Feb 11, 2014 | Constitution, Liberty Articles
By Dr. Harold Pease
So what if the President does executive orders! Did not prior presidents do the same thing? Yes and no! George Washington did 8, John Adams 1, Thomas Jefferson 4, James Madison 1, James Monroe 1, John Quincy Adams 3, and Andrew Jackson 12. The first seven presidents totaled 30 executive orders over forty-seven years. The most recent seven presidents Barack Obama 168, George W. Bush 291, William J. Clinton 364, George Bush 166, Ronald Reagan 381, Jimmy Carter 320, and Gerald R. Ford 169 totaled 1,859, over forty years—sixty-two times as many. Obviously something has radically changed.
A review of the literature shows that, in fact, Barack Obama has fewer executive orders than most and proponents of him are quick to make this distinction. They also convey the idea that all executive orders are similar and constitutional unless undone by Congress or declared unconstitutional by the Supreme Court. These ideas are easy to dismiss. Rarely does Congress undo an executive order because the president’s party runs interference. Moreover, virtually no executive orders are declared unconstitutional because personal damage to someone (not the Constitution) has to be demonstrated and those damaged must be willing to pursue a legal course for several years before their case reaches the high court.
That all executive orders are similar is the biggest fallacy and the one most perpetuated by the establishment media. Rarely do they share the different types of executive orders as I do here. 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 is to execute the law of the legislative branch, not make it himself.
A few laws of Congress need 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, or constitutional model.
Nearing the end of the 1800s 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 threatened impeachment as presidents were usurping their clear constitutional jurisdiction but didn’t, largely again, because of political party.
It was Richard Nixon during the 1970’s that found the burden of gluing pieces of ancient laws together too much work and 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 review and unconstitutionally usurping the powers of Congress. The normal wordage now used: “By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:” is designed to sound official but it is simply made up. Added phraseology “as President,” or “by the Constitution” or, “as Commander in Chief of the Armed Forces” still establishes no specific authority.
The Founding Fathers’ concept of separation of powers has been heavily altered the last fifty years. The Constitution allowed only the Legislative Branch to make federal law as noted. A law’s review by 536 individuals (435 members of the House, 100 Senators and 1 President) served as a filter for bad law as only one bill in thirty survived the rigid scrutiny of both branches and bore the signature of the President. Today we need to reject the executive order process that increasingly allows the executive branch to replace Congress as the principal law-making branch.
This is why Barack Obama’s executive orders differ from past presidents and is far more dangerous. In his 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 executive order process, the President makes half as many laws (decrees if you prefer) as does the Legislative Branch—about three a week. The practice is killing liberty.
Jan 31, 2014 | Constitution, Liberty Articles
By Dr. Harold Pease
In listening to the President’s State of the Union Address one would think that he actually has the power to do what he says should be done. He eloquently suggested a federal role in: curbing obesity, making the college opportunity available to all middle class Americans, partnering with local government “from homes to marriage equality,” and improving transportation. Added to the list was streamlining bureaucracy, building two “hubs” for economic opportunity (he wanted Congress to add five more) presumably in places like Detroit, unleashing funding for inventions, and preserving more “pristine federal lands”(code for confiscation). He wants new emission standards for trucks and enlarged federal standards for air quality, new jobs training programs, and a restoration of unemployment insurance. In education he wants his “Race to the Top” program accelerated and high school curriculum redesigned. He wants to impact the work place more (whatever that means), raise the minimum wage to $10.10, create “My RA’s a new savings bond for everyone” and IRA’s on the job.
The list went on and on just as it does for every president Republican or Democrat, but what was different this time was the threat of his bypassing Congress with the use of the “pen” (an obvious threat of the use of executive orders) where he felt he could. He promised to unilaterally raise the minimum wage for federal employees and his threat to do it, alone, must be taken seriously because he did just that on immigration and Obamacare law. We have never had a president who boldly promised to make law if the Congress failed to do so.
Unfortunately most, if not all, of these things are not in Article II of the Constitution nor have they been added by way of amendment as outlined in Article V of that document, thus they are unconstitutional. Presidents, in their thirst for power and /or proclaimed expediency, have empowered themselves to the point of “kingship” with their worshipful, unchallenging, party followers (whether democrat or republican) quite willing to look the other way as government grows beyond its ability to be constitutional or efficient. At any time he could remind the people of his real constitutional powers but he will not as that would drastically reduce his power that is beginning to look limitless.
We must return to the Constitutional powers of the President as identified in Article II. As we list these powers attempt to match the State of the Union requests wherein he suggests that he might have a role. Under the Constitution the president has but eleven powers. Let us identify them: 1) “Commander in chief of the army and navy of the United States” including the militia when called into actual service of the United States; 2) supervise departments (cabinet), each presumably established by the Congress (George Washington had but four); 3) grant reprieves and pardons; 4) make treaties with the help of the Senate; 5) with Senate help appoint positions established by law such as ambassadors, ministers and judges; 6) fill vacancies “during recess of the Senate;” 7) make recommendations to Congress on the state of the union; 8) convene both houses on special occasions and handle disputes with respect to convening; 9) receive ambassadors and other public ministers; 10) make certain that “laws be faithfully executed;” and, 11) “commission all the officers of the United States.”
Simply stated the president has two supervisory powers over existing organizations and two shared powers with the Senate, otherwise he pardons, recommends, appoints and entertains. That is it! Notice the absence of power to make any rules and regulations on us. This is the job of Congress alone.
Obama threatens a role by way of executive order, the use of the pen to accomplish the items in his address, as kings or dictators do. The term executive order is not found in the Constitution. Executive orders were initially nothing more than inter-departmental communications between the President and his executive branch with him requesting some action on their part. Constitutionally they have no law making function. Congress must reign-in any executive that uses them to make or alter law. Article I, Section I clearly gives only Congress law making power. Impeachment is a proper response for any president who subverts or threatens the separation of powers doctrine, as his oath requires that he “preserve, protect and defend the Constitution.”
Jan 27, 2014 | Liberty Articles
By Dr. Harold Pease
The list of political scandals runs long in the Obama Administration, unusually long, the multi-year Fast and Furious botched gun-running operation in the Justice Department, the IRS wasting obscene sums of money on staff parties, also its having targeted Tea Party organizations for extra scrutiny, the Benghazi affair in which Ambassador J. Christopher Stevens and three other Americans were killed during a terrorist attack in Libya, government’s monitoring of Associated Press phone records, the NSA collecting and storing electronic message on all U.S. citizens, the disastrous Healthcare roll-out and etc. One thing is common. No one is fired!! No heads roll! Those at the top are protected, defended and sometimes even promoted. Critics see a pattern in Mr. Obama’s management style—no one is punished.
Not so with the military. The president with probably the highest record in avoiding self-blame, or holding his leadership accountable, also has the highest record for firing his generals. Something does not feel right. This story broke in mid-October all over the Internet but was largely neglected by the establishment press. Dianne Sawyer of ABC News had the most complete report of the few that even covered it. She reported that two-star Major General Michael Carey, with 35 years of commendable service and responsible for 450 intercontinental ballistic missiles in silos in the northern plains, was fired for “loss of trust and confidence” and “personal misbehavior.” No further detail was provided. He was the ninth general axed by the Obama administration in as many months.
About the same time President Obama relieved of command the second in command at U.S. Strategic Command, Vice Admiral James Giardina, “following a criminal probe into his potential use of counterfeit poker chips at an Iowa casino.” The firing of both generals was confirmed in short stories ran by both AP and Fox News but few additional details were provided. As reported by ABC “these officers have some of the highest security clearances you can get and have been in charge of the nations most sensitive nuclear arsenals.” Certainly Congress should be asking some big questions of the Administration respecting both generals sudden, and strange, fall from grace.
Three of the nine generals relieved of command have expressed opinions opposite the Administrations on Benghazi. General Carter Hamm, United States Army in charge of the US African command, stated that the Administration “lied about not having reinforcements in the area on that night.” Rear Admiral Charles Gaouette, United States Navy, was in charge of the Air Craft Carriers in the Mediterranean Sea with respect to the Benghazi debacle and in testimony, upon cross-examination, admitted that he could have had the aircraft launched had he been told to do so. He was removed for making “racially insensitive comments and abusive leadership.” Major General Ralph Baker, United States Army, commanded the Joint Task Force-Horn at Camp Lamar, Djibouti, Africa said that his attack helicopters could have made it from his location to Benghazi in time. He was relieved of command “for groping a civilian.” According to the Free Patriot no assault charges or sexual misconduct charges were filed with JAG.
Brigadier General Bryan Roberts, United States Army was relieved of command for adultery. Sources suggest that while adultery “is still on the books in the United States Code of Military Justice, it has rarely been used since President Bill Clinton’s indiscretions.”
In early spring 2013, two Marine Corps generals were relieved of command for “not providing proper force protection” in Afghanistan from a Taliban attack in 2012. They were Major General Gregg A. Sturdevant, and Major General Charles M.M. Gurganus. No explanation was given for what consisted of proper force protection.
Lieutenant General David Holmes Huntoon Jr, United States Army was forced into retirement for an “improper relationship” according to The Department of Defense. Nothing was released as to the nature of the improper relationship.
The Navy, alone, has fired at least 16 commanders of less rank in 2014 alone. The ABC Sawyer report saw this as good as it improved the moral character of the military. Missed completely is the point that the Obama administration may have other motives—especially Benghazi—for these early retirements. Some critics see this as Obama weeding out commanders less friendly to his purposes—in short a purge.
In light of the observation that no heads roll in the numerous Obama scandals why are so many rolling in the military where no serious wrongdoing can be documented? Reasonable people ask why? As in George Orwell’s Animal Farm, Napoleon may be building his own loyal army. Where is Congress and the establishment media on this story?
Jan 20, 2014 | Constitution, Liberty Articles
By Harold Pease, PH. D
The U.S. Senate did not consider itself in recess on January 4, 2012, when President Barack Obama filled four Senate vacancies. So argued Senate Minority Leader Mitch McConnell before the United States Supreme Court, who has been adjudicating the possible constitutional violation of the President’s actions the past week. Article II, Section 2, Clause 3 clearly reads: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate….”
The four vacancies were three seats on the National Labor Relations Board and one to head the new Consumer Financial Protection Bureau. The one that was most offensive was the latter coming right after the Senate blocked action on that nomination but the President in what appeared to be “in your face” appointed him, Richard Cordray, anyway.
The rational for the constitutional clause was simple and housed in Article I, Section 4, Clause 2. Congress was initially required to “assemble at least once in every Year, and such Meetings shall be on the first Monday in December, unless they shall by Law appoint a different Day.” The likely reason for December was that for most, the winter month was a relaxed time especially for planters and merchants who might be able to serve. It also tended to limit Congress’s actual meeting time to about three weeks because everyone wanted to be home for Christmas. Then too, those who served for a few weeks could return home the rest of the year to earn their own living. As such, an important appointment might not be filled for months until Congress could reassemble, hence, the wordage allowing the President to fill the vacancy temporarily, which was to expire “at the End of their next Session.”
The national government was never to be the big government. All power not listed in the Constitution was to be left to the states or to the people as noted in Amendment 10. Having Congress meet year-round would have been a foreign idea to the Founders. How could they “really” represent the people if they lived removed from the people in a capital, hundreds, often thousands, of miles away most of the year? Amendment 20 changed this part of the Constitution when the Democratic Party assumed control in 1933 of both the executive and legislative branches of government and wanted a full-time legislature to implement Franklin D. Roosevelt’s many changes; all of which aimed at making all or most power flow to Washington D.C. and away from the city, county and state where it was constitutionally placed. The era of big government mushroomed.
Alexander Hamilton saw the disputed clause in the Constitution for what it was, to provide an alternative method of appointment that would allow “without delay” the filling of vacancies during periods of Senate absence—nothing more—so that the Senate need not be in session continually (The Federalist Papers, ed. Clinton Rossiter, New York: New American Library, 1961, pp. 409-410). Certainly, the rational for a shared power with the President diminished when Congress started meeting year round and is today in recess only a few days.
Today the minority party fears going into recess because the opposing dominant party will make “objectionable” appointments while they are away. Senator Harry Reid devised gimmicks to keep the Senate in session continually to squelch George W. Bush’s recess appointments. The Washington Post reported on January 5, 2012, how this was done. “Starting in Nov. 2007 through the end of Bush’s presidency, he ordered the Senate to meet in pro-forma sessions, or short meetings, over the holidays and traditional summer and spring recesses. No official business was conducted during the brief sessions and the move prevented Bush from making any recess appointments through the end of his presidency.” Now the Republicans do the same thing to the Democrats and they do not like it either. In an attempt to break Republican opposition to his appointments, Obama appointed the four mentioned above anyway and earned the retribution of even the left-leaning Washington Post who said: “President Obama pulled a fast one.”
Still, the Senate maintains that it was not in recess when Obama made his appointments. That is true in the same measure as when Reid said that the Senate was never in recess during Bush II. Such a time, January 4, 2012, was selected by Barack Obama to make the controversial appointments and argue that the Senate was not “really” in session. Technically he was correct and the case may be made that they only pretended to be. Still, this is not the call of the Executive Branch. When the Senate says that it is in session it is—even if it has decided previously not to conduct any business, as it had between December 27, 2011 and January 23, 2012.
Whether ethical or not the fact remains that the Senate, in implementing pro forma gatherings, is showing that it intends to be considered as being in session. The Constitution allows the legislative body to define when it begins and ends and it has done so. To allow the President to do so instead would, in effect, give it a measure of supervision or authority over the legislative body and thus damage the concept of separation of powers so carefully crafted by the Founders.
So, if the Supreme Court supports the Constitution as created, it will announce next June that the President has over extended his authority. If not, it will further weaken the separation of powers philosophy so critical to freedom and the Constitution.
Jan 10, 2014 | Constitution, Liberty Articles
By Harold Pease, PH. D
Anyone with but a rudimentary knowledge of the Constitution understands that it is designed to limit the growth of the federal government and it begins with the most essential ingredient—separation of powers. Congress makes all the law on the federal level, the President executes the law, as Congress made it—not as he arbitrarily wants it to be, and the Supreme Court adjudicates the law that is contested. Quite simple!! Uncontested by both political parties until now!! This has been the constitutional way since George Washington and should remain so until a new amendment to the Constitution alters the Constitution. Until than it is “sacredly obligatory upon all,” as George Washington once said.
Enter Barack Obama’s numerous (Fox News says 23, National Review says 14) executive changes to ObamaCare, which have greatly altered the 2700-page law, and if left unchallenged, will give future presidents an open door to change whatever they wish in any law they wish. Actually the only constitutional authority of a president is to veto a law sending it back to Congress to override his veto if they have the votes. Altered laws, “on the fly” so to speak, are new laws and as such effectively undermine, even obliterate, the function of the legislative branch. The Constitution prevents the president from serving as all three branches as this president is doing. Such is the recipe for an imperial president, the end of limited government, and the end of a republic.
Seeking to stop this executive tyranny and to discourage the President from violating his own law, 11 state attorney generals wrote Health and Human Services Secretary Kathleen Sebelius that the President, by assuming law-making powers, was not following the Constitution. The letter was initiated by West Virginia Attorney General Patrick Morrisey, and was signed by state attorney generals of the following sister states: Alabama, Georgia, Idaho, Kansas, Louisiana, Michigan, Nebraska, Oklahoma, Texas and Virginia. Because Congress had faltered in protecting her soul legislative jurisdiction, they felt compelled to step forward to protect the Constitution.
The seven-page letter read in part: “We support allowing citizens to keep their health insurance coverage, but the only way to fix this problem-ridden law is to enact changes lawfully: through Congressional action.” Moreover, “We are deeply concerned that this Administration is consistently rewriting new rules and effectively inventing statutory provisions to operationalize a flawed law.” The Attorney Generals’ letter continued, “The illegal actions by this administration must stop.”
Of the 14-23 Obama executive rule changes made since ObamaCare inception the four most notable were: the delay of the individual mandate, OPM waiver for congressional staffers (this exempts members of Congress and their staffs from the law that they created for you and I, the Small Business Exchange Delay, and the Pre-Existing Conditions Insurance Plan Waiver. The most recent change came after more than five million received cancellation notices from their insurers because ObamaCare made it too difficult for them to continue coverage, this despite the known falsehood used to promote the forced healthcare plan made by Obama, “If you like your doctor you can keep him” and, “If you like your healthcare plan, you can keep it.” In this change Obama, unilaterally announced that those who had lost their insurance could have it back for a year.
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.
Noticeably absent this time in protecting the Constitution with respect to the 200-plus year process of making law is the Democratic Party. 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 him? 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.
Jan 5, 2014 | Constitution, Economy, Healthcare, Immigration, Liberty Articles, Take Action, Tea Party
By Harold Pease PH. D
The year has shown monumental efforts by some to get back to the Constitution. An ever-growing portion of the largely distracted public is finally awakening to the fact that they are losing freedom and that both parties are responsible. Let us review those monumental moments of 2013 each of which have been covered extensively by us in previous columns.
We began the year with what was called “successionitis”—a desire of some of the people to leave the Union—not seen in the United States since the Civil War. Fifteen states posted over 25,000 signatures with Texas posting 116,000 by itself. The President closed down his site to further counting. With his refusal to allow further counting and the establishment media’s refusal to continue coverage, the issue was squelched. Discontent with the federal government not following the Constitution and the resultant loss of freedom (especially cited were NDAA and TSA) were said to be the reasons for the backlash by those participating.
This was followed by the 2013 Sheriffs’ Rebellion wherein by mid-February, 336 elected county sheriffs had signed pledges that they will not enforce any unconstitutional gun control laws or executive orders—seventeen of them in California. Nine states refused to comply. The Utah Sheriff’s Association made the strongest statement aimed directly at the President. “We, like you, swore a solemn oath to protect and defend the Constitution of the United States, and we are prepared to trade our lives for the preservation of its traditional interpretation.” Wyoming’s new “Firearm Protection Act,” threatened federal officials with up to five years in prison and $5,000 in fines if convicted of attempting to enforce unconstitutional statutes or decrees infringing on the gun rights of Wyoming citizens. Kentucky has enacted something similar and reportedly, Missouri and Texas have similar legislation pending.
Also in February thousands gathered from California to New York and from Florida to Alaska, on February 23, to remind the federal government that the “right of the people to keep and bear arms shall not be infringed.” They were saying, in effect, “Back off Mr. President with your executive orders and Congress with your proposed new laws, you are on sacred Constitutional soil.” The establishment press was weak, almost non-existent, in its coverage. The 124 cities participating largely had to enter their own pictures of their event on the Internet to get coverage—so weak was press response. Seventeen such rallies were held in California alone, a state already sensitive to the loss of gun right freedoms and threatened with more of the same by a largely hostile democratically controlled State Legislature.
On March 6, 2013, one man stood on the Senate floor arguing for 13 hours, even against his own party, to prevent the President’s use of drone strikes to kill Americans on U.S. soil. Without Tea Party support Rand Paul would have been alone. The phrase, Stand With Rand” became popular overnight. Senator Paul wanted assurance from the President that he would never do this to us as he had Americans in other lands. The assurance finally came the next day from Eric Holder but it was far from convincing.
Summer brought the “Gang of Eight” and immigration reform that had every appearance of just another amnesty. S. 744 did nothing to improve border security or immigration enforcement and the House, resisting the pressure to be railroaded, has chosen not to act upon the Senate’s favorable vote until 2014. The Tea Party Patriot movement played an important role in revealing it’s numerous defects.
The year brought an outbreak of media coverage of the National Security Administration’s, NSA, spying on over 100 million Americans, recording their telephone conversations, emails, and other electronic messages for the last seven years. Attention turned to, “Whatever happened to congressional or judicial oversight?” Included in the revelations was the 35 years of FISA court’s special surveillance requests on 34,000 citizens, with virtually no denials. This has caused many to look to the Constitution for protection from their own government. They asked, “Is government spying on its own citizens constitutional?” Edward Snowden said no and intentionally shared with the world that which our government was doing to us and everybody else. He helped give us focus on our government’s serious violations of Amendments I, IV, V and even VI. To millions he was a hero.
In the Fall of the year, Barack Obama, by himself, in total defiance of the Constitution Art. I, Sec. 8, Clause 11, almost took us into war by his intention to, send a “missile across the bow of a Syrian ship.” He was supported in his doing so by Secretary of State, John Kerry and Republican power Senators John McCain and Lindsey Graham. At least 60% of Americans did not support another no-win war and the President backed down.
In November Senator Ted Cruz stood for 21 hours and 19 minutes, once again mostly by himself with but Tea Party support. Our national debt at 17 trillion dollars, the highest in our history, with Obama responsible for seven trillion of that number in the last five years, was central to his stand. The Republicans had not shut down the government as the media said. Instead they fully funded the government with the exception of Obamacare. More and more people are realizing that the U.S. is going to experience a fiscal collapse unless we return to fiscal responsibility—a core principle of the Tea Party movement. Senator Cruz opposed the debt-ceiling rise as another always follows.
More than half of the states showed their resistance to Obamacare by opting out of exchanges. Resistance to it mounted exponentially when the government website did not work as promised and when the people realized that the President knowingly sold his forced care plan under the false premise that they could keep their doctor and their existing healthcare plan. Most Americans now oppose it.
Seemingly those who damage the Constitution always win. But this year, 2013, had many victories. Let us remember with gratitude those who did stand for freedom and remove from power those who did not. Happy New Year my liberty loving friends!!
