Judicial Legislation, or Activism, At Its Best

By Dr. Harold Pease

With respect to the Supreme Court’s ruling on National Health Care, Justice Anthony M. Kennedy said that the court majority “regards its statutory interpretation as modest. It is not.” Then, noticeably disturbed by the ruling, added. “It amounts to a vast judicial overreaching. It creates a debilitated, inoperable version of health care regulation that Congress did not enact and the public does not expect.” He called it “judicial legislation” and accused Chief Justice John Roberts of trying to “force on the nation a new act.”

Judicial activism is when a law of Congress is interpreted by the Supreme Court in such a way as to give it new meaning. George Washington warned us in his Farewell Address of the inclination of government to do so. “Let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” Usurpation, in his day meant twisting things around to extract meaning that was initially not there.

So what did Justice Roberts twist or legislate that changed the National Affordable Healthcare Act (Obamacare) as passed by Congress? At the top of the list, his rewrite called it a tax when Congress never passed it as a tax and the political party passing it, and their President, Barack Obama, emphatically resisted any description of it as such. Rich Lowry, a political commentator, said it best. “Obamacare as passed by Congress had a mandate to buy health insurance and a penalty for failing to comply. Obamacare as passed by the Supreme Court has an optional tax for those without health insurance. Obamacare as passed by Congress required states to participate in a massive expansion of Medicaid, or lose all their federal Medicaid funds. Obamacare as passed by the Supreme Court makes state participation in the Medicaid expansion optional.” In short, “Obamacare as passed by Congress didn’t pass constitutional muster. Obamacare as passed by the Supreme Court didn’t pass Congress” (The Umpire Blinks, by Rich Lowry, The Corner, National Review Online, June 29, 2012).

Judicial Legislation or Activism is not new. The desire for the Court to “legislate” through decisions expressed itself more fully the last sixty years as it attempted to “right” perceived wrongs instead of sending the faulted legislation back to the legislative branch for correction by the peoples’ representatives. By altering legislative law it has moved into state prerogatives such as education, state residency requirements, and imposed federal standards of procedure on local police to name but a few. In broadening its power base, far beyond Constitutional restraints, it has almost destroyed the idea of two co-equal governments, one federal the other state, known as federalism.

In the National Affordable Healthcare Act the Supreme Court has effectively retrained further encroachment (mutilation) of the Commerce Clause but opened wide the interpretive door that the federal government can control anything it taxes. So, does this mean that if the federal government wishes to control free speech, press, assembly, religion, guns, or any other activity, it first simply levies a tax on that activity? Apparently judicial legislation creates a “need” for additional judicial legislation. God help us!!

We must return to our foundation the U.S. Constitution as written, without all the judicial or executive alterations that go beyond this document. According to Article I Section I, “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.” There is no authority for either of the two other branches of government to make law—any law; and law made by Congress is specifically listed in Article I, Section 8 where 18 clauses identify the powers of the federal government. So, even Congress cannot make any law they like. The issue of health is not noted and is therefore, as per Amendment 10, entirely a state issue. The Supreme Court majority ruling ignored this long-term clarity and instead chose to violate the document they are charged with upholding.

Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.

Can a President Nullify Existing Law by Himself?

Dr. Harold Pease

Normally I do not write on talk show topics, wherein there exists extensive coverage (how be it little depth), I prefer introducing topics missed or under covered by the establishment news, but too few seem to care about the Constitutional fallout from the President’s most unconstitutional executive order/directive ever. Have we no Constitutionalists left in either party?

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 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. 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. This is the law of the land and the Constitutional procedure violated by President Barack Obama June 16, 2012, when, failing to get a favorable vote from Congress, openly defied Congress and the Constitution by ordering a like measure to that defeated, implemented anyway.

In a news conference he outlined the general parameters of his plan but specifics came from a six-page Memorandum from John Morton, Director of U.S. Immigration and Customs Enforcement (See FEA Number 306-112-0026), to enforcement personnel, which essentially advises ignoring existing immigration law. If left to stand this becomes existing law without the consent of the people through their representatives voiding the role of Congress. Ironically, if a Republican president did the same thing, the Democratic Party would make the same constitutional argument and rightfully demand immediate retraction of the President’s new law under threat of his impeachment.

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 would he now “flip-flop” and knowingly violate the Constitution? Obama sees an inept Congress that has not placed any restraint on his previous unconstitutional executive orders. He brilliantly also sees a way to “buy” the Hispanic vote. If the Republicans resist he has a powerful campaign issue.

His argument for the violation, “It is the right thing to do.” has nothing to do with the fact that he is usurping the powers given only to Congress, and in the most contemptuous way possible, and establishing a precedent for the continued nullification of Congress. Moreover, he is also in violation of 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 is “a high crime,” an impeachable offense, which action should be introduced with bipartisan support with 100 signatures in the Senate and 435 in the House. This issue is that clear.

So why should Democrats be concerned and reign in their president? Because if they do not they, in effect, give permission to the next Republican president to defy Congress on something they had previously established as law, like national healthcare for instance, and by a simple Directive he too could not enforce that law. Democrats must see that their failure to insist on a retraction of the Directive forever 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. You 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 their to protect all parties and all citizens from arbitrary and caprices rule. Please let it work.

Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.

Are the President’s “Kill List” Activities Constitutional?

By Dr. Harold Pease

Two things have brought drone warfare to public attention in an amplified way the last few days: our assassination of Abu Yahya al-Libi, Al-Qaida’s second-in-command, and The New York Times release of classified information showing that President Barack Obama, on a weekly basis, reviews a “kill list” and personally authorizes each kill. Is this Constitutional?

The paper revealed a “top secret ‘nominations’ process to designate terrorists for kill or capture” but that there is little interest in capture because of a hidden “take-no-prisoners” policy. In the last three months 20 “presumed terrorists” have been assassinated, 14 in Yemen and 6 in Pakistan. It complicates things when they have to be sent to Guantanamo Bay, thus only one person on the list has been sent to the Island prison. Killing them frees us from those messy practices of “enhanced interrogation” (torture) and “rendition” (exporting torture to foreign nations, called “black sites,” less squeamish about screaming victims), practiced under the George W. Bush administration. Under Obama the dead do not need rendition, military commissions, and indefinite detention, the paper infers (Secret “Kill” List Tests Obama’s Principles, New York Times, May 29, 2012).

Moreover, the Obama Administration also got rid of the messy civilian casualties problem by defining all “military age males in a strike zone as combatants … unless there is explicit intelligence posthumously proving them innocent.” They would not be in the area if they were not also terrorists—guilt by association—they reason. Therefore the Administration can argue, “that not a single noncombatant had been killed in a year of strikes.” One administrative source said, “They count the corpses and they’re not really sure who they are.” Unfortunately for The Administration, The New York Times noted, “Videos of children’s bodies and angry tribesmen holding up American missile parts flooded You Tube, fueling a ferocious backlash that Yemeni officials said bolstered Al Qaeda.” Sometimes our actions create our next wave of enemies.

The case of American citizen Anwar al-Awlaki, an Al Qaeda propagandist hiding in Yemen, presented the President with Fifth Amendment “due process” problems which were quickly swept under the rug. Killed with him, however, was his 16 year-old-son and “Samir Khan, an American citizen who was not on the target list but was traveling with him.”

The President’s reaction to The New York Times disclosure, “First, I’m not going to comment on the details of what are supposed to be classified items… Second, as commander-in-chief, the issues that you’ve mentioned touch on our national security or critical issues of war and peace, and they’re classified for a reason” (Obama ‘Offended’ by Leak Allegations, New York Times, June 8, 2012).

So, are any of these practices Constitutional? Not one!! All military powers are housed under the Legislative branch Article I, Section 8, of the U.S. Constitution except for one. These include all power to declare and finance war, “make rules for the government and regulation of the land and naval forces,” and even determine the land that the military can have for training purposes. The only power left to the president is as “Commander in Chief of the Army and Navy of the United States… ,” notice this, “when called into actual Service of the United States” which constitutionally can only be done by Congress. The totality of his authority can only follow theirs.

As far as I am able to determine there exists no declaration of war by Congress on Yemen or Pakistan (actually on no country presently) calling into “actual service” the military. Instead, our attacks are acts of war on these states. Imagine drone strikes on our enemies in Russia or China. They, being much stronger countries, would be returning fire. Nor is there a specific two-year funding limitation on this “Drone War” as constitutionally required. Moreover, Congress clearly has been nullified in making the “rules for the government and regulation of land and naval forces” in this no end conflict.

Recent presidents have usurped all of the military powers of Congress unto themselves. It is a dangerous slippery slope and clearly exceeds Constitutional authority regardless of who inhabits the White House, more especially when the kills are American citizens who are executed on the say so of just one man, in the Situation Room, thousands of miles away. Executed without the accused having benefit of judge, jury, trial or any of a series of other constitutional rights. Whatever happened to the presumption of innocent until proven guilty? Tell Congress that you want them to adhere to the Constitution with respect to all military conflicts.

Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.

“Fast and Furious,” Worse Than Watergate?

By Dr. Harold Pease

Imagine being willing to do anything to destroy the Second Amendment to the U. S. Constitution—the one that allows you to defend yourself and resist any government that becomes tyrannical, even our own. Since Americans will not willingly do so, imagine someone in power plotting to create the rationale that would turn most reasonable people against these rights. Evidence of such has now surfaced in the form of an email from a Justice Department agent that strongly indicates that the government’s “Operation Fast and Furious” was designed to do just that. If so, this could be worse than the Watergate conspiracy (no one was killed) with responsibility heading uphill to at least Attorney General Eric Holder, perhaps to the President.

Seemingly the intent was for the government, through the Alcohol, Tobacco, and Firearms Administration (ATF), to secretly sell illegal guns to the Mexican drug cartels, then blame those sales on U.S. gun shows to discredit them. The administration had argued that 90% of the guns used by Mexican drug cartels had come from gun shows in the United States. The ATF gun sales, if undetected, would provide the government rationale and support to close down the gun shows making it more difficult for citizens to obtain a firearm. The story is full of government intrigue, lies, conspiracy, and the murder of hundreds of Mexican citizens and an American Border Patrol Agent, Brian Terry. The scandal, if proven, is many times worse than Watergate that toppled the corrupt Richard Nixon.

The transfer of the illegal weapons was done without consulting U.S. law officers outside ATF or the Mexican authorities. The government would have succeeded with the scheme were not some of the illegal firearms found at the scene of murdered Border Patrol Agent Brian Terry; one of which actually the instrument of his death.

What is new about this two-year-old scheme is an e-mail wherein Arizona U.S. Attorney Dennis Burke, charged with executing the “Operation Fast and Furious,” boasted to a colleague of the operation’s propaganda value, presumably to vilify gun shows. It read: “Some of these weapons bought by these clowns in Arizona have been directly traced to murders of elected officials in Mexico by the cartels, so Katie-bar-the-door when we unveil this baby” (“Will Holder’s Watergate Become Obama’s Waterloo?” Americas 1st Freedom, April 2012). They knew precisely what they could do with the propaganda value of their sales—destroy the gun shows.

Wayne La Pierre, Executive Vice President of the NRA, best expressed the seriousness of this illegal operation, apart from defrauding Americans of their constitutional gun rights, when he wrote. “In that ‘gun-walking’ operation, Obama administration operatives encouraged, bankrolled, and oversaw repeated felonies at gun stores and at border crossings with criminals smuggling at least 1,700 firearms into Mexican drug-fueled criminal commerce.” Regular citizens, doing the same thing would be serving time. This reminds me of President Nixon’s now famous statement with respect to Watergate. “When the president does it, it is not a crime.”

The e-mail in question was a part of the 6,000 documents received from the 80,000 requested of the Justice Department by the House Committee on Oversight and Government Reform headed by Darrell Issa. The Justice Department yet refuses to honor a two-year request for the other 74,000 documents requested. The Issa Committee accuses Eric Holder of stonewalling and cover-up and threatens Contempt of Congress for the Justice Department head.

What has been surrendered reportedly proves that U.S. gun shows were not the source of cartel firepower, as this administration has repeatedly contended, they were, and that Holder intentionally lied when he told Congress he had heard about “Fast and Furious” from the media, as did other Americans. “One Justice Department official has claimed his Fifth Amendment rights against self-incrimination and refused to testify,” elevating anticipation that, so far, we may see only the tip of the iceberg.

Hopefully the Committee and media will also probe the seemingly intentional design of this administration to plant the evidence (the 1,700 guns into cartel hands) to get Americans to end the gun shows in their efforts to end gun rights of Americans and the 2nd Amendment insuring such. How about doing so with the same vigor that Congress and the media went after Richard Nixon when he authorized the burglary of Democratic Party National Headquarters?

Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org

Government Spying on Your Social Media and the Media Monitoring Initiative

By Dr. Harold Pease

Last week a young college student approached me after class with a very disturbing concern. He had just been interrogated by the FBI for making a video three years ago of him exploding a fire cracker and placing the video on YouTube for others to see. He thought that it would be funny. During the three years since, and unbeknownst to him, the government had been monitoring his every behavior and presented to him, for his perusal, a file an inch thick of every event in his life including his grades from grade school.

If kids are monitored for such normal behavior (I used to set off fire crackers too but I did not put it on the Internet) what can we expect next from our government which now violates the 4th Amendment to the Constitution with impunity? Monitoring our social media 24 hours a day? A new directive suggests that this is now to be common.

The National Operations Center (NOC), a part of The Department of Homeland Security, recently released its Media Monitoring Initiative giving itself permission to “gather, store, analyze, and disseminate” data on millions of users of social media, primarily Facebook, Twitter, and YouTube. So far they appear less concerned with the information of the average Joe or Jane, although all is kept just in case, as they do with unmanaged journalists and bloggers. These are defined as “those who use “traditional and/or social media in real time to keep their audience situationally aware and informed,” such as myself. Targeted are those who post articles, comments, or other information to popular Web outlets.

In a recent article entitled “Social Spying,” by Joe Wolverton II, J.D. in the “New American,” Wolverton details the “24-hour surveillance” by NOC agents “to track the on-line movements and postings of every level of writer or commentator, from Brian Williams to nearly anonymous bloggers.” The directive is designed “to provide situational awareness and establish a common operating picture” (what ever that means) presumably of targeted audiences. In layman’s terms it means identifying, isolating, and then potentially silencing opposition, each of which inhibits First Amendment free speech rights.

Of course, the NOC directive denies inappropriate use of the information. All is public, they argue, and gathered through available search engines. That said, they admit looking for “items of potential interest [not defined] to DHS. Once the analysts determine an item or event is of sufficient value [also not defined] to DHS to be reported, they extract only the pertinent [again, not defined], authorized information and put it into a specific web application… to build and format their reports.” Such vagaries allow an unrestrained government to move and operate anywhere it pleases and classify and reclassify citizens as potential enemies even if they have done nothing other than voice opinion in opposition to that of whoever rules.

Are we becoming more like communist China who recently prosecuted Li Tie and two others for essays posted on the Internet demanding greater democracy? They too began with just monitoring. Such postings are considered a threat to China’s political and social stability.
In light of the recently signed National Defense Authorization Act of 2012, this reclassification could eventually get normal citizens classed as threats to political stability, who just wish to preserve their Constitution from a government which chooses to nullify it, placed in Guantanamo Bay and held indefinitely against their will. But I have already written about this new law—the most dangerous piece of legislation in my lifetime.

The Media Monitoring Initiative is a serious violation of the 4th Amendment to the Bill of Rights of the U.S. Constitution which reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searched and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Do we care? If a young college student finds it disturbing that the government has been watching what he puts on YouTube, should not older adults be more so? Are you, my reader, going to wait until all the sentinels of liberty are marginalized or are you going to remove your member of Congress that supports either the National Defense Authorization Act or does not use his influence to rescind the Media Monitoring Initiative. At least demand to know where he or she stands on these two important Constitutional issues.

Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org