Aug 3, 2012 | Constitution, Take Action
By Dr. Harold Pease
How many times have I heard that if something is wrong with a law of Congress the Supreme Court will stop it and that the Court is totally independent of Congress? Both views are decidedly incorrect. Supreme Court members may, in fact, agree that something is unconstitutional but they, by themselves, or as a body, are helpless in blocking it unless it is first challenged by someone else.
The Supreme Court may not interfere with any law unless someone is hurt or damaged by it and is able and willing to challenge the law, over a long period of time, with the likelihood of a costly but doubtful conclusion. In other words, much that is unconstitutional goes unchallenged by the Court and, if not challenged, becomes past practice and later is often used to support new alterations to the Constitution. The Court is only a partial check on constitutional law. Congress, the body charged with making all law, as per Article I, Section I, is to responsibly check itself with the Constitution. Members of Congress take an oath to do so. The voter does not take an oath but is expected to have greater loyalty to the Constitution then to political party, to be familiar enough with the Constitution to spot indiscretions, and to remove those who would defile it through ignorance or intent.
Like the legislative and executive branches, the Supreme Court too has a list of power. We count eleven. The Constitutions reads, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States; –between a State and Citizens of another State,– between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects” (See Article III, Section II.
Again, the judicial branch too is limited by a list, and case types not listed are not federal jurisdiction. If a list did not exist the Supreme Court could adjudicate wherever it wished which clearly was not the intent of the Founders. Although not constitutionally required, it is a good idea for the Court to identify one of the eleven powers that gives it jurisdiction before it takes on a case and again when a decision is rendered. Such would remind it, and sometimes us, of its limited role.
In fact, unbeknownst to most, The Supreme Court may not be permitted to render judgment in a case if Congress puts them on notice not to. Congress was given much say with respect to the cases the Court could adjudicate. In only two of the case types noted on the list—public servants and those when a state is involved—does the Court have sole, or uncontested power. In all others Congress retains oversight, which means that they can deny the Court from adjudicating altogether and/or influence the Court’s decision. Again the Constitution reads, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Notice the difference between original and appellate jurisdiction. Also notice the wording, “under such Regulations as the Congress shall make.” Unfortunately, Congress has never used this power to “rein in” an unruly Court but it remains constitutional should they choose to do so.
Bottom line, the Supreme Court was never given the authority to exam all laws of Congress weeding out those that were “wrong” (constitutionally questionable), nor was it ever created to be entirely independent from Congress. Yes, it is a separate branch of government but Congress was left a definite supervisory roll over it. Do your members of Congress know this?
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.
Jul 29, 2012 | Constitution, Healthcare, Immigration, Take Action
By Dr. Harold Pease
What if the Supreme Court became an arbitrator trying to please both sides rather than “letting the cards fall where they may,” ruling alone on constitutionality as designed? In the end neither side is really happy and the Court’s function is blurred or discredited. What if preserving its own image became more important to justices than defending the Constitution? Or worse, what if the Court forced a round peg into a square hole, so to speak, to force a decision not intended, or argued for by either side therefore creating new law—a function of Congress alone? What if all of the above were in one decision such as with the recent Supreme Court decision on National Healthcare? How can the states or people keep the Supreme Court in line with the U. S. Constitution? The answer is in the Constitution as understood by the Founders.
Our constitution first divided power between the states and the federal government with the powers given to the federal government listed, defined, and limited and those of the states left undefined and not listed, as per Amendment 10. This is known as federalism and is sometimes thought of as a marriage—shared and equal—neither the state nor federal government the master nor slave of the other.
The portion of power left to the federal government is then divided between the legislative, executive, and judicial branches. The down side of federalism (our marriage) is that the umpire is one of the three branches of government at the federal level and as such is likely to rule in favor of a strengthened federal government were it to arbitrate between the states and the federal government. It is equivalent to two adversarial teams playing basketball and the referee is a member of the federal team. The balancing component to this, potentially lopsided division of power, is the doctrine of nullification.
Is it constitutional to say no to the federal government when a state believes a Supreme Court decision to be unconstitutional? One having a limited knowledge of the Constitution would say no and cite Article VI, the supremacy clause, as the end of the matter. On matters listed in the Constitution he would be right, but this time the Supreme Court has ruled on something where it lacks authority to rule, clearly a state issue, and as such, if left unchallenged, certainly damages, perhaps even nullifies, the 10th Amendment of the Constitution, which leaves to the states all areas not delegated to the federal government. This understanding pre-existed any law on health by a couple of centuries.
To curb the umpire (Supreme Court), should he clearly favor one side, the Founders supported the doctrine of nullification. Rather than sue the federal government for having exceeded its constitutional power, the 26 states so doing should instead have followed the Idaho example and in essence said “not in our state.” The effort to grow the federal government beyond the listed bounds would have been unenforceable if enough states did so.
Such has two historical precedents. Thomas Jefferson in 1798 attempted to nullify The Alien and Sedition Acts created by his Federalist Party predecessors. These raised residency requirements for citizenship from 5 years to 14. Moreover, the law allowed the president to deport “dangerous” foreigners during times of peace and imprison them during times of hostilities. Anyone defaming or impeding government officials, including the president, was subject to heavy fines and/or imprisonment. Jeffersonians objected on the basis of the unreasonable empowerment of the president and the attack on the First Amendment, particularly freedoms of speech and press. They too said, “no will do.” Because nullification was better understood as part of the “balance formula” of the Constitution and because the offending law was designed to last only until 1801, (Federalists did not want it used against them should they lose the next election), nullification stayed in place.
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.
One might argue that the Civil War ended the Nullification Doctrine but the real root cause of the Civil War was the practice of slavery, (I am aware that the immediate cause was keeping the union together), which practice made a mockery of the whole liberty concept. The slave issue pre-dated the Declaration of Independence and I would need another column to show why the war did not exempt the nullification argument.
Critical to the success of the Nullification Doctrine is the number of states committed to it. Obviously one state or a few, unable to prevail at least a majority to follow, would be easily overpowered by an overwhelming federal government power. But if the 26 states, who sued the federal government on the mandate issue, now said we will not comply, the federal government would be forced to find a face-saving exit on the issue and back down. That is the final constitutional check on overreaching federal power—the one least talked about and understood. If, at this time, the states do not care enough to preserve their power they deserve not to have it, or liberty.
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.
Jul 22, 2012 | Constitution, Immigration, Take Action
By Dr. Harold Pease
What follows are six major changes to traditional constitutional procedure that have happened the past six months, none of which through the change process required in Article V of the Constitution, but each will adversely affect the distribution of power in this country and how we define liberty in the future. This time period could very well be the most radical six-month period of constitutional change in U.S. history. Should we be concerned with, or worse, frightened by, our own government?
We begin on New Years Eve with the President signing into law the 600-plus pages National Defense Authorization Act which, among other things, authorizes the military to seize and transport U.S. citizens from U.S. soil to Guantanamo Bay on the presumption that they are terrorists. The threat of potential indefinite incarceration without recourse to lawyer, judge and trial is unconscionable in a free society. The new law ends the writ of habeas corpus found in Article I, Section 9 of the Constitution and Posse Comitatus protection (protection from ones own armed forces). It also lays waste to much of the Bill of Rights, notably Amendments 4, 5, 6, and 8. Its intimidation potential will impact free speech, press, and assembly as well. Local law enforcement is essentially bi-passed.
Then in February, The National Operations Center (NOC), a part of The Department of Homeland Security, 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 on the average Joe or Jane, although all is kept just in case, as they deal 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. It is a clear violation of the 4th Amendment in the Bill of Rights.
In March we saw and heard Joint Chief of Staff Chairman General Martin Dempsey and Defense Secretary Leon Panetta, each, in testimony given to the Senate Armed Services Committee, inferred that the authority that they depended upon for military purposes came not from Congress, as required in the U. S. Constitution, but from unelected UN or NATO authorities. Disbelieving what he heard, Senator Jeff Sessions repeatedly inquired in different ways only to be given the same answer.
Also, on March 16, President Barack Obama issued his National Defense Resources Preparedness Executive Order authorizing the Executive department to take-over, in case of a national emergency, all civil transportation, including the “movement of persons and property by all modes of transportation … within the United States.” Other things specifically listed to be under his sole control were: all forms of energy, all farm equipment, all food resources, all food resources facilities, all health resources, and all water resources (Section VIII). “National emergency” was never adequately defined. Nor was it explained why the president needed near dictatorial power in a national emergency and had not in crisis heretofore or when this dictatorial power would end. The Order makes The National Security Council and Homeland Security Council the policy-making forum—not Congress.
In June, frustrated by his inability to get through Congress a law on immigration he favored, and tired of making law the constitutional way, President Barack Obama, openly defied Congress and the Constitution on June 16, 2012, by ordering a like measure to that previously defeated, implemented anyway. In a news conference he outlined the general parameters of his “Dream Act” 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 advised ignoring existing immigration law. Although our empathy goes out to the children of illegals raised in the United States, is it now permissible for future presidents to make law and defy the authority of Congress?
Finally, despite the clear wordage of the Constitution that “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,” the Supreme Court essentially wrote new law by its ruling, in June, on National Health Care. Even Justice Anthony M. Kennedy referred to it as “vast Judicial overreaching” or “Judicial legislation.” So is it now okay if the Court attempts “to force on the nation a new act?”
So, with respect to these six major changes in traditional constitutional procedure occurring the last six months, should we be concerned with, or frightened of, our own government? How can we not be? Think of all the power taken by, or hand delivered to, the office of President. What event awaits us when such will be used? Unless Congress is willing to reverse the above six items, it may very well be making itself, and the Constitution, irrelevant. You can help by refusing to support any candidate who is not aware of, and is actively against, any of the six constitutional procedure changes noted above.
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.
Jun 18, 2012 | Constitution, Take Action
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.
Jun 11, 2012 | Globalism, Take Action, Taxes
By Dr. Harold Pease
Like a bad penny that one cannot get rid of, the idea of giving the world’s oceans, some 70% of the globe, to the United Nations is once again before the Senate Foreign Relations Committee. The “full court press,” led by Committee Chairman John Kerry, heard testimony favoring the idea from Secretary of State Hillary Rodham Clinton, Secretary of Defense Leon Panetta and Chairman of the Joint Chiefs of Staff General Martin Dempsey. Additional hearings are scheduled this month with a favorable vote scheduled, they hope, before July. President Barack Obama would like a full Senate vote before November to avoid the ratification of the Law of the Sea Treaty from becoming an election issue but is willing to wait, if need be, until December. Then, while his party retains control of the Senate even if the Republicans win the election, quietly force it through before January, as he did the National Defense Authorization Act.
This is not a party issue. Presidents and secretaries of state from both Republican and Democratic Parties have favored this idea. Virtually all administration leaders from either party, and the advocates noted above, are Council on Foreign Relations members, an organization decidedly globalist in philosophy, and thought to be the mother of this idea.
The treaty evolved out of a series of United Nations Conventions on the Law of the Sea between 1973 and 1982, with the third such convention, known as UNCLOS III, being the most important. It is designed to create government dictating every aspect of the world’s oceans. What began as an effort “to codify certain navigational rights had … morphed into a ‘constitution for the oceans.’ ”
So what does the Law of the Sea Treaty, commonly, and hereafter, referred to as LOST, do? All ocean bordering nations are allowed a total jurisdiction outreach of 12 nautical miles from their shoreline, called Territorial Waters, plus another 200 nautical mile Exclusive Economic Zone with sole exploitation rights over all natural resources. All ocean water thereafter was International Water, controlled and managed by organizations created by the treaty but under the oversight of the United Nations. Under this new treaty the United Nations would own and control 70% of the earth’s surface.
Presently nations share fishing rights, treasure hunting or other extraction activities on a first come first serve basis and pay taxes on such gains to their respective countries—every country owns the sea. Under LOST, when ratified by a 2/3rds vote of the U.S. Senate, any wealth extracted from the oceans would be taxed by the United Nations alone. LOST creates the Seabed Authority with power not only to tax and distribute the monies gathered but to manage ocean research, impose production quotas, and create a multinational court to render and enforce its judgments; in short, a world government over seven-tenths of the globe. The United States would be subject to an international government of bureaucrats, none elected, and few would be sensitive to traditions of our republic. Moreover, LOST favors what is known as the New International Economic Order, which all socialists and globalists want—the redistribution of wealth to poorer nations.
Of interest is the fact that the only president to oppose LOST since its inception, also had the least affiliation to the globalist Council on Foreign Relations. President Ronald Reagan very publicly, refused to sign primarily because of the treaties threat to U.S. sovereignty. “He also dismissed the State Department staff that helped negotiate it. And in case anyone didn’t get the message, he sent special envoy Donald Rumsfeld on a globe-trotting mission to explain his opposition and urged other nations to follow suit.” Moreover, in a 1978-radio address entitled “Ocean Mining,” he said, “no national interest of ours could justify handing sovereign control of two-thirds of the Earth’s surface over to the Third World.” His new negotiator, Ambassador James Malone, later explained why Reagan’s vehement opposition to LOST, “The treaty’s provisions were intentionally designed to promote a new world order—a form of global collectivism… that seeks ultimately the redistribution of the world’s wealth through a complex system of manipulative central economic planning and bureaucratic coercion” (Still lost on the Law of the Sea Treaty, Brandenton Herald, Edwin Meese III, June 5, 2012).
So far the Senate, as before has not ratified LOST, but can they withstand the “full court press” to do so now? Twenty-seven Senators have indicated that they will not support ratification. Many more are needed to decisively stop this action. Do you know where your senators are on this issue? All globalists must be removed from power or this “bad penny” will return again and again until the United Nations owns and controls the oceans. U.S. Sovereignty is at stake.
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.
May 18, 2012 | Immigration, Take Action, Taxes
By Dr. Harold Pease
An atomic bomb like story dropped April 27, when Channel 13 Eyewitness News, an NBC affiliate in Indiana opened with “Millions of illegal immigrants are getting a bigger tax refund than you. Eyewitness News shows a massive tax loophole that provides billions of dollars in tax credits to undocumented workers and, in many cases, people who have never stepped foot in the United States. And you are paying for it!” Bob Segall, narrator of the news segment 13 Investigates, begins with the disclosure of a longtime tax consultant, who produced thousands of tax returns easily documenting his claims, from illegal immigrants.
Everyone employed in the U.S. is required to pay taxes. Because illegal immigrants do not possess a social security number the IRS gives them an individual taxpayer identification number, or ITIN. The tax loophole deals with the Additional Child Tax Credit “meant to help U.S. working families who have children living at home” by giving them a credit of up to $1000 per child. The problem is that illegal immigrants have learned that they too can claim this and are doing so for kids in Mexico who have never lived here—lots of them. The whistle blower showed the television station refunds of $10,300 for nieces and nephews of one filer, yet another $11,000 for his nieces and nephews. “I can bring out stacks and stacks,” the tax consultant said.
Eyewitness News selected one of the cases and found multiple adult illegals even using the same filing address. “One of the workers, who was interviewed at his home in southern Indiana, admitted his address was used this year to file tax returns by four other undocumented workers who don’t even live there. Those four workers claimed 20 children live inside the one residence and, as a result, the IRS sent the illegal immigrants tax refunds totaling $29,608.” The reporters found only one child actually living in the mobile home. When they asked were the others were they were told that they live in Mexico. In fact, they had never lived here. An interview of other illegals revealed that both, filing under false address and listing children who had never been in the U.S., was not uncommon.
The reporters next interviewed Russell George, the U.S. Department of Treasury’s Inspector General for Tax Administration and learned that “the IRS has known about the problem for years,” that he himself has repeatedly warned them and still they have done nothing about it. Last year the Inspector General “released a new report showing the problem now costs American tax-payers more than $4.2 billion.” He added, “Millions of people are seeking this tax credit who, we believe, are not entitled to it.” How big is the problem? The Inspector General continued, “undocumented workers filed 3.02 million tax returns in 2010. Seventy-two percent of those returns (2.18 million) claimed the additional child tax credit.” And then he added another bombshell. “In 2010, the IRS owed undocumented workers more in claimed additional child tax credits than it collected from those workers in taxes.” You might want to read that last sentence again.
The reporters were rebuffed at every attempt to interview the IRS. “Despite repeated phone calls, e-mails and a visit to IRS headquarters in Washington, the agency said none of its 100,000 employees had time to meet.” Finally, in an email the IRS did admit that this practice was known to them for over a decade but that they were only following the law “as it is written.”
This explanation did not satisfy the tax consultant either, who said that he repeatedly informed the IRS of other discretions practiced as well, such as the filing of “phony documents and false income to claim tax credits.” They did not care about that either. “These were fraudulent, 100% fraudulent tax returns, but I got no response; absolutely none. We never heard a thing.”
Obviously the IRS does not care and is an accomplice in fraud to the tune of $4.2 billion a year. The next question is does Congress care enough to investigate, and reign in its unruly 1913 creation, or is it corrupt as well? Why not ask your congressman if he will take the lead in this investigation.
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 articles, please visit www.LibertyUnderFire.org.
