There is NO Line

Two years ago, I asked where was the line that limited Congress in mandating we the people to do what they tell us to do.  If Congress can mandate that we buy healthcare, why not gym memberships?  Why not apples?  What is the logical argument for the limit.  The Supreme Court has declared that there is NO limit.

Though the individual mandate was invalidated from the Commerce Clause perspective, it was effectively upheld from the Power to Tax perspective.  Wonderful.  Therefore it follows that Congress cannot mandate that a citizen buy health insurance but it can assess a tax if he doesn't.  It is a distinction without a difference.

As I warned in yet another posting, this is a precedent.  Even if Mitt Romney wins and enough Senators are elected to overcome the inevitable Democrat filibuster to a repeal of Obamacare, that will not stop a future Congress levying a tax on citizen who don't eat broccoli.  Or, for those who like this ruling, it won't stop a tax imposed on non-gun owners.  Or perhaps a prohibitive tax on abortion?

John Marshall, the justice who brought about Judicial Review, said that the power to tax is the power to destroy.  The John Roberts court has just given permission for Congress to tax citizens into submission.  The power of the federal government just grew and freedom shrank.

Fast and Furtive

Something doesn't seem right with the Fast & Furious investigation.  According to Jay Carney, Fast & Furious was a holdover from the Bush administration that Attorney General Holder stopped.  If that's the case, why not release the documents that will damn the Bush administration?  It isn't as if the Obama administration has been shy about laying blame on the previous administration so far and this time they have documents to back them up!  Or do they?  Color me a skeptic.  More than once, the Justice Department has offered testimony to Congress that later proved be be untrue.  Such actions on the part of Roger Clemens resulted in prosecution.  The DOJ has recanted a statement that Michael Mukasey - Bush's last Attorney General - was aware of Fast & Furious.  I'm sure Scooter Libby would have loved to recant testimony rather than suffer obstruction of justice and perjury charges.  Again, if this all falls to the Bush administration, just show the evidence and wash your hands of it.  Instead, a different path has been taken.

The Obama administration asserted Executive Privilege (EP).  When you consider that Holder claimed to have no knowledge of Fast & Furious until early 2011 and also that he did not authorize it, why claim Executive Privilege?  No one - other than 'right wing nuts' - had proposed that the White House was involved but, by invoking EP, Obama has entangled the White House.  If what Jay Carney is saying is true, then EP is a political blunder.  It's like when someone pleads the 5th, thus declaring that testimony will be self-incriminating.  Granted, there are times when EP is justified (national security, protecting the executive branch from congressional overreach) but this doesn't appear to be one of those times.  Nixon was unable to keep Oval Office audio tapes private with EP but Obama wants to keep DOJ documents that never passed through the White House secret?  Precedent isn't in your favor, Mr. President.

Of course, all of this may be forgotten next week depending on how the Supreme Court rules on Obamacare.  If it is struck down, that will drown out the Fast & Furious hearings and the questionable use of EP.  However, we can also expect the ruling on Arizona's immigration law that mirrors federal law.  Depending on how that one goes, Holder might suffer another setback and perhaps exacerbate Fast & Furious.  The administration has had a couple of tough weeks and next week could be much worse.

Who needs Congress?

Today, President Obama passed the Dream Act.  Congress proved unable to pass it so the President decided to do it on his own.  One wonders what other laws Congress has failed to pass that the President will start enforcing.  There has been talk of the EPA imposing Cap & Trade.  Regardless of one's party affiliation, this should be of great concern.  That Nancy Pelosi came out in favor of this lawlessness shows that she doesn't understand the precedent or, more likely, she doesn't care as long as she gets her way.  If she doesn't squawk when a Democratic president usurps the legislative authority of Congress, what will she say when a Republican does the same?

There was much complaint that Bush did end runs around Congress.  However, he asked for and received Congressional approval for his invasions of Afghanistan and Iraq.  Obama did not get approval for Libya, thus breaking the War Powers Resolution.  It is worth noting that the Congress passed that in 1973 because Nixon bombed Cambodia without Congressional approval.  Bush failed to pass his Amnesty through Congress but did not thereafter attempt to impose it executively.  Obama did not see the failure of Congress to pass the Dream Act as an impediment to enforcing it.  Congress refused to pass legislation to save GM and Chrysler with federal loans.  Both Bush and Obama provided those loans anyway; that's embezzling.  Misappropriation of funds is an impeachable offense but Congress let them both get away with it.  Congress is required to pass a budget each year and yet has not passed one in 3 years.  Congress is complicit in making itself irrelevant.

In Ancient Rome, the Senate was the ruling body of the nation for centuries.  The Consuls - there were two elected each year - were analogous to the Presidency.  The power of the Roman Senate was overtaken by the increasing power of the consuls until the positions flipped.  Senator became a ceremonial role, a sinecure for the elites or a prize to be given by the emperor.  If the Presidency can pass law and congress calmly allows such usurpation, then who needs congress?  Are we still a republic?

Separation of Powers

Everyone is familiar with the three branches of government: Legislative, Executive, and Judicial.  This is probably the first thing one learns in civics in the United States.  Congress writes the laws, the President enforces the laws, and the Supreme Court adjudicates the laws.  Simple, right?

The Presidency has taken upon itself some legislative functions.  Of course, the Congress is complicit in this, as it must be.  The Constitution invests only the Congress with the authority to legislate but the Congress time and again delegates this power to newly-minted Executive agencies that then regulate.  This is outsourced legislation.  To members of Congress, this is great.  Senator Bob can claim credit for creating this or that agency and thus showing his concern for this or that issue but also deny any responsibility if the regulations prove onerous or expensive.  At that point, the President needs to address the issue.  Perhaps there will be meaningless hearings that accomplish nothing but look serious and responsible.

The President cannot delegate his veto pen to his chief of staff.  He cannot delegate Commander in Chief to his Defense Secretary.  The Constitution allocates these to the President and he cannot then divest himself of them.  The Supreme Court cannot outsource its role as Court of Final Appeal to a law clerk.  By the same token, the Congress cannot outsource legislation.  Laws written by persons who have not been given the Consent of the Governed should be null and void.  We the People did not vote for Bureaucrat Bill.  When Bureaucrat Bill writes a law, We the People cannot vote him out if we are unhappy with his legislation.

If Congress had to pass all laws - as was intended - we'd have a lot fewer laws.  Laws would not run hundreds or thousands of pages which the legislators didn't have time to read.  There would not be passages that allocated 'rule making' or 'regulation' to this or that cabinet Secretary.

Separation of Powers existed to preserve the liberty of We the People.  The legislator who passes the law doesn't then enforce it.  The policeman who makes the arrest is not also the judge at the trial.  The judge who adjudicates the laws doesn't also legislate.  The conflict of interests is clear on this basic level.  But when the Congress grants legislative authority to the President, few see the parallel.  When judges create law through their rulings, too many are unfazed.  Separation of Powers protects liberty while their combination invites tyranny.



Waterboard or Death

When President Obama was running for the office, he said Gitmo was bad.  It was unAmerican to treat people - terrorist or otherwise - to permanent incarceration.  Likewise, military tribunals were bad.  Everyone should get a trial by jury, even a foreign terrorist.  Such a policy would have been tough to implement in World War II.  A trial for every captured German?  Worst of all, it was wrong to waterboard captives.  Torture is wrong and even spelled out in the Bill of Rights.  Clearly President Obama felt we were being too harsh toward the enemy.  We weren't living up to American ideals.  How are we doing now?

Well, instead of capturing terrorists and interrogating them, we just blow them up.  Drone strikes are way up under Obama.  They don't even get the benefit of a military tribunal.  The star chamber at the White House has found you sufficiently guilty so here's your missile.  BOOM!  Sorry about killing your son but he was probably going to be radicalized in a few years.  Ditto for the wife.  Collateral damage, don't you know.

I don't have a lot of sympathy for terrorists but there does seem to be a contradiction here.  Typically, a person who opposed indefinite detention and waterboarding would really be opposed to execution without trial, especially if there were collateral deaths.  But instead, that seems to be perfectly fine, even commendable.  It was the Obama Administration that announced its weekly star chamber about which terrorist should be blown to bits.

It is peculiar since I predicted this when Obama first stated his opposition to Gitmo.  If the terrorist is just going to be remanded to the custody of a Middle Eastern country which will likely release him to return to terror, the calculus suddenly changes to a desire to have fewer captives.  Of course, I was expecting the soldiers in the field to more often kill enemy combatants.  Really hadn't expected Obama to embrace the kill don't capture policy.  However, if you oppose putting terrorist in Gitmo and can't try them in American courts (remember the KSM NYC trial fiasco), it does become easier to just kill them.  No messy legal entanglements that way.

Under Bush, the terrorist was more likely to be captured, interrogated, and then spend an indefinite time at Gitmo, where he was fed (typically putting on weight) and provided a Koran.  Under Obama, the terrorist blows up.  Which is more humane?