Obama's Legacy May Be A Constitutional Convention

The US is gradually losing the rule of law, from the top to the bottom. In the courts, the Constitution expected judges to rule on what the law is, whether they liked it or not. We have come to the point where judges in important cases rule according to what they would like the law to be. This is the Humpty Dumpty school of law, where the Constitution means whatever 5 Supreme Court Justices say it means, and neither more nor less. The gay marriage ruling is a classic example of this attitude. I think the justices should have ruled that a marriage legally performed in one state had to be recognized in all states. It would have been a ruling consistent with previous rulings. Like the ruling overturning DOMA, it would have been a ruling that left the power to the states. Ruling that way would have settled the matter without leaving any loose ends for future advocates to use to expand future "rights." Instead the court stretched the 14th Amendment to cover gay marriage. This stretch was ridiculous. In 1868 when the 14th Amendment was ratified, homosexual acts were illegal in every state. But the effect of stretching this far is pervasive fear about how far any wacky group of 5 Supreme Court might go in some future case.

If you are comfortable with the Supreme Court acting in arbitrary fashion, think about how you would feel about a 5 to 4 vote that went the wrong way from your point of view. Given the way Roe v Wade was decided, nothing prevents a future Supreme Court from reversing the ruling totally. There's no Constitutional Amendment and no legislative process in place to backstop the ruling. Another group of justices can rule 5 to 4 that life begins at conception and all abortions are henceforth illegal, and all state laws to the contrary are overturned. I would not want this outcome. But the way Roe v Wade was decided, there is nothing to stop it from happening. I think this hypothetical is definitely possible. So do the supporters of the Roe v Wade outcome, who panic every time there's another vacancy on the Supreme Court for exactly that reason.

In the regulatory agencies, we have gradually moved to a concentration of power that was not supposed to happen under the Constitution. Regulatory agencies combine executive, legislative and judicial function all in a one stop shop. They make the rules, a legislative function. They decide where to send investigators, an executive function. And finally they hear the cases with their own administrative judges, a judicial function. They get away with all of this because the courts defer to regulatory agencies' expertise. If you sue a regulatory agency, the deck is heavily stacked against you.  Under Obama, they no longer bother to follow the law authorizing their existence and purpose.  They do whatever the president wants.

At the presidential level, the Smartest President Ever is ruling by decree using his pen and phone. He unilaterally decided not to collect taxes on employers mandated by Obamacare, which in most contexts is "settled law." He has granted visas to illegal aliens, contrary to law. If I listed all of the ways Barry the Brilliant has flouted the law, it would take me until tomorrow at 6 AM to get through all of them.

If we do elect a Republican president in 2016, it will be interesting to see the left's reaction to a Republican Executive Branch using a pen and phone approach to canceling Obama's pen and phone decrees.  I imagine pen and phone activity on the right will become a gross abuse of Constitutional process.  The rules change depending on who's in office.  Under the rule of law, everybody has to obey the same law, no matter who they are or what political alignment they have.  It’s just another indication that the rule of law is disappearing.

The Supreme Court needs a check on it. I think that if the legislatures of a majority of states vote to "ratify" a minority opinion that disagreed with the majority opinion in a Supreme Court case within 2 years of the decision, then the minority opinion should come into force as if it were the majority opinion. This has several benefits. For one thing, the Justices would be encouraged to moderate reasoning to justify decisions and prevent dissents which would attract support in the states. For another, unlike term limits or other removal from office mechanisms, this goes to the heart of the problem. It changes the offending decision itself. There are plenty of judges who would be glad to be removed from office if their decision would stay in force.

The regulatory agencies need to be reined in. The best way to do that would be to force Congress to vote to ratify all regulations before they go into effect. Since the agencies are executive branch, the President's position would be that he was proposing the regulations for Congress to ratify. Congress could refuse to ratify any part of the proposed regulations as well as rejecting the whole package. Just to put some extra teeth into it, all regulations and laws should have an expiration date of 50 years or less. This is another Constitutional Amendment with no chance in Congress or on almost any conceivable President's desk.

All regulatory administrative proceedings need to be subject to strict judicial review.  Deference to regulatory findings should be ended by statute.  Special knowledge lower courts should be established by Congress as the initial courts of appeal for each regulatory agency.  The judges in these courts would not necessarily have to be lawyers, but they would have to be knowledgeable on the area of regulation they were hearing appeals for.  Rulings in regulatory agency enforcement hearings should not take effect if appealed by the regulated party until a court ruling sustains them.  All of these changes could be enacted by Congress without any Constitutional change.

Given recent Democrats’ willingness to vote whichever way President Obama or Harry Reid tells them to, I don’t expect any amendment that changed the Washington power structure would have a chance of getting passed in Congress.  I think we are going to have to go with a Constitutional Convention called by the states.

Many, even most of you, are concerned about the risks of a Constitutional Convention.  You have to remember that the Constitution we have now means whatever 5 Supreme Justices say it means. Anything a Constitutional Convention drafts would have to be ratified by 38 states. While Congress has shown a number of times that it will vote for 1,000 pages of mumbo jumbo, I think the legislatures of 38 states are likely to have better sense.

The loss of the rule of law is, to reuse Biden's phrase, a BFD. I think we need a Constitutional Convention called by the states to fix it.  I think enough folks in Flyover country are tired of the generally lawless behavior at the federal level that we are reaching a tipping point. If no reasonable amendments can get through Congress, the states will call a Constitutional Convention under Article V. Harry Reid ain't the only politician with a nuclear option. If the Supreme Court tries to stop a Constitutional Convention, liberals will finally find out the real reason the Second Amendment is in the Bill of Rights.

Republican Second Guessing on Cotton's Letter

Republican second guessing of Senator Cotton’s letter was in full swing last week.  Some said it should have been addressed to the president instead of the Mad Mullahs.  Many said it wasn’t “helpful.” My view is that both of those positions are bunk.

I don’t think changing who the letter was addressed to would have lessened the liberal screaming.  For it to make any difference, you would have to assume that the left needs a legitimate reason to complain. I believe that's entirely false. They scream in proportion to how much damage is done. Senator Cotton's letter with 46 cosigners was embarrassing because it was entirely accurate in saying that executive agreements can be canceled at will, showed that Obama could never get a treaty through the Senate and was timed just as the administration was making additional concessions to clinch the deal. Just like "If you like your doctor, you can keep your doctor," our Dear Leader was lying about the binding force of an executive agreement to get a deal, any deal for his legacy. By pointing out that Barry the Brilliant could not really deliver, the letter wrecked the legacy and "Peace in Our Time." The damage was massive, so the response was equally massive. No tailoring of the message would have reduced the Pravda Press retaliation. They threw everything they had at Cotton, including charges of treason, ignorance, stupidity, arrogance and cowardice. All of the fireworks were needed to distract everyone from the basic point that everything in the letter was accurate. You were also not supposed to notice that the letter was posted on a US government web site and was never sent anywhere else. Senator Cotton spoke truth to power. When you do that, power has a tendency to massively retaliate. Sugar coating the offence will not lessen the retaliation.

Addressing the letter to the president would have been racism and disrespect for the First Black President! They would not have written such a letter to a white president! Nobody ever has written such a letter to a white president! It also would have shown mere personal animosity to Obama, with no need to even discuss policy disagreement.

I think the way Cotton did it was better. This way, we got to talk about the Dear Comandante letter to the dictator of Nicaragua in 1984, which was signed by 10 Senate Democrats including John Kerry. We got to mention that there has been only one prosecution under the Logan Act of 1799 and in 1803 they didn't get a conviction. We got to talk about Nancy Pelosi's chat with Bashar al Assad. We didn't have to talk about race. We made the Democrats look hypocritical. We had them accuse a decorated combat veteran of treason. It played very well to our base. John Kerry had to admit everything in the letter is true. My point is either way you're going to take a lot of flak from the Pravda Press. Why bother to over think this. They can only hang you once.

Contrary to the not “helpful” argument, I think the letter was very helpful.  This administration is the most outlaw administration in history.  I was pleasantly surprised that 47 Republican Senators had the guts to sign the letter. Barry the Brilliant and his merry band of outlaws have ignored the Constitution so many times that it's beginning to look like a used Kleenex. Every time the administration circumvents a Constitutional provision, the least we can do is publicly call them on it. The talking heads on TV don’t see a pattern, but I do.  On Obamacare, immigration, EPA regulation, the internet, wilderness designation, recess appointments and other areas too numerous to mention, our Dear Leader has ignored Constitutional and legal processes to rule by decree.  This time, the Pravda Press can make the messengers the story. But repeatedly pointing out that our Dear Leader is violating Constitutional provisions and linking the behaviors together is the only way we can move the argument to where it ought to focus.  We have to force the talking heads to connect the dots. 

If the administration establishes precedent after precedent that the Constitution is a dead letter, we will lose our heritage of limited government and become an elected dictatorship. When the elected dictator decides we no longer need elections, even those will be gone.

Defending the Constitution Is Not a Judicial Monopoly

The Judiciary does not have a monopoly on defending the Constitution. Every federal official, including Congressmen, Senators, federal officials and members of the military, takes an oath to support and defend the Constitution of the United States. I did twice, once when I joined ROTC as a cadet and again when I was sworn in as a US Air Force 2nd Lieutenant. So if the president is violating his oath of office by issuing "executive actions" contrary to Constitutional processes, Congressmen and Senators have a duty to stop it any way they can in order to fulfill their oath. Congressional Republicans gave it a good old college try, then gave up and funded DHS including two unconstitutional executive programs. In effect, Republicans punted to the courts. 

The Democrats put party over country and violated their oaths of office in order to support their president's rule by decree. If this precedent is allowed to stand, the Constitution is a dead letter. We will have replaced it with an elective dictatorship, at least until the incumbent dictator decides election are no longer needed.  That’s a very high stakes bet on what Anthony Kennedy and John Roberts had for lunch.

So how did we get here?  "What we've got here is a failure to communicate!" The problem is that Republicans fought this as if the issue was amnesty when the issue really should have been defending the Constitution. It was worse that the Republicans did not vigorously complain about all the previous decrees issued by His Highness Barry the Brilliant, such as postponing the Employer Mandate Tax under Obamacare. We didn't complain about the executive action implementation of the Dream Act by decree as an unconstitutional act either. Instead of having a unified message that the Chicago Machine Prodigy had no respect for the Constitution, we had a fragmented message that was spread over multiple issues with no unified theme. Given that the Pravda Press is the Public Relations arm of the DNC, this was fatal to our cause. We were maneuvered into a position where the vast majority of voters thinks we want to shut down DHS because we don't like immigrants. Even conservative pundits barely mention that the Constitutional Lecturer in Chief has a pattern of taking numerous executive actions contrary to law. Boehner was forced to surrender, because all the alternatives were worse. He did push it all the way and made the Democrats vote not to compromise.

What we should learn from this is that we need a unified message that this administration from top to bottom has no respect for the Constitution and no respect for the law. Every spokesman should tie every issue to this theme. The next time we try to stop His Majesty from issuing another decree, we need to have laid the ground work so that even the lowest information voter gets it. For starters, every Republican spokesman should be referring to the SNL skit about how bills become law. They get it, even if Republican office holders and spokesmen don’t.

SNL skit on executive action:

https://www.youtube.com/watch?...

Pravda Press: Congress Must Fund Unconstitutional Program

The Pravda Press is concentrating on the horror of the Department of Homeland Security not being funded.  Secondarily they are arguing that the president’s immigration program is a good program.  This is not just some fight over funding Homeland Security or immigration policy. This is a fight over whether we have the rule of law under the Constitution or an elected dictatorship with no checks and balances. No matter whether you like the outcome or not, allowing any president to rule by decree undermines the rule of law. The president justifies his executive actions on immigration by saying Congress failed to act. What this means is that, by his own admission, Obama is circumventing the law. Saying other presidents issued executive orders is a red herring. When Bush issued signing statements, E. J. Dionne went ballistic with complaints. President Obama has gone beyond signing statements with his executive actions on immigration. He has changed the law unilaterally, adding provisions for work permits and green cards for people who do not qualify under the law for either. If the president can decree anything he likes with no checks or balances, then the Constitution is a dead letter. Congress and the Judiciary are no longer required. We have an elected dictator with no checks and balances. Liberals must believe their own propaganda that Hillary is inevitable, because any Republican with that kind of power ought to scare the crap out of them. Imagine Jeb Bush, Scott Walker or Bobby Jindal being able to issue decrees that change the law. What scares me is the death of limited government by law is happening right now, with nobody taking any notice of what's being lost.

Even SNL Gets It:

https://www.youtube.com/watch?v=JUDSeb2zHQ0

E. J. Dionne Doesn’t Get It

http://www.realclearpolitics.com/articles/2015/02/19/the_gops_freudian_moment_125655.html

Shredding the Constitution for Small Tactical Advantage

Last month the New Republic article linked below was bragging about how brilliant Obama’s executive order amnesty for illegal aliens was politically. In particular, the author thought that amnesty ruined Jeb Bush’s chances to win the White House. The problem is that our Dear Lear was willing to completely ignore the Constitution for fleeting tactical advantage over Republicans. If amnesty by executive order is legal, the next president can legalize drilling in the Alaska National Wildlife Refuge with an executive order.  If postponing the Employer Mandate tax collection in Obamacare is legal, the next president can decide he will only collect corporate taxes at a 25% rate instead of the 39% in the law passed by Congress and signed by the President.  So this executive order business is a threat to the separation of powers and can lead us quickly to banana republic style government, and I'm not talking about stylish summer clothing.  And the gain is so minimal that it's disturbing.  It's not like Republicans can't find issues beside immigration.  Just to pick a few areas at random, Democrats have only lies and excuses for their economic performance, lawless regulation and national security meltdown.  Democrats are moving as fast as possible toward their goal of making the whole country as big a financial and physical disaster as Detroit has become under their rule.  It's also not that Jeb Bush is going to win the nomination in a walk without beating a sitting Conservative Governor like Mike Pence or Bobby Jindahl or Scott Walker.  Since the Constitution is now a dead letter, maybe Jeb Bush is finished because our Dear Leader is going to sign a Bill of Attainder executive order barring all potential heirs of George W. Bush from office since everything is his fault.  (Joke hint for clueless liberals:  Bills of Attainder are prohibited in the US Constitution you are ignoring at the moment.)  This whole thing is mindless destruction for minimal temporary advantage.  The article's author does not seem to have any idea what's going on.  No wonder the New Republic is losing money hand over fist.

http://www.newrepublic.com/article/120571/jeb-bush-running-president-2016-boxed-immigration

Obama Won't Make Any Deals with Republicans, RINO or Otherwise

Conservatives have taken to worrying about whether Republicans in Name Only will make bad deals with Barry the Magnificent.  Since Obama won't work with any Republican, it really doesn't matter what RINOs want to do. I'm not the first to notice that the US would be a lot better off if Obama would treat negotiations with Iran more like he does negotiations with Republicans and negotiations with Republicans more like negotiations with Iran. At this point, our Dear Leader's hubris has gotten to the point that he thinks he can rule by decree without any backing from even the Democrats in Congress. The Smartest President Ever only needs to bounce his ideas off Valerie Jarret and David Axelrod in order to make decisions. Cabinet level appointments are used as the designated fall guys. It's pathetic. The bumper sticker I have on my car says it all: "Worst President Ever." And yes, it does have an Obama Campaign "O."

Cap and Trade For Bureaucratic Regulations

I don't think it will take 30 years to halt the growth of the regulatory state. A single cap and trade bill and a slight change in court regulatory rules will do it. First, limit the total volume of government regulations and force bureaucrats to bargain with each other over which regulations are most important. If the government wants to add new regulations, they have to remove old regulations to make room for them. In addition, there needs to be a legal change in the deference federal courts give to regulatory agencies. Right now, regulations are given almost no court review because the regulatory agency is assumed to know what they are doing. The law should be instead that regulatory agencies deserve review on the relevance of the regulations to the original law authorizing the regulations. Regulators should be required to demonstrate that the effects of the new regulations will be to solve the problem they are supposed to solve at a reasonable cost compared to the benefits. Obviously, court injunctions would be allowed to delay the imposition of new regulations until they can be reviewed. With these two innovations, we will be using two of the Liberals' favorite mechanisms to restrain regulation. Liberals designed cap and trade to destroy conventional energy production.  They have always used the courts to stall construction projects with endless environmental lawsuits.  Under my scheme, when the regulatory process grinds to a halt, it will fall on the bureaucrats and courts. 
Aticle I reacted to:

http://www.nationalreview.com/article/390434/thirty-years-war-kevin-d-williamson

Time for Targeted Sanctions Against Rogue U.S. Regime

Now that President Obama is leading a regime that is not bound by law, I think targeted economic sanctions are in order.  To set this up, the continuing resolution should fund the government only until February, 2015. Once the new Congress is sworn in, it should be possible to impose pay cuts or a pay ceiling on all political appointees, in the White House, the Department of Justice and all of the organizations in Homeland Security involved with Immigration as part of a continuing resolution to fund the government through October, 2015. We should be stop paying the President anything at all, because he is no longer faithfully executing the law. However, I think it would be politically easier to sell if we imposed an across the board 30% pay cut on all of the above mentioned political appointees as well as the President himself.  The pay can be restored once the administration stops violating the law, with no back pay allowed. There should be a provision making it a felony for any of the employees covered by the pay cuts to accept private contributions to supplement their government pay, with a statute of limitations of 10 years. George Soros can't be allowed to bribe political appointees that Congress is sanctioning.  Congress needs to set an aggressive precedent to stop this behavior forever. The alternative is the end of Constitutional government in the United States.

Renegade Judges, Unchecked Regulators and Presidential Decrees

Many observers feel the US Federal Government is not working very well.  The article liked below wants a more parliamentary form for choosing the President.  I think the article misdiagnoses the problem. First off, it's too hard to get rid of federal judges, who have life tenure. Once judges decided to rule on the basis of what they wanted the law to be, rather than what the law is, the law gradually became chaos and nobody could know what the next ruling would bring. If there was an easy way to get rid of judges who rule based on what they want rather than what the law says, we could at least address the problem. Second, administrative agencies have become a law unto themselves from which there is no effective appeal. This flows from the fact that the courts generally defer to regulatory agencies, and Congress has no right of review. The result is that the EPA can determine that when you exhale, the CO2 you emit is a pollutant. If Congress preserved a right to repeal any regulation without presidential consent, it would help a lot. Since the polite fiction is that Congress is delegating its legislative power to the regulatory agencies, it should fly, but only if the first problem is fixed. Finally, we get to the President ruling by decree. If the first two problems were fixed, the President would not be able to rule by decree. The courts would rule against him and the regulations that implemented the decrees could be repealed without Presidential consent. Unfortunately, I am not sure that we can get anywhere close to a solution right now. It's likely we have slipped too far into Presidential rule by decree backed by unchecked regulatory agencies and courts ruling based on the outcomes they want, rather than the law as it is. 

http://www.nationalreview.com/article/388132/two-cheers-constitution-day-f-h-buckley

Obama's Legacy of Selective Enforcement

The Chicago Political Hack in Chief has a great record of selective enforcement. If Congress fails to pass the Dream Act, Mr. Pen and Phone creates a dream act on his own. Imagine what Dick Cheney could have done with power like this. For example, imagine unlimited oil and gas drilling on all western federal land, including all of California, offshore of any blue state and, especially, the Alaska Wildlife Refuge. If our Dear Leader can decide not to collect Obamacare taxes on employers without proper health plans, a future President Ted Cruz can refuse to collect taxes on oil companies. Unless you Progressives plan never to lose an election again, you better start thinking about how current precedents could be used against you. Or perhaps Progressives don't believe in elections with consequences any more. 

http://www.cnn.com/2014/07/06/opinion/kohn-john-boehner-nonsense/index.html

Guerilla Lawfare to Harass The One

Conservatives clearly need better legal tactics to bring home just how lawless Mr. Pen and Phone is. I think we need to act more like Mean Green Environmental groups and aggressive tort lawyers in a guerrilla lawfare campaign of harassment against the Prevaricator in Chief. What's at stake here is the survival of Constitutional government in America. The One's unilateral changing of the Obamacare law, as well as a lot of other laws, is a precedent for the complete destruction of Constitutional limited government. To paraphrase Joe Biden, this is a BFD. Checks and balances are being smashed, while the Chicago Hack in Chief pretends he's mayor of Chicago. If our current Dear Leader gets away with this, no future Dear Leader will feel bound by any law. Future presidents will be elected dictators. This is not the time to say nobody has standing to sue without filing a ton of lawsuits using every possible theory, no matter how far fetched, to find someone with the legal standing to sue. Sue early and often, just like the Mean Green Environmental groups do to preserve the delta smelt. To solve the legal standing problem, find some employee of a 50-99 employee exempted company who is willing to sue. Do as the tort lawyers do and advertise for people injured by the delays of Obamacare or other unilaterally changed laws. Keep filing using different theories until we get a favorable ruling somewhere. File in multiple circuits, so if you lose in one but win in another the Supremes will have to hear the case. Shamelessly shop for the most conservative venues. Don't you think the environmental groups do just that for every dam they want to stop? Ask for temporary injunctions to stop the lawless behavior. Just like the Mean Green groups, even if you lose, the free publicity is worth it. It would be a big tactical mistake to have only one lawsuit. Boehner's House lawsuit should be only one of many lawsuits filed.  If any outrage of the last 50 years deserved a conservative full court press, this is it. Why are we just rolling over and playing dead? 

Article on Congressional lawsuit:

http://www.nationalreview.com/article/381453/boehner-bringing-whistle-gunfight-andrew-c-mccarthy

Obama Wants to Govern Like It's 1649

George Washington has universal approval because he refused to be crowned as a king or dictator with emergency powers for life.  He believed the central government had to be strong enough to defend the country, but he believed in limits to power.  Washington, like all of the founders, believed in checks and balances.  The One We All Were Waiting For, by contrast, wants to be a king or dictator.  Like Charles I of England, our Dear Leader wants to rule by decree without having to get anything past the legislature, as his constant unilateral revisions of Obamacare “settled law” demonstrate. Progressive condescension conceals their ignorance of history, specifically the history of England from 1600 to 1789 that informed the drafters of the Constitution. The antics of Charles I (1600-1649) and his son James II (1633-1701) lead to the English Civil War (1646-1651) and later to the overthrow of James II in the Glorious Revolution of 1688. The idea that government exists by the consent of the governed was first advanced by John Locke in 1688 in reaction to James II's claim to be king by divine right. Charles I and James II both had a habit of ignoring or bending the laws. This history lead to the Constitutional provision that the president "take care that the laws be faithfully executed." The Community Organizer in Chief has a habit of revising the laws by decree to suit himself, which undermines the rule of law. Since Progressive Liberals, like the author of this article, find little intellectual content in Conservative thought, it's likely they have no knowledge of this relevant history and are in favor of repeating it. I guess they have the benefit of a Progressive Liberal education. But I'm just an ignorant red neck, so don't mind me.

To me, the Community Organizer in Chief. looks like Charles I of England (1600 - 1649). Charles tried to rule without Parliament for 11 years. Our Dear Leader is talking about using his pen and phone to rule by decree. Charles thought he should be an absolute monarch by divine right. This is quite similar to the thoughts of The One We Weren't Really Waiting For. The Constitutional Professor in Chief believes he can grant exemptions to any law at any time, like refusing to collect Obamacare employer mandate taxes or the ordering the enforcement of the Dream Act for illegal aliens brought here as children after it failed to pass Congress. I believe we can solve our problems with the Smartest President Ever without following the historical pattern of Charles I. Charles' insistence on absolute power lead to the English Civil War. Charles I lost the Civil War he initiated by trying to arrest 5 members of Parliament on the floor of the house. Oliver Cromwell became a military dictator and executed Charles. We have the next 2 elections to fix the problem. It's important we give it our best shot to win these elections.

Article I was reacting to: http://thinkprogress.org/justice/2014/02/17/3297131/george-washington-tea-partys-worst-nightmare/