Jan 7, 2016 | Constitution, Immigration, Liberty Articles
By Harold Pease, Ph. D
“We cannot wait for Congress to act on this,” so said President Barack Obama Tuesday in his first address to the nation in 2016. In essence he will now make the laws dealing with the 2nd Amendment himself because Congress refused to make law the President wanted. Mostly the executive orders (new laws) expand required background checks and the number of those requiring a sales license to sell guns (which requires tremendous paperwork, expense, and about a year to obtain). This Congress refused to pass three times during the Obama administration, once when the Democrats were in charge. Even gun exchanges between family members come into question. Potentially this means that people who violate the law made by the president alone will go to jail or be otherwise punished as with kings and dictators.
This is reminiscent of a statement made by the White House just two years ago on executive amnesty. “We’re not just going to sit around and wait interminably for Congress. We’ve been waiting a year already.” In this instance, some in Congress had worked on what was called the Dream Act that would extend amnesty and place illegal immigrants on a course toward full citizenship. Lacking popularity, twice it failed to get the majority vote of both Houses of Congress required by the Constitution, thus leaving long-standing existing immigration law unchanged. Obama, failing to get a favorable vote from Congress, openly defied Congress and the Constitution by ordering a like measure to that defeated, implemented anyway. It has since rightly been blocked by the Judicial Branch as having been an overreach by the President, thus unconstitutional.
Executive amnesty was outright contempt for Congress and the Constitution and the President knew it. Twenty-seven times prior to his doing the order he argued that it would be unconstitutional were he to do it. As for example, on 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.”
Indeed, by executive order Obama has changed existing law at least 30 times, most notably in the Affordable Care Act, which today is not the bill passed by Congress in 2010. In doing these, and the new parade of executive orders on gun control, the President is replacing Congress as the only federal lawmaker of the land.
There is nothing more clear nor basic in the Constitution than the separation of federal power into three branches, one to legislate, another to execute that law, and a third to adjudicate possible violations of that law when contested—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!!!! Nor does it have constitutional authority to alter existing 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. Originally they were but interdepartmental directives.
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.
I warned my readers when Obama blatantly violated the Constitution on executive amnesty that “if not challenged by Congress his alterations would become existing law by practice without the consent of the peoples’ representatives, voiding the role of Congress, and that he, upon finding a weak Congress, would repeat the practice of making law by decree.” He has!! Some have used the word dictatorial to describe the practice. I renew this warning, not just for Obama but also for presidents who follow from either party, as they will use past practice to justify desired practice and the trend to nullify Congress as the only federal lawmaking body will continue. Executive Orders that have the force and effect of law must stop to preserve liberty.
Obama’s present override of Congress on 2nd Amendment issues is an even more blatant abuse of his oath of office, to “preserve, protect and defend the Constitution of the United States.” To protect the separation of powers and end Obama’s threat to the Constitution, Congress must publically renounce all his new executive orders and fast track immediately to impeachment. Yes, the Constitution requires that he be retired in twelve months anyway but a bill of impeachment reestablishes the precedent that the people will not tolerate the defilement of the Constitution thus discouraging constitutional rogues of the future. Failing to do so weakens Congress’s sole role as the federal law-making branch of government, the clarity of the 2nd Amendment, and the integrity of the presidential oath of office.
Democrats must see that their failure to insist on a retraction of all law-making executive orders 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. We must choose the Constitution over party. The Constitution is there to protect all parties and all citizens from arbitrary and caprices rule as just announced. Please let it work.
Jan 3, 2016 | Constitution, Immigration, Liberty Articles
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.”
Dec 15, 2015 | Constitution, Liberty Articles
By Harold Pease, Ph. D
President Barack Obama addressed the nation Sunday, December 6, 2015, a few days following the radical Islamic terror in San Bernardino that consumed the news and just one week following the radical Islamic terror that descended in several places in Paris. Both societies had two things in common, gun control and ISIS. Sadly, in both places sharing the same gun philosophy, violence was unrestrained. Also sadly, the president’s solutions to ending such violence in Americas’ cities are all unconstitutional.
When he covered what we should do at home he advised Congress “to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon?”
George W. Bush created the no-fly list after 9/11. Prior to this there was a list of but 16 who were considered security risks for flying according to a June 7, 2007, CBS 60 Minutes presentation called “Unlikely Terrorists on No Fly List.” It is largely secret, “even members of Congress have been denied access to it.” 60 Minutes disclosed a no-fly list of 44,000 and another 75,000 Americans who should have “additional security screening.” At that time, eight years ago, the list was over 540 pages long.
Whether maintained by Bush or Obama a no-fly list for U.S. citizens is itself unconstitutional. The government places a restriction on someone because of a perceived belief, practice or action and thus defined him or her as a possible threat—no actual evidence required. In most instances he has not even been informed of the government’s intention to punish him until he attempts to fly and is forbidden doing so. In the Obama speech he was referred to as a “terrorist suspect.” A punishment is applied without any evidence of unlawful behavior—he may not fly. If there had been unlawful behavior the person would be incarcerated and the issue of a no-fly list would be irrelevant. Remember U.S. Senator Ted Kennedy was once on the government’s no-fly list as was a six-year-old boy, a number of persons over 80 years of age, and an 18-month old toddler Reianna (last name not given in the CNN report to protect family identity).
No-fly restrictions violate Amendment 5 as he was denied free movement or “liberty” “without due process of law.” The Amendment guarantees the person the right to be accused before punishment, but no accusation was made nor was evidence presented to a jury to evaluate as required.
It also violates Amendment 6 which guarantees one accused of his right “to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” None of this happens for the no-fly list people as the government has already effectively convicted and rendered punishment, sometimes indefinitely. Most have no idea why they are on the list or how to get off it.
Should Congress adhere to Obama’s request to “make sure no one on a no-fly list is able to buy a gun” they will amplify the already existing constitutional infractions of Amendments 5 and 6 and keep thousands of lawful Americans from protecting themselves with arms. Amendment 2 guarantees “the right of the people to keep and bear Arms,” and certifies that this right “shall not be infringed.” This too would be violated. A law—any law—cannot trump a constitutional amendment. The only constitutional way that Obama can change this amendment is with a new constitutional amendment.
Obama’s solution to the gun violence in California, we “need to make it harder for people to buy powerful assault weapons like the ones that were used in San Bernardino,” shows some ignorance of what happened there. California has the toughest gun control laws in the nation and it was not enough nor would it be if the government had gun confiscation. Paris, France had total gun confiscation over its people and ISIS still had free reign on its citizenry. Paris and San Bernardino had ISIS as their common denominator and the philosophy that if guns are restricted or confiscated there will be no violence. This proved false should put an end to this illogical argument.
Obama continued, “I know there are some who reject any gun safety measures.” I know of none. My associates, who have guns, are very aware of safety measures. Firearms are dangerous. I have held a concealed weapons permit for many years and gun safety measures were always emphasized.
Then amazingly the President, probably without knowing it, made the case why gun control or confiscation will never end violence. He said: “But the fact is that our intelligence and law enforcement agencies — no matter how effective they are — cannot identify every would-be mass shooter, whether that individual is motivated by ISIL or some other hateful ideology.”
I rest my case. The federal government just admitted that it cannot always protect us. Natural law kicks in. People have an inalienable right to protect themselves. Violence will always exist in society. No matter how fast law enforcement is, (in San Bernardino the first officer arrived in 4 minutes), it is always not fast enough and people are normally already dead. As long as this is so, good people will carry guns—lawfully or unlawfully.
Dec 14, 2015 | Constitution, Liberty Articles
Harold Pease, Ph. D
November 29, 2015, was the deadline for the end of NSA bulk collection of telephone records as established by the USA Freedom Act six months ago. This ended the Patriot Act, revealed by Edward Snowden, to have been the authority used to collect the bulk phone records of hundreds of millions of Americans, a certain big government invasion of privacy, which incensed civil libertarians. Libertarians and Constitutionalists, on 4th Amendment concerns, led by Senator Rand Paul brought the demise of the hated Patriot Act. This ends government surveillance of its citizens. Or does it?
The USA Freedom Act called for a six-month transition period allowing NSA to continue bulk collection as before, but at its end NSA must only access targeted data from telephone providers with judicial approval. Unfortunately for Constitutionalists it, like its predecessor the Patriot Act, nullifies the 4th Amendment requirement of “probable cause” and thus is as unconstitutional as the law it replaced.
Under the new law, the federal government forces telephone companies to collect the metadata instead and store it at their expense. The NSA may still access the information with approval of the secret FISA Court (a court that almost never denies permission) if the government maintains there is a reasonable suspicion that the phone data of a target is relevant to a terror investigation. What is missing is that Congress cannot simply pass a law nullifying a portion of a constitutional amendment. Its only option is another constitutional amendment.
Unfortunately for big government advocates, collecting and storing data on its citizens is not cited or even alluded to in Article I, Section 8 where the powers of the federal government are itemized. Nor has such authority been added by way of an amendment to the Constitution.
Fortunately for us this behavior is specifically forbidden in the Fourth Amendment which reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches 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.” The amendment was specifically designed to prevent government spying on its own. “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated” is the strongest possible language conceivable.
Prior to the American Revolution the British government used what was called “a general search warrant” which allowed their agents to harass the people thought to be doing, or saying, something disapproved by the government. No such flexible interpretation was allowed in our government until recent times. In our day, computers, cellphone messages and phones are our “papers and effects.” Simply confiscating their messages and storing them, perhaps indefinitely, should be no different than the police walking into your home and taking from you any letters you have received or are about to send and housing them in police headquarters in case they should need them to use against you in a later day. As a first principle your house and papers are off-limits to the government.
Moreover, unreasonable was not to be decided by the police. All searches are unreasonable without probable cause that you are doing something harmful to others. Probable cause must be decided independently from the police unless you are in the act of doing something unlawful and immediate police response is necessary. Elected judges exist for assessing probable cause. Should they get too cozy with the police there exist other checks to keep them restrained as, for example, their defeat in the next election. As initially interpreted there were to be few federal laws, hence few unelected federal justices. This was to be a state, county, or city matter. Judges rousted out of a good sleep in the middle of the night were not likely to be too happy about having to assess frivolous charges.
There exists no constitutional authority for a blanket extraction of all our electronic data. Judges swear an oath to preserve the Constitution. They are not to perform with a private view outside that document. Notice also the specific restrictive phraseology with respect to this power; they are to particularly describe “the place to be searched, and the persons or things to be seized”—evidence that something unlawful already happened. There is no authority for a “fishing expedition.” NSA spying on its own citizens without a search warrant, formerly under the Patriot Act and extended now under the USA Freedom Act, through proxy corporate entities charged with keeping our records for potential government inspection, is clearly unconstitutional.
“No, federal government!” You may argue that you are only protecting us from bad people out there by gathering our private information without our consent or knowledge, but who protects us from you? Historically far more terroristic acts happen under government authority than under private authority. Fortunately the Constitution does when enough use it in their voting practices and those we elect honor their pledge to protect it, and us, from you.
Nov 24, 2015 | Constitution, Immigration, Liberty Articles
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.
Nov 16, 2015 | Constitution, Liberty Articles
By Harold Pease, Ph. D
Every scientist looks for the best place to study his targeted phenomenon—tornadoes in the Mid-West, hurricanes in the Caribbean, ice thinning in the Arctic or thickening in the Antarctic. For gun issues this would be Chicago because it is the murder capitol of the United States and the handgun is the favored killing instrument and apparently readily available. Easy conclusion, more guns more crime or killing. Right?
The Windy City was the only city in the United States to exceed 500 homicides in 2012, more killed here than were our forces in Afghanistan the same year. Over the Independence Day holiday 82 persons were shot. According to the most recent issue of, America’s Ist Freedom, the number shot so far this year, as of early September, was 2,000, of which 326 died. Chicago is a war zone. Police chief Superintendent Garry McCarthy boasted, “We seize more guns than any city in the country, every single year.” Fewer guns, less crime, right. So why the continual rise in crime and murder at the same time more guns are seized? It must be those nasty gun shows.
A recent study published in the journal Preventive Medicine by Philip J. Cook, Susan T. Parker and Harold A. Pollack, revealed otherwise. In anonymous, face-to-face interviews 100 felons were asked where they had obtained their guns; a question never asked by proponents of more gun laws. Asking criminals this question should precede designing legislation to disarm potential victims one would think. The study revealed that, “Few got their guns from Internet sources, gun shows or licensed stores.” Most got them, instead, from “family, fellow gang members or associates.” Few stole them and “they seldom bought guns on the used market,” so Police Chief Garry McCarthy basically disarmed the victims of crime and murder leaving his lawful population unable to defend itself. The interviews revealed also that most of the weapons were handguns, very few possessed, so-called, “assault weapons.”
A second reason to study guns in Chicago might be that this city is also the home of the most anti-gun president in our history. When Barack Obama ran for the Illinois State Senate in 1996, he was asked if he supported legislation to “ban the manufacture, sale and possession of handguns.” He answered. “Yes.” As a U.S. Senator, Obama once said, “While a complete ban on handguns is not politically practicable, I believe reasonable restrictions on the sale and possession of handguns are necessary to protect the public safety” (“Obama Ramping Up the Rhetoric on Gun Control,” The New American, Oct. 5, 2015).
Obviously his anti-gun philosophy has been in place in the Chicago area, with a measure of his influence, for many years. That his philosophy has clearly failed, where it had the greatest power to succeed, is now indisputable. Evidence of this conclusion is seen in the body count on Chicago streets every day.
One of the greatest ironies with respect to the President’s safety is, if fewer guns mean less crime and violence, then why do all the agents around the president carry handguns? He knows that his protection is more secure with more guns. Then why would this not also be true for his law-abiding constituents? Rumor has it that San Francisco County issues only two conceal carry weapon permits and that one of these is for Senator Diane Feinstein, one of the most vocal Senators opposed to the people having the same need for protection as she. If so, what hypocrisy!
If the president had been more observant of his own city he might have noticed the real problem besetting Chicago—the lack of enforcement of existing gun laws. Americas 1st Freedom magazine, previously cited, disclosed that the county of Cook , which includes Chicago, had between January 2006 and August 2013, “more than 13,000 cases that included gun violation thrown out of court or dismissed.” In fact, “from illegal firearm possession to illegal sale of a firearm to a felon, more felony cases involving guns were thrown out of court there than any other kind of case.”
This is supported on the federal level as well. According to Syracuse University’s Transactional Records Access Clearing house, “out of 90 federal judicial districts in the United States, Chicago in recent years has ranked near the bottom in terms of gun prosecutions. In 2014, it ranked 82nd out of 90 districts.” But leniency everywhere is typical of the Obama administration. In 2011, “federal gun prosecutions dropped by roughly 40 percent.” Clearly, Chicago is not enforcing its gun laws already in existence. “Only about 1 percent of the guns seized by Chicago police led to federal prosecutions.” Moreover, those prosecuted rarely get more than one year of a possible three-year sentence. Without a will to enforce existing law there exists no valid logic in creating more.
Perhaps the real solution to Chicago’s war zone status is more guns in the hands of its lawful citizens as the U.S. Constitution allows, not less. The Second Amendment remains some of the strongest and clearest language on the subject. “The right of the people to keep and bear Arms, shall not be infringed.” This language has never been altered by another amendment and thus remains the law of the land whether the government of Chicago and its lead citizen, the president, understands this or not.
