Pro Logica

November 25, 2011

Obama, Boehner and the Constitution

The recent Congressional law concerning appropriations, borrowing and the deficit has pushed the deficit onto a super committee.  Many pundits, myself included, were fairly confident that it would never accomplish its goal especially when the super committee’s members were appointed.  This law required unpleasant cuts in spending for both political parties, hopefully ensuring a failsafe super committee.  However, it did resolve the looming contradiction between Federal spending and borrowing.  One facet of this Congressional mess was the meeting requested by the Speaker of the House, Mr. Boehner, with the POTUS, Mr. Obama.  While I have no objection with the POTUS and members of Congress meeting to talk about policy–Constitutional interpretation is never fixed and particular outcomes of enacted laws may be explored and debated–this meeting was particularly egregiously wrong from the standpoint of the U.S. Constitution.

The pre-history of this meeting was a lengthy discussion/debate in the House dealing with the above concerns.  No workable bill was forthcoming  primarily due to the mulishness of the members of the two major political parties.  With this background and time for action becoming worrisome, (the contradiction between spending and borrowing) Mr. Boehner requested a meeting with the POTUS to get an agreement that would be acceptable to members of both parties. his reasoning probably being that upon reaching an agreement, he would then convince the Republican Party members of Congress to vote for the bill while the POTUS would convince the Democratic Party members of Congress to vote for it and, also, not veto the bill when it comes time for the POTUS’s signature.

The relevant circumstances from the point of view of the Constitution are these:

  • The discussion in the House was stymied.
  • There was very little dissent among the Republican Party members of the House; the dissent was over political party ideologies.
  • The Republican Party had control of the House and could have passed a resolution without any Democratic Party members support.
  • Doing so would assure defeat in the Senate.
  • The Speaker of the House requested a personal meeting with the POTUS expressly and publicly for reaching an agreement between themselves.  This agreement would raise the borrowing limit and specify deficit reductions.

Constitutionally, this last statement was the invalid tactic since it was an actual request by Mr. Boehner to have Mr. Obama set aside his Constitutional duty as POTUS and, instead, use his office as a bully pulpit to convince recalcitrant Democratic Party members of the Senate to vote for a largely Republican Party bill.  This hints at a possibility that Mr. Obama knew he could never convince the Senate Democrats.

Now here is how I would have handled  the situation.

  • First (a no-brainer), I would agree to the meeting and set up a date to meet in the oval office.
  • Second (after the social niceties), I would tell him that I intend to make an initial small speech and will record this meeting beginning with my speech after which he (Mr. Boehner) can decide if he would like to continue the meeting,
  • Third (my initial speech),  “I have been following the proceedings in the House and understand your frustrations and I realize that it is those frustrations which have led you to seek this meeting; so, before anything is discussed between us, I should make clear a most important parameter which will govern my statements during this meeting.  I have been elected by the people of this country as President, and, as such, I have taken an oath to uphold the U.S. Constitution and this is my primary responsibility as President.  In this regard, I would be remiss in my duty to the people of this country if I were to commit myself to signing a bill which has not yet cleared the full Congress.  From this point of view, anything discussed at this meeting is essentially inconsequential  and I can only say that when a proper bill is sent to me from Congress, then and only then will I consider whether it merits either my signature or my veto.  I take this position because you, Mr. Boehner, are only one person.  If the object of this meeting is to discuss aspects of a bill that will be presented to me for my signature, where are the Senate representatives?  the Democratic House members?  Surely, you are not telling me that you represent the Senate and, really, since you cannot represent the Senate, I am more than justified in following the Constitution.  Also bearing upon the content of this meeting is the fact that the House is controlled by the Republican Party.  It is also true that under the current circumstances the House Republicans are not divided and could pass any resolution they desired; the fight you have is with the House Democrats and the Senate.  Let’s delve into the problem just a little deeper and may I point out that the borrowing cap is strictly a legislative problem, not an executive one; to wit, there are two laws on the books, one of which requires me to spend an amount of money which will not be in the treasury. In order for the treasury to obtain this money, I would have to issue a presidential directive authorizing the Treasury Department to borrow the necessary amount, but the other law puts a cap on the amount of money which the Federal Government can borrow and, unfortunately, we are at that limit.  I am left with the choice of enforcing one of these laws while not enforcing the other one.   This is not an executive problem since, in the absence of direction from Congress, I will make a decision on which law to enforce and base it upon my interpretation of the Constitution which I am duty bound to uphold.  Furthermore, the solution to this legislative problem does not impinge on any of the deficit discussions which are causing your frustrations.  Your problem, as I see it, is to solve the legislative contradiction before I am forced to make a decision and deficits have no bearing on that solution.  If you and the Republican Party manage to get a bill through Congress that include provisions to lower the Federal Government’s deficit, I can assure you that it will be vetoed by me unless one of the bill’s provisions authorizes a steeply graduated income tax on incomes above three times the median wage and will last long enough to pay for the cost of both the Afghanistan and Iraq wars while Mr. Bush was President.
  • Fourth, I would then ask Mr. Boehner If he would like to continue this meeting.
  • Fifth, I will make the recording of the meeting available to the public.

My guess would be that the meeting would not continue after my speech.

November 19, 2011

A Second Thought on Congressional Term Limits

In my post Some Suggestions on Improving the Governance of the U.S.A. Part 1: Congress I suggested that Congressional representatives be limited to two terms but have come to realize that a representative’s second term will have to be financed and run while the representative is still serving HIS first term; therefore, not eliminating the possible corruptive influence of lobbyists.  A better solution is to allow a representative unlimited terms but not allow that representative to serve two consecutive terms.  Each State would also need to ban  a candidate from filing to run for office while serving as a representative.  Very important, though, are the rules for emptying a campaigner’s war chest soon after an election and not allow the creation of any war chest until after formally filing as a candidate for the elected position.

Constitutions, Laws and Equity

After ranting about the U.S. Government, its Constitution and the actions of its several parts, I imagine that it is past time to explain the underlying philosophy of governments with a constitution.

To start at the beginning I assume that people can assemble and while in their assembly, agree that among them there are enough persons of similar views that organizing themselves in a bloc might be advantageous.  When there are a small number of participants in a particular bloc, membership can be fluid since it would be of no consequence to skip any meetings of the bloc and oftentimes these blocs form and dissolve depending on common interest among the participants.  Some blocs will gather a goodly number of participants, continue to exist over a lengthy period of time and, in this process, develop  a sense of independent existence.  Over this extended existence some members (possibly natural leader types) become instrumental in keeping the rest of the members from abandoning the bloc (at this stage more rightly called a club or an organization), and the members develop a common understanding of their purpose and permitted actions; this common understanding is generally called a constitution or charter, and may be written or unwritten.  I point out that many organizations are very casual in these matters–unwritten constitutions are often fluid in their purpose and permitted actions while written constitutions often lend themselves to rather loose interpretations.  A common gambit among many organizations is to reference “Robert’s Rule of Orders” as their bible of operating as an organization.

Many large organizations use a written constitution for the justification of their individual governing policies.  The only thing that can be said about the make-up of any written constitution can probably be stated in these words, “If a statement pertains to the organization, its goals and objectives, its membership, its officers, its actions, its members actions or its property, tangible and intangible, that statement is fit to be included in the organizations written constitution.”  On the other hand, an organization’s written constitution must have a section defining how members may pass resolutions (laws, by-laws, edicts, etc.); these resolutions may name the organization, define its goals, define procedures for admitting new members and define members proper actions as representatives of the organization.  Clearly, though, a written constitution having only the one required section does not function any better than an organization having an unwritten constitution.  The primary purpose of using a written constitution for a large organization is stability, it verbalizes the organization’s governing principles so that actions by its members can be judged by both members and non-members as actions befitting the organization’s goals and objectives.  Constitutional principles are not meant to be changed since changing the constitution will usually result in an organization with changed membership.

Most nation-states are organizations with an extensive written constitution.  There is a long tradition of governing policies and these are usually found in the written constitutions of these states.  These governing policies, in most cases, are different for different nation-states but, more often, constitutional provisions are general statements which need clarification of details, such details being the proper subject of laws.  Many of these constitutions have provisions concerning the redress of grievances and fairness in application of laws, commonly called equity.  There is nothing in the make-up of organizations which require any provision of equity–if a member of an organization does not approve of one of its laws, that member may work within the organization to pass a resolution rescinding that law or the member may quit the organization.  Citizens of nation-states, often for reasons of family, traditions or patriotism, as well as laws proscribing the citizen’s movements, may not have the choice of quitting that nation-state to join a different one, hence the existence of equity sections in their written constitutions.  Equity is not synonymous with justice since justice has moral connotations while equity is strictly concerned with legality and fairness in application of laws; equity provisions in a written constitution can, in no way, guarantee justice.

Philosophically, for a nation-state, the above paragraph lays out the proper relations between a written constitution, the laws enacted by the government established by that written constitution and the rulings of that government’s section charged with deciding matters of equity.  These are: constitutional provisions always have precedent over laws and equity rulings are concerned with citizen’s complaints in the application of laws either in specific circumstances or in the relationship between a specific law and the constitutional provision underlying that law.  Unless specifically prescribed otherwise an equity ruling has no effect upon a written constitution or any laws duly enacted under the rules of the constitution.

So much for common sense.  Governments of nation-states are composed of people and these people can, and usually do,  have different interpretations of the constitutional provisions as well as of the duly enacted laws.  These interpretations can be incorporated in the government as de facto laws and invalid constitutional interpretations.  Two exceptionally egregious beliefs of the American people (this includes members of the Legislative and Executive Branches) are that SCOTUS has the authority to invalidate Congressional laws and that SCOTUS can invalidate sovereign State laws which violate ‘freedom of speech’ as defined by SCOTUS.  A very egregious de facto law observed by SCOTUS is that judicial precedence is above the Constitution.  These de facto laws cannot be deduced from any reasonable interpretation of the U.S. Constitution yet they are religiously obeyed.

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