Executive Orders, Nullification, and Recess Appointments

February 17, 2010

With no political capital left and much of his legislative initiatives dead in Congress, President Obama’s administration recently announced that he intends to use executive orders to advance his agenda.  According to White House chief of staff Rahm Emanuel, “We are reviewing a list of presidential executive orders and directives to get the job done across a front of issues”.  Those issues include everything from budget commissions to environmental law to health care funding.

Of course, executive orders are nothing new.  They have been around since at least Lincoln’s so called “Emancipation Proclamation” and probably before that.  George W. Bush signed the most ever as president and was rightly criticized by Obama in his campaign for president.  This is key because it doesn’t matter which party controls the White House.  When push comes to shove and the president can’t get his way he resorts to this underhanded tactic.

But, it’s more than underhanded; it is downright unconstitutional.  As schoolchildren, we are all taught that our federal government is composed of three branches.  The legislative makes the laws; the judicial judges the laws for constitutionality; and the executive acts as the top cop by enforcing the law.  Congress has power to legislate, not the president.  The closest he/she comes to this power is his/her ability to advise Congress, “and recommend to their Consideration such Measures as he shall judge necessary and expedient” .

The Founders knew that separating the powers of government into three different branches would prevent any one branch and/or person from becoming too powerful – thus potentially infringing upon the rights of the citizenry.  Through executive orders presidents circumvent the process reserved to Congress because they have the force of law and at times have horrendously violated the rights of American citizens.  For instance, Franklin Roosevelt issued executive orders that deprived Americans of their property without due process of law by seizing their gold during the Great Depression and that unconstitutionally suspended the writ of habeas corpus by interning Japanese-Americans during World War II.  More recently, George W. Bush issued an executive order that allowed his administration to unconstitutionally wiretap the phone conversations of Americans without a warrant.  Now, Obama, like his predecessors, is unable to get his unpopular policies through Congress, so he will violate the supreme law of the land by usurping the powers of another branch of government. 

But, the current occupier of the Oval Office is not content with stopping there.  His aides last month indicated that he will reserve the right to ignore enforcing parts of bills he considers unconstitutional.  This is reminiscent of Bush’s statement after signing an anti- torture bill that he would interpret the new law in any way he chose.  There are several things wrong with this position.  First, the Supreme Court has the power to declare all or parts of laws unconstitutional.  Second, if the president doesn’t like a part of a bill then his constitutional recourse is to veto it and hope Congress amends it to his liking.  Third, jury and state nullification are considered outside the law.  The president is essentially proposing executive nullification – the same thing.  Why is there a double standard?  Sorry Mr. President, you do not have a line item veto power.  You really must accept all or nothing when it comes to congressional acts.  Not doing so is unconstitutional and a usurpation of the High Court’s power.

Lastly, this president is also attempting to make unconstitutional recess appointments.  Here again presidents have done this in the past.  The practice originated in the good old days when Congress was only in session for part of the year.  Read literally, the phrase in Article 2 Section 2 of the Constitution giving the president this power reads “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session”.  Key to the power is the simple phrase, “all vacancies that may happen during the recess of the Senate”.  Obama’s current vacancies happened when the Senate was in session, thus if he waits until they recess he is usurping the power of the Senate to advise and consent to his nominations.  When Bush used the power to make John Bolton ambassador to the United Nations, then Senator Obama called Bolton “damaged goods”.  Not only is Obama being hypocritical, he again is attempting to commandeer powers that belong to another branch of government.

Make no mistake about it, over time an imperial presidency has been built in Washington by both Republicans and Democrats.  Executive orders, presidential nullification, and unconstitutional recess appointments have been used by presidents to achieve objectives they could not get legally through Congress.  It has made a mockery of the Constitution and at times has had serious consequences for American citizens.  Congress must reassert its authority over these matters.  Perhaps the Democrats with huge majorities in both chambers can set the example and stand up to one of their own in his quest to carry on the unfortunate tradition.

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Privatize Booze

February 8, 2010

Whoever says that state budget crises are all bad doesn’t know what they are talking about.  Now, I know that schools suffer, social services for the poor get tight, and everything from state parks to public hospitals cut back on services, but good can come out of it as well.  Take for example the many states that are currently looking for ways to increase revenue and decrease costs by privatizing the sale of alcoholic beverages.  It is a move that is way past due.

Nineteen states still maintain Prohibition era laws in which the state retains the sole right to distribute wine and spirits.  As Prohibition died a justified death about 77 years ago, many state leaders justify the archaic state control laws with the rationale that without tight government control of booze underage drinking, driving while intoxicated, and domestic abuse cases would skyrocket.  Well, on the surface that doesn’t seem to be the case in those 31 states where a private system of distribution exists.  Additionally, it is not like state regulation of the behaviors associated with alcohol consumption will go away if states divest from the booze distribution business.  You will still be dealt with harshly if you drink and drive.  No, state control advocates have no legs to stand on here.

Now, I grew up in Pennsylvania which is a liquor control state.  Pennsylvania’s system is a total joke.  In the Keystone State you buy beer through a licensed private beer distributor.  Go to one to buy just a six-pack and you will be told that under state law you must buy a whole case.  Wines and spirits can only be purchased at state run stores.  Naturally, the service is awful, the hours are short, and the selection is limited.  What would you expect from a state run business?

The biggest issue, at least with Pennsylvania’s control system, is expense to the consumer and Pennsylvanian’s have no way to legally circumvent the law.  If Joe Six-Pack from Northeast Philly decides he wants to save a few bucks on a bottle of Southern Comfort by driving over the Tacony Bridge into southern New Jersey he better think again.  The way the law is written buying his hooch in a neighboring state could land him in jail for 90 days.  Usually though, the officer in the unmarked Pennsylvania police car that waited for folks with PA tags to buy liquor at the New Jersey store just fines the driver per bottle purchased.

I could never understand how the Pennsylvania law was not a violation of the interstate commerce clause of the Constitution.  Taken in its original meaning, the clause allowed Congress to remove obstructions to trade between states.  As a Pennsylvanian I could go to Jersey to buy a car, but I better not buy alcohol because the state owns the monopoly on that business.  This is clearly one of those rare yet constitutional instances where it is totally within the jurisdiction of Congress to step in and regulate Pennsylvania’s anti-consumer and anti-free trade laws away.

The bottom line is that selling alcoholic beverages is a retail activity not meant to be done by any government.  The moralists can say that state control is necessary in order to prevent the decay of society.  Many would even argue that the system works well and there is no need for change.  With so many other problems facing the states in this depression who sells alcohol is of little consequence.  But, remember the point of this article was that state budget crises are not all bad.  If antiquated state liquor control systems like the one in Pennsylvania are terminated then some good has come out of it.


Senate Republicans Reward Bernanke with New Term at Fed

February 1, 2010

Last week, the Republicans in the Senate once again showed that they are a big part of what is wrong with Washington.  Twenty-two of them joined forty-eight Democrats in voting for Ben Bernanke for another four year term as Federal Reserve chairman.  Do the math.  If those twenty-two Republicans had voted against Bernanke he would have been sent packing by a vote of 52-48.

Now, I know the Fed isn’t going anywhere, so someone else probably just as bad as Bernanke would ultimately have been appointed if he had been rejected.  But the point to be made here is that Senate Republicans squandered a real opportunity to stand on principle.  After all, aren’t they the ones who almost completely stood against Obama’s $800 billion “stimulus” package and continually criticize the Administration for its reckless spending.  In comparison, Bernanke’s wheeling and dealing as Fed chair makes what Congress and the President have spent look like pocket change.  Under Bernanke the Fed has spent $1.25 trillion just on its program to hold down mortgage rates.  And who do the Republicans think printed all that new money and bought all those treasury bonds in order to monetize Obama’s big spending?  It was Bernanke’s Fed which currently holds the notes on over $5 trillion of our national debt.  Thus, the Republicans can lambast Obama for his absurd appetite to spend, and rightly so, but they supported the man who indirectly makes the deficit spending happen.  They are either oblivious to this fact or hypocritical. 

Of course, Senate Republicans will justify their support for Bernanke based on the claim that he is the person whose leadership took our economy from the brink of collapse and placed it on stable ground.  Naturally, no one can prove that and who is to say that we aren’t headed for an even bigger crash because of his inflationary policies.  The big question to ask in refutation of this theory is, if he was so good at handling the crisis how come he didn’t recognize it until it happened?  If one were to go back and look at Bernanke’s appearances on news shows from 2005-2007, it is clear that right up until the end of the bubble he denied its existence and claimed the fundamentals of our economy were strong.  Isn’t a major responsibility of the Fed to recognize trouble and prevent or alleviate the pain of business cycle downturns?  Bernanke was way off on this one and that alone should have cost him his job.

Bernanke has been a complete disaster as Fed chairman.  Additionally, it is just a matter of time before his big government monetary policies cause another crisis.   Senate Republicans, like Orrin Hatch of Utah and Senate Minority Leader Mitch McConnell of Kentucky, have always talked a good game about small limited government.  Then when they have a real chance to actually vote for it and win they fold like cheap lawn chairs.  That is why there is no hope for the current Republican Party to lead us back to the good old days of constitutional, fiscally and monetarily sound government.  That is why many Americans are fed up with our political system.  The next time Republicans gripe about the Democrats propensity to spend us into oblivion remember it was the man chosen by Bush and approved by Senate Republicans that makes it all possible.