Is Government Ever Faithful To The Constitution?

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When the government is waving at us with its right hand, so to speak, it is the government’s left hand that we should be watching. Just as a magician draws your attention to what he wants you to see so you will not observe how his trick is performed, last week presented a textbook example of public disputes masking hidden deceptions. Here is what happened.

Last week was dominated by two huge news stories. One was the revelation by the Senate Intelligence Committee of torture committed by CIA agents and contractors on 119 detainees in the post-9/11 era — 26 of whom were tortured for months by mistake. In that revelation of anguish and error were the conclusions by CIA agents themselves that their torture had not produced helpful information. President Barack Obama acknowledged that the CIA had tortured; yet he directed the Department of Justice not to prosecute those who tortured and those who authorized it.

The other substantial news story was the compromise achieved by Congress and the White House to fund the government through the end of September 2015. That legislation, which is 2,000 pages in length, was not read by anyone who voted for it. It spends a few hundred billion dollars more than the government will collect in tax revenue. The compromise was achieved through bribery; members of Congress bought and sold votes by adding goodies (in the form of local expenditures of money borrowed by the federal government) to the bill that were never debated or independently voted upon and were added solely to achieve the votes needed for passage. This is how the federal government operates today. Both parties participate in it. They have turned the public treasury into a public trough.

Hidden in the law that authorized the government to spend more than it will collect was a part about funding for the 16 federal civilian intelligence agencies. And hidden in that was a clause, inserted by the same Senate Intelligence Committee that revealed the CIA torture, authorizing the National Security Agency to gather and retain nonpublic data for five years and to share it with law enforcement and with foreign governments. “Nonpublic data” is the government’s language referring to the content of the emails, text messages, telephone calls, bank statements, utility bills, and credit card bills of nearly every innocent person in America — including members of Congress, federal judges, public officials, and law enforcement officials. I say “innocent” because the language of this legislation — which purports to make lawful the NSA spying we now all know about — makes clear that those who spy upon us needn’t have any articulable suspicion or probable cause for spying.

The need for articulable suspicion and probable cause has its origins in the Fourth Amendment to the Constitution, which was written to prohibit what Congress just authorized. That amendment was a reaction to the brutish British practice of rummaging through the homes of American colonists, looking for anything that might be illegal. It is also a codification of our natural right to privacy. It requires that if the government wants nonpublic data from our persons, houses, papers or effects, it must first present evidence of probable cause to a judge and then ask the judge for a search warrant.

Probable cause is a level of evidence that is sufficient to induce a judge into concluding that it is more likely than not that the place to be examined contains evidence of crimes. In order to seek probable cause, the government must first have an articulable suspicion about the person or place it has targeted. Were this not in the law, then nothing would stop the government from fishing expeditions in pursuit of anyone it wants to pursue. And fishing expeditions turn the presumption of liberty on its head. The presumption of liberty is based on the belief that our rights are natural to us and that we may exercise them without a permission slip from the government and without its surveillance.

Until last week, that is. Last week, Congress, by authorizing the massive NSA spying to continue and by authorizing the spies to share what they have seized with law enforcement, basically permitted the fishing expeditions that the Fourth Amendment was written to prevent.

How can the president and Congress defy the Constitution, you might ask? Hasn’t every member of the government taken an oath to uphold the Constitution? Doesn’t the Constitution create the presidency and the Congress? How can politicians purport to change it?

The answers to these questions are obvious, as is the belief of most of those in government that they can write any law and regulate any behavior and ignore the Constitution they have sworn to uphold whenever they want, so long as they can get away with it.

 
COPYRIGHT 2014 ANDREW P. NAPOLITANO
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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

Is Barack Obama Melting Down?

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Barack Obama is melting down. Desperate to leave a positive legacy, he is beside himself and grasping at straws. With popularity polls at an all time low and virtually no one approving of how he is doing his job, he is doing an end run around the U.S. Constitution by ramrodding through executive orders and executive actions to implement his policies.

But even this is failing as the courts are blocking his attempt at slam-dunking an amnesty of illegal immigrants.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

Syria Causing Heated Debate On Capitol Hill

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The big debate before the Committee on Foreign Relations is an authorization for the use of military force (AUMF) in Syria.

Under normal circumstances, this would involve the Obama administration sending Congress a draft AUMF resolution and requesting its passage.

These types of resolutions are required under the War Powers Act, and have largely replaced the constitutionally required Declaration of War.

But Obama has sent nothing to Congress.

He seems to believe the open-ended resolution that was passed in 2002 – giving President Bush the authorization to oust Saddam Hussein – still gives him enough power to push ahead with war in Syria.

So, as Senate Democrats are rushing to pass one of these resolutions before Republicans take control of the Committee (and the U.S. Senate) in January, what can we expect to happen?

Not Another Iraq…

Democrat Robert Menendez of New Jersey (Chairman of the Committee on Foreign Relations for the next few weeks) wants any resolution to contain clear boundaries on troop deployments and a limited timeframe–the main reason being the Democrats’ frustration with the open-ended resolution Bush had on Iraq.

On December 10, Secretary of State John Kerry was on Capitol Hill arguing against the restriction. And here’s what he said before the Committee: “The fact is that we’re going to continue this operation, because the president and the administration are absolutely convinced – and I respect your opinion – [that] we have the authority.”

Translation: They believe they don’t need Congress’ okay.

In hindsight, it’s ironic that both Obama and Kerry held different opinions when they were in the U.S. Senate. As Senators, both were actively trying to limit President Bush’s actions as Commander-in-Chief.

Unconstitutional Moves?

At this point, the fight is primarily within the Democratic Party. Most Republicans are sitting on the sidelines because they believe the U.S. President has wide latitude to make his own decisions concerning the use of force. Heck, the majority of Republicans would give even Barack Obama a blank check to run the war anyway he pleases.

While the Republicans are mum, one stands alone – Rand Paul. And his position is much more principled. Paul believes we don’t need an AUMF resolution, but a full-blown Declaration of War (as mandated by the U.S. Constitution) before Obama moves forward.

At the same hearing… Paul said, “The Constitution is quite clear that this responsibility lies with Congress… For four or five months, we’ve been derelict in our duty… [and] I think this president has been derelict.”

So there’s the real division in D.C.: Both the Democrats and Republicans disregard the Constitution’s call for a Declaration of War – happy to settle with an AUMF. Obama has even less care for the rule of law, as he doesn’t even want a new AUMF.

And yet, only the Tea Party Constitutionalist Rand Paul wants a Declaration of War. And by the look of things, he’s completely outnumbered.

 

This commentary originally appeared at WallStreetDaily.com and is reprinted here with permission. 

Photo credit: Navajo Nation Washington Office (Flickr)

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

Once Again, Obama Playing With Constitutional Fire By Inviting Illegals

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Earlier this week, President Obama made it clear that he will soon offer some form of limited amnesty to about five million foreign nationals who are currently living illegally in the United States. He will do so by issuing an executive order to federal officials who oversee immigration directing them to undertake a course of action that, if complied with individually by all persons whom he designates as eligible, will cause the federal government to remove the threat of deportation from those who meet the standards he will lay down.

Can he legally do that?

To address that question, we need to start with the principle that a presidential action may be lawful at the same time that it is unconstitutional. The president has the legal power to defer deportations. The power is called prosecutorial discretion. This is a power traditionally recognized as inherent in the presidency that enables him to defer or modify all federal law enforcement.

The theory is that the president needs the ability to allocate resources as the changing times, emergent events, and public needs may require. Thus, he can, for example, defer prosecuting bank robbers and aggressively pursue drug dealers. That wouldn’t mean that all bank robbers would go free; it would mean that either state prosecutors would pursue them, or they’d wait for trials until the drug kingpins were caught and convicted. But he could set some free if he wished.

The check on the exercise of prosecutorial discretion is gross abuse, which is typically demonstrated by either improper executive motive or effective nullification of law. I don’t know what the president’s motive is. If it is political, I suspect his efforts will backfire. He cannot grant citizenship or the right to vote.

If his motive is humanitarian or moral, I understand him. Under the natural law, people have the right to travel and live wherever they wish. The existence of our natural rights is not conditioned upon the place where our mothers were at the times of our births. And from a free market and historical perspective, immigrants have enhanced the economy as they move up the demographic ladder.

But the president’s behavior has serious constitutional dimensions that go far beyond the motives in his heart; and his oath is to the Constitution, not to his heart.

If the president nullifies deportations on such a grand scale that the effect is the nullification of federal laws, then he has violated his oath “faithfully” to execute his presidential obligations. The Framers required that every president swear to do his job “faithfully” to serve as a reminder to him that his job requires fidelity to the enforcement of laws with which he may disagree. The American people, Congress, and the courts need to know we have a president who will enforce the laws, whether he agrees with them in his heart or not. Without presidential fidelity to the rule of law, we have a king, not a president.

By conferring temporary legal status upon foreign nationals who have not achieved it under the law, providing they meet criteria that he will establish, the president affects huge numbers of persons and produces a result that is the opposite of what the law requires. Can the president’s exercise of his prosecutorial discretion constitutionally nullify a federal statute? No. Can the president’s exercise of his prosecutorial discretion effectively rewrite a federal statute? No.

It is unconstitutional for the president to nullify federal law. It is unconstitutional for him to refuse to enforce laws that affect millions of persons and billions of dollars. It is unconstitutional for him to refuse to enforce laws merely because he disagrees with them — particularly laws that pre-existed his presidential oaths. And it is unconstitutional for him to rewrite laws, even if he is doing so to make them more just.

Every president since Dwight D. Eisenhower has deferred some deportations. President Reagan deferred deportations for about 100,000 families of foreign nationals in 1987 under his reading of the congressionally authorized 1986 amnesty law, and President George H.W. Bush did so in 1990 for about 350,000 foreign nationals under his reading of the same law. Each of these was based on a principled public presidential reading of the words and purposes of a federal statute. Obama does not purport to read and interpret the current immigration law; rather, he effectively rewrites it.

What can Congress do? Congress can pass legislation to invalidate Obama’s executive actions. Yet even if it did so and overrode his certain veto, it has no assurances that Obama would be bound by the new legislation. He refuses to enforce the plain language of well-established and never judicially altered federal statutes. What assurances does Congress have that he would follow any new statutes that he has vetoed and that regulate his behavior?

Is the blanket refusal to enforce federal laws that profoundly affect five million persons — and in the process severely straining the social services of all 50 states — an impeachable offense? The president is playing with constitutional fire; and impeachment is the only constitutional remedy available, short of 25 months of a constitutional conflagration that he has ignited.

 
COPYRIGHT 2014 ANDREW P. NAPOLITANO
DISTRIBUTED BY CREATORS.COM

Photo credit: The Speaker (Flickr)

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

Why Is Obama’s Administration Chilling Free Speech Yet Again?

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Earlier this week, the federal government’s National Science Foundation, an entity created to encourage the study of science — encouragement that it achieves by awarding grants to scholars and universities — announced that it had awarded a grant to study what people say about themselves and others in social media. The NSF dubbed the project Truthy, a reference to comedian Stephen Colbert’s invention and hilarious use of the word “truthiness.”

The reference to Colbert is cute, and he is a very funny guy; but when the feds get into the business of monitoring speech, it is surely no joke–it is a nightmare. It is part of the Obama administration’s persistent efforts to monitor communication and scrutinize the expressions of opinions it hates and fears.

We already know the National Security Agency has the digital versions of all telephone conversations and emails sent to, from, or within the U.S. since 2005. Edward Snowden’s revelations of all this are credible and substantiated, and the government’s denials are weak and unavailing — so weak and unavailing that many NSA agents disbelieve them.

But the government’s unbridled passion to monitor us has become insatiable. Just two months ago, the Federal Communications Commission, which licenses broadcasters, threatened to place federal agents in cable television newsrooms so they can see how stories are generated and produced. The FCC doesn’t even regulate cable; yet it threatened to enhance its own authority by monitoring cable companies from the inside.

What’s going on here?

What’s going on here, and has been going on since President Obama took office in January 2009, is a government with little or no fidelity to basic constitutional norms. There is no defense under the Constitution to any aspect of the government’s — federal, state, regional, local, or hybrid; or any entity owned or controlled by any government; or any entity that exercises the government’s coercive powers or spends or receives its money — monitoring of the expressive behavior of anyone in the U.S., not in a newsroom, on social media, or anywhere else.

The NSF’s stated purpose of the Truthy squad is to look for errors in speech, particularly errors that fuel hatred or political extremes. This monitoring — this so-called search for error — is totalitarian and directly contradicts well-grounded Supreme Court jurisprudence, for several reasons.

First, for the government to gather information — public or private — on any person, the Constitution requires that the government have “articulable suspicion” about that person. Articulable suspicion is a mature and objective reason to believe that the person has engaged in criminal behavior. Without that level of articulable belief, the government is powerless to scrutinize anyone for any reason.

The articulable suspicion threshold is vital to assure that people in America have the presumption of liberty and are free to choose their behavior unimpeded or threatened by the government. The feds cannot cast a net into the marketplace of ideas and challenge what it brings in. Were they able to do so, the constitutional protections for free expression and the primacy of liberty would be meaningless.

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom