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.

Iran Agreement: They Don't Want to Talk About It

Democrats are so proud of their Iran nuclear agreement with Iran, they don’t want to talk about it.  Last week 42 Senate Democrats voted to filibuster the consideration of the Iran nuclear agreement that they voted for when they passed the Corker bill, officially the Iran Nuclear Agreement Review Act.  The Corker bill was supposed to force a vote in the Senate and House on the merits of the Iran agreement.  It was also supposed to force disclosure of the whole agreement including all of the secret side deals.  The Corker bill failed at both of these tasks due to the total lack of good faith from Democrats, who never really wanted to subject the agreement to any discussion at all.  The reason the Democrats voted for the filibuster was to spare the president from the embarrassment of having to veto a bill disapproving the Iran Agreement.  Evidently, the terms of the agreement itself are not embarrassing, but having to veto a bill disapproving it would be.

The successful filibuster is hailed by the Pravda Press as a great success for President Obama.  I guess I’m just a redneck, but I don’t get it.  The agreement is opposed by a large majority of Americans in every poll.  The Democrats could not get a majority of either House to vote for it, let alone the 2/3 of the Senate normally required for a treaty.  The secret side deals between the International Atomic Energy Agency and Iran, basically allow the Iranians to stall any inspection for 24 days and also let the Iranians inspect themselves in areas where they refused to allow foreign inspectors.  It’s likely there are more secret provisions that have not been revealed publicly.  The US achieved none of our original negotiating objectives.  We have not stopped Iran’s nuclear enrichment.  We do not have inspections anywhere anytime.  Barry the Brilliant has just agreed to pay the Mad Mullahs about $150 billion to take our surrender.  The Mad Mullahs are thrilled because their oil revenues run only about $55 billion a year.

All of this ruthless action was to provide President Obama with a legacy agreement with Iran.  The Middle East is on fire because Obama needed Iran’s approval to get his legacy agreement.  We could not leave troops in Iraq to support a nonsectarian regime, support the civilian protests in Tehran against a rigged election or get rid of Bashir Al Assad no matter how many Syrian civilians he killed with barrel bombs or poison gas.  Any of these actions would have upset the Iranian government and made the legacy nuclear agreement impossible.  This agreement was worth the deaths of several hundred thousand Syrians.  This agreement was worth allowing the rise of ISIS.  This agreement was worth trashing the Constitutional treaty ratification mechanism.  And the agreement is so bad, Democrats filibustered it in the Senate because they don’t want to talk about it.  

Given that Iran's leadership believe Allah has ordered them to wipe Israel off the map and kill us if we don't convert, would you want to talk about it?

What Did Corker's Deal Do For Republicans?

The Iran Nuclear Agreement Review Act of 2015, written by Republican Senator Bob Corker, set up a framework that mandates Congressional review of any arms control agreement with Iran, but allows the agreement to go into force unless Congress can override President Obama’s veto of a bill to stop the agreement.  Since the agreement seems very tilted in favor of President Obama, why would Corker write and help pass such legislation?

What Corker bought us is an on the record vote by every Democrat in Congress on the Iran agreement. Without the Corker bill, there would have been no vote at all. Traditionally, Congress does not vote on Executive Agreements. You must measure Corker’s agreement by the way the Smartest President Ever got the agreement ratified in the UN before Congress could even vote.  Without Corker’s agreement, there would have been no vote and no debate in Congress on the Iran deal.

Further, once that vote is taken, it will be a matter of public record that Barry the Brilliant acted without the advice and consent of anybody beyond his circle of cronies. The Israelis and Saudis are not going to wait quietly while Iran gathers the strength to kill them. They will attack first. The situation will quickly deteriorate in the Middle East to the point that even the Pravda Press can't ignore the general, perhaps nuclear, war that the agreement triggered. We will have a Democratic president, Obama, supported by Congressional Democrats who voted on the record, who made an agreement the majority of both Houses of Congress voted against. This Chicago Machine Prodigy will carry it out anyway, showing his true colors as an arrogant aspiring dictator. That will be a great campaign issue against every Democrat in 2016.

You should note that the Obama administration feels free to ignore Executive Agreements concerning nuclear disarmament whenever convenient. In 1994 the US, UK and Russia signed the Budapest Memorandum with the Ukraine. In return for the Ukraine surrendering all of the former Soviet nuclear weapons on Ukrainian territory, the US, UK and Russia guaranteed the territorial integrity of the Ukraine. Last year, Russia seized the Crimean Peninsula from the Ukraine, then invaded the Ukraine from the east. The Smartest President Ever refused to send any weapons to help the Ukrainians. He only sent "non-lethal" aid. I know that US field rations are much better than Soviet era leftovers, but do you really believe that's keeping the promise of the Budapest Memorandum?

Since the Smartest President Ever has ignored Executive Agreements he didn’t like, and since the Iran Executive Agreement will have been put in force after being rejected by a majority in both houses of Congress, it should be relatively easy for a Republican president to cancel it in 2017.  If a Democrat is elected in 2016, the country will have so many problems that nuclear war in the Middle East may seem relatively minor.

Iran Deal Will Lead To Middle East War

Democrats believe that Saudi Arabia and Israel will wait patiently until Iran uses the benefits of Obama's deal to gather enough strength to kill them.  The deal frees $150 billion in frozen assets that Iran can use to buy weapons, train terrorists and finance weapons development.  The agreement allows the inspection of only "civilian" Iranian nuclear sites and allows the Iranians to demand 24 days advance notice of inspections.  So Democrats believe this deal has secured peace in our time.

I believe that Saudi Arabia and Israel will attack Iran very soon after the deal goes into effect because both Saudis and Israelis believe that Iran's threats to convert or kill all Sunni Muslims in Saudi Arabia and to wipe Israel off the map are exactly what the Iranians intend to do if given the chance.  

Iran's economy is very easy to damage.  About 90% of Iran's oil exports flow through the big oil terminal on Kharg Island, 16 miles off shore.  The Iraqi air force knocked out Kharg Island during the 198-1988 Iran Iraq war.  Both Saudi Arabia and Israel have air forces far superior to the Iraqi air force of the 80's.  

Also, while Iran has lots of crude oil, it has no oil refineries.  They import all refined oil products, including gasoline, diesel and kerosene.  Kerosene is widely used for home cooking, so shortages would cause political instability.  Mining Iran's major ports from the air would stop the importation almost all refined imports.

If the Saudis and Israelis decide to hit Iranian nuclear facilities directly, they can't do it with conventional weapons.  In particular, Iran's nuclear facility at Fordow has equipment levels as low as 300 feet below ground.  A 30,000 pound bunker buster bomb with conventional explosives might be able to inflict significant damage.  Unfortunately, only the US Air Force has the capability to deliver a bomb that heavy against current Iranian air defenses. The alternative for the Israelis is nuclear weapons.  What's worse is that any nuclear weapons targeted at Fordow will have to be ground bursts, that is the fireball will have to touch the ground.  This means a lot of radioactive dirt would get sucked up into the atmosphere.  Also, it’s not clear that only one nuclear weapon would do the job.  Due to payload restrictions of Israeli aircraft, they might not be able to use the kind of heavily armored ground penetrating nuclear bombs required to destroy Fordow.  Instead, they might have to dig Fordow out with two or three nuclear explosions spaced out 15 to 30 minutes apart.

To sum up, in my view, no deal means continuing the brush fire wars of the Middle East.  Singing the agreement means a general war in the Middle East that would likely escalate to nuclear weapons.  Liberals who back the deal with Iran are the real war mongers.