Category Archives: Separation Of Powers

President Obama establishes Council of Governors by Executive Order

Constitution, Military, Separation Of Powers, The Bill Of Rights, War on Terror

Brad just asked what people are reading today.  President Obama just provided some interesting reading material indeed. Here’s the opening text from an Executive Order dated January 11, 2010:

EXECUTIVE ORDER
ESTABLISHMENT OF THE COUNCIL OF GOVERNORS

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 1822 of the National Defense AuthorizationAct of 2008 (Public Law 110-181), and in order to strengthenfurther the partnership between the Federal Government and State governments to protect our Nation and its people and property, it is hereby ordered as follows:

Section 1. Council of Governors.
(a)
There is established a Council of Governors (Council).The Council shall consist of 10 State Governors appointed bythe President (Members), of whom no more than five shall be ofthe same political party. The term of service for each Member appointed to serve on the Council shall be 2 years, but a Membermay be reappointed for additional terms.
(b)
The President shall designate two Members, whoshall not be members of the same political party, to serve asCo-Chairs of the Council.
Sec. 2. Functions. The Council shall meet at the call of the Secretary of Defense or the Co-Chairs of the Council toexchange views, information, or advice with the Secretary ofDefense; the Secretary of Homeland Security; the Assistant tothe President for Homeland Security and Counterterrorism; theAssistant to the President for Intergovernmental Affairs andPublic Engagement; the Assistant Secretary of Defense forHomeland Defense and Americas’ Security Affairs; the Commander,United States Northern Command; the Chief, National GuardBureau; the Commandant of the Coast Guard; and other appropriateofficials of the Department of Homeland Security and theDepartment of Defense, and appropriate officials of otherexecutive departments or agencies as may be designated by theSecretary of Defense or the Secretary of Homeland Security.Such views, information, or advice shall concern:
(a)
matters involving the National Guard of the variousStates;
(b)
homeland defense;
(c)
civil support;
more
(OVER)
2
(d)
synchronization and integration of State and Federalmilitary activities in the United States; and
(e)
other matters of mutual interest pertaining toNational Guard, homeland defense, and civil support activities.

Read the rest here.

Stephen Gordon
http://stephengordon.com

Earmark And Healthcare Wars: Ron Paul vs Jeff Flake

Corruption, Dumbasses and Authoritarians, Federal Reserve, Fiscal Policy, Government Transparency, Government Waste, Healthcare, Monetary Issues, Politics, Republicans, Separation Of Powers, Strategies For Advancing Liberty, Theory and Ideas

A recent article in the Washington Examiner by John Labeaume details the differing approaches to earmarks that two of most libertarian members of Congress have. This difference came out in a vote on an amendment that Flake wrote to H.R. 3791 which was the Fire Grants Reauthorization Act of 2009. The Flake amendment would ban earmarks as defined by Congressional rules. All in all, a modest amendment.

From the Examiner article:

Here’s a gross understatement: Friends of Freedom in the Halls of Congress are few and far between. Asked for a “Real Life” practicing politician that they can actually get behind, it’s not uncommon for libertarians of many stripes to limit their response to two: Rep. Ron Paul (R-TX) and Rep. Jeff Flake (R-AZ).

Dr. Paul has been known to put his own sometimes idiosyncratic principle before practicality, leading his legions of fevered ‘money bombing’ fans along his particular path to ideological purity. His rabid opposition to barrier-busting trade agreements like NAFTA, quibbling with a new panel it might spawn, is a prime example. And this trait can pit his voting record against those of his erstwhile liberty-loving allies, and align himself with curious company.

……………………………

Last month, in an obscure House vote, this stubborn streak reared its head again. It’s a minor, but instructive instance, as Paul was one of only two “nay” votes on his side of the aisle against an amendment to HR 3791, the Fire Grants Reauthorization Act of 2009, offered by his fellow Constitutional conservator, Flake.

The only Republican lined up with Paul – and against Flake – was that egregious earmarker, Rep. Jerry Lewis (R-CA), the Ranking Member on Appropriations. Like his Showbiz namesake, the collegial Lewis’ look could pass for that of a 70’s “Nite Club” act and he certainly knows how to work a room, but he’s dead serious about defending Appropriators’ perks and the practice of earmarking.

Flake’s amendment was modest.

It merely seeks to ensure a competitive, need-based process for parceling out the firefighting grants authorized by the bill. The mechanism was aptly judicious: it enforces the bill’s ban on earmarking. If opened to earmarks, Flake fears that influential Members – like Lewis – could divert dollars to their districts, away from regions with less congressional clout, but in more dire need of an occasional emergency blaze dousing, admittedly not unlike the maverick Flake’s sometimes-parched Southwestern home base. Of course, and more significantly, once Members start horse trading in earmarks, the price tag tends to swell even beyond the bloated figure originally authorized.

Again, Paul stuck to his guns and stood by his controversial defense of earmarking, and let the red light glow next to his name on the big board above the Speaker’s Chair. His office told me, via an email statement, that Paul maintains that “that all spending should be earmarked as this provides the greatest transparency [and]…gives constituents an opportunity for input regarding how their tax dollars are spent.” The statement paid obligatory lip service to “drastically” reducing spending.

But this last line begs the question: what if that “input regarding how” just means “more,” and “for me”?

Before I go into the crux of the debate, my position on earmarking is this:

  • I don’t have a problem with earmarking in general because yes Congressmen should know the needs of their districts better than Federal bureaucrats.
  • However, earmarks lately have been a vehicle for corruption as Congresscritters reward supporters and campaign contributors with things that would be considered bribery under most circumstances (see John Murtha and the aforementioned Jerry Lewis, et al).
  • In addition, the earmarking process has been used as a way to short circuit the competitive bidding process and award contracts to politically connected companies.
  • Earmarks generally reward politically connected members of Congress and promote wasteful spending, however this is no different than other actions of Congress and the Federal government.
  • Therefore, I am a supporter of earmark reform, but I also realize that earmarks are only a portion of the overall problem with wasteful government spending and political corruption.

I believe that Jeff Flake is correct on this issue and I generally support his fight for earmark reform, Ron Paul’s opposition not withstanding. Earmark reform won’t eliminate wasteful spending and political corruption, but it will make a sizable reduction in both. It will also make it easier to defeat incumbent members of Congress as it will give incumbent members of Congress who bribe their constituents less ability to do so and therefore will increase turnover in Congress.

The Examiner article also attacked Ron Paul for not paying attention to the current healthcare fight:

With a scheme that threatens to regulate one-sixth of the U.S. economy wending its way through the legislative sausage-maker, Flake is focused. Glance at his home page; note the repeated references to health care from his multimedia page. Here’s a flurry of press releases issued in the heat of the House debate.

Meanwhile, Paul’s immediate obsession is trained on legalizing Liberty Dollars. Even though this health care overhaul threatens his livelihood – Dr. Paul is a physician by vocation, remember – from his homepage, you wouldn’t know that this issue looms over Washington one bit. Health care merits only a few addresses in Paul’s posted floor statements and press releases from the entire 111th Congress.

And though his official U.S. House site’s blog offers a few posts on this matter, his political arm, Campaign for Liberty, touts a recent interview with a right wing satellite shock jock, a self-styled “King Dude” whose trademark is liberal-lampooning novelty tunes. (Premium content, only for “King Dude” backstage pass holders, sorry.) During the interview, C4L’s homepage boasts, Dr. Paul discusses his pet “issues including Audit the Fed, Social Security, foreign policy, and nullification.” Number of mentions of healthcare? Zero. He didn’t even warble through a single “Death Panel” ditty.

………………………………………

Paul’s Campaign for Liberty sent out an action item, with orders to his loyal legions to contact Congress and demand a floor vote on his “Audit the Fed” bill, one that House leadership has no intention of unbottling.

As ‘Armageddon Day’ for health care regulation approaches, instead of taking up his scalpel to trim a behemoth, Dr. Paul is fiddling with the Fed.

Unfortunately for Labeaume, this is simply not true. Ron Paul has actually been focused, somewhat, on the healthcare debate. For example, the Campaign for Liberty, on its front page has a link to a project called Operation Health Freedom. Some of the proposed legislation in the project even made its wayhttps://thelibertypapers.org/wp-admin/post-new.php into the GOP’s alternative bill. Also, the Campaign for Liberty has been featuring articles almost daily on healthcare. Also if you look at Ron Paul’s House site as compared to Jeff Flake’s House site, you’ll see more writings about healthcare from Ron Paul and his office than from Jeff Flake and his office. I don’t begrudge Jeff Flake on the healthcare issue at all, but to say Ron Paul is disengaged from the healthcare fight is either the result of shoddy research at best or outright dishonesty at worst.

As for Ron Paul’s obsessions with the Federal Reserve, nullification, and foreign policy; that can be traced to Ron Paul’s political style more than anything. Paul is a populist oriented libertarian where as Jeff Flake is more a policy wonk libertarian. Flake’s big issues are earmark reform, immigration reform, and free trade which are more keeping of a former head of a think tank (which Flake was before his election to Congress). Paul’s issues are more geared toward a broad, populist appeal where as Flake’s issues are more appealing to political junkies and wonkish types.

As Nick Gillespie from Reason’s Hit and Run wrote:

To paraphrase Todd (“Godd”) Rundgren, sometimes I don’t know what to feel. Can’t we all just get along, and denounce the Fed and health care reform and earmarks and out-of-control spending? I’m sure we can.

Indeed.

Kevin Boyd
I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The Hayride.com and Rare. You can also find me over at the R Street Institute.
https://thelibertypapers.org/2005/11/22/a-bit-about-kevin/

Will The Supreme Court Finally Start Reining In The Necessary And Proper Clause ?

Constitution, Separation Of Powers

One of the most pernicious clauses of the Constitution that has, through creative interpretation led to an expansion of the power of the Federal Government far beyond where it was intended is the Necessary and Proper Clause, which sits at the end of Article I, Section 8 and states as follows:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

When James Madison wrote about the clause in Federalist No. 44, it was clear that the Founders viewed the clause as merely granting Congress the authority it needed to carry out the powers set forth in remainder of Section 8:

The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark. The SIXTH and last class consists of the several powers and provisions by which efficacy is given to all the rest. 1. Of these the first is, the “power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. “Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the SUBSTANCE of this power, the whole Constitution would be a dead letter.\

(…)

If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers.

The reality of just how flexible the clause was, though, became apparent only thirty-one years later when the Supreme Court handed down it’s decision in McCullouch v. Maryland:

McCulloch v. Maryland, 17 U.S. 316 (1819), was a landmark decision by the Supreme Court of the United States. The state of Maryland had attempted to impede operation of a branch of the Second Bank of the United States by imposing a tax on all notes of banks not chartered in Maryland. Though the law, by its language, was generally applicable, the U.S. Bank was the only out-of-state bank then existing in Maryland, and the law is generally recognized as having specifically targeted the U.S. Bank. The Court invoked the Necessary and Proper Clause in the Constitution, which allowed the Federal government to pass laws not expressly provided for in the Constitution’s list of express powers as long as those laws are in useful furtherance of the express powers.

This fundamental case established the following two principles:

  1. The Constitution grants to Congress implied powers for implementing the Constitution’s express powers, in order to create a functional national government.
  2. State action may not impede valid constitutional exercises of power by the Federal government.

The opinion was written by Chief Justice John Marshall.

It was the first example of a Constitutional clause being used to read into the Constitution increased powers for Congress beyond those set forth in the text of the document, and it wouldn’t be the last.

Now, it appears that the Supreme Court may have the opportunity to rein in the damage the McCulloch did:

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act. One provision of the law authorizes the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the attorney general certifies to be “sexually dangerous.” The effect of such an action is to continue the certified person’s confinement after the expiration of his prison term, without proof of a new criminal violation.

Six days before the scheduled release of Graydon Comstock — who had been sentenced to 37 months in jail for receiving child pornography — the attorney general certified Comstock as sexually dangerous. Three years later, Comstock thus remains confined in a medium security prison, as do more than 60 other similarly situated men in the Eastern District of North Carolina alone.

Comstock and several others challenged their confinements as going beyond Congress’s constitutional authority and won in both the district and appellate courts. The United States successfully petitioned the Supreme Court to review the case.

Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief opposing the government. We argue that the use of federal power here is unconstitutional because it is not tied to any of Congress’s limited and enumerated powers. The government’s reliance on the Necessary and Proper Clause of Article I, Section 8, is misplaced because that clause grants no independent power but merely “carries into execution” the powers enumerated elsewhere in that section. The commitment of prisoners after their terms simply is not one of the enumerated powers.

While the government justifies its actions by invoking its implied power “to establish a federal penal system” — itself a necessary and proper auxiliary to certain enumerated powers — civil commitment is unrelated to creating or maintaining a penal system (let alone any enumerated power). Nor can the law at issue fall under the Commerce Clause, because civil commitment involves non-economic intrastate activity.

Here’ s hoping that the Court takes this one, admittedly small, step toward reining in an out-of-control Federal Government.

Doug Mataconis
http://www.belowthebeltway.com

The Cult Of The Imperial Presidency

Book Reviews, Constitution, Democracy, Liberty, Politics, Separation Of Powers, The Nanny State, The Surveillance State, War on Terror

whitehouse

Over the past 30 years, America has seen Presidential scandals ranging from Watergate to Iran-Contra to Travel-gate, Whitewater, the Lewinsky scandal, and the Valerie Plame affair. We’ve learned the truth about some of the truly nefarious actions undertaken by some of most beloved Presidents of the 20th Century, including the iconic FDR, JFK, and LBJ. And, yet, despite all of that, Americans still have a reverential view of the President of the United States that borders on the way Englishmen feel about the Queen or Catholic’s feel about the Pope.

How did that happen and what does it mean for America ?

Gene Healy does an excellent job of answering those question in The Cult of the Presidency: America’s Dangerous Devotion to Executive Power, making it a book that anyone concerned with the direction of the American Republic should read.

As Healy points out, the Presidency that we know today bears almost no resemblance to the institution that the Founding Fathers created when they drafted Article II of the Constitution. In fact, to them, the President’s main job could be summed up in ten words set forth in Section 3 of Article II:

he shall take Care that the Laws be faithfully executed,

The President’s other powers consisted of reporting the state of the union to Congress (a far less formal occasion than what we’re used to every January), receiving Ambassadors, and acting as Commander in Chief should Congress declare war. That’s it.

For roughly the first 100 years of the Republic, Healy notes, President’s kept to the limited role that the Constitution gave them. There were exceptions, of course; most notably Abraham Lincoln during the Civil War but also such Presidents as James Polk who clearly manipulated the United States into an unnecessary war with Mexico simply to satisfy his ambitions for territorial expansion. For the most part, though, America’s 19th Century Presidents held to the limited role that is set forth in Article II, which is probably why they aren’t remembered very well by history.

As Healy notes, it wasn’t until the early 20th Century and the dawn of the Progressive Era that the idea of the President as something beyond what the Constitution said he was took forth. Healy documents quite nicely the ways in which Presidents from Theodore Roosevelt to Woodrow Wilson to FDR went far beyond anything resembling Constitutional boundaries to achieve their goals, and how they were aided and abetted in that effort by a compliant Supreme Court and a Congress that lacked the courage to stand up for it’s own Constitutional prerogatives. Then with the Cold War and the rise of National Security State, the powers of the Presidency became even more enhanced.

One of the best parts of the book, though, is when Healy attacks head-on the “unitary Executive” theory of Presidential power that was advanced by former DOJ official John Yoo in the wake of the September 11th attacks and the War on Terror. As Healy shows, there is no support for Yoo’s argument that the Founders intended for the President to have powers akin to, or even greater than, those of the British Monarch that they had just spent seven years fighting a war to liberate themselves from. The dangers of Yoo’s theories to American liberty and the separation of powers cannot be understated.

If the book has one weakness, it’s in the final chapter where Healy addresses only in passing reforms that could be implemented to restrain the Cult Of the Presidency. I don’t blame Healy for only giving this part of the book passing attention, though, because what this book really shows us is that no matter of written law can stop power from being aggregated in a single person if that’s what the people want and, to a large extent, we’ve gotten the Presidency we deserve.

Healy’s closing paragraph bears reproducing:

“Perhaps, with wisdom born of experience, we can come once again to value a government that promises less, but delivers far more of what it promises. Perhaps we can learn to look elsewhere for heroes. But if we must look to the Presidency for heroism, we ought to learn once again to appreciate a quieter sort of valor. True political heroism rarely pounds its chest or pounds the pulpit, preaching rainbows and uplift, and promising to redeem the world through military force. A truly heroic president is one who appreciates the virtues of restraint — who is bold enough to act when action is necessary yet wise enough, humble enough to refuse powers he ought not have. That is the sort of presidency we need, now more than ever.

And we won’t get that kind of presidency until we demand it.”

And, if we don’t demand it we will find ourselves living in a country where the only difference between President and King is merely the title.

Doug Mataconis
http://www.belowthebeltway.com
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