Tag: Constitution

The Congress shall have power to…

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I have been gone for awhile.  I have several unpublished posts from the last year that are all too dated to publish.  It’s been a weird road, watching the nation go on, watching the ups and downs, and not talking about it. I was comfortable writing thousands of words, critiques on the matters of State, and deleting them because, honestly, I was vain and empty.  The world, I believed, wanted flash.  Shining lights bright colors in streamers at the bottom of the television set.  Well dressed hosts in $5,000 suits quantifying matters of international concern one moment and then tittering about puppies the next.

It is grotesque, and will continue to be so because they have the money, the advertisers, and the professionals that pour through reams of data that tell them this is exactly what their viewers want.  I was fine with this.  It is their money, it is their channel, and their viewers.  I can go without that.  I have disagreed with their tactics, but that is theirs, and there are bigger fish to fry.

http://www.ctvnews.ca/politics/white-house-confident-in-legal-basis-for-expanded-fight-against-islamic-state-without-congress-1.2004451

The link above goes to an article from CTV News regarding the President’s bid to expand the American military presence in Iraq.  The president and his “legal team” have attempted to craft a legal maneuver around the restrictions of the War Powers Clause of the Constitution and War Powers Act of 1973 and a host of international standards regarding national sovereignty and international war.

I am not fond of snippets.  However, the scope of the section I will post the relevant text of the enumerated powers from Article 1, Section 8 of the Constitution:

The Congress shall have power…to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.

It is a fundamental thing.  A simple idea that the people of a nation, not a single man or woman, should decide when and why the nation goes to war.  It was the desire to remove the absolute authority of the king that prompted the declaration of war to be put in the hands of the people and their representatives in the Legislative, rather than Executive, branch.

We have seen challenges to this power time, and time again.  From The Gulf of Tomkin to the invasion of Iraq in 2003.  As a matter of fact, scholars have spoken on this very matter:

What I am opposed to is a dumb war. What I am opposed to is a rash war. What I am opposed to is the cynical attempt by Richard Perle and Paul Wolfowitz and other armchair, weekend warriors in this administration to shove their own ideological agendas down our throats, irrespective of the costs in lives lost and in hardships borne…

That’s what I’m opposed to. A dumb war. A rash war. A war based not on reason but on passion, not on principle but on politics. Now let me be clear — I suffer no illusions about Saddam Hussein. He is a brutal man. A ruthless man. A man who butchers his own people to secure his own power. He has repeatedly defied UN resolutions, thwarted UN inspection teams, developed chemical and biological weapons, and coveted nuclear capacity. He’s a bad guy. The world, and the Iraqi people, would be better off without him.

But I also know that Saddam poses no imminent and direct threat to the United States or to his neighbors, that the Iraqi economy is in shambles, that the Iraqi military a fraction of its former strength, and that in concert with the international community he can be contained until, in the way of all petty dictators, he falls away into the dustbin of history. I know that even a successful war against Iraq will require a U.S. occupation of undetermined length, at undetermined cost, with undetermined consequences. I know that an invasion of Iraq without a clear rationale and without strong international support will only fan the flames of the Middle East, and encourage the worst, rather than best, impulses of the Arab world, and strengthen the recruitment arm of al-Qaida. I am not opposed to all wars. I’m opposed to dumb wars.

Granted the speech is from the buildup to the second Iraq War, and if the word choice and tone sounds familiar, it should.  President, then Senator, Barack Obama delivered this address on October 2nd, 2002.  The most poignant words of his speech apply just as much to his actions as Commander in Chief as they did to President George Bush when he was decrying the impetus by the Executive Branch to to follow the unwise course of action that would, eventually, embroil the American military in one of it’s longest running military actions:

Let’s fight to make sure our so-called allies in the Middle East, the Saudis and the Egyptians, stop oppressing their own people, and suppressing dissent, and tolerating corruption and inequality, and mismanaging their economies so that their youth grow up without education, without prospects, without hope, the ready recruits of terrorist cells. You want a fight, President Bush? Let’s fight to wean ourselves off Middle East oil, through an energy policy that doesn’t simply serve the interests of Exxon and Mobil.

Those are the battles that we need to fight. Those are the battles that we willingly join. The battles against ignorance and intolerance. Corruption and greed. Poverty and despair. The consequences of war are dire, the sacrifices immeasurable. We may have occasion in our lifetime to once again rise up in defense of our freedom, and pay the wages of war. But we ought not — we will not — travel down that hellish path blindly. Nor should we allow those who would march off and pay the ultimate sacrifice, who would prove the full measure of devotion with their blood, to make such an awful sacrifice in vain.

Since that time we have followed through on practically none of these issues.  ISIS/ISIL is loaded with young men from Saudi Arabia.  Their government wonders how we, not they, will stop ISIS/ISIL from arriving at their door because they have, for decades, done exactly what was warned against decades before, and elucidated by President Obama when he put pen to paper in 2002.

Here we stand twelve years later.  Still beholden to the rampant policies of the Middle East.  Policies and movements rooted in religious bigotry rather than rational discourse.  National well-being discarded in lieu of perceived religious bias.  Our nation, weary from two, decade-long wars that have claimed the lives of thousands of countrymen, and countless civilians.  What fruit have we seen from these wars?  None.

A broken nation stands, still fighting with itself.  A region that is progressing further into chaos because of selfish policies set decades ago, and being overseen by petty dictators.  Armies without parent countries formed from the most zealous, uneducated, and blood-thirsty.  We, as a nation, failed to step up onto the world stage and engaged in statesmanship rather than showmanship.  We negotiated with the sword rather than with an olive branch, or bread basket.  We remain the most powerful solely because of “investment” in a military that’s purpose is to project the promise of violence.  We have deferred diplomacy in lieu of the capacity to annihilate those who stand against us.

Have we used these powers judiciously, to an extent.  We have destroyed with one hand, but in the other there should have been honest cooperation with those who remain.  To allow nations to decide how they would rule themselves instead of listening to the Young Turk who believes they know all.  Here we stand, here our President stands.  Seeing, hopefully, all the follies we have committed, and, hopefully, learning from them.

Limited action against ISIS/ISIL has been successful, but the time of Presidential operation without the purview of the electorate is at an end.  The notion that lawyers are working around the clock to further stretch the President’s capacity to operate without the consent of Congress, and by proxy the people, is a distasteful indication of a desire to operate outside of the realm of the Constitution.  A need to push the letter of the law as far as it can go, knowing that those who would punish in the case it breaks are firmly in your pocket.  It dishonors the spirit of the law, and the notion that the representatives of the people should decide when we are to go to war.  It was the firm notion 227 years ago that no President would ever have this nations army  at his beck and call for extended use.  If this is to be another war, let it be a war America chooses, rather than the occupant of 1600 Pennsylvania Avenue.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

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A curious note was passed my way regarding a recent court decision to prohibit the Pittsylvania County Board of Supervisors from holding a pre-meeting prayer that included the name Jesus.  Couple that with the knee-jerk reaction from some state representatives in North Carolina who submitted a resolution to establish a state religion, and it’s another spin on the ‘religious freedom’ movement.

Going back to Virgina first, The article regarding the court decision can be found here and the ACLU has it’s own take here.  In short, the County Board of Supervisors had deviated from the religious neutral prayer that most government organizations insist upon at the beginning of meetings for a clearly identifiable Christian one.  This raised the hackles of one Mrs. Barbara Hudson, and she informed the Board that what they were doing was unconstitutional…which it is.  The board more or less told her to shove off, and, true to form, the ACLU became involved.  Mediation failed, and ‘lo the Judiciary is brought in to lay the smack down.

A similar incident occurred in North Carolina, in the district the that is represented by the state congressman that presented the resolution.  The judicial response to the prayer is what inspired these two representatives, one of which wears the tea party badge with honor, to file this amazingly unconstitutional piece of legislation.

The ground level I’m getting to is this: They were informed that it was unconstitutional, and when informed of such they didn’t bother to research their position nor did they take it under consideration.  They blew the challenge off for self-indignant or self-righteous reasons, failed to come to a compromise in court mandated mediation (a simple acquiescence would have sufficed), and in the end cost the taxpayers significant time and energy better spent addressing the issues of their respective county as well as the thousands, if not millions, of dollars in legal fees that will be assessed after the dust has finally settled.

The need, not desire but flat-out need, to invoke God at public government events also makes me wonder, as I have many times before, about the personal relationship with God that the believers are suppose to have, but seem very eager to show off in public.  My understanding was that it was a deeply personal, one-on-one kind of relationship.  One that cannot be impressed upon by the government, and, through that same clause, cannot be impressed upon others.

The comments on other articles claiming this is another attack on religious freedom by the Judiciary, the resolution goes on to itemize how these decisions are just that, but here’s the thing; the government, any government beholden to the Constitution of the United States America, cannot endorse any religion. The Supremacy Clause of the Constitution overrides state Constitutions and local legislatures.  Its not an attack on religion when those affected are asking that the rules that apply to the situation be enforced accordingly.  Somewhere along the line those who are pushing for “religious freedom” forgot what it was about.

The Representatives from North Carolina, short on civics lessons or long on sleeping in class, fail to realize that the federal government does have a say in what the states do.  The power of the states lies in their people and the states capacity to represent themselves at the federal level.  They rage about judicial oversight with regards to these, and many other social matters (and religion is a social matter), but fail to recall that the legislative, executive, and judicial branches are to balance each other.  Should the legislative, or we’ll say the most representative body of the electorate, get a wild hair up it’s ass, it is up to the Judiciary (since the executive cannot directly interfere on state affairs) to apply the law as it is interpreted.

Does that mean that the “majority” might get a black eye supporting specific causes, yes.  I’d point to school integration, inter-racial marriage, interstate commerce, property rights, voting rights, freedom of speech, and several thousand other decisions made by the Judicial branch that have in some respects hindered the majority from being a collective dick to a select group of people, but also protecting the body politic from those in both the state and federal realms from doing long-lasting harm.

There isn’t a gun being held to their heads saying that they must worship Allah, Amaterasu, or Cthulhu because there are explicit protections prohibiting the government from enforcing a state religion. That protection, however, does not guarantee that a specific religion will remain in the majority over the existence of a nation, or that the majority religion receives any special privileges or protections because it has the most, or most influential, followers.  It appears that those that normally decry religious freedom forget that the government is designed to protect not only those practicing a religion from government interference, but also to protect those of us who don’t share their beliefs from being steamrolled by the them.

Stop frothing at the mouth for a moment and realize the long game moments

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My stomach fell out when the decision on Thursday rolled down.  I was a staunch believer that any variation of the individual mandate was a legal faux pa and had to be struck down.  Then I read the Roberts decision and was illuminated to an entirely new way of operating in the government.  I was seeing, for the first time, not a decision based on party politics or personal interest.  No, I saw a straight out of myth ruling based on pure constitutional reasoning. Okay, there may have been some political wranglings in there, and I am thrilled that other pundits and writers like Michael Medved and Paul Begala were quick to point out the true victory for Republicans in the bill.

At the root of the Roberts decisions, aside from defining the mandate as a tax and throwing the life of the bill back into the hands of Congress which may very well fall into Republican hands in November, there was this little gem:

2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the
Commerce Clause and the Necessary and Proper Clause. Pp. 16–30.
(a) The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity.” E.g., United States v. Lopez, 514 U. S. 549, 560. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by
purchasing a product, on the ground that their failure to do so affects interstate commerce. (link)

Roberts effectively stopped the government from mandating that a lack of participation in a specific filed of commerce amounted to having a direct impact on interstate commerce.  In writing the decision this way he took the congressional, and largely Democratic, insistence to tell Americans what to do with their money, even when they are not spending it, and locked it away in that nasty little box known as ‘unconstitutional’.

Labeling the mandate as a tax was something the President was specific about avoiding during the creation and vote on the bill.  Even after it was enacted they President and Democratic members of congress were adamant that it was not a tax, but when they went to the line the only legal way to argue it, and to save any resemblance of the mandate, was to label it just that. However, in doing so it lost that shiny aspect of a social program that could be administered by an Executive Branch organization, and was put back in the hands of Congress.

Lastly, there is the matter of the tax itself.  I’ve seen the posts on social websites and heard my conservative friends gnash their teeth and scream to the heavens about how individual liberty is dead, how freedom is no longer found in the United States, and I chuckle.  The issue will be revised. CNN pointed out, not 30 minutes after the decision was made, that the tax can only be challenged, by law, after it has gone into effect.  That means in January of 2014, the first year the penalties, excuse me, Taxes are in place, there will be another lawsuit, another challenge, and another Supreme Court decision,

Chief Justice Roberts looked to the future on this decision, and he ruled, not as a conservative or a liberal, but as any judge should.  He put the balls back in their respective courts, taking the power to create taxes away from the executive and giving it back to the legislative, and told the nation that the President would not be playing with that ball anymore.  At least, not in that capacity.

UPDATE: A site I frequently visit (www.neveryetmelted.com) has a fantastic article on this and links to several other articles.  I’d strongly recommend bookmarking it if you get a chance.