Pro Logica

January 20, 2012

Presidential Recess Appointments

Senators and other members of the Republican Party are up in arms about the POTUS appointing three executive officers while claiming the Senate was, in point of fact, in recess when the appointments were made.  These people claim that the Senate was actually in Session since a member came to the chambers and opened a session but since a quorum was not present, immediately adjourned.

Parliamentary law requires a quorum to do any business and the Constitution in Article I, Section 5, specifically states that a quorum of each House be a majority of the members of that House, i.e. it takes 51 Senators to be present at any of their sessions in order to pass any resolution.  (Use of the word ‘quorum’ without definition indicates that the founders were well aware of the laws of proper parliamentary procedure.)  While parliamentary law says that no resolutions may be passed, the Constitution gives those present the power to order the others to attend and may even fine those who don’t come to the next scheduled meeting.  A later paragraph in the same section requires that each House cannot adjourn for more than three days without the other House’s consent.  Nowhere in Article 1 is the word ‘recess’ used, capitalized or uncapitalized.

The word ‘Recess’ is used only once in the entire U.S. Constitution and it occurs in the last paragraph of Article II, Section 2 where it says that the POTUS may fill all vacancies during a Senate Recess.  The word is capitalized but there is no definition of ‘Senate Recess’ leading to a definite ambiguity in the exact meaning of ‘Senate Recess’.  Other provisions require that the POTUS faithfully execute all laws and that the advice and consent of the Senate shall consist of two-thirds of the Senators present for specific actions that do not concern presidential appointments, but in the same sentence aver that presidential appointments must have the advice and consent of the Senate.  All in all, the pertinent Constitutional provisions represent a jumble of confusing possibilities in the matter under discussion and thus, is a perfect application of a case requiring a SCOTUS ruling–the POTUS’ v. someone from the Senate, preferably a Senate officer; this would be, very clearly, a claim involving the United States.   Granted, this case would not have a claim for monetary damages but a claim for the loss of trust in the United States Constitution would be sufficient for SCOTUS  jurisdiction.  On the other hand, the POTUS’ defense would draw on the same premise.

At this stage in the debate–it remains a debate until something definitive is resolved among the branches of government–a lot of things could happen,some good, some bad.  Some possibilities:

  • Congress successfully impeaches one or more officers.  Those impeached are removed, those not impeached remain in office.
  • No impeachments, Congress defines ‘Senate Recess’.  Officers remain in office while law dictates circumstances under which a legal recess appointment can occur in the future.
  • No impeachments, no case before SCOTUS, no Congressional definition of ‘Senate Recess’.  Situation is just as befuddled as before.
  • No impeachments, case before SCOTUS.  Ruling would not effect appointee’s status unless POTUS cows to SCOTUS.  The least possibility would be for SCOTUS not to rule, thus agreeing that the POTUS has acted Constitutionally.
  • No impeachments, case before SCOTUS but ruling includes definition or partial definition of ‘Senate Recess’.  Like above but ruling stands as de facto law until Congress acts.

No matter what happens, the appointees remain in office unless fired by the POTUS (not necessarily the appointer) or successfully impeached.

As noted in the last post, there is no guarantee that members of the U.S. Government will act Constitutionally because power begets ego and those egotistical persons involved in the decision making process will ignore parliamentary law and substitute their own beliefs for the content of the U.S. Constitution.

For what its worth, I would argue for the recess appointment being Constitutional; the appointments were necessary and the Senate was in a de facto state of recess, but strong arguments could be raised to the contrary.

January 11, 2012

Presidential Eligibility, a Parliamentary View

Over these last three years some citizens of the U.S. have been making a big to-do about Mr. Obama’s constitutional eligibility to actually serve as POTUS.  Article II, Section 1 of the U.S. Constitution devotes an entire paragraph to the requisites for presidential eligibility, and of those none are disputed in Mr. Obama’s case except for the first simple phrase:

“No person except a natural born citizen,…”

There are other parts of the Constitution which may have a bearing on a candidate’s eligibility but their primary concern is only in the realm of citizenship without any reference to a qualification termed ‘natural born citizen’.  Whatever the ruckus, the above phrase and its interpretation is at the heart of all the discussion.  Many news articles disparagingly call these people ‘birthers’ and the loudest of these ‘birthers’ seem to stem from the Republican Party’s rank and file; whatever their furor they certainly have not tried to convince members of Congress to pass a law clearly defining the term ‘natural born citizen’ but, instead, have been trying to fashion a case, unsuccessful I might add, which would be reviewed by the Federal courts for the purpose of establishing a clear definition of ‘natural born citizen’ and consequently, declaring that Mr. Obama was not eligible to be POTUS; i.e., getting the courts to do what Congress should.

Before delving into this topic more thoroughly I would like to point out that the purpose of this post is not to define “natural born citizen”, a job in which I have neither the power nor authority to do, but to illustrate some of the Constitutional and parliamentary aspects that pertain to presidential eligibility and then consider the particular situation of the case against Mr. Obama.

The parliamentary aspects are very straightforward; when a question arises about the interpretation of a particular phrase in the constitution or charter of the organization, a member of that organization’s legislative body can introduce a motion to either clarify or eliminate that phrase.  The outcome can be a formal change to the constitution, a by-law clarifying the generalized phrase, some other type of resolution which sidesteps the issue or even nothing.  Even if the question arose as a result of a dispute between members or of a dispute between a member and the organization itself, there is no need for some special method of resolving the dispute; it can be resolved among the members through the legislative process.  For most organizations this is of little consequence since an aggrieved member can just quit the organization.  Divisive disputes can arise but they are not common.  Dispute-resolution-systems (judiciaries) within an organization are hardly ever given any authority to enforce their decisions and, without enforcement authority, their decisions are no better than recommendations–the legislative body most always has the final say-so be it a true parliamentary government, a truly representative legislature in a republic or a quorum of the entire membership.  Autocracies are not parliamentary types of organizations, since the leader, be it king, dictator, caliph or whatever has the power to overrule any legislative body.  Needless to say, there is a lot of variety in governing systems and each one will have its own peculiar aspects set by its constitution and/or laws.  Parliamentary speaking, legislation trumps all aspects of organizations.

It becomes somewhat more complicated to apply parliamentary procedures to an organization like “The United States of America”, an organization having a written Constitution with many statements of a generalized nature, i.e., having terms and/or phrases in need of further definition.  Also, these statements may not necessarily be independent from one another which could cause differing interpretations; hence, the reason for the Judicial Branch of the Federal Government.  We must assume that the authors of the U.S. Constitution were not ignorant of parliamentary law  and when they used the terms ‘legislative’ and ‘judicial’  in the Constitution, these terms were referencing similar concepts from parliamentary law.  What they did somewhat differently though, was establish an independent executive division not under the control of the legislative body.  Speculation on my part considers that the establishment of an Executive Branch with a president as its head would give to the new government an important figurehead (sort of a king) around which the country could rally in times of stress or need.  While it has done that at times, it also has had the unfortunate consequence of making the POTUS, in the eyes of the U.S. voters, more important and powerful than he can actually be, often to the detriment of the governing process.  Personally, I like the idea of three branches since it lessons the chance of a divisive deadlock in the government.  Very important in the original outlook is the independent functioning of the three branches of government while remaining within the parliamentary purview described in the above paragraph.  The ultimate control by the legislature is enshrined in both, the overriding of a presidential veto and the impeachment process but in a weakened form since no mere majority of the Legislative Branch can override a veto or impeach any person.  At this point in the history of the Federal Government there is no Congressional law which has defined ‘natural born citizen’ nor has any Federal Court ruling been promulgated which attempts to distinguish between a ‘citizen’ and a ‘natural born citizen’.  This argument illustrates that the U.S. Constitution does not invalidate the normal parliamentary solution to resolving ambiguity; Congress can pass a law defining a ‘natural born citizen’ and that definition will have precedence over any other subordinate actions accomplished prior to the definition’s passage as a law and this would include any prior SCOTUS ruling.  To the detriment of the U.S. Constitution, Congress has never put SCOTUS aright since the Civil War and SCOTUS has been legislating ever since.

Since the more normal option has not been used, we must look to other provisions within the Constitution which may have a bearing on this question.  There is some clarification of the disputed phrase in the Constitution’s Fourteenth Amendment where it state’s unequivocally that a person born in the sovereign States of the U.S.  or in the territories governed by the U.S. Government is a U.S. citizen but it does not say ‘natural born citizen.  This phrasing indicates that the framers of the Fourteenth Amendment conceived of situations wherein a citizen born in the U.S. or its territories cannot be a ‘natural born citizen; however, there is no indication in the Amendment of what the difference could possibly be even though there is a strong hint that parental citizenship should be a factor.

Then there is then Judicial Branch of the U.S.  I do believe that of the three branches of the U.S. Government, the Judicial Branch has an inferiority complex, of course, completely justified.  The other two branches can be weak but never inferior.  the Judicial Branch’s inferior status stems from the constitutional limitations on its power–it has none.  The Federal Marshall system as authorized by Congressional Law to be the enforcement agency of court rulings is an agency of the Executive Branch and as such is totally under the control of the POTUS who can actually direct a Federal Marshall not to carry out any Judicial Branch ruling.  If the POTUS does permit the Federal Marshall agency to enforce a Judicial Branch ruling that enforcement becomes a Constitutionally valid action because it has the approval of two of the three sections of the Federal Government.  Even then, Congress has the option of acting.  SCOTUS, nevertheless, with the help of the inferior courts and due to the other two Branches failure to uphold the U.S. Constitution and also with the sovereign States acquiescence, has deprived the States of much of their sovereignty and unofficially changed the constitutional term ‘citizen’ to ‘citizen/special interest’.  They have changed the meaning of ‘offer a ruling about the Constitutionality of a law’ to ‘declare whether a law is Constitutional’ and have created citizen’s rights without recourse to the ‘people or States as required by the Tenth Amendment (else why would we need an amendment process).  The complaints listed here are not meant to criticize all of SCOTUS’ rulings; many of them have been well-justified.  Its just that SCOTUS has exceeded its Constitutional authority in some cases and the other two branches and even the States themselves have allowed this usurpation of their Constitutional authority.  To SCOTUS’ credit they have not yet rendered a ruling which  clarified or placed limitations on the term ‘natural born citizen’ but this doesn’t mean that they won’t try one of these times; it needs to be said that there is a Constitutional way for SCOTUS to have some influence on the definition of ‘natural born’.  A little more detail will be forthcoming when discussing the particular aspects of the accusations against Mr. Obama.

The last place to look for guidance is in the manner of electing the POTUS, which is found in the Twelfth Amendment.  In a nutshell, the process is as follows:  States choose electors. Electors cast ballots and certify the names and counts (eligibility status is tacitly implied).  President of the Senate opens the certificates. Votes for POTUS are counted.  Votes for the Vice President are also counted but separately.  These last three steps are done in the presence of the House and the Senate.  The rest of the process is concerned with tabulating the results and then determining the winner.  There are three other provisions, one for the time of choosing electors, another for the time of counting the votes and one for prohibiting an elector choosing both candidates from his State, none of these three concern the topic of this post.  Since the electors cast the ballots and certify the results, they are ultimately responsible for the accuracy of the certificates, including presidential eligibility.  The States are indirectly responsible since they choose the electors and the House and Senate members are are also indirectly responsible since they can review the names offered and vote to throw out an unqualified name and delete those ballots associated with  that name.  There were no definite objections to Mr. Obama’s eligibility either before or during the electoral college process and neither was any objection to Mr. Obama’s eligibility raised before his inauguration. 

Here is where the ‘rule of law’ becomes interesting.  The announcing of the new POTUS and VPOTUS  (Vice President of the U.S.) represents a claim that all the Constitutional laws have been validly satisfied in the selection process of the new officers.  If the new officers actually get inaugurated they are, in fact, the new POTUS and VPOTUS (I believe one judge has so ruled or stated).  However, Congress has full control over the period between the announcement and the inauguration and should some facts arise raising a serious doubt about the validity of the declared new officer(s), Congress may definitely act to delay a possibly improper inauguration and institute a formal investigation.  Considering possible time constraints to duly enact a law, the existing POTUS, within the context of a move by Congress to delay an inauguration, could step in and delay an alleged improper inauguration since HIS oath is to enforce the Constitution.  The Constitution has rules for the proper succession of officers and if these cannot be followed Congress can order a new election or possibly institute some other temporary arrangement.  Without any specific instructions in the Constitution, Congress would have almost unlimited power over the make-up of the Federal Government until the next election cycle.  While this situation has not happened yet–it is highly unlikely–we, the people, should probably consider passing an Amendment to cover this situation.  After the inauguration of the executive officers, the only recourse is to impeach the impostors.  The Constitutional provision explicitly stating that Congress can write no ex-post-facto laws prevent laws invalidating prior elections or inaugurations or any laws or presidential directives enacted prior to the successful impeachment and also prevents Congress from criminalizing any prior actions.

So much for parliamentary and Constitutional direction toward the existing state of Mr. Obama’s eligibility for being POTUS.  At this time, Congress has not started any impeachment proceedings, though some members have expressed such a desire.  This indicates that there is not enough evidence for a successful impeachment.  The political make-up of Congress is also not conducive to a successful impeachment process considering the dearth of evidence.  Politics will generally trump facts in any political situation, a very good reason to eliminate political parties from the method of selecting government officials.  Political parties will always exist but they should be recognized for what they are, nothing but special interests whose particular goals will never be accepted by everyone.  What is amazing (yes, this word was considered overused at one time but still has its uses) is the number of people who act, write articles or make comments and get the parliamentary and/or constitutional aspects wrong usually substituting what they think should be for the actual meaning of the appropriate provisions.

Moving on to the particular law suits filed against Mr. Obama, I must say that I have no real facts but lots of articles that presented many details of the case against Mr. Obama.  To my knowledge, so far, no inferior court, let alone the Supremes,  has decided to rule on any of the cases.  Personally, I don’t even know if any cases were actually filed nor in what courts if they were.  What I can do, however,  is state the proper Constitutional requirements for a Federal Court to claim jurisdiction and then examine the ineligibility claims against the proper procedures.  I have already covered in prior posts and in above paragraphs many facets of the Judicial Branch’s requirements for Constitutional jurisdiction but it can be summarized into the following statement for the particular aspects of presidential eligibility:

  • The U.S. Constitution grants a citizen the right to have his grievance heard by the Judicial Branch provided it is a matter of law or equity concerning the Constitution or any of Congress’ duly enacted laws or even any presidential directives (which are based on duly enacted laws or the Constitution).

First, there must be a grievance expressed by a citizen and second, that grievance must be against the application of a provision of the Constitution, of a duly enacted Congressional law or of a presidential directive.  I hate to keep driving home this point, but the inferior courts and SCOTUS (back to the Supremes) have violated the dictates of the Constitution and its Amendments ever since the Fourteenth Amendment was added to the Constitution.  They tried even earlier but were stopped by the Eleventh Amendment.  As I see it, the main problem with SCOTUS is their fixation on Constitutionality.  They seem not to understand that an equity claim against a law may be valid due to its peculiar circumstances, without the law, itself, being unconstitutional.

One of the earliest claims was that Mr. Obama did not ever submit a valid birth certificate showing that he was born in the U.S.  Superficially, this claim has no bearing on SCOTUS making a ruling, i.e., there can be no claim to jurisdiction; the mere fact that the POTUS has not submitted a certified birth certificate to the general public does not belie the fact that the State of Hawaii has issued an official statement verifying that Mr. Obama was indeed born in Hawaii.  Since the Constitution requires that the Federal Government must accept a sovereign State’s word, Mr. Obama was indeed born in the U.S.  A more basic problem with birth certificates is the actual association of a physical person with the official piece of paper known as a birth certificate.  Unless there are specific traits like fingerprints or toe prints recorded on the official document and which can be checked on the grown person, one must have some very solid evidence that the person claiming to be Mr. Obama is an impostor.  The claim of the army officer saying he didn’t have to obey an order because Mr. Obama was ineligible to be POTUS has no standing since all of Mr. Obama’s actions after the inauguration have been legal and binding.  In this game of “who has a claim for damages against a duly elected and inaugurated POTUS”, only someone who was a possible candidate during the selection and campaign processes can have a legitimate claim since these are the only people who had a chance to become the POTUS.

Assuming the birthers can get a valid citizen to press the claim against Mr. Obama, they certainly would have to give their reason(s) why the claim is valid, which, is in this case, “Mr. Obama is not a ‘natural born citizen'”.  However, this statement, by itself is not enough to pass Constitutional review because Article III is very specific about what cases can be heard by the courts and the only stipulation that comes near to this supposed case is the one requiring the United States as a party to the claim, I’m sure any lawyer would be smart enough to see that.  At this stage the possibilities are many due to the number of inferior courts and the fact that each of these courts may or may not choose to hear the case as it travels through the court system, but let us assume that SCOTUS does decides to review the case especially since it involves interpreting a Constitutional provision.  What can be the possible rulings from SCOTUS.

  1. SCOTUS can dismiss the claim because the election was duly done and this can be phrased in many different ways.
  2. SCOTUS can dismiss the claim but rule on the definition of ‘natural born citizen’.  The extent of the ruling can be as little as addressing the specific reason(s) entered by the claimant to a possibly complete definition of ‘natural born citizen’.  SCOTUS in this ruling would certainly have the right claim that Mr. Obama has the qualifications to be eligible or is ineligible for the post of POTUS on the basis of their definition of ‘natural born citizen’.

Parliamentary and Constitutionally, I can go no further.  There are only the two choices above for SCOTUS  since it is my opinion that adding other provisions concerning prior elections or inaugurations would be unconstitutional and subject many of the SCOTUS judges to deserved impeachment and conviction.  Nevertheless, should a case as outlined above actually come before SCOTUS for judgment, knowing the attitude of SCOTUS , it would be highly unlikely for them to render their ruling within the bounds of the two Constitutional choices they do have and considering the partisanship between the two major political parties, Congress will not have the wherewithal to prevent or still any major mayhem which will, very likely, arise.  This mayhem could be trivial or country splitting.  I would only pray for the best.

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