Archive for Constitution

King Hussein

As the affronts and outrages pile up, it’s hard to remember which affront is the most outrageous.

This one is:

JONATHAN TURLEY, GEORGETOWN UNIVERSITY LAW PROFESSOR: There is an issue whether the judge reached a bit too far from the case at hand. This really wasn’t a direct challenge to the immigration action taken by the president but it is scathing and the judge is touching on many complaints that have been raised in other lawsuits that do directly challenge these actions.

What’s a serious question here is the president’s decision to go it alone, not just in this area but other areas. We don’t have a license to go it alone in the United States. The scope of this type of action is legislative. It’s huge. It affects millions. But more importantly, it requires both the federal and state government to spend a great deal of money to support something that didn’t go through the legislative branch. And what people miss, and I think what this judge is trying to establish, is that that process of legislation is the very touch stone of our system, it’s what brings stability to our system. We have to agree, we have to compromise with legislation. When a president does it unilaterally, it takes that whole system off line. And that could be a dangerous thing.

I highlighted the main point. The Constitution assigns powers, not the president. Obama does not have the power to execute what he has so far merely spoken (but which is being executed nevertheless). How does that happen?

“The only thing necessary for the triumph of evil is for good men to do nothing.”

Congress may try legislative fixes and fiscal blockades, but the very act(s) itself is invalid. It does not carry the weight of law because it is not law. He has appropriated what does not belong to him, only unlike looters taking flat screen TVs or 12-packs of Miller, he has made off with powers assigned to the legislative branch of the government. And no one is lifting a finger to stop him.

TURLEY: The key to a Madisonian system is that nobody has enough power to go it alone, that was the genius of James Madison. But we’re seeing the rise of a new model of presidency and I believe that supporters of President Obama will rue the day when they stay silent in the face of this kind of concentration of power. This is the very danger that the constitution was designed to prevent, the concentration of power in one person’s hands or one branch…

Correction, Professor Turley. Supporters of President Obama will never “rue the day when they stay[ed] silent in the face of this kind of concentration of power”. If some day the tables are turned (as with the filibuster in the Senate), they will rue nothing. They will shout, declaim, cry, and caterwaul for “fairness” and “justice” until they get their way.

They believe in winning—even more, they believe in the other fellow losing. I thought the Constitution protected us against people like that, but I guess that’s where I was wrong.

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See You in Court

You’ll be hearing from my lawyers:

President Barack Obama’s new plan to ease the threat of deportation for 4.7 million undocumented immigrants violates the U.S. Constitution, a federal judge found on Tuesday, handing down the first legal ruling against the plan.

The ruling has no immediate impact, with the government saying there was no reason for Judge Arthur Schwab of the Western District of Pennsylvania to address the issue in the case, which concerns 42-year-old Honduran immigrant Elionardo Juarez-Escobar.

Schwab is the first judge to rule on the legality of the plan Obama announced on Nov. 20. The executive action by the Democratic president is opposed by Republicans and is already subject to other legal challenges.

Schwab ruled that the executive action violated the U.S. Constitution’s guarantee of separation of powers and the separate “take care clause,” which requires the president to faithfully execute laws passed by Congress.

So what if it’s non-binding? At least someone has the nuts to pronounce on the issue. Over to you, John Boehner (speaking of nuts, or lack thereof).

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Hail to the Chief

There’s a philosophy in defensive football that committing penalties on every play pays off because “they can’t call ‘em all”.

It fits Obama’s MO. Break every law, flout every convention, break every tradition—they can’t call ‘em all:

On Thanksgiving eve, the Obama administration dumped reams of mind-numbing ObamaCare regulations into the Federal Register — including yet more unilateral rewrites of the Affordable Care Act.

Dropping the rules as most Americans were busy preparing for the holiday made a mockery (again) of President Obama’s promise to have “the most transparent administration in history.” The stunt has even worked to keep most of the media from reporting on the rules.

Yet the changes these regulations make in the health care law are substantial.

For one, the president is redefining what health plans are “adequate” for larger employers (100-plus workers) to offer under the Affordable Care Act. He’s also “asking” insurers to pay for new benefits — while warning that, if they don’t, they may be forced to.
Under the Constitution, Obama lacks any authority to make such changes to the health law, or any law. Only Congress has that power.

But he’s doing it, and not for the first time.

The president has made two dozen changes to his health law by executive fiat, from delaying the employer mandate to allowing people to keep health plans that don’t meet ObamaCare standards.

In fact, the House of Representatives is suing him (after Obama explicitly challenged it to do so) for making changes without Congress’ OK.

,,,

The basics:

Obama will require large employers to provide more coverage than the Affordable Care Act specifies. The move disqualifies plans now offered by 1,600 employers to 3 million workers, according to Kaiser Health News. Those employers will have to find a way to cover the higher costs — and some will surely do so by stopping coverage for spouses or part-time workers.

The new rules suddenly treat state high-risk pools as adequate coverage under the Affordable Care Act — a 180 from what the law actually says.

When the ACA became law, these plans for people with chronic illnesses were offered in 35 states. Winners will be those who live in the 10 states that haven’t yet phased out their high-risk plans. Losers: the many thousands in 25 states that already gave up their plans to comply with the ACA’s mandates.

The rules tell insurers to give new enrollees a 30-day grace period during which they can continue to use doctors not in their plan’s network. Winners: people who need time to switch to in-network doctors. Losers: taxpayers — who’ll be obliged to bail out the insurers clobbered with the extra cost.

Speaking of bailouts, Section 1342 of the law promises taxpayer-funded bailouts to insurers that lose money selling plans on ObamaCare exchanges. But the bailouts can’t happen unless Congress appropriates the money, something the GOP-controlled Congress won’t want to do. Yet the new Federal Register notices explicitly double down on the administration’s pledge to make insurers whole if losses are bigger than expected.

By repeatedly contradicting the letter of the Affordable Care Act, these new rules add to a pattern of lawlessness in implementing the health law — even as the administration’s boldest misreading of the law is before the Supreme Court.

The framers of the Constitution were terrified of creating a new king in place of the one they had just deposed. That fear ripples through every clause of the Constitution. But along with the “checks and balances” enumerated in the document, there is an implied good faith that each branch of government will abide by the rules, the President most of all. He is the individual with the most power, his removal is the most difficult.

With amnesty, ObamaCare, the IRS, and innumerable other violations, Obama dares us—the people—to try to call him on them with that ageless playground taunt, “what are you going to do about it?”

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We Can Quantify The Loss Of Personal Freedom Under Obama

Do you remember all those people who claimed that George W. Bush was taking away our personal freedoms? All those fiery dinner parties? Where are those folks now?

Americans’ assessments of their personal freedom have significantly declined under President Obama, according to a new study from the Legatum Institute in London, and the United States now ranks below 20 other countries on this measure.

The research shows that citizens of countries including France, Uruguay, and Costa Rica now feel that they enjoy more personal freedom than Americans.

As the Washington Examiner reported this morning, representatives of the Legatum Institute are in the U.S. this week to promote the sixth edition of their Prosperity Index. The index aims to measure aspects of prosperity that typical gross domestic product measurements don’t include, such as entrepreneurship and opportunity, education, and social capital.

The freedom scores are based on polling data from 2013 indicating citizens’ satisfaction with their nation’s handling of civil liberties, freedom of choice, tolerance of ethnic minorities, and tolerance of immigrants. Polling data were provided by Gallup World Poll Service. The index is notable for the way it measures how free people feel, unlike other freedom indices that measure freedom by comparing government policies.

“This is not a good report for Obama,” Legatum Institute spokeswoman Cristina Odone told the Washington Examiner.

In the 2010 report (which relied on data gathered in 2009), the U.S. was ranked ninth in personal freedom, but that ranking has since fallen to 21st, with several countries, including France, Germany and the United Kingdom passing the U.S.

The nation’s overall personal freedom score has declined by 17 percent since 2009, with a 22 percent drop in combined civil liberty and free choice contributing to that decline.

Of the eight categories in the index, personal freedom was America’s second lowest performance relative to other countries. The U.S. had its lowest ranking when it came to safety and security (a broad measure of how threatened citizens feel in instances such as walking late at night, or expressing their opinions) — ranking 31st out of 142 countries.

More at the link.

– Aggie

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Ripe for Impeachment

I’m not saying it’ll happen: impeachment is more a political act than a legal one.

But Andy McCarthy makes the case:

I drew on Faithless Execution in last weekend’s column and in a follow-up Corner post, positing that, short of credibly threatening impeachment, Congress and the courts can neither compel a president to enforce the laws nor stop him from using his plenary pardon authority to grant a sweeping amnesty. That gets Obama two-thirds of the prize he is pursuing — namely, several million aliens whose illegal status has been purged, put on the path to inevitable voting rights that will give Democrats an invincible electoral majority.

By calling on Congress to pass a bill to his liking, Obama has admitted he doesn’t have the authority to do this on his own. He has said exactly that several times over the years, as captured in a video we posted yesterday. By issuing this fiat, therefore, he will exceed his authority—by his own admission and reasoning. Either the proposed amnesty will have no validity; or, if he attempts to enforce it, he will be violating the Constitution. Again, he says so.

That may seem like a political impossibility—I am far from prepared to issue one of my Thirstradamus predictions—but it may become more possible over time:

Congress could, in theory, block the president from granting illegal immigrants legal status and other positive benefits (such as work permits) without impeaching him. To do this in reality, though, Congress would have to use its power of the purse. Translation: It would take the credible threat of a government shutdown to check the president’s lawless conferral of benefits.

Alas, that constitutional parry has already been disavowed by GOP congressional leadership.

Against this backdrop, I am gratified that Fox News’s Megyn Kelly and Charles Krauthammer have just given the topic of impeachment in the immigration context more of the serious consideration it deserves. Appearing on The Kelly File Thursday, Dr. Krauthammer asserted that the president’s anticipated amnesty decree for millions of illegal aliens “is an impeachable offense.”

He is plainly correct. As Faithless Execution elaborates, “high crimes and misdemeanors,” the Constitution’s trigger for impeachment, is a term of art for abuses of power that violate the president’s fiduciary obligations to the American people he serves, the constitutional system he takes an oath to preserve, and the laws whose faithful execution is his core duty. High crimes and misdemeanors are not — or at least, not necessarily — the same as “crimes” and “misdemeanors” prosecutable in the courts. Impeachment is a political remedy (i.e., the removal of political authority), not a legal one (i.e., the removal of liberty after criminal indictment and conviction).

A sweeping amnesty for millions of unrepentant lawbreakers that punishes American workers, imposes crushing burdens on the states, and betrays law-abiding aliens who comply with our immigration rules is not an indictable offense. Yet it is obviously an impeachable one. So is the failure to enforce the immigration laws. And the effort to award by executive decree benefits that only Congress has the power to grant is patently lawless and thus just as clearly impeachable.

Exactly. And, not to be tiresome, but Obama, the ex-Senior Lecturer in Constitutional Law, has said so himself, repeatedly.

The argument goes on, but let me peel off here to discuss the politics. Impeachment requires a majority vote in the House, one I believe would pass easily. The case then is handed over to the Senate for “trial”. To convict, two-thirds (67) of the Senators need to vote in favor. When the new Congress is seated, there will be 54 Republicans, all of whom (let’s say) will vote for impeachment. Can they convince 13 Democrats to go against the party (and the country) to join them? Almost certainly not.

Obama’s proposed decree is politically unpopular, as is he, and a few Dems will vote to impeach. But not enough. As McCarthy says, impeachment is a political act more than a legal one. And there are more than enough political hacks among the Democrats in the Senate to spare The Nation’s First African American President™ from the humiliation of impeachment.

So, is it worth it to proceed? Democrat pollster Pat Caddell described Obama as a “raging narcissist”. Such people do not slink away with their tails between their legs. He’s not bluffing. He doesn’t have to: he can do the math as well as I can (both of us having gone to the same university). I’m not sure I see the point in pursuing a strategy that has almost no chance of success at the end, will leave the offending act unchanged, and may be political overkill.

And I’d vote to impeach him faster than you can say “undocumented citizens”.

But I wonder if wielding the power of the purse might not be a better option, even if it does lead to a shutdown. The GOP feels it took the brunt of criticism for the last “shutdown” (slowdown, barely), yet it just won an historic election. Unlike impeachment, cutting off funds is, as this administration likes to say, a “time-limited, scope-limited” action. A specific remedy to an unpopular act.

I’d also take my chances in the Supreme Court, however this issue might come before them. Even there, the issue would be as much political as it would be legal. But I think a majority of Roberts, Alito, Scalia, Thomas, and Kennedy would rule that the Constitution is not the president’s napkin at a barbecue joint, to be soiled, wadded up, and thrown away whenever it suited him. On that, I would give my Thirstradamus guarantee.

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Document Dump

Holder finally releases some Fast and Furious documents, during mid-term election coverage

The Justice Department sent Congress 64,280 pages of documents it had previously withheld from the botched Fast and Furious gun-walking operation on Tuesday, in a move Republicans said was an admission by President Obama that he overstepped his legal bounds.

Investigators had sought the documents for years, with the House even suing in federal court to force their release. Mr. Obama had asserted executive privilege, claiming the documents were part of the “deliberative process” of White House decision-making and therefore didn’t need to be divulged, but the court rejected those claims.

The most despicable administration evah.

– Aggie

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This Is What American Fascism Looks Like

Obama planning amnesty by Christmas

The law? Why Obama Is The Law.

ABC News Chief White House Correspondent Jon Karl reported that according to WH officials “the president will move forward with an executive order on immigration reform “no matter how big a shellacking Democrats get tonight” during ABC’s Election coverage on Tuesday.

Karl said “White House officials are saying that you can expect the president to set an aggressive, and defiant tone tomorrow. You’re not going to see any mea culpas, no big firings, no change in direction.”

He added “officials tell me the president is prepared to aggressively pursue his agenda using his power of executive authority, where he can’t work with Congress, and the big one is going to be on immigration reform. White House officials tell me that the president will move forward with an executive order on immigration reform no matter how big a shellacking Democrats get tonight.”

I surely hope that all you O-Bots recognize what you’ve done to the country.

– Aggie

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Why Bother With Elections?

No matter how you vote, the machine registers for the democrat.

Early voting just started last week in Maryland, but there are already accusations that some voting machines are changing Republican votes to Democrat. Now Republicans are calling for an investigation by the State Board of Elections.

As Marylanders go to the polls, there are concerns that the vote you cast may not be for the candidate you want.

“We’ve heard from scores of citizens in our district and around the state who have had this problem where they hit one button to vote for one person, and when they go to the summary they see that the other person was checked,” said Del Nik Kipke, (R) Anne Arundel County.
Republicans say they’ve received several dozen reports of Republican votes being changed to Democrat.

Del. Kathy Szeliga says it happened to her.
“I kept pushing the Republican guy’s name and the machine kept going beep, beep, beep,” said Szeliga, (R) Baltimore & Harford co.
Now GOP leaders are calling for an investigation.

Investigation, eh? That’ll make a big difference.

– Aggie

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The Monday Morning After

After that exhausting weekend cavorting with golf buddies on the links and at Camp David, President Obama returns to work:

Obama Schedule || Monday, August 4, 2014
by KEITH KOFFLER on AUGUST 3, 2014, 9:30 PM
Today is President Obama’s 53rd birthday.

11:00 am || Receives the Presidential Daily Briefing
11:45 am || Meet with Treasury Secretary Lew

He could sleep till 10:45, haul his hungover ass in to the Oval Office for the briefing (mug of coffee in hand), do the Sudoku until Lew shows up, then go back to bed.

And people say he’s checked out.

PS: What do you give to the man who has everything?

President Obama has made it clear that he has a pen and a phone, and that he is willing to go around Congress and the Constitution to get his way. So for his birthday, the RNC is delivering a copy of the U.S. Constitution to the White House so Obama can read it before he picks up his pen or phone.

PS: Of course, as this writer observes, the only good President Obama is a golfing President Obama:

[T]he best we can hope for is presidents who simply do nothing. Going back to 2009 when he reached the White House, had Barack Obama hung around the White House bowling alley these last six years he would be presiding over a booming economy today as previously mentioned.

Fast forward to 2014, Obama is finally doing very little, and unsurprisingly the health of the economy is starting to reflect stock market optimism about a do-nothing president that began to register many years before this one. To be consistent, conservatives should now be praising our listless, exhausted, unfocused president. Let the economic boom begin!

The jobless economic boom, he means.

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Part Of ObamaCare Illegal

President vows to ignore ruling

In a potentially crippling blow to Obamacare, a federal appeals court panel declared Tuesday that government subsidies worth billions of dollars that helped 4.7 million people buy insurance on HealthCare.gov are illegal.
The 2-1 ruling said such subsidies can be granted only to people who bought insurance in an Obamacare exchange run by an individual state or the District of Columbia—not on the federally run exchange HealthCare.gov. The ruling relied on a close reading of the Affordable Care Act.

“Section 36B plainly makes subsidies available in the Exchanges established by states,” wrote Senior Circuit Judge Raymond Randolph in his majority opinion in the case known as Halbig v. Burwell, where he was joined by Judge Thomas Griffith.

“We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up their own Exchanges, our ruling will likely have significant consequences both for millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly.”

In his dissent, Judge Harry Edwards, who called the case a “not-so-veiled attempt to gut” Obamacare, wrote that the judgment of the majority “portends disastrous consequences.”

Indeed, the 72-page decision threatens to unleash a cascade of effects that could seriously compromise Obamacare’s goals of compelling people to get health insurance, and helping them afford it.

White House will ignore:

The Obama administration said it will ask the full U.S. Court of Appeals for the District of Columbia Circuit to reverse the panel’s decision, which for now does not have the rule of law.

White House spokesman Josh Earnest said the ruling—for now—”does not have any practical impact” on premium subsidies issued to HealthCare.gov enrollees now.”

“We are confident” that the ruling will be overturned, Earnest said. “We are confident in the legal position we have . . . the Department of Justice will litigate these claims through the federal court system.”

Earnest said “it was obvious” that Congress intended subsidies, or tax credits, to be issued to Obamacare enrollees regardless of what kind of exchange they used to buy insurance.

Our Tin-Pot-Dictator-In-Chief Has Spoken!

Also, Professor Larry Tribe of Harvard has this to say:

President Obama’s old Harvard Law professor, Laurence Tribe, said that he “wouldn’t bet the family farm” on Obamacare’s surviving the legal challenges to an IRS rule about who is eligible for subsidies that are currently working their way through the federal courts.

“I don’t have a crystal ball,” Tribe told the Fiscal Times. “But I wouldn’t bet the family farm on this coming out in a way that preserves Obamacare.”

– Aggie

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He’s Not Constitutional, Bitches

And far from being the law of the land, he is the law unto himself:

JONATHAN TURLEY: Frankly it’s difficult to discuss these quaint constitutional issues in what is often a poisonous political environment. As a people we’ve become — we’ve come to the point where we can’t just simply disagree, we have to despise each other. We subscribe to the worst motivations of our opponents and elevate our own proposals over process. To put it simply, we’ve embraced what the Queen Mother said in Richard III. We just think of our babies as sweeter than they were and he who slew them is fowler than he is.

I don’t believe the president has a desire for tyrannical authority. I don’t question his motivation. I question his means. Our system is changing and this body is the one branch that must act if we’re to reverse those changes. We’re seeing the emergence of a different model of government, a model long ago rejected by the framers. A dominant presidency has occurred with very little Congressional opposition. Indeed, when President Obama pledged to circumvent Congress, he received rapturous applause from the very body that he was proposing to make practically irrelevant. Now many members are contesting the right of this institution to even be heard in federal court. This body is moving from self-loathing to self-destruction in a system that is in crisis.

The president’s pledge to effectively govern alone is alarming, and what is most alarming is his ability to fulfill that pledge. When a president can govern alone, he can become a government unto himself, which is precisely the danger the framers sought to avoid. What we’re witnessing today is one of the greatest crises that I expect the members of this committee and this body will face. It has a patina of politics that is hard to penetrate. It did not start with President Obama. I was critical of his predecessor, and certainly this goes back long before George Bush, but it has reached a tipping point. (House Rules Commitee, July 16, 2014)

And this guy is a self-described fan of Obama. He even tries to share the blame for Obama’s unconstitutional behavior with a spineless Congress. To which there is some truth, even if that’s like blaming the victim of an abusive relationship. Obama says he wants to “do stuff”, but Congress won’t let him. A former Senior Lecturer at law school, he should recognize that as a “check”, intended to “balance” two equal branches of government. Instead, this petulant brat acts out by leaving his family behind and gorging on junk food. If only that were all.

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Smidgen of Corruption Update

Another red line is crossed:

STEVE KORNACKI, MSNBC: Jonathan, let me bring you in now. […] Presidential overreach, executive orders they think sort of undercut Congress, but you know, you’ve been following this, their complaints for the last few years, really. Legally speaking, is there any kind of a case here?

JONATHAN TURLEY, PROFESSOR OF LAW: Oh, I think there is a case against the president for exceeding his authority. I happen to agree with the president on many of his priorities and policies, but as I testified in Congress, I think that he has crossed the constitutional line.

KORNACKI: Where has he crossed it? Like what specific issue has he crossed it on?

TURLEY: When the president went to Congress and said he would go it alone, it obviously raises a concern. There’s no license for going it alone in our system, and what he’s done, is very problematic. He has shifted $454 million of the ACA from appropriated purpose to another purpose. He’s told agencies not to enforce some laws, like immigration laws. He has effectively rewritten laws through the active interpretation that I find very problematic. While I happen to agree with him, I voted for him, I think this is a problem.

One broken law is a tragedy. A million is a statistic.

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