A Privileged Executive

Executive Privilege and how the House should move forward legally

by: Mark Levin

As the Supreme Court recognized in US v. Nixon, the Executive Branch has a legitimate interest in confidentiality of communications among high officials so that the President can have the benefit of candid advice. However, as President Washington himself recognized, that privilege does not protect the President or his underlings from embarrassment or public exposure for questionable actions.

As the Supreme Court has also recognized repeatedly, the Congress, in the exercise of its constitutional powers, has the essential power to investigate the actions of the Executive Branch.

 In this case, the exercise of Executive Privilege seems, in its timing and over-inclusiveness, to be nothing less than a political delaying tactic to prevent exposure of wrongdoing and incompetence that resulted in the murder of a American law enforcement agent and injury and death of many others. Further, a wholesale claim of privilege is facially improper: the President should be held to the standard that anyone claiming privilege is held to: identify each document in a log so that privilege can be disputed. (U.S. v. Nixon, 1974)

 Because among the categories of documents sought are all those relating to the recantation by Holder of testimony before Congress, the demand goes to the core of the Congressional power under Article I. In this respect, this is not a general or oversight inquiry but a determination of why the Attorney General of the United States testified falsely before Congress about his own knowledge of a federal program. Presumptively, none of this category of documents is protected by Executive Privilege for wrongdoing per se is not protected by the privilege.

 The right way to proceed is to hold Holder in contempt by resolution of the House and seek authorization from the House for the Committee, by its Chairman, to proceed by civil action to compel production of the documents. (Holder will not enforce a holding of contempt against himself — and by the way, he should have authorized, say, the assistant attorney general for legal counsel, to handle the contempt matter once the House voted as at that point he is representing his own interests and not those of the nation generally). Chairman Issa should file suit in federal court in DC and seek expedited action. There is no need for Senate action. The use of this procedure has been acknowledged by the Congressional Research Service in a 2007 study. Further, a privilege log should be sought by Issa and ordered produced immediately by the court, in camera inspection done promptly by the judge, and a final order entered compelling production of all documents for which no legitimate reason justifies Executive Privilege.

 Yes, some documents may be covered by EP, but the blanket attachment of that label flouts the law and the Constitution, and harms the legitimate assertion of EP by Presidents of either party in the future. The Constitution is far too important to be subject to the caprice of this President and an AG who, on its face, wants to be free from scrutiny about why he testified falsely before a Committee of Congress.

Executive Privilege is a very important implied executive power, used in various forms since the presidency of George Washington. Therefore, it’s misuse and abuse, to cover-up wrongdoing, conceal embarrassing information, or advance a political agenda, diminishes the ability of future presidents to assert it legitimately.

There Ought to be a Law

by: the Common Constitutionalist

I’m not one for proposing & enacting new legislation. In my opinion, America has too many laws already. Most could be repealed without the general population even realizing it. The repeal of many of them would have little effect on our lives.

That being said, I recently reprinted a column from one of my heroes, Walter E. Williams; economist & occasional fill in host for El Rusbo.

In the article he explains the problem with federal spending; that every congressman & senator in Washington tries to take as large a piece of the federal pie home to his or her district. He describes their political success as how much “Bacon they can bring home”.

Williams then goes on to explain how & why this spending is simply unsustainable, but understands their attempt at legitimizing the taking. It would sound good for a bit, but what would be the point in refusing the money. If they don’t take it home, someone else will, so why not grab it.

You may link to this article here

That got me thinking. There ought to a law! Wow, never thought I’d say that, but in this case, there ought.

So, I hereby propose a new bill: If a congressman or senator is bold enough to refuse money from the feds for his or her state, the amount they refuse cannot be spent elsewhere. If they have the courage to decline federal funds, the amount they forebear would automatically be deducted from next years budget.

A stand-alone government website would be established to keep score of every congressman and senator, as it were. Every dime they took for there state as well as what they refused. There would be no where to hide.

I believe many conservative lawmakers would be happy to refuse federal graft if they thought it could make a difference to do so. Presently, as described above, there is no benefit.

A lawmaker could triumphantly return to their district with the rightful claim that he or she actually did cut the budget by X amount instead of the current excuses of why it can’t be done, or worse, the shady lies that it is being done, when they know it is all accounting gimmickry.

There would be no need for committees, or dimwitted chamber speeches. It would be automatic.

Would it balance the budget? Nope. Would it decrease our deficit or debt? Only fractionally.

What it may do is begin to change the mindset of congress, that one man really can make a difference and if enough of them jumped on the bandwagon, it could very well have an impact.

It would also be a great campaigning tool. A big spender would be a lot easier to spot and thus run against.

Law vs. Morality

 Liberty-loving Patriots Have a Duty to Disobey Unconstitutional Laws

By: Walter E. Williams
(One of my Heros & favorite Limbaugh fill-in host)

Let’s think about whether all acts of Congress deserve our respect and obedience. Suppose Congress enacted a law — and the Supreme Court ruled it constitutional — requiring American families to attend church services at least three times a month. Should we obey such a law? Suppose Congress, acting under the Constitution’s commerce clause, enacted a law requiring motorists to get eight hours of sleep before driving on interstate highways. Its justification might be that drowsy motorists risk highway accidents and accidents affect interstate commerce. Suppose you were a jury member during the 1850s and a free person were on trial for assisting a runaway slave, in clear violation of the Fugitive Slave Act. Would you vote to convict and punish?

A moral person would find each one of those laws either morally repugnant or to be a clear violation of our Constitution. You say, “Williams, you’re wrong this time. In 1859, in Ableman v. Booth, the U.S. Supreme Court ruled the Fugitive Slave Act of 1850 constitutional.” That court decision, as well as some others in our past, makes my case. Moral people can’t rely solely on the courts to establish what’s right or wrong. Slavery is immoral; therefore, any laws that support slavery are also immoral. In the words of Thomas Jefferson, “to consider the judges as the ultimate arbiters of all constitutional questions (is) a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

Soon, the Supreme Court will rule on the constitutionality of Obamacare, euphemistically titled the Patient Protection and Affordable Care Act. There is absolutely no constitutional authority for Congress to force any American to enter into a contract to buy any good or service. But if the court rules that Obamacare is constitutional, what should we do?

State governors and legislators ought to summon up the courage of our Founding Fathers in response to the 5th Congress’ Alien and Sedition Acts in 1798. Led by Jefferson and James Madison, the Kentucky and Virginia Resolutions of 1798 and 1799 were drafted where legislatures took the position that the Alien and Sedition Acts were unconstitutional. They said, “Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government … (and) whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” The 10th Amendment to our Constitution supports that vision: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In a word, if the Supreme Court rules that Obamacare is constitutional, citizens should press their state governors and legislatures to nullify the law. You say, “Williams, the last time states got into this nullification business, it led to a war that cost 600,000 lives.” Two things are different this time. First, most Americans are against Obamacare, and secondly, I don’t believe that you could find a U.S. soldier who would follow a presidential order to descend on a state to round up or shoot down fellow Americans because they refuse to follow a congressional order to buy health insurance.

Congress has already gone far beyond the powers delegated to it by the Constitution. In Federalist No. 45, Madison explained: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” That vision has been turned on its head; it’s the federal government whose powers are numerous and indefinite, and those of the state are now few and defined.

Former slave Frederick Douglass advised: “Find out just what people will submit to and you have found out the exact amount of injustice and wrong which will be imposed upon them. … The limits of tyrants are prescribed by the endurance of those whom they oppress.”

Term Limits

Although Chuck is focused on California, his home state, it’s instructive none the less. I have seen many deceptive ballot initiatives in my state. The way the ballot is written, you think you’re voting yes for something when you’re really voting no. Make sure you fully understand what you’re voting for or against ahead of time. There is nothing scarier to a politician than an informed electorate.

Yes…I said Impeachment

by Tom Tancredo:
(Tom Tancredo is the founder of the Rocky Mountain Foundation and founder and co-chairman of Team America PAC. He is also a former five-term congressman and presidential candidate. Tancredo is the author of “In Mortal Danger: The Battle for America’s Border and Security.)

 

Almost every week brings a new reason for the United States House of Representatives to bring impeachment charges against President Obama. The question of the day is not why he should be impeached but why it hasn’t already been done.

This week it was Secretary of Defense Panetta’s declaration before the Senate Armed Services Committee that he and President Obama look not to the Congress for authorization to bomb Syria but to NATO and the United Nations. This led to Rep. Walter Jones, R-N.C., introducing an official resolution calling for impeachment should Obama take offensive action based on Panetta’s policy statement, because it would violate the Constitution

Well, really, folks: Is Obama’s disregard of the Constitution really news? No. He has done it so many times it doesn’t make news anymore. Democrats approve it and Republicans in Congress appear to accept it – not all Republicans, of course, but far too many.

The list of Obama’s constitutional violations is growing by the day and ought to be the topic of not only nightly news commentary but citizens’ town-hall meetings and protest rallies.

President Obama can only be emboldened by the lack of impeachment proceedings. His violations typically arouse a short-lived tempest among some conservatives, yet impeachment is not generally advocated by his critics as a realistic recourse. That must change.

That Obama can be voted out of office in eight months is not a reason to hold back on impeachment. Formal impeachment proceedings in the House of Representatives would help alert the nation’s 120 million likely voters that more is at stake in Obama’s power grabs than Syrian human rights and contraception subsidies for college students.

The grounds for House impeachment proceedings have been laid by Obama’s own actions. A list of his unconstitutional and illegal actions would embarrass any honest public official and makes Nixon’s Watergate cover-up look like a college fraternity house panty raid.

Obama’s policy on the use of military force abroad raises grave issues – both policy issues and constitutional issues. When Defense Secretary Panetta tells a Senate committee he will rely on NATO and the U.N. for “permission” for use of military force, that is an affront to and direct assault on the Constitution.

Those Panetta statements propelled Rep. Jones to introduce a House resolution stipulating that any use of military force by the president without an act of Congress, except to repel a direct attack on the United States, is an impeachable offense under the Constitution.

But this is only the latest Obama assault on the Constitution. There are many other examples of Obama’s disregard for constitutional limitations to his power.

•Obama violated the Constitution with his “recess appointments” while the Senate was not in recess. It is up the Senate to decide when it is in recess, not the president. That distinction between executive and legislative authority is what the Separation of Powers doctrine is all about.

•Obama is an obvious participant and co-conspirator in Eric Holder’s approval and later cover-up of the illegal “Fast and Furious” gun-walking program. Unlike the Watergate case, people have actually died as a result of this illegal program.

•Obama undoubtedly has knowledge of and has approved Homeland Security Secretary Napolitano’s project to require Border Patrol management to falsify apprehension numbers on the southwest border. This is a clear violation of Article IV, Section 4 of the Constitution, which requires the federal government to protect the country against foreign invasion.

•The president’s open refusal to enforce the Defense of Marriage Act is a violation of Article III, Section 1 of the Constitution, which does not authorize the president to choose which laws to “faithfully execute.” The oath taken by a new president on Inauguration Day does not say, “… to defend the Constitution of the United States… to the best of my ability except when I disagree with it.”

•Did the president violate the law when he instructed Labor Secretary Solis to negotiate agreements with foreign governments to expand the “labor rights” of illegal aliens?

The precedent of Clinton’s impeachment over his perjury in the Monica Lewinsky case established the principle that the legal definition of “high crimes and misdemeanors” is what Congress wants them to mean. Have Obama’s actions met the constitutional standard for impeachment? Absolutely, yes.

Unless the House of Representatives acts to begin impeachment proceedings against this bold usurper, we are headed for dictatorship. Either the Constitution limits the president’s powers or it does not. If it does, Obama must be impeached for his actions. If not, then a dictatorship is not only inevitable, it will be upon us soon.

Sieg Barry!

Is the Obama Administration Using Gestapo Tactics?

By: Gary DeMar at Godfather Politics:

Here’s the way politics works: Liberals overreach and conservatives compromise. In the end Liberals win. Liberals will propose a ten percent tax increase, and Republicans will settle for five, the very number Democrats hoped to get. It might take Liberals longer to get to their goal, but they know that eventually they’ll reach it. They can always count on Republicans to compromise.

What’s true on taxes is also applies to religion. There’s a provision in the health care law which requires religious employers to provide insurance coverage for contraceptives. John Boehner called the rule “an unambiguous attack on religious freedom in our country. If the president does not reverse the department’s attack on religious freedom, then the Congress, acting on behalf of the American people and the Constitution we are sworn to uphold and defend, must,” Boehner said.

Then there’s the accusation that military chaplains were forbidden to read a letter to military personnel about the mandate. Now we’re hearing that the controversy may have been “overblown.”

Did the Obama Administration purposely overreach figuring that the Republicans will broker a compromise? The Administration will get some of what it wants, set a precedent, and the Republicans will leave the negotiating table declaring victory that they were able to get some concessions. In the end, new regulations will force the church to comply with some of the regulations or face sanctions. Republicans will say that the church needs to compromise. Liberals will come back for more at a later time. They won’t stop until they silence the church. We’ve seen this before.

When German anti-Nazi theologian and Lutheran pastor Martin Niemöller (1892–1984) used his pulpit to expose Adolf Hitler’s radical politics, “He knew every word spoken was reported by Nazi spies and secret agents.”[1] Leo Stein describes in his book I Was in Hell with Niemoeller how the Gestapo gathered evidence against Niemoeller:

Now, the charge against Niemoeller was based entirely on his sermons, which the Gestapo agents had taken down stenographically. But in none of his sermons did Pastor Niemoeller exhort his congregation to overthrow the Nazi regime. He merely raised his voice against some of the Nazi policies, particularly the policy directed against the Church. He had even refrained from criticizing the Nazi government itself or any of its personnel. Under the former government his sermons would have been construed only as an exercise of the right of free speech. Now, however, written laws, no matter how explicitly they were worded, were subjected to the interpretation of the judges.[2]

In a June 27, 1937 sermon, Niemoeller made it clear to those in attendance had a sacred duty to speak out on the evils of the Nazi regime no matter what the consequences: “We have no more thought of using our own powers to escape the arm of the authorities than had the Apostles of old. No more are we ready to keep silent at man’s behest when God commands us to speak. For it is, and must remain, the case that we must obey God rather than man.”[3] A few days later, he was arrested. His crime? “Abuse of the pulpit.”

The “Special Courts” set up by the Nazis made claims against pastors who spoke out against Hitler’s policies. Niemoeller was not the only one singled out by the Gestapo. “Some 807 other pastors and leading laymen of the ‘Confessional Church’ were arrested in 1937, and hundreds more in the next couple of years.”[4]

A group of Confessional Churches in Germany, founded by Pastor Niemoeller and other Protestant ministers, drew up a proclamation to confront the political changes taking place in Germany that threatened the people “with a deadly danger. The danger lies in a new religion,” the proclamation declared. “The church has by order of its Master to see to it that in our people Christ is given the honor that is proper to the Judge of the world . . . The First Commandment says ‘Thou shalt have no other gods before me.’ The new religion is a rejection of the First Commandment.”[5] Five hundred pastors who read the proclamation from their pulpits were arrested.

Notes:
1.Basil Miller, Martin Niemoeller: Hero of the Concentration Camp, 5th ed. (Grand Rapids, MI: Zondervan, 1942), 112. [↩]

2.Leo Stein, I Was in Hell with Niemoeller (New York: Fleming H. Revell, 1942), 175. [↩]

3.Quoted in William L. Shirer, The Rise and Fall of the Third Reich (New York: Simon and Schuster, 1960), 239. [↩]

4.Shirer, The Rise and Fall of the Third Reich, 239. [↩]

5.Quoted in Eugene Davidson, The Trials of the Germans: An Account of the Twenty-Two Defendants before the International Military Tribunal at Nuremberg (Columbia, MO: University of Missouri Press, [1966] 1997), 275.

Sneeky Uncle Sam

The Government is Playing Hide and Seek With Airfare Taxes
By Daniel Horowitz:

When purchasing a product or service, we all like to see the itemized list of charges – one that separates the cost of the purchase from the share going to Uncle Sam through the form of taxes and fees. Needless to say, government bureaucrats don’t like that. They desire that we remain blissfully ignorant of government’s burden on our everyday lives. This is one reason why they concocted the withholdings scheme for income tax collection. Now, they are expanding their tentacles into commercial taxes so they can obfuscate the magnitude of taxes and fees on airfare purchases.

Without much fanfare, the Department of Transportation (DOT) enacted a rule which requires airlines to ensconce all government taxes and fees in a single total advertised price with the fare. For example, if you purchase a $350 plane ticket with $50 of taxes and fees, the DOT is demanding that the airline advertise the price as $400. Airline passengers pay over a dozen taxes and fees on any given airplane ticket, but the government doesn’t want us to know that. The rule was finalized last April, but only took effect last week.

The timing of this rule is very fortuitous. This week, Congress will finalize negotiations for a long-term FAA funding bill. This bill authorizes the collection of all taxes – including taxes on aviation fuel, domestic and international ticket taxes, and cargo –directed to the Airport and Airway Trust Fund, which provides the bulk of FAA funding. As usual, Democrats want to spend more money on wasteful projects, and are all too hungry to increase aviation taxes. What better way to leverage tax increases than by forcing airlines to hide their cost and to shoulder the blame for the perceived higher price tag at the top!

This is yet another insidious plan to raise taxes and place unconstitutional mandates on private enterprise – all by administrative fiat. It must be stopped in its tracks. Today, conservative Rep. Tom Graves (R-GA) is introducing a bill, the Travel Transparency Act, which will void the DOT rule, and demand that passengers have the right to view all the aviation taxes in separate line items for each ticket purchased. Graves asserted that “the federal government should not be inserting itself in the private sector to limit consumers’ ability to see how much they’re getting taxed. If the American people can’t see these costs clearly, I fear it will be easier these fees and taxes to be raised without their knowledge.”

Secretary of Transportation Ray LaHood, who used to be a Republican, defended the rule as a necessary means to ensure that passengers are treated with “dignity and respect.” The only thing this rule will accomplish is ensuring that passengers retain their “respect” for government, while blaming the airlines for perceived increases in ticket prices.

At present, airline passengers are on the hook for at least 16 different taxes and fees on the average airline ticket. Additionally, they must incur the most harmful backdoor tax; the high cost of jet fuel resulting from decades of anti-energy growth policies. We must ensure that the existing taxes remain transparent so that Congress will have a harder time sneaking through new tax increases. Please ask your member of Congress to cosponsor Tom Graves’s Travel Transparency Act.

Senate Can’t Pass a Budget

From the Website of Rep. Scott Austin, 8th District of Georgia:

Washington, D.C. –

On Congress’s first full-day back in session, twenty-Nine GOP Freshmen lawmakers gathered outside the United States Capitol building to call on the President to challenge the United States Senate to pass a federal budget.

Georgia’s 8th District Congressman, Austin Scott, who is also the president of the GOP Freshman class, remarked at Wednesday’s press conference, “Sen. Reid would like to say that Freshmen Republicans are responsible for the gridlock in Washington, but that’s simply not true.

We’ve passed a budget. We’ve passed twenty-seven jobs bills. We stand willing to allow the process to work. Sen. Reid has closed the door at every opportunity.”

Next Tuesday, President Obama will deliver his annual State of the Union address to Congress. Coincidentally, that day will also mark 1,000 days that the country has been operating without a budget.

To that point, Rep. Scott further commented, “The future of America is bright, but without a budget, the state of our Union is uncertain.

We’re here simply to ask the President to challenge Harry Reid and the Senate to pass a Budget — pass a budget so that the job creators in America have some certainty and can go out there and do what Americans want to do and that’s get back to work.”

Wednesday’s event occurred just as President Obama announced that he is denying the application for construction of the Keystone XL Pipeline – a project that is projected to bring in more than 100,000 American jobs.

Upon hearing the news from a reporter in attendance, Rep. Scott responded, “That’s absolutely ridiculous.” He went on to say; “The bottom line is the only way to break this country’s dependency on oil from the mid-East is to bring things like the Keystone pipeline in from Canada and to start drilling here in America. I think the fact of the matter is, if the President rejects that, I think he is absolutely out of touch with America and what it takes to get this economy back on track.”

In the days leading up to next week’s State of the Union address and the 1,000 days milestone, House GOP Freshmen plan to utilize new media to encourage their constituents to reach out to the President about the need for a federal budget.

Editorial Comment: I agree with the Congressman’s points. I am however, growing weary of the couched way in which these guys speak. “We’re here simply to ask the President to challenge Harry Reid and the Senate to pass a Budget”? Really? Does anyone truly believe Obama gives a crap what we think or that he and Reid aren’t purposely marching in lock step? Obama and his ilk have proven they will do whatever they want, whenever they want and the Constitution and us be damned.

It’s time to take the gloves of civility off. Stay honest, stay forthright, but get tough and stop pulling your punches. Real conservatives firebrands are what we need now, not golden-tongued orators.

I think that’s enough clichés for one article.