trade Agreement, ushered in during the Clinton Administration, followed eventually by a political union. Canada and the United States are already near economic equals but Mexico, and Central America, added later under the Central American Free Trade Agreement, or CAFTA, is not.
The North American Union plan, which has never been denied by the CFR, the powerful wall-street special interest group, is to give Mexico and south to Panama, thirty to forty years of near open border status to gain what they call “economic commonality” with their northern neighbors before political assimilation. (For those who may not understand, political assimilation is the end of the United States, the Constitution, and Bill of Rights, as we know them). Southern foreigners would invade the United States taking the jobs Americans did not want and send some of their new wealth back home to elevate their families and the economies of their homelands. Many would retire to their place of origin with pensions and other amenities acquired from the United States—perhaps even Social Security and Medicare. Their children would seek the middle and higher-level jobs and being bilingual would have advantage over their American peers.
Although most of us are not ready to talk of the late, great America and believe that just getting back to the Constitution will always keep America great, the present foreign child invasion of the United States does demonstrate a non-existent border and such is a serious threat to independence and sovereignty. Apparently, the signal has been sent to prepare us for an open dialogue on actually combining the three large countries into a single, North American Union. Two notables proponents of assimilating the countries, who “have woven” this theme into their recent public speeches, are House Minority Leader Nancy Pelosi, and former U.S. military commander and former head of the CIA, David Petraeus.
In The Margaret Thatcher Conference on Liberty, June 18, of this year in a panel discussion entitled “After America, What?” General Petraeus answered, “There is North America.” He went on to proclaim “the coming of the ‘North American decade,’ a vision he explained was founded on the idea of putting together the economies of the United States, Canada and Mexico, some 20 years after the creation of North American Free Trade Agreement, or NAFTA” (Jerome Corsi, “What Comes ‘After America’?,” July 7, 2014).
If the children of foreign lands can cross our borders unaided, as contended, it is difficult to argue that we have a border. Look for the internationalist, who do not understand or value our sovereignty, to come out of the closet arguing that it is now time to open the borders to all who wish to come. Such are enemies of the republic and will destroy the United States, as we know it.
By Harold Pease, Ph. D
Sometimes the gullibility of Americans is beyond description. When the story broke last month that thousands of children, reportedly up from 6,000 in 2011 to 54,000 so far in 2014, have crossed killer deserts, cartel infested drug territories, and in most instances more than one country, I knew a con game was in the making. I could not get my kids, of which I had seven, to clean their bedrooms. Had my pre-teens been begged, beaten, or bribed with a million dollars to leave their home and walk to Guatemala it would have never happened. It is most unlikely that they would have known which direction to go and would have been lost three hours out.
Nor would 99% of parents allow their children to do so. Most parents would run in front of a car to save their child, not hand them over to the dangers of hostile environments or potential sexual perverts to get them to America. This definitely did not and does not pass the smell test. There is much more to this story.
There must exist massive organization and funding behind the scenes. Herding children is an abusive activity, ask any elementary school teacher, and drug cartels could not possibly be up to the task of changing diapers on the trail. Actually crossing the high border fences confronted with scary gun toting border guards and flashing twirling lights, without serious adult assistance is not kids’ play either. I was shocked at how many news organizations took this invasion at face value. There is an American organization or at least American money conspiring somewhere to bring this on in a deliberate attempt to weaken our southern border. It would not just happen naturally in a thousand years. It is not just that gangs roam the streets of Central America making kids want to run to America, nor is it likely that President Barack Obama alone convinced so many to flood our border, there is much more to this story. So newsmakers do not be so gullible, please get the story behind the story.
I am not alone in my gut feelings that kids could not do this by themselves; the National Association of Former Border Patrol Officers recently released a statement decrying this “child invasion” as a humanitarian crisis. They wrote: “It is a predictable, orchestrated and contrived assault on the compassionate side of Americans by her political leaders that knowingly puts minor Illegal Alien children at risk for purely political purposes.” They then blamed the government for aiding and abating the crisis. “Certainly, we are not gullible enough to believe that thousands of unaccompanied minor Central American children came to America without the encouragement, aid and assistance of the United States Government.” Moreover, they continued, “Anyone that has taken two six to seven year old children to an amusement park can only imagine the problems associated with bringing thousands of unaccompanied children that age up through Mexico and into the United States.” They doubted that, “even the Cartels would undertake that chore at any price (Former Border Patrol Agents: Illegal Immigration Crisis Contrived, The New American, July 7, 2014, p. 7).” No, there has to be collusion between at least the Mexican and American governments, they reasoned.
This operation is way too big for children to plan and execute and the establishment media should be all over those who are. Let’s begin with, most come from El Salvador and Honduras. Their migration to the United States would require their exiting their countries border and entering and exiting both Guatemala and Mexico before entering the United States—potentially six check points. When a child appears without an escort adults’ notice and everyone teams up to return him to his place. Why did not the governments of these countries stop, detain, and return these children long before they got to this country? There has to exist organized collusion on the part of these governments—they do not just allow anyone to cross their borders.
The nightly news now speaks of children who died making the 1500-mile excursion or failed in their effort to cross the Rio Grande River. Our hearts are heavy. This is mega child abuse, as is gang child rape along the way, and American perpetrators should be flushed out, convicted, and serve prison time. Those who surrender to border patrol agents speak of the belief spread in their countries that America welcomes children. Congress must have hearings on this most unlikely child invasion of the United States. Americans who may have intentionally perpetrated this falsehood, with the intent to weaken border security, should also be identified and prosecuted. Then too, those holding high office found to have intentionally encouraged this myth by not enforcing existing law must be turned out of office even if it is a president of the United States.