Pro Logica

February 17, 2012

Presidential Electability–A New Development

Filed under: Interpretation, U. S. Constitution — Tags: , — Ron Toczek @ 6:04 pm

After I’ve posted my view on presidential eligibility, two judges have made the national news.  One, a Georgia judge in a state case, has subpoenaed  the president asking him to prove his eligibility in order to be placed on the Georgia ballot in the upcoming November elections.  Two, another judge has stated his opinion that a native-born citizen is a natural born citizen and that Mr. Obama is a native-born citizen.  I did not pay attention to all the details in this latter situation so I am not sure whether there was a judicial ruling in a case but it seems to me that is was a Georgia judge, not a Federal one, who made the claim.

For those who have read my earlier post, you may probably guess what I am about to say.   To the judge issuing the subpoena Mr. Obama should reply,  “In 2008, I have met all the eligibility requirements for POTUS, and unless you have evidence to the contrary, I still meet the same qualifications and you cannot probe for evidence using me as a witness.  If you do have a credible witness who can testify that I am not a natural born citizen (of course you will have to supply a definition for such) your complaint is first with the sovereign state of Hawaii, claiming that the state was erroneous in issuing a statement saying that I am a natural born citizen.  Should the state retract their original statement, I can still contest that retraction but until the state of Hawaii does, you have no authority to issue a subpoena to me for the purpose of establishing my qualifications for POTUS.”  On the other hand, by not appearing, he certainly implied the above though I suspect that the judge would not see it that way.

Clearly, the other judge’s statement lies in the realm of pure opinion unless it occurs as a part of an official ruling.  An official ruling by a State judge would still be an opinion as far as the other States are concerned.  If a ruling by a Federal judge and no Congressional law is passed to the contrary and other states accept the definition as valid, an official opinion can then be accepted as a de facto law.  Judges like to assume their de facto laws are established laws (note Chief Justice Roberts statement on Roe v Wade), but standard parliamentary procedure dictates otherwise.

The case which prompted the Georgia judge to subpoena the POTUS brings up a new wrinkle in the process of electing a POTUS which has absolutely nothing to do with eligibility but a lot to do with electing a POTUS.  The primary concern of this Georgia case is to determine whether Mr. Obama should be allowed to have his name on the Georgia ballot as a candidate for POTUS, eligibility is just one of the considerations.

Some years back there was a national discussion about limiting Congressional delegates to two terms. At the time I was in favor of it chiefly because the Constitution, by not saying anything against it, just plain permitted it.  Those opposed used precisely the same argument and, consequently, nothing was done.  This latter stance was and is very hypocritical since laws are generally construed to be specific in a positive sense and hardly ever in a negative sense. There are laws which lay out their purpose and this can lead to unspecified actions being argued as against the purpose of the law, but the Constitution has no such purpose which a term limit restriction can be found to be against.  Also, the Constitution affirms the sovereignty of the States which implies that the States can very well apply further restrictions to their elected delegates.  Applying these principles to the electoral process for the POTUS, it is very clear that each State has complete control over its electoral representatives; i.e., they can require their electoral representatives to vote for a particular candidate, not vote for a particular candidate or something in between.  Translating this view into today’s regular election process wherein the candidates for POTUS are listed on ballots and then the state assemblies  appoint the electors, the state assemblies may still exercise their control over their electors but the state has an additional method of keeping a candidate for POTUS off the ballot by just not allowing it in the first place for whatever reason.

In other words, Georgia, as well as any sovereign State of the U.S., can, Constitutionally,  deny any presidential candidate a spot on their ballot, providing they have one, direct their electors on who to vote for or even give no direction to their electors.  Of course there are other, non-Constitutional considerations that would determine what a State actually does.

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.

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.

October 17, 2011

A Small Thought about Election Results

Filed under: Voting — Tags: , , — Ron Toczek @ 3:12 pm

Sometimes, when voting, I have a hard decision as to which candidate would be the least of evils and sometimes there are candidates for an office that I have never heard of before.  Oftentimes in these situations I would skip voting for that office or write in a name of a non-candidate, either of which is a vote equivalent to ‘none of the above’.  If I were serious about voting for my write-in choice I would make sure that that non-candidate’s name would be spelled correctly. I certainly can’t imagine that I am the only voter who does this; there are many missing numbers of votes,especially for the lesser offices.

Whatever the shortcomings, either the voter’s failure to chase down the relevant information about the candidates, the voter’s failure to make an unwarranted decision or the political machinery not putting out the relevant data, these ‘none of the above’ votes are never tallied and shown when the election results are made known.

I pose this question: Why should a candidate be placed into an elective office when the ‘none of the above’ votes outnumber his/her ‘for’ votes?  Furthermore,  Why shouldn’t there always be a ‘none of the above’ choice, which, if it receives more votes than any candidate, invalidate all listed candidates.  No doubt, problems would arise such as funding for additional elections or shifting the election to a different process or even not filling a vacated office, but that could be emended by changing the laws regarding the voting process–nothing insurmountable except for power hungry political parties which, I imagine, would be totally against this democratic choice.

Freedom of Speech? Brown v. Entertainment Industries Assn.

The Supreme Court’s (SCOTUS’) ruling in this case is the culmination of a claim made by Entertainment Industries Assn. that a specific California law is unconstitutional because obeying it abridges a video game vendor’s protected free speech.  The law, itself, is only paraphrased in the ruling and I have not spent the effort to read the original wording of the law but the ruling only addresses the case in terms of its paraphrasing.  According to the ruling, the law bans a vendor in California from selling a video game–one which portrays violence as a socially accepted activity in situations where violence is not a socially acceptable activity–to a minor (someone under eighteen years old) without permission from that minor’s parent(s) or guardian(s).  The plaintiff in this case is a legal entity of the State of California–‘Entertainment Industries Association’–and the defendant, while nominally ‘Brown’, is actually the sovereign State of California.  Five justices agreed with the plaintiff (the majority opinion), two justices disagreed with the plaintiff but found the law to be too vague to enforce (a good equity ruling) and two justices agreed with the defendant. Whatever the actual wording of the California law was, the plaintiff’s claim was that the law, by violating their member’s freedom of speech, was unconstitutional and the majority opinion confirmed that claim.

At first, I thought that the majority opinion was ridiculous since it equated one side of a two party contract to an act of protected free speech, i.e., speech not subjected to abridgment by law.  I still do think that that decision is ridiculous and it exposes those five justices as having a lack of both, common sense and wisdom; they are, therefore, unqualified to be justices of SCOTUS.  Article I of the Constitution specifically enjoins Congress from interfering in contract obligations and, sovereign States have the sole power to define those citizens of the State who are eligible to sign contracts.  However, after spending some time reading the relevant sections of the Constitution, Wikipedia, some ‘freedom of speech’ rulings by SCOTUS and some historical documents, I have come to the conclusion that the worst aspect of this ruling is that it exists.  The Constitution flatly denies jurisdiction of this case to the Judicial Branch.

The ‘sins’ of SCOTUS in this case amount to:

  • As mentioned above, treating a sovereign State’s right to determine the eligible signers of contracts as an abridgment of free speech.  The only person having HIS freedom of speech abridged is the minor who is barred from signing a contract allowing HIM to legally purchase a product having certain characteristics unless those responsible for that minor give HIM explicit permission, but there are many prohibitions on minors entering legal contracts.
  • Effectively changing the Constitution (Amendment I) to read, “the sovereign States shall make no law abridging the freedom of speech” instead of “Congress shall make no law abridging the freedom of speech.
  • Effectively changing the Constitution (Article III and the Eleventh Amendment) to allow State defined corporate entities as legal parties to cases heard by SCOTUS–Article III and the Eleventh Amendment are very specific on who these parties may be.  Congress certainly may enact a law which could extend the definition of a person so as to allow such corporate entities, but I believe no such law exists.
  • Assuming jurisdiction over a case which concerns a difference of opinion between a citizen of a sovereign State and HIS State–specifically  banned by the Eleventh Amendment.
  • Ignoring Section 5 of the Fourteenth Amendment–Section 5 states that Congress, not the Judicial Branch, has the authority to implement the amendment.
  • Misusing the principle of judicial precedent.  More than likely, “Feiner v. New York” was the first case in which SCOTUS decided to hear a claim of abridgment of freedom of speech.  Even though the Eleventh Amendment excluded the case from SCOTUS jurisdiction, SCOTUS argued that the Fourteenth Amendment gave it jurisdiction.  The basic problem with the Fourteenth Amendment is that without Congressional laws defining its actual application any state law can be deemed unconstitutional.  This only mocks the term ‘sovereign State’ and could essentially eliminate all State governments contrary to the Constitution which enjoins the Federal government to guarantee a republic government for each State.  Use of the Fourteenth Amendment in this manner has effectively rescinded the Eleventh Amendment.  Sighting an illegal ruling does not justify a continuing illegal jurisdiction.

As I have recently reviewed many of SCOTUS’ rulings, I find that a majority of them seem to commit as least one type of these ‘sins’.

In spite of my conclusions, I do think that a citizen’s freedom of speech is essential for all republican governments and prior to the civil war it was the State’s obligation to define when abridgment to freedom of speech applied.  The Thirteenth Amendment, outlawing Slavery in the U.S. and all sovereign States required something like the first section of the Fourteenth Amendment but it also stated unequivocally that the U.S. Congress was the branch specifically authorized to spell out the amendment’s details.  While the Fourteenth Amendment talks about the privileges and immunities of the citizens and their equal protection of the laws it specifically enjoins Congress to define these properties.  Our country does not have a problem with its constitution but with a power hungry Judicial Branch and an exceptionally weak Legislative Branch which refuses to chastise and/or expel judges from the Judicial Branch when they act unconstitutionally.

With these unconstitutional acts by SCOTUS, I have often wondered why states have not asserted their sovereignty and just ignore those SCOTUS rulings which are not constitutional.  The only risk is that POTUS might agree with SCOTUS and withhold much needed funds graciously granted by the Federal government.  Pity, pity, pity!

July 18, 2011

Reflections on the Current State of the U.S. Congress

Filed under: Governments — Tags: , , , , , — Ron Toczek @ 1:45 pm

Recently, I have come across a bit of history concerning the Weimar Republic; yes, the government of Germany before and after WWI.  Prior to this reading, I have generally tried to compare America with the Roman Republic.  Both of these regimes, as republics, degenerated into dictatorships.  It is interesting to note that the last nail to close the coffin on both republics was their legislatures failure to govern responsibly, eventually conceding the power to make laws and allowing a person (Rome) or party (Weimar Republic) to make the laws.  When I have brought this topic to discussion, I usually get two responses–it can’t happen here or  just plain indifference.  Very few seem to be concerned.

While it is true that when one compares current happenings with historical similarities, there are differences–I would say there would have to be differences, this does not mean that on some abstract level above the mean and dirty details that possibilities of a similar nature are always exempted from happening; so, in this case, the possibility of the U.S. Republic reverting to a dictatorship of some sort is entirely plausible and the extreme bickering between the major parties could certainly be a big factor in such a development.

This ugly question rears its head, “Are the citizens of the U.S. on a course which will result in their losing its republican form of government?”  I hope not but the answer depends only on the action of those citizens who vote and the primary hope is that these voters attain the wisdom to choose representatives who will not put party above the country, something not attained for roughly 45 years, and there do not seem to be any indications of a reversal on the horizon.

Further speculation on this topic would be unwarranted but, here and there, the occasional article appears wherein a party member will bemoan certain consequences of the other party’s ruling tendencies, so it seems that the loss of our republic would definitely result in a lessening of our freedoms somewhere and anything more would be idle speculation.

July 15, 2011

Debt Ceiling Negotiations

Much of Congress’ time in 2011 as been spent in consideration of the U.S. debt; it is at an all-time high. A good part of the discussion concerns the debt ceiling provision–a law passed by Congress and also amended many times as the debt has continued to increase. While I am irked by some of the demands of our representatives, especially those showing some lack of common sense or some ignorance about government operations affecting the common welfare of the citizens of the U.S., I am concerned about the process wherein the Republican Party negotiates directly with the POTUS on fabricating an acceptable bill to be passed.

First of all, I have no objection to lawmakers talking with executive branch officers about upcoming legislation; this action, one would hope, should lead to better laws. The situation is peculiar since the Republican Party lawmakers are stubbornly unwilling to find an acceptable compromise with its Democratic Party lawmakers and has found that the POTUS is more amenable to their position. I really don’t know what the Republican Party can reasonably expect to gain by this direct negotiation. One, they cannot have the POTUS sign any kind of document nor should the POTUS sign anything; meaning he does not commit himself to signing any kind of a bill into law. Two, they would have to get any agreement into a bill passed by the House. Three, they would need the Senate’s concurrence on the bill so it could be presented to the POTUS for his signature. Fourth, they would need a two-thirds majority to override a veto. Finally, come time to pay bills, the POTUS would have contradictory Congressional laws to enforce, i.e., he either, borrows enough to pay for those costs incurred by enforcing certain laws and, thus, not enforce the debt limit, or he does not borrow and, thus, not enforce certain laws of his choosing which were duly passed by Congress.

Maybe Mr. Obama sees some re-election possibilities by entering into talks with the Republican Party members of the House but as POTUS he should tell those Republican Party members of the House to do their Constitutional job and come up with a bill that he can accept or else have the requisite two/thirds majority vote to over ride his veto and to do so in a timely manner, otherwise he will be forced to choose those law or laws which he will enforce.  Certainly, one option is for the POTUS is to disregard the debt ceiling law and borrow the necessary money while the other option would be to issue IOU’s instead of valid claims against the treasury.  Before choosing one of these extreme options, the POTUS probably would first use up money not spent within those allocations where the full allocation was not deemed necessary.  Of course, Congress could attempt to have a bill passed specifying the manner in which the default should proceed.  No such law currently exists.  To be totally effective,  when telling Congress to do their job, he should openly tell the citizens of the U. S. what he will do if Congress does not do its job.  As for borrowing above the debt ceiling, a good case can be made on the basis of these facts: 1)  Government branches are independent, 2)  the POTUS has taken an oath to uphold the Constitution, 3)  the Constitution prioritises itself over Congressional laws, and 4)  the Constitution states it debts are valid.

As of July 12, 2011, it appears that there will be no agreements to increase the U.S. Government’s debt ceiling so the Republican Senate Minority Leader, Senator McConnell, came up with a proposal designed to exonerate all Republican Congressmen from  having to vote for an increased debt limit while increasing the debt limit within certain bounds.  This proposal purports to put the responsibility on the POTUS for actually raising the debt ceiling but its real effect would be to allow the POTUS to berate Congress for not doing its job.

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