Dec 8, 2014 | Constitution, Liberty Articles
By Harold Pease
Sadly the only two political parties covered by the establishment news are lining up along party lines with respect to President Barack Obama’s extending amnesty to about 5 million illegal aliens instead of with the U.S. Constitution which clearly leaves all law-making to Congress alone. Republicans do correctly use the word unconstitutional when describing this action but somehow never came to the same conclusion when Republican presidents also used executive orders to make law. As such their arguments appear somewhat hollow. Only those who hold both parties to the Constitution can make this case.
Democrats avoid the word unconstitutional, which Republicans openly use, because they know that they would lose because the wordage executive order, or anything like unto it, is not found in the Constitution. They prefer using the word legal. Legal and constitutional can be opposite. Adolph Hitler legally exterminated over 6 million Jews because he first made it legal to persecute them. By the time persecution included extermination no one dared resist him. Replacing Congress as the sole law-making body on the federal level was, for 150 years, not legal because it was not constitutional and everyone adhered to that measurement instrument.
Initially executive orders were largely inter-departmental directives. They were never to have the force and effect of law as only Congress was allowed to make federal law (Art. I, Sec. I, Clause I). The President was to execute the law of the legislative branch, not make or alter it himself.
On a rare occasion a newly passed law needs a statement of implementation by the president. For example, President Washington was directed by Congress to create Thanksgiving Day as a national holiday. His executive order doing so stated their request and his selection of the last Thursday of November as that day. An executive order implementing a single, recently passed (within weeks), law of Congress is constitutional. Very few of the executive orders of today fit the George Washington and constitutional model.
During the 20th Century the temptation for presidents to restrain themselves to this model was too great. Beginning with Theodore Roosevelt, the Progressive Era decidedly tried to go around the Constitution. Presidents, fearing rejection of Congress on something that they wanted, and not having a specific single act of Congress authorizing their action, began gluing pieces of ancient laws together—some decades old—and initiating an executive order from these. Congress should have proceeded with impeachment as presidents were usurping their clear constitutional jurisdiction but didn’t, largely because members of Congress, based upon party loyalty, protected their own constitutional abuser.
It was Richard Nixon, during the 1970’s, that found the burden of gluing pieces of ancient laws together to make an executive order too much work and simply issued them without it. Impeachment should have followed on this issue alone but didn’t. Presidents from his time to ours have continued the practice of making executive orders simply presidential decrees as dictators do, effectively creating new laws without any pretense of actual constitutional authority. Each expansion of executive power, often with tortured logic as in Obama’s Executive Amnesty, becomes the rational for even greater expansion by a future president under the guise of past practice.
So it comes to this. Democrats defending the President cannot use the word constitutional because his action is decidedly not. They confuse the public by using the word legal because previous perversions of previous presidents have made it “legal” because Congress did not protect its sole right to make all federal law by voiding all EO’s, at the time, not consistent with their law-making jurisdiction.
Democrats remind us that Ronald Reagan, George H. W. Bush, and Bill Clinton have all done the same thing. This is only partially correct. That each have made law by executive order is true but none have done so openly and defiantly in the face of opposition of the leadership of both houses of Congress and in defiance of existing law. None did his executive order after the American people soundly rejected his policies in an election no more than three weeks before. And none did an executive order after having told the American people 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. Obama’s perversion of executive orders is one of the worst and must not be allowed to stand as the new model for future presidents or Congress will have effectively voided itself as the sole law-making authority.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.
Dec 1, 2014 | Constitution, Immigration, Liberty Articles
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.
Nov 17, 2014 | Constitution, Immigration, Liberty Articles
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.
Nov 11, 2014 | Constitution
Harold Pease, Ph. D
Last month President Barack Obama designated 646,000 acres within the San Gabriel Mountains northeast of Los Angeles, a national monument despite the lack of support for the move in the House of Representatives. Nor were the local communities surrounding the monument that would be impacted by the move consulted, outside environmental special interest groups. The decision impacts 70% of Los Angeles County and sizable parts of the Angeles and San Bernardino National Forests and one-third of the drinking water of Los Angeles. Obviously the change would affect the outlining cities.
According to an October 10, White House press Secretary news release, this is his 13th such designation in his nearing 6 years as president. In September he created “the Pacific Remote Islands Marine National Monument in the south-central Pacific Ocean—the largest marine reserve in the world,” that, as a result, is now “completely off limits to commercial resource extraction.” With this acquisition of 260 million acres of land and water, he is credited with having acquired more property, since presidents began doing so, than any other President in our history.
A big issue is the constitutionality of grabbing large sections of land by the signature of one man only. What does the Constitution say? The Founders understood that the size of land holding was proportionally related to the perceived size of the federal government and they intentionally wanted that perception small. The Federal government was permitted to have but 10 square miles for a federal capital. The only other land that they could acquire had to be for military purposes as specified in the common defense clause of the Constitution, Article I, Section 8, Clause 17 which reads: “and to exercise like Authority over all places purchased by the Consent of the Legislature of the State in which the same shall be for the Erection of Forts, Magazines, Arsenals, dock Yards, and other needful Buildings.”
Any new acquisition, outside the capital, had (1) to be purchased, (2) have the consent of the State Legislature where the land exists, (3) and be for military purposes. As all land acquisition powers are in Article I of the Constitution, with the legislative branch, the president was left out of the process. None of these constitutional requirements were met with respect to any of the national monuments acquired by President Barack Obama. None were purchased, none received the consent of the State Legislature, and none are used exclusively for military purposes. Nor have there been any additional amendments to the Constitution authorizing additional federal ownership of land as required for any additional federal power. Constitutionally there exists no federal land, or Bureau of Land Management, or even public land.
One might argue that most, if not all, of the monuments were already on federal land having been acquired when the federal government refused to give to new states all the land that went with statehood when they transitioned from territorial status. That is true. The federal government through this process came to own about a third of the United States. That late 19th Century leaders fraudulently acquired the property in the first place, it does not follow that present leaders should expand on the fraudulency. Constitutionally all land within state boundaries, unless acquired through the three stipulations noted in the Constitution, belong to the states—no exceptions.
The White House memo announcing the creation of the San Gabriel Monument cited the Antiquities Act of 1906 as the authority to do so and President Theodore Roosevelt as the first to use it in his creation of the Devils Tower National Monument in Wyoming the same year. It also noted that all previous presidents since 1906 used it except Richard Nixon, Ronald Reagan, and George Bush. Sadly they were the only ones who followed the clarity of the Constitution with respect to federal ownership of property. That the federal government has created national monuments unconstitutionally on what are to be state lands, or that both political parties have ignored this part of the Constitution for over a hundred years, does not make federal confiscation now constitutional.
Prior to Obama, George W. Bush acquired more property than previous presidents: 140,000 square miles of Hawaiian Ocean in 2006 followed thereafter by over 200,000 square miles in three new Marine National Monuments 1) Marianna Trench, near Guam 2) a string of islands far south and west of Hawaii, 3) and Rose Atoll, an island east of Samoa. These acquisitions and those of Obama are gigantic. If this process continues is it not likely that the federal government may come to own far more than the third of the landmass that it now owns—perhaps all?
Nov 4, 2014 | Constitution, Liberty Articles
Harold W. Pease, Ph. D
Earlier this month President Barack Obama said that, although he was not on the ballot, “make no mistake, these policies are on the ballot — every single one of them,” referring to Democratic senators refusing to allow the President to campaign with them in their states. A few days later he added, “The bottom line is though, these are all folks who vote with me; they have supported my agenda in Congress.” He referred to them as “strong allies and supporters.” Essentially he made it clear that a vote for a Democrat, any Democrat, is a vote for Obama and his policies. This was so six years ago when the unpopular George W. Bush was president as well and is so in every election when a president is not on the ballot. Mid-term elections are always a reflection of a presidents policies. Few, if any, Democratic incumbent members of the House or the Senate have voted less than 80% for Obama.
My point, mask it however they wish to keep unhappy Obama Democrats with their party. A vote for the Democratic Party is a vote for Barack Obama. It is also true that a vote for every member of Congress is a vote for or against holding to the Constitution as intended. Like the president the Constitution is always on the ballot.
So, what constitutional principles are on the ballot? Let us begin with the reality that all governments like to grow. The more decision making power they assume the less is left at lower levels of government or to the individual. Governments view everything in a way to extend their power. Either the government comes to control the people or the people control it. The Constitution advocates limited government. Personalizing it, “Are you voting for people, parties, propositions, or measures that grow government?” To prevent the growth of government all power not listed in Article I, Section 8, or identified in a subsequent amendment, was left with the states and the people (Amendment 10). “Is your national candidate or party willing to stay within the limits just referenced?” If not you must dump him or her or, at the very least, pick the one least likely to grow government.
Does your local candidate understand that part of his/her duty is to resist federal growth and will do so, and likewise, resist the tendency to grow his own office as well? Will he turn down federal “bribe money” to enhance federal control over local control. Will he/she work to keep decision-making power as close to the people as possible and away from federal bureaucrats?
Remember Thomas Jefferson said, “The best government is the least government.” It’s not that there is no government. You govern yourself constantly rather than allowing others to do so. It used to be called freedom.
Has your candidate offered any evidence that suggests that he/she supports the free market that made us the most prosperous nation on earth and in history and eliminated poverty in American for those able and willing to work? Will he/she work to protect the free market from the mountains of new rules and regulations emanating from federal and state regulators suffocating it, or are they more likely to add to them?
What is his/her stand on fiscal responsibility? Somebody has to repay our approaching 18 trillion dollar debt—eight of which accumulated under President Obama and his party. Someone has to stop the three to four billion dollar additions per day to this national debt before we fiscally collapse. Which of your ballot options is most likely to advocate solutions that reduce these amounts?
The free market, limited government, and fiscal responsibility are basic constitutional principles. The only type of federal government authorized by the Founders was decidedly a limited one. The Founders overriding philosophy of government, if it could be penned into one sentence, was, “never elevate to a higher level that which can be resolved at a lesser level.” This applies to city, county and state governments as well. When these limitations are not understood, the federal government is constantly tempted to steal authority from the states or counties as per its confiscation of environmental, health, and education issues, which are constitutionally 100%, state issues. States should use the Tenth Amendment to protect themselves from federal intrusion. Is this the understanding of the people that you choose to place in authority over you?
City, county, and state leaders, you are our buffer from the federal government taking from you your areas of jurisdiction. They have done so for many years because you were complacent in it, or, ignorant of the Constitution. You have placed us in the position that your understanding of the document must be known before we place you in power. Our only hope now is to find leaders with Constitutional fire in their bellies to undo the precedents that you have created. All issues on the city and county level are directly or indirectly constitutional issues. We expect you to know, and abide by, the document that you swore to uphold.
If the President’s incumbent Senators running for office are running away from him and attempting to deceive the people that what they offer is different from his, perhaps we should be running from them. The fact is that neither they nor their Republican opponents have followed the Constitution very closely. Still, the Constitution is on the ballot every election and we the voter must find those candidates that will keep their election pledge to “preserve, protect and defend” it.
Oct 27, 2014 | Constitution, Liberty Articles
By Dr. Harold Pease
Recent headlines indicate that President Barack Obama is sending the National Guard to Liberia to help fight the spread of the Ebola virus. Their assignment, according to Obama in a letter to House Speaker John Boehner, is to “augment the active forces in support of Operation United Assistance, providing humanitarian assistance and consequence management related to the Ebola virus disease outbreak in the West Africa region.” Specifically that means building 17 Ebola treatment centers housing 100 beds each. They would be joining the nearly 4,000 regular troops already slated to go. Why reservists, with so little training, were being sent rather than just regular soldiers, he did not say. Speculation runs high that some of our soldiers will be handling “infected blood samples,” a potentially dangerous assignment.
All this in an executive order signed by one man October 16, without congressional approval or even a measure of public sentiment as to whether we want our soldiers potentially bringing home the deadly virus, but these are questions for another time. My concern now is the constitutionality of the process.
Let us be reminded that Article I, Section 8 of the Constitution left all war-making powers: raising armies, providing for a navy, and declaring, funding, and maintaining war with Congress alone. Defending the country is their prime responsibility. The President functions as Commander in Chief of the armed forces after Congress authorizes engagement outside immediate response to an attack. Remember, George Washington was strongly criticized for not defending the settlers from Creek Indian attacks. He argued that Congress had not authorized war on the Creeks thus he could not perform a military function until this was done. Today the President sends troops wherever and whenever he pleases and only asks Congress when he cares to.
But one rightly argues, this is not a war and we are not under attack in the military sense so the president has no Commander and Chief authority. If so Congress alone should decide whether we support volunteers in Africa. The enemy is a virus, not another nation or people, and this is a humanitarian effort. This argument too must be saved for another time.
My concern is the President’s emasculation of a portion of the Constitution if he sends a single national guardsman to Liberia. The militia is not and never has been the army. It is the people, the citizens, and in the 2nd Continental Congress, even before the Constitution, the militia was defined as every able bodied male 17 years of age and older. In 1903 the Dick Act revisited the topic keeping the original definition as Part A, the unorganized militia, and organizing a portion thereof into the organized militia, the National Guard, as Part B. It was to remain a separate body from the army and navy and retained its distinct internal function. Notice the wording in the Constitution authorizing Congress, “to provide for calling for the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Only Congress can call it forth. Its three functions are to execute the laws in the United States, suppress insurrections within our country, and to repel invasions to it. How can the organized militia (The National Guard) do any of these functions, for which it is specifically charged, if in West Africa? Unlike the army it is allowed to execute the laws of the union and suppress insurrections. The Posse Comitatus Act forbids the military these internal functions.
The National Guard was never to be thought of as merely a pool of reserve troops for the army. Impeachment proceedings should have been threatened against President George W. Bush when he treated them as such deploying 100,000 of them in 2005 to Iraq and Afghanistan, when enlistments were not enough, rather than asking Congress to restore the draft. This alteration of the Constitution by blatant ignorance is serious, by intent is treasonous. The National Guard was simply an easy target and no one from either party objected. It cannot perform its constitutional duty outside the United States. President Barack Obama’s mimicking the practice, as he did so much of the Bush foreign policy that he loved to condemn, by one-year deployments of Reserve troops in Afghanistan through 2014, indicating that the Constitution continues to be violated by Democrats as well.
The rational for a militia separate from the army is very simple. The first line of defense from unwanted aggression is oneself, followed by local law enforcement agents, followed by the National Guard (guarding the nation from within), followed by the military. As in soccer the National Guard is the goalie. Should invasion occur while the militia and the army are overseas we would be defenseless; by doing so both recent presidents have unconscionable left, or are leaving, us vulnerable and without a goalie.
The Constitution belongs to everybody and to generations yet unborn. It should be restored to its proper place as the item of first reference when the federal government does anything—not political party. Hopefully Democrats will remind the President of his “Bush-like” damage to it. If Congress does give proper authorization for use of the armed services for a purely humanitarian mission in Liberia, it should purposely exclude the National Guard and openly deny its use outside the borders of the United States. Actually, placing them on the border “to repel invasions” would be a real constitutional function.
