Thursday, February 26, 2015

Temecula Constitution Class: Legislative Powers

Constitution Class Handout
Instructor: Douglas V. Gibbs
douglasvgibbs@reagan.com

www.politicalpistachio.com
www.douglasvgibbs.com
www.constitutionassociation.com

Faith Armory
41669 Winchester Road
Temecula, CA
Thursdays at 6:30 pm




Lesson 02

Legislative Powers

Establishing the Legislative Branch



Legislative Powers
Article I, Section 1: All Legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article I establishes the Legislative Branch of the federal government.  Article I, Section 1 of the U.S. Constitution establishes the two parts of Congress, and grants all legislative powers to the two Houses of the Congress of the United States.  When studying the language used in Article I, Section 1, the original intent by the Founding Fathers becomes clear.

The first word in the first section of Article I is the word “all.”  The definition of all is “the whole of a particular thing.”

The next words in Article I, Section 1 are legislative powers.  Legislative powers are the ability to make law, modify law, repeal law, and anything else that has to do with affecting law.

The next word in the clause is “herein.”  The primary definition of herein is “here in this document.”

After herein is the word grantedGranted is defined as “to give,” “to allow,” or more specifically “to legally transfer.”  If powers are granted, then there must be a “grantor,” as well as a grantee.  As we learned in our discussion regarding The Preamble, the “grantor” of the authorities enumerated in the Constitution is the States.

“Shall be” is definitive.  The Constitution in its first clause reads, “All legislative powers herein granted shall be. . .,” shall be meaning “it is,” or “it will be.”

“Vested” is much like “granted.”  Vested is a legal transfer of something, or in this case, an allowance to have legislative powers at the federal level granted to Congress.

The Congress of the United States is the legislative branch of the federal government, and this clause indicates that not only will the Congress be granted all legislative powers given to the federal government, but that the branch of government consists of two houses; a Senate and House of Representatives.

All legislative powers, according to this clause, are granted to the Congress by the States for the purpose of making law, modifying law, or repealing law.  The powers are herein granted, which means that the laws must fall within the authorities granted by the text of the U.S. Constitution.  In other words, laws made must remain consistent with the “powers herein granted.”

Based on language used in the first clause of the United States Constitution, when members of the judiciary legislates from the bench, or the President issues an executive order to modify a law, such action is unconstitutional.  After all, “all legislative powers” were granted to the Congress, not to the judicial branch, or the executive branch.

Since all legislative powers belong to the Congress, that means any regulations by federal departments that are not in line with laws made by the Congress that are in line with the authorities granted by the Constitution are unconstitutional as well.  All legislative powers belong to the Congress, therefore any “legislative actions” by regulatory agencies, which are a part of the executive branch, are not in line with the original intent of the Constitution.

Powers the federal government has were “granted” by the States.  “We The People of the United States” granted those powers to the federal government through the Constitution.  Therefore, if the federal government acts in a manner that is not consistent with the contract between the States and the U.S. Government, the States have the option to ignore those unconstitutional actions by the federal government.  This action of ignoring unconstitutional law is the States’ way of being the final arbiters of the Constitution.  The term for this kind of action by a State is nullification.  Thomas Jefferson, in his draft of the Kentucky Resolutions, explained that any unconstitutional law is null and void, and as an illegal law, the States have the right to nullify it.

The concept that only Congress has legislative powers, only the executive branch has executive powers, and the judicial branch only has judicial powers, as described in the first sentence of each of the first three articles of the Constitution, is called Separation of Powers.  The purpose of this philosophy is to disallow different branches from abusing the powers not granted to that branch, as well as to protect against collusion.

The Separation of Powers also exists between the States, and the federal government.  Most authorities granted to the federal government are powers the States did not reserve to themselves.  Most authorities retained by the States are not authorized to be administered to by the federal government.  There are a few authorities that are concurrent, meaning that both the federal government, and the States, have some authority over the issue.  One issue that is concurrent is immigration, which will be addressed later in this book.  Sole authority over a particular power is called Exclusive Powers.

House of Representatives
Article I, Section 2 establishes, and defines, the House of Representatives.  The members of the House of Representatives are divided among the States proportionally.  As it is today, the House of Representatives was the voice of the people in the federal government.  Each Representative is chosen to serve for two years, which means every two years every Representative is up for re-election, if they choose to run.

The eligibility of a Representative as explained by Article I, Section 2 requires that the candidate must be at least twenty-five years of age, and been a citizen of the United States for at least seven years.  The age is lower than for Senators.  Representatives were not expected to be as politically savvy as the Senators, and tended to have less experience.  The age requirement simply reflected that.  Political knowledge and experience tends to come with age.

Divided allegiance was a serious concern to the Founding Fathers.  The requirement that Representatives have been citizens of the United States for at least seven years reflects that concern.  Seven years, for a Representative of the people, was assumed to have been long enough for the Representative to have thrown off any allegiances to other nations.

The third clause of Article I, Section 2, includes the 3/5s clause, which was changed by the 14th Amendment following the American Civil War. 

The Southern States used slaves for their agricultural economies.  The southern states were needed to ratify the new constitution.  As a condition for ratifying the Constitution, the southern states demanded that the slaves be counted as one whole person each.  The idea was that if the slaves were counted as whole persons, the apportionment would tip the scales in their favor through increased representation in the new United States House of Representatives. White populations in the southern states were lower in number when compared to the northern states, due to the rural nature of the Slave States to the south.

The Northern States, under the heavy influence of merchants, political elitists, and a group of abolitionists, wanted the slaves counted as "zero" in order to reduce the number of representatives the southern states would receive, which would give the majority to the northern states, thus giving the north more legislative power.  With this additional voting power in the House of Representatives, the northern states sought to have greater influence on the federal government through legislation.  The plan was to use their legislative power to tyrannically force the southern states into submission, and to eventually abandon slavery.

In the interest of compromise, to convince the southern states to ratify the constitution, while giving the northern states the satisfaction that the southern states did not get exactly what they wanted, the decision was made that slaves would be counted as 3/5 of a whole person for the sake of apportionment.  In other words, it was not a declaration that they believed blacks to be less than a person, but simply to affect the census in such a way that too much power through apportionment would not be given to either The North or The South, while also ensuring that the Constitution got ratified.

G.R. Mobley, author of We the People, Whose Constitution Is It Anyway?, believes the Founding Fathers missed a great opportunity to abolish slavery.  He supports the idea that the 3/5s Clause was an error in judgment by the Founders, and that the authors of the Constitution should have only allowed those States that rejected slavery to be members of the union under the Constitution.  By failing to ratify the Constitution the southern slave states would then have been on their own as a separate union.  Pressure from the Spanish in Florida, and the threat of invasion by Spanish forces, would have then encouraged the slave states to abolish slavery, so that they may rejoin the union, and enjoy the strength of the union of all thirteen States.

Historically, it is impossible to know if that is exactly how it would have played out.  Regardless of the opportunity, the Founders largely believed they had to compromise to ensure every State remained a member of the union, and ensure that they would receive the required nine ratifications of States in order to put the new federal government into motion.

Article I, Section 2, Clause 3, in addition to containing the 3/5s Clause, also establishes the census.  The census is a required a head count to be taken once every ten years in order to determine the enumeration for establishing the number of Representatives each State shall receive.  The clause also indicates that the number of Representatives shall not exceed one for every thirty thousand.  This means there cannot be more than one Representative for a district of thirty thousand.  However, it does not indicate there must be one Representative per thirty thousand.  If that was the case, we would have thousands of Representatives.

Article I, Section 2, Clause 4 states that whenever vacancies happen in the House of Representatives, it is the duty of the Executive Authority to issue Writs of Election to fill such vacancies.  What this means is that the Governors of the States have the duty to ensure there is a special election to fill any vacancies that may happen in the House of Representatives.

The House of Representatives chooses for itself its own Speaker of the House, and other officers.

According to Article I, Section 2, Clause 5, the House of Representatives has the sole power of impeachment.  To impeach is to charge with misconduct.  The formal process of impeachment may lead to removal of an official accused of unlawful activity or other offenses deemed to be impeachable offenses.  Impeachment is not defined as removal from office, though removal from office is often the result of impeachment proceedings.  In history, two presidents have been impeached, but neither were removed from office.  The presidents who faced impeachment were Andrew Johnson (serving as President of the United States from 1865 to 1869), and William Jefferson Clinton (1993-2001).  President Richard Nixon resigned in 1974 before impeachment proceedings began.

The United States Senate
Article I, Section 3 established, and defines, the United States Senate.  The representation of the States in the U.S. Senate is equal, two per State.  The Senators serve for six years, which means every two years an election is held for one-third of the Senate seats.  The required minimum age of a Senator is thirty years, five years older than that of a Representative.  The increased age requirement for Senators reveals the importance of longer life and political experience, as considered by the Founding Fathers.  Allegiance to the United States also remained important to the framers in the U.S. Senate, requiring that Senators need to be nine years a citizen of the United States, rather than the seven years as required of Representatives.

Article I, Section 3 originally required that Senators were chosen by the legislatures of the States, rather than voted into office directly by the voters.  The appointment of Senators by their State legislatures changed to the vote of the people in 1913 with the ratification of the 17th Amendment.  By the State legislatures appointing the Senators, it made the Senate the voice of the States, while the House of Representatives was the voice of the people.  By the Houses of Congress being different, it created a natural check and balance, which did not allow the representation of the people to accomplish anything without approval of the voice of the States, and vice versa.

Article I, Section 3, Clause 4 establishes the Vice President as the President of the Senate.  The Vice President, though a member of the executive branch, is also connected to the legislative branch.  The Vice President may preside over the sessions of the U.S. Senate, and even participate in the debates, but in the end, the Vice President has no vote in the U.S. Senate, except as the tie-breaking vote.

During the early days of our nation the Vice President attended a large number of sessions of the Senate.  He served as the voice of the executive branch in the Senate, ensuring the States’ representation in Congress had the opportunity to be exposed to the executive branch’s opinions regarding the issues that concerned the States, and the union as a whole.

As with the House of Representatives, the Senate chooses its own officers.  One of those officers is the President pro tempore, which is the President of the Senate when the Vice President is not present.

The House of Representatives has the sole power of impeachment.  Article I, Section 3, Clause 6 gives the U.S. Senate the authority to try all impeachments.  No conviction can be reached unless two-thirds of the U.S. Senate membership is present.  Impeachment cannot extend further than the removal of the impeached from office, and the disqualification to hold any office in the future.  However, a legal case can still be brought against the convicted from other sources, according to the law.  Since the U.S. Senators were originally appointed by the legislatures of the individual States, this means that impeachment charges could be brought by the people (House of Representatives), but it took the States (Senate) to hear the case, and make the final determination after all evidence was provided.  During impeachment hearings, the Chief Justice presides over the hearing, as provided by Article I, Section 3.

The 17th Amendment changed the dynamics of our governmental system.  Note that many functions by the executive branch are subject to the advise and consent of the Senate.  The Senate ratifies treaties, holds hearings for any appointments the executive branch nominates, and the Senate holds the sole power for holding hearings on impeachments.  This is because actions by the federal government are subject to approval by the States.  The States granted the federal government its powers in the first place.

The House of Representatives, as the voice of the people, and the Senate, as the voice of the States, and the natural check and balance that is the result of that relationship between those two Houses of Congress, also enables both Houses together to be a valuable check against the executive branch.  One of the emanations of that correlation is the ability of Congress to override a veto with a 2/3 vote.  The authority to override vetoes was established to enable the People, and the States, when they are in full agreement regarding a proposed bill, to be able to ensure a law is put into place, and to constrain the executive together through the power of combined vote.

Elections and Assembly of Congress
Article I, Section 4 begins, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”  This clause establishes that each State may have its own methods for electing members of the Congress.  The same applies, as determined in Article II, to presidential elections.  If there is a discrepancy, or a question regarding the acceptance of ballots, it is not the job of the courts to make final determination.  Article I, Section 4 gives that authority to the State legislatures.

The same clause adds, after giving the State legislatures authority over federal elections, that “Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

Congress, as discussed earlier, is bicameral.  The two Houses of Congress are the House of Representatives, and the United States Senate.  The House of Representatives, at the time of the writing of the Constitution, was designed to be as it is now, the voice of the people.  Representatives have always been elected by a direct vote.  The United States Senate was the voice of the States, appointed by the State legislatures.  The appointment of the Senators by representatives of the people is an example of an indirect vote.

As the representation of the people, and the States, Congress was not seen as the greatest potential danger in the federal government.  Congress was the voice of the people and the States in the federal government; the eyes of the parents to ensure the central government did not grow beyond the authorities granted to it.  With Congress representing the oversight by the people, and the States, the oversight powers given to the federal legislature often led to other authorities that allowed Congress to act as a check and balance against potentially dangerous government activity.  Giving Congress oversight authorities was a way to ensure that Congress participated in the concept of a government “by the consent of the governed.”

Though elections were established with the State legislatures prescribing the times, places and manner of holding elections, as a check and balance against that authority, Congress may pass laws to “make or alter such regulations.”

At the end of the clause giving Congress the authority to act as an oversight regarding the manner in which elections are held, a qualifier is present, expressing, “except as to the Places of chusing Senators.”

A majority of delegates at the Federal Convention in 1787, by the conclusion of the assembly, were strong supporters of the sovereignty of the States, and the parental nature of the States in relation to the newly formed federal government, and the duty of the States as the final arbiters of the United States Constitution to ensure the new government functioned within the limitations granted to it.  A part of that function by the States included the very important fact that the States had a voice in Congress with appointed U.S. Senators.  The framers did not want that authority to be tinkered with, so they remind future generations at the end of this clause that though Congress has lawmaking authorities, and oversight authorities, manipulating the dynamics of government where the people, and the States, have a voice in the United States Congress is something not to be fiddled with.  A similar advisement also appears at the end of Article V., “and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Oversight powers by the States were seen by the framers as being a right of the States, and as with natural rights of the people, a right is not something that should be able to be taken, but if the holder of the right wishes to give it away, no law can prevent such a foolish action.

The second paragraph of Article I, Section 4 reads, “The Congress shall assemble at least once in every Year.”  The first thought regarding this clause by the typical reader may be, “Of course.  How can they get anything done if Congress isn’t assembling?”

Another question may be, “Why did the framers feel it to be necessary to insert this clause into the Constitution?”

During the convention in 1787, there were some who felt this clause was “overburdensome.”  Government was not supposed to dominate their everyday lives.  The members of Congress were not professional politicians, nor did they care to be.  They had businesses to run, and lives to live.  Surely, the attitude of many of the Founding Fathers was, there is not enough business to compel Congress to meet every single year!

Those who supported the concept of an annual meeting reminded the others that Congress was the check the people and the States had available to them in the federal government.  It was the duty of Congress to serve as a check against the President, and the federal judiciary.  To be an effective check, Congress must meet at least once per year.  The clause, it was argued, was for the benefit of the people.

In present day politics, the opposite seems to be the norm.  Government is viewed as being broken if they do not act on an endless and constant flow of issues, committees, and crises.  Politicians view their position as their job, rather than a service they are providing.

Originally, the required meeting day was the first Monday in December.  That was later changed to noon on the third day of January by the 20th Amendment.

Congressional Procedure
Article I, Section 5 requires Congress to have a minimum number of members present in order to do business.  That majority constitutes a quorum, and if the Congress deems it necessary, the present members may set fines for members who do not show up. The Houses of Congress may remain in session, during which no formal business is conducted because the House does not have a quorum, so as to prevent executive actions that may be carried out during recess.  This kind of session is called a pro forma session.

In Article II, Section 2, the President is given the authority to make recess appointments, when Congress is not in session.  Normally, the United States Senate has advise and consent authority over appointments, which means that appointments of personnel to fill vacancies are possible for the President to grant, but such appointments requires the approval of the United States Senate (voice of the States).  If the Senate is not in session, and an appointment is necessary, the President may make appointments, but the terms of those appointments only last to the end of the Senate’s next session.  If the Senate is in a pro-forma session, the President may not make any appointments.  With Congress only in session when there is work to be done, and the Founders believing that would likely only be once a year, the ability of the President to make appointments when Congress is not in session was a valuable, and necessary, tool.  In today’s political environment, it seems like Congress is always in session, so recess appointments are not as common.

In early January of 2012, President Barack Obama used a recess appointment to name Richard Cordray the new Director of the Consumer Financial Protection Bureau (CFPB).  The CFPB is a powerful bureaucracy created by the 2010 Dodd-Frank financial overhaul legislation.  However, even though most of the members of Congress were on vacation, the United States Senate was still in session.  President Obama’s definition of recess, it turned out, was broader than the Constitution’s definition.  In reality, the U.S. Senate was in pro-forma session.  John Berlau, Director of CEI's Center for Investors and Entrepreneurs, called the nomination of former Ohio Attorney General Richard Cordray "very troubling," criticizing both Obama's controversial use of a recess appointment, and the selection of Cordray itself.  Berlau later asked, “What's next, appointing nominees when the Senate takes a bathroom break?”

Article I, Section 5 also allows each House of Congress to determine its own rules, keep a journal to record proceedings and votes, and that neither house may adjourn without the permission of the other.  Section 5 also establishes that if a member of a house does not follow the established rules, the house may punish its members for disorderly behavior, and by a two thirds vote may actually expel a member from Congress.

The establishment of rules, holding a hearing in regards to the breaking of those rules, and punishing a member for his behavior, as set forth by Article I, Section 5, was used when Charles Rangel broke the rules of the House of Representatives.  He faced a panel for his actions, and was punished by censure in December of 2010.  He later sued, spending about a third of his 2014 campaign cash on legal bills in a failed bid to overturn his fall from congressional grace.  On December 11, 2013, a federal judge in Washington dismissed the lawsuit, filed by Rangel in the previous April, to get the censure overturned.

The mandate to keep a journal to record proceedings and votes was included in this section because the Founders wanted government to be transparent, accessible, and accountable to the people.  Deals behind closed doors were not supposed to be a part of our political system.
Congressional Compensation, Privileges, Restrictions
When President George Washington took office, he refused to accept the constitutionally allowed compensation for holding the office.  He viewed his office as being a privilege, and an opportunity to once again serve the country he loved.  During the Constitutional Convention, Benjamin Franklin considered proposing that elected government officials not be paid for their service.  By the end of the debate, it was decided that government representatives should receive fixed stipends by which they may be compensated for the devotion of their time to public service.  It was also determined, however, that the compensation should not be so high that it would become the motive for seeking office.

Article I, Section 6 of the Constitution addresses compensation, and the rules regarding such.  Section 6 also establishes that members of Congress may not be detained while traveling to and from Congress, and that they cannot hold any other office in government while in Congress.

Protection from arrest while traveling to and from Congress was not only a privilege based on those enjoyed by their counterparts in the British Parliament, but also a protection from political enemies who may wish to keep certain members of Congress from voting.

This section also indicates that no member of Congress shall be appointed to a later office if while in Congress the office was created, or a raise in pay was enacted for that office.

To explain this clause, let’s visit a recent violation of it during the Obama administration.

After Barack Obama won the 2008 Presidential Election, he announced that Hillary Clinton would be his new Secretary of State.  The position of Secretary of State received a pay raise while Hillary Clinton was a member of the United States Senate.  Article I, Section 6 states that “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall be been created, or the Emoluments whereof shall have been encreased during such time.”  Since Clinton was a Senator at the time the position of Secretary of State was given a raise, technically she was not eligible for the position to which she was appointed.  To resolve this problem, and still allow Mrs. Clinton to accept the position, the Democrats applied the Saxbe Fix, meaning they undid the raise, and Hillary Clinton received the compensation that was in place before the vote she participated in while in the Senate. The Saxbe Fix, or a Salary rollback, is an unconstitutional action.  The clause in the Constitution is clear: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time.

The Saxbe Fix, or the rollback of the salary, does not change the fact that the emoluments increased during the time Hillary Clinton was in the U.S. Senate.

As a tool, the Saxbe fix was nothing new.  The salary rollback in the case of a violation of Article I, Section 6, a mechanism by which the President of the United States can avoid restrictions by the United States Constitution which prohibits the President from appointing a current or former member of Congress to a position that was created, or to an office position for which the pay and/or benefits were increased, during the term for which that member was elected until the term has expired, was first used in 1909.  The “Saxbe” name was applied to the political maneuver later in history.  The Saxbe Fix is named for William Saxbe, a Senator appointed Attorney General by President Richard Nixon in 1973.
Terms:

Adjourn: Suspend proceedings to a later time and/or place.

Censure: Procedure for publicly reprimanding a public official for inappropriate behavior. There are normally no legal consequences. Censure is not mentioned in the Constitution, but is a procedure devised by the legislature as a tool for formal condemnation of a member of the congressional body.

Congress of the United States: The legislative branch of the federal government which consists of two houses; a Senate and House of Representatives.  The Congress is the only part of the federal government granted the authority of legislative powers.

Granted: To confer, give, or bestow. A gift of legal rights or privileges, or a recognition of asserted rights, as in treaty.  To legally transfer.

Impeachment: To charge with misconduct.  Formal process that may lead to removal of an official accused of unlawful activity; impeachment does not mean the removal from office, though removal from office is often the result of impeachment proceedings.

Legislative Powers: The ability to make law, modify law, repeal law, and anything else that has to do with affecting law.

Nullification: State power to ignore unconstitutional federal law.

President pro tempore:  Second highest ranking official of the United States Senate. Vice President is President of the Senate and the highest-ranking official of the Senate despite not being a member of the body. During the Vice President's absence, the president pro tempore presides over its sessions or appoints another senator to do so. The president pro tempore is elected by the Senate and is customarily the most senior senator in the majority party.

Pro Forma Session: A session in either house of the United States Congress at which no formal business is expected to be conducted, so as to fulfill the obligation "that neither chamber can adjourn for more than three days without the consent of the other."  Pro forma sessions are also used to prevent the President from pocket-vetoing bills, calling the Congress into a special session, and to prevent the President from making recess appointments.

Quorum: Minimum number of members of an assembly necessary to conduct the business of that group.

Saxby Fix: Salary rollback. A mechanism by which the President of the United States can avoid restrictions by the United States Constitution which prohibits the President from appointing a current or former member of Congress to a position that was created, or to an office position for which the pay and/or benefits were increased, during the term for which that member was elected until the term has expired. First used in 1909, the Saxbe Fix is named for William Saxbe, a Senator appointed to Attorney General by Nixon in 1973.

Questions for Discussion:

1.  If only Congress can make law, then why do some politicians believe that Executive Orders can modify law, or that regulatory agencies can create new regulations to enforce laws that were never passed by Congress?

2.  The word “granted” reminds us that all powers once belonged to the States, and some of those authorities were “granted” to the federal government for the purpose of carrying out the tasks necessary for the protection, preservation, and promotion of the union.  If the federal government was created by the States, then how can statists justify their belief that all federal laws trump all State laws?

3.  Why do you think the Congress has two legislative houses?

4.  Why do you think representatives are only elected for two years?

5.  Why is it significant that only the House can originate bills for raising revenue?

6.  Why is the power of impeachment belonging to the House so important?

7.  As President of the Senate, what kind of role should the Vice President play in the day to day activities of the United States Senate?

8.  Why do you think the House of Representatives has the sole power of impeachment, but the Senate has the task of hearing the case?

9.  How are the dynamics of our governmental system different in relation to how the Senators are appointed, or voted for?

10.  How was the Senate expected to check the House of Representatives, and work together with the House to check the Executive and Judiciary?

11.  Why do you think the authority for prescribing the times, places, and manner of holding elections was given to the State Legislatures?

12.  Why was Congress given the allowance to pass laws that may make or alter such regulations?

13.  Why was the federal government prohibited from influencing the places for choosing Senators?

14.  To conduct business, the houses of Congress need a quorum.  If they do not have a majority, they may remain in session through a rule established by Congress called pro forma.  What advantages does pro forma give the houses of Congress when it comes as serving as a check against the executive branch?

15.  Why do you think neither house can adjourn without the permission of the other?

16.  The houses of Congress establish their own rules of procedure.  If a member breaks any of these rules, Congress also has the authority to punish the rule breaker.  One type of punishment is called censure.  How is censure an adequate punishment?

17.  How has the concept of transparency changed over the last two hundred years?

Resources:

Edwin Mora, “Top Democrat Dodges Question on Constitutionality of Obama Appointments, Says Pro Forma Sessions Are ‘Games Being Played’,” CNSnews.com (January 6, 2012): http://cnsnews.com/news/article/top-democrat-dodges-question-constitutionality-obama-appointments-says-pro-forma


Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).

Larry Schweikart and Michael Allen, A Patriot’s History of the United States; New York: Sentinel (2004).

Madison’s Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp

Philip B. Kurland and Ralph Lerner, The Founder’s Constitution - Volume Two - Preamble through Article I, Section 8, Clause 4; Indianapolis: Liberty Fund (1987).

Saxbe, William B. I've Seen the Elephant: An Autobiography. Kent State University Press (2000).




Copyright: Douglas V. Gibbs, 2014

Hard Starboard Radio: Tyranny Triumphant



Senate Republicans surrender on Obamnesty - are their House counterparts far behind? If so, there might be a new Speaker in the not too distant future; Obamnesty is creating chaos - precisely as its namesake intended; As threatened, the FCC seizes the Internet for Barack Obama; The Obama Regime’s nuclear sellout to the Iranian mullagarchy is a disaster, and it's sparking a bidding war for the good graces of the craziest regime on Earth; and, even worse, making war - nuclear war - inevitable.

The beginning of the end at 6PM Eastern/3PM Pacific.

Obama Targets Ammunition

By Douglas V. Gibbs

Historically, gun control is the tool of tyrants.  A fearful populace is easy to control, but an armed populace is willing to stand up against big government tyranny.  The Democrats know this, which is why they support gun control, and use arguments to fool people into believing their intent is simply for the safety of the public, and in support of the overall common good.  However, in the United States, attempts to restrict gun ownership, or to rally support for gun control, has been unsuccessful, so the Obama administration is taking a different tact, going after ammunition.  Without ammo, guns are useless.

Congress, now with both Houses under Republican control, would never approve such unconstitutional actions, so President Obama has chosen to bypass Congress.  He is unconstitutionally modifying law with an executive order, using what he believes to be his executive power to impose upon Americans a kind of backdoor gun control.

In an attempt to go after some kinds of rifles, the Democrats have been labeling some firearms, like the AR-15, as being "assault weapons."  The "AR" in AR-15, by the way, does not mean "Assault Rifle."  It stands for ArmaLite, the company that originally developed the firearm.  Military Veterans find the label of "Assault Rifle" to civilian guns to be absolutely ridiculous.  The difference between most rifles being classified as an assault rifle, and hunting rifles, is normally simply cosmetics.  Strip away all of the military looking attachments that make the AR-15 look scary to Democrats, and what you have is nothing more than a hunting rifle.  A true assault rifle is not designated as such because of how it looks, but because of the fact that it is capable of being fully automatic.  Since fully automatic firearms are, according to the powers that be, illegal, then that means technically there are no assault rifles available to the general public, and therefore calling rifles available to the public "assault weapons" is deceptive, and untrue.

However, the truth means nothing to the hard left, so they are moving forward with their attempt to take our guns from us.  

The Bureau of Alcohol, Tobacco, Firearms and Explosives recently proposed banning the manufacture, sale or importation of M855 ammunition, commonly used in the AR-15 and other general-purpose rifles.  It has also recently been used in several kinds of handguns.  President Obama, taking the lead of the ATF, an agency that falls within the Executive Branch, is trying to justify the proposal by arguing that the M855 ball, the most widely used .233-caliber round, is “armor-piercing” and cannot be used in handguns, per the Gun Control Act of 1968 amended by Congress in 1986. He is also claiming that the ammunition in the AR-15 and similar rifles puts the lives of police officers at risk.

Obama's claim, just like the use of the label "assault rifle," or "assault weapon," is deceptive, and untrue.  Not only is the rounds used by the AR-15 not “armor-piercing,” but it has long been categorized as sporting ammunition.  The executive order that Obama is threatening is not based on reality, but on the liberal left progressive agenda to disarm the American public, even if they have to do it one caliber at a time.

-- Political Pistachio Conservative News and Commentary



Obama’s Illegal Ammo Ban Decree Targets Popular AR-15

by JASmius



Remember the periodic gun control manias that have erupted over the past few years?  Remember how they never went anywhere in Congress?  And remember how, each time, I said that that didn't matter, because Barack Obama would just impose gun control by imperial executive diktat?

See, I told you so:

It’s starting.

As promised, President Obama is using executive actions to impose gun control on the nation, targeting the top-selling rifle in the country, the AR-15 style semi-automatic, with a ban on one of the most-used AR bullets by sportsmen and target shooters.

The Bureau of Alcohol, Tobacco, Firearms and Explosives this month revealed that it is proposing to put the ban on 5.56mm ammo on a fast track, immediately driving up the price of the bullets and prompting retailers, including the huge outdoors company Cabela’s, to urge sportsmen to urge Congress to stop the president.

What on Earth makes them think they'd be either willing or capable of doing that?

Wednesday night, Representative Bob Goodlatte, the Republican chairman of the House Judiciary Committee, stepped in with a critical letter to the bureau demanding it explain the surprise and abrupt bullet ban.

Ooh, THAT'll chill the White House to their very marrow.  Next thing you know, Chairman Goodlatte will be issuing a stern public statement.

And when BATF isn't forthcoming with a satisfactory answer?  I imagine calls with that question "wouldn't be immediately returned".

The National Rifle Association, which is working with Goodlatte to gather co-signers, told Secrets that thirty House members have already co-signed the letter and Goodlatte and the NRA are hoping to get a total of 100 fast.

“The Obama administration was unable to ban America’s most popular sporting rifle through the legislative process, so now it’s trying to ban commonly owned and used ammunition through regulation,” said Chris W. Cox, executive director of the NRA-ILA, the group’s policy and lobby shop. “The NRA and our tens of millions of supporters across the country will fight to stop President Obama’s latest attack on our Second Amendment freedoms.”

...and fail miserably.  Because the only way to even have a prayer of even slowing down this latest despotic action is by - you guessed it - defunding BATF, or at least the funding being devoted to this illegal ammo ban.  And as we've already seen, Congressional Republicans don't have the balls to defund anything.

And "make no mistake," my Tea Party brethren, the AR-15 ammo E.O. is just the opening, well, "shot".  There'll be plenty more imperial edicts where that came from, on every issue across the board of the Obamunist agenda that he'll never again bother to try to get through Congress, and all for the same reason: because he has the pilfered power to impose it himself.  And since the GOP is too afraid of him to offer any genuine opposition, why shouldn't he see even the sky itself as no longer being a limit?

I warned y'all after the 2014 midterms that the next two years (at least) were going to be ugly beyond anything ever before seen in the annals of American political history.  So, as bad as things have gotten this week, trust me when I say that we haven't seen anything yet.

Obamnesty & Black America

by JASmius



#BlackLivesMatterButIllegalAliensAndTheirVotesMatterMore:

“My name is Jamiel Shaw, my son, Jamiel Andre Shaw II, was murdered by a DREAMer, a DACA recipient, a child brought to this country by no fault of his own. My family’s peace and freedom was stolen by an illegal alien from Mexico. He was brought here by his illegal alien parents and allowed to grow up as a wild animal.”

“Some people believe that if you are brought over by no fault of your own that it makes you a good person. They want you to believe that DREAM Act kids don’t murder. I am here to debunk that myth.”

“Kids brought over the border by no fault of their own do kill Americans. How many Americans killed by illegal aliens are too many?  One, two, hundred, thousand, hundred thousand. Ask any parent whose child was murdered by an illegal alien how many is to many. As one of those parents I’m here to tell you that one is to many.”

“My son, Jamiel Shaw II, was murdered while walking on his own street, three houses down from his home. An illegal alien on his third gun charge was visiting a neighbor when my son was coming home. He shot my son in the stomach and then in the head, killing him.”

“Do black lives really matter? Or does it matter only if you are shot by a white person or a white policeman? The district attorney proved in court that my son was murdered because he was black and wearing a Spider Man backpack.”

“Jamiel’s mother Army Sargent Anita Shaw who was serving in Iraq fighting for their freedom called me from Iraq to ask was it true that Jazz was dead. Jazz is a name we call our son, a nickname. How many other military families have made that same phone call from some foreign land in disbelief that their sons or daughters have been killed in America by illegal alien invaders? Do military families matter?

“DREAM Act kids have turned my family’s American dream into a nightmare. The illegal alien DREAMer that murdered my son only served four months of an eight month sentence for assault with a deadly weapon and battery on a police officer. “He was released from the county jail the day before he executed my son. Why was this violent illegal alien allowed to walk the streets of America instead of being deported?” Why was ICE not called to pick up this violent invader? We were promised that the federal government would keep us safe from violent illegal aliens. Article 4, Section 4 of the U.S. Constitution guarantees us protection against invasion.”

“I see in here black politicians, black athletes, black stars say; “Hands up, don’t shoot”. My son was shot in the head by an illegal alien gang banger while he lay on his back with his hands up, he still shot him through his hand into his head and killed him.”

“My son thought he could walk down the street and not be murdered by an illegal alien. That he could depend on the government to secure our borders and keep the bad people out.” “Yes, black families matter. Yes, military families matter. All families matter. But the duty of the U.S. Government is to always put American families first.“

“Honorable Chairman and ranking member, today’s hearing was called to review the Department of Homeland Security’s policies and procedures for the apprehension and detention and release of non-citizens unlawfully present in the United States. In his November 20th, 2014 speech to the nation on immigration President Obama said; “If you are a criminal you will be deported. If you plan to enter the U.S. illegally your chances of getting caught and sent back just went up.” The president said he wanted to work with both parties to pass a more permanent legislative solution. The president also said; “And to those members of congress who question my authority to make our immigration system work better or to question the wisdom of me acting where congress has failed, I have one answer; pass the bill”.

“In three of the past four congress’ Representive Walter Jones has introduced the ‘Illegal Alien Crime Reporting Act‘, which would address many of the issues this hearing was called to discuss but could never get a hearing. In the 113th congress Representative Jones renamed the bill after my son H.R. 1888 “The Jamiel Shaw Jr. Memorial Act of 2013". Never got a hearing. As we sit here today I offer for consideration H.R. 1041 the ‘Jamiel Shaw II Memorial Act of 2015′. It is only two pages long but chops at the root of the problem.”

“Until the FBI is allowed to track and report illegal alien crime, it is doubtful that the American people will understand how severe the problem of violent illegal alien crime is. I doubt any ten people would define ‘comprehensive immigration reform’ the same way.”

“But I can assure you that what we really need is comprehensive immigration enforcement.”

Secure borders and ports of entry and the oversight of Congress to assure that America and American families are job one.” [emphases added]



Mr. Shaw knows what is dawning on a growing number of African-Americans: They are being replaced as the Democrats' pet captive constituency by illegal aliens from Mexico, Central America, and God knows where else.  Half a century ago, President Lyndon Baines Johnson is reputed to have crowed that, with the Civil Rights Act and the Great Society, he'd "have those [N-word]s voting Democrat for the next two hundred years".  But Hispanics have already surpassed blacks in population size, and illegals are no less robotically Democrat voters than the latter have been over the past few decades.  So, quite frankly, the party of The One doesn't need blacks as much any more, and they are correspondingly being demoted down the constituency pecking order - at best.

Or, at worst, they're winding up dead at illegal alien hands, and their "First Black President" doesn't give too leaves off the fig tree about it, because all that matters to him is what will most quickly maximize and cement his permanent hold on the power he has illegally seized.

Exit question: If Jamiel Shaw can realize the critical importance of preserving, protecting, and defending the U.S. Constitution, why can't Senate Republicans?

FCC Votes to Unconstitutionally Seize Power Over the Internet

FCC Democrats join hands as they prepare to vote in favor
of unconstitutional federal intrusion of internet, and
online free speech.
By Douglas V. Gibbs

The liberal left progressives have taken yet another step towards their goal to ultimately silence all opposition.  Hand in hand, the smug Democrats of the Federal Communications Commission, despite constitutional requirements of congressional participation, despite the lack of constitutional authority for the agency, or any other part of the federal government, to control and restrict the internet, and despite an overwhelming disapproval of their proposed actions by the people of this country, voted to seize control of the internet, and to do so above the law, and without any regard to the rule of law.

According to the headline at Yahoo News, the decision was to "ban internet discrimination," meaning that the industry would not be allowed to create internet packages like cable companies have done with television, where access to certain parts of the internet may depend on how much you pay the service provider for that access.  This has been the argument by the leftists from the beginning, even though the service providers have not attempted such a move, and have not indicated they plan to make such a move.  Limiting access would be something consumers would not approve of, and give opportunity to small providers that would not go along with such a move, and continue to offer unfettered access to the internet.

Government control over industries hamper growth, and innovation.  The internet is a service, and honestly, if packages did appear as the Democrats have warned, should not new innovation be priced as necessary?

However, the 332 pages of regulations are more than a restriction on the big bad corporations.  The regulations hamper the private industry, allowing government dictates to control the internet, for certain actions to require government approval, and opening the door for the censoring of activities or speech.  Government control over any issue has never created more freedom, as the purveyors of this vote claim.  The FCC decision is a case of the federal government meddling into the free market, and opening the opportunity for them to restrict and control the flow of information, something that tyrannies always dream of doing.

Will the oppressive control over the internet instantly appear?  Of course not.  It will be accomplished in the way tyranny is always injected.  Slowly, meticulously, and incrementally.  But, the 332 pages of internet regulations will expand, and eventually control of the internet will be used by these hard left progressives to silence their opposition, and eliminate any voice that dares to stand against them.

Today's vote will embolden the Democrats.  Other intrusions into free speech are on the way, which will include a new, renewed push for the Fairness Doctrine so that they may also target and silence any opposition on radio and television, as well.

-- Political Pistachio Conservative News and Commentary

FCC adopts Net Neutrality rules to ban Internet Discrimination - Yahoo Finance

FCC approves sweeping Internet regulation plan, Obama accused of meddling - Fox News

Terrorists Crossing the Border

By Douglas V. Gibbs




December 30, 2014, while I was on Al Jazeera America, after answering questions like "Is this an anti-immigration thing, or an anti-Hispanic thing?", I explained to the interviewer that the immigration laws are not on the books to be discriminatory, but to protect the receiving population from disease, the criminal element, and terrorists.  The interviewer was quick to ask, "Can you name any terrorists that have crossed the border," as if the idea of a terrorist using our open border was a ludicrous thought.  I responded that in a study done at San Ysidro's border crossing near San Diego it was found that 1 in 3 border crossers were of Middle Eastern descent.  The following Saturday, Alex on my Constitution Radio program gave me a booklet listing names of terrorists caught crossing the border.

Now, we have County Sheriffs, and even the mainstream media, recognizing the national security danger of having an unsecured border.

According to State of Texas Midland County Sheriff Gary Painter in an interview on Fox News, law enforcement agencies along the “wide open” border have received alerts to be on the lookout for terrorists from the Islamic State of Iraq and Syria crossing into the United States.

According to Painter, while working along the border over the last eight years, he has often times received alerts that were issued to border law enforcement to be on the lookout for suspicious terrorist activity, specifically involving ISIS cells being smuggled into the United States.

“I received an intelligence report that said that there was ISIS cells that were active in the Juarez area, which is the northern part of the Chihuahua state, and that they were moving around over there, that there was some activity…” Painter told Fox News. The report asked “for the sheriffs along the border to be on the alert, for all law enforcement to be on the alert, and to be on the lookout for these people maybe trying to come across.”

“Well I’m saying the border is wide open, there is no control on the border, it’s not shut off,” said Painter. “There’s places along the Rio Grande you can walk across, there’s no water in it. I worked the border for eight years I walked back and forth across the Rio Grande; I was in Mexico, I was on this side. I never got challenged.

“There’s always a way to get across, there’s coyotes that bring those people across for thousands of dollars.”

Painter noted that “Muslim” items have been strewn along the border and estimated that 10 to 15 million “undocumented aliens” have crossed the border.

“I think it’d be naive to say that (ISIS is) not here…We have found Muslim clothing, they have found Quran books that are lying on the side of the trail, so we know that there are Muslims that have come across and are being smuggled into the United States,” Painter told Fox News.

Making comments similar to what he told CNN last week, Painter had a direct message for the possible terrorist cells.

“If they show their ugly head in our area, we’ll send them to hell,” said Painter. “And I think the United States needs to get busy. And they need to bomb them, they need to take them out.”

When asked about the possibility of terrorists crossing the border, and if a real danger actually exists, I have now adopted a simple response.  "It only takes one."

-- Political Pistachio Conservative News and Commentary