What’s Good for the Goose is Good for the Gander

March 2, 2011

Last week the Justice Department announced that it would no longer enforce the Defense of Marriage Act (DOMA).  Passed by huge bipartisan majorities in both chambers of Congress and signed into law by President Clinton in 1996, DOMA defines a legal marriage as one between a man and a woman.  Additionally, the act shields each state from having to legally recognize same sex marriages permitted in other states.  In making the announcement, Attorney General Holder said the decision was based on his and the president’s opinion that the law was unconstitutional.

Now, naturally, the Obama Administration’s announcement has angered many on the right.  Newt Gingrich, one of the right’s main moral barometers, thinks Obama has a constitutional duty to enforce the law and if he doesn’t he hinted that he possibly should be impeached.  The former Speaker of the House was quoted recently as saying,

“I believe the House Republicans next week should pass a resolution instructing the president to enforce the law and to obey his own constitutional oath, and they should say if he fails to do so that they will zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job.  His job is to enforce the rule of law and for us to start replacing the rule of law with the rule of Obama is a very dangerous precedent.”

It’s a big surprise that Gingrich would come out against the president like this.  Of course I am kidding.  It is not a surprise at all given Newt’s interest in the office Obama currently occupies.  What is also not a surprise is that Gingrich is way off base in his analysis.  Under our separation of powers, Congress really can’t tell the president what to do.  What Gingrich is doing harkens back to the impeachment of President Andrew Johnson in 1868.  Johnson, a Democrat, disagreed with the fascist policies of the Radical Republicans toward the South after the Civil War.  The last straw was his firing of Secretary of War Edwin M. Stanton in violation of the newly passed (over Johnson’s veto) Tenure of Office Act.  The Act denied the president the power to remove anyone from office who was appointed by a previous president without the advice and consent of the Senate.  In the end, Johnson was acquitted by the Senate and the Supreme Court ruled the Tenure of Office Act unconstitutional in 1926 consequently upholding the separation of powers between the Executive and Legislative branches.

To even hint that by not enforcing an act of Congress Obama is committing an impeachable offense is producing a dangerous precedent.  Article 2 Section 4 of the U.S. Constitution is clear about what grounds must exist in order for the House of Representatives to undertake impeachment proceedings against the president.  They include acts of “treason, bribery, or other high crimes and misdemeanors”.  In other words impeachment is for crimes committed not for not carrying out one’s duties.  In our system of governance the American people can vote the president out of office at the next election.  That is the beauty of Democracy.

Thus, the president is within his right to refuse to enforce or “nullify” an act of Congress.  But what is interesting is the two-faced position of the president in this circumstance.  For, while he clearly believes that as president he has the right to nullify an act of Congress, he surely would not agree that juries and states have the same right.

Recently in a Manhattan federal courtroom 78 year old Julian P. Heicklen was arraigned for violating a federal law against jury tampering.  Since 2009, the retired Heicklen has stood outside courthouses handing out pamphlets to potential jurors informing them that they have the power to ignore laws they deem unconstitutional and render verdicts based on their conscience.  This practice is known as jury nullification and usually applies to so-called victimless crimes dealing with guns, drugs, gambling, etc…

Of course, then there is the much hated Obamacare.  At least 7 states, Idaho, Maine, Montana, Oregon, Nebraska, Texas, and Wyoming have either started the process of passing laws nullifying Obamacare or are considering such laws.  Essentially these laws state that Obamacare is unconstitutional and will not be enforced.  If Obama was consistent he would pardon Heicklen and if the time comes recognize the states’ right to nullify his beloved health care boondoggle.

Because what it really comes down to is the old saying, “What’s good for the goose is good for the gander”.  If the president is going to claim the right to ignore a law passed by Congress then he ought to also recognize the right of other entities to do the same.  Double standards in government must end.  Nullification is another mechanism of checking the power of government.  It is an important safeguard against tyranny of the majority.  It is a means to snuff out unconstitutional laws like the one President Obama is nullifying.

Article first published as What’s Good for the Goose is Good for the Gander on Blogcritics.

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Another Unfunded Mandate that Should be Nullified

October 11, 2010

In 2003, the Bush Department of Transportation issued an unfunded mandate ordering all states and local governments to change their millions of street signs from all-capital letters to signs with a mix of capitals and lower case lettering.  So for instance, PERRY ST. would have to become Perry St.  It seems the know-it-all bureaucrats at the Federal Highway Administration conducted a study that indicated it takes drivers a few extra milliseconds to read all-cap words.  Thus, those signs have been determined to be a safety hazard since the extra time it takes to read street signs means drivers spend less time with their eyes on the road .  According to Transportation Secretary Ray LaHood, “Safety is this department’s top priority.  These new and updated standards will help make our nation’s roads and bridges safer for drivers, construction workers and pedestrians alike.”

An interesting question is, who thinks up these issues to study in the first place?  I mean do bureaucrats have that much time on their hands that they can think up and then conduct research on whether the size of letters determines how long it takes people to read street signs?

Another question is, on what Constitutional basis does the Department of Transportation rely on to force state and local governments to comply with its sign mandate?  Even if your interpretation of the interstate commerce clause was incorrect and you believed it gave the feds jurisdiction over regulating all commerce between states, most of the roads covered in this mandate are local and not involved in any interstate commerce of any kind.

Of course, the federal government’s interpretation of the interstate commerce clause is a fallacious one anyway.  The clause was intended to give the Congress power to ensure free trade between the states which was a common problem under the Articles of Confederation.  James Madison in Federalist Paper 45 set the record straight as far as the Founders’ intentions were concerned about federal power,

“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. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

Since roads and highways do not fall under the subjects of “war, peace, negotiation, and foreign commerce” and they do fall under “improvement and prosperity of the State” if he were alive today Madison would agree that the Department of Transportation shouldn’t even exist let alone have the right to place mandates on the states.

But, of course in our contemporary political climate Constitutionalism means little.  Congress and the Executive Branch violate the Constitution all the time without any after thoughts.  So, let me try a different angle.  In economics there is something called opportunity cost.  It has to do with possessing scarce resources and facing a decision on how to use those resources.  The more resources you spend on one choice leaves less to spend on others so you have to decide which choices’ benefits are most valuable to you.  The federal government is leaving the states very little choice.  All states are on fixed budgets.  Unlike the federal government, states cannot simply fire-up the printing presses of the central bank.  In this current depression, states especially are having to make some tough choices about funding.  Facing dwindling tax revenues and unable to raise taxes, they must still fund schools, police, and many social services.   By mandating that states spend millions to change street signs the federal government is forcing states to cut funding for necessary human services.

We can’t expect bureaucrats to do the right thing and cancel an unfunded mandate that is so outrageous and harmful to the states in these trying times.  After all they are just unelected leeches on society.  But where is Congress?  Doesn’t it care that precious resources are being diverted away public safety, kids and the elderly?  Republicans in Congress should especially be willing to take a stand.  It was their own Bush Administration that initiated the mandate in 2003 and they are the ones always talking a good game about small, limited government.  This would be an easy unfunded mandate to protest since the Democrats would have little ammunition to play their typical race-baiting, fear mongering games.  But, no, there are no signs that relief will be forthcoming from Congress.  Seems the only recourse for the states if they have any gumption is to nullify the mandate.  They should tell the feds to quit violating their constitutional powers and refuse to fund the signs.  This would put the feds in their place and give the decision making for state spending back to the people where it belongs.


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.