Friday, October 18, 2013

Et tu, Brute?

One has to admire the prescience of Judge Robert Yates, better known by his pen name, Brutus.

During the debates leading up to the ratification of the United States Constitution in 1788, a series of essays by "Brutus" ran in the New-York Journal and Weekly Register, making the case that the proposed Constitution concentrated too much power in the Federal Government, saying that "when the people once part with power, they can seldom or never resume it again but by force."

Brutus spent a great deal of time pointing out weaknesses in the Constitution's limitation of powers and phrases which could be exploited as granting broad authority which was never intended by the framers, concluding that "This government is to possess absolute and uncontrollable powers, legislative, executive, and judicial, with respect to every object to which it extends."

One such case is the "Welfare clause". Brutus predicted that its meaning would be expanded until it permitted Congress to do essentially anything, so long as it was claimed to be "providing for the General Welfare". Thomas Jefferson responded to this concern by claiming that it is absurd that anyone would claim such authority under the welfare clause. After all, he pointed out, the welfare clause specifies a purpose for which Congress may lay taxes, not a blank check grant of authority for any purpose. He went on to explain that it would not make sense to grant Congress unlimited authority to do anything and then to also explicitly enumerate the powers which Congress actually is granted. James Madison made a similar point: “If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.” It is clear that not only did the framers never intend the welfare clause to grant expansive power to Congress, they actually considered the idea so preposterous to not merit clarification in the text of the Constitution.

Similarly, he objected to the "Interstate Commerce" clause, suggesting that it might be used to justify most any intrusion into the private lives of the citizens. Jefferson and Madison both dismissed this concern as groundless and absurd as well. However, in the Supreme Court case of Wickard v. Filburn, the court ruled that Congress could limit the amount of grain that a farmer grew on his own land, even if that grain never left his property, and therefore did not enter interstate commerce. Since then, the interstate commerce clause has been used to grant vast, expansive powers to Congress far beyond what the framers intended or imagined.

Brutus also discussed his view of how the division of powers and system of checks and balances could break down as each branch of government naturally sought to expand its own power.

The fears expressed by Robert Yates, dismissed by the framers as unfounded and beyond the realm of possibility, have been vindicated by recent events in Washington DC.

The Constitution grants Congress the sole authority to appropriate money to be spent. The President can't spend a dime of the taxpayers money unless the House and Senate both vote to approve that spending. The appropriation process is separate and independent of the process of passing legislation into law. For example, in the 1980's Congress passed legislation to provide financial assistance to the Contra rebels in Nicaragua. However, the Boland Amendment cut off funding to that effort. Congress has repeatedly passed legislation mandating the construction of a secure border fence along the southern border of the country, but it has not funded that project, so the fence remains mostly unbuilt.

Prior to October 1 of this year, Congress had not appropriated money for Obamacare beyond October 1. To fund Obamacare it was necessary for the House and Senate to vote to approve the spending, and for the President to sign the bill. People who stated that the effort was futile because the President would not sign a bill defunding Obamacare were misinformed. No law needed to be passed to defund Obamacare. A law was required to fund it. Without the approval of Republicans in the House of Representatives, Obamacare would not be funded. Today that failed policy is only receiving funding because of the support of House Republicans.

Democrats objected that Obamacare is "established law" and that the budget process should not be used to block its implementation. Obamacare was passed through the budget process. Reconciliation rules in the Senate only apply to purely budgetary matters, so it was a large stretch to use those rules to pass Obamacare with only 51 votes, when normal Senate rules require 60 votes. But Democrats who passed Obamacare as a purely budgetary matter should not whine about it being treated as a purely budgetary matter. For being "established law", Obama himself surely has modified it a lot, as have justices on the Supreme Court.

When the individual mandate, a provision which punishes people for being uninsured, was found to not pass Constitutional muster, the Supreme Court took on the mantle of the Legislature and modified the law. They ruled that Congress does not have the authority to force people to buy a product and to punish them if they don't, a power they claimed under the interstate commerce clause. However, the Court found that Congress does have the power to force people to buy a product and tax them if they don't. So instead of sending the law back to Congress to fix, the Court redefined the individual mandate as a tax, in spite of repeated and emphatic statements from the authors of Obamacare that the mandate is not a tax. Congress could not have passed Obamacare as a tax, and the Supreme Court could not uphold it unless it was a tax. So the Supreme Court did the legislating.

Since then, Obama has altered the law more than a dozen times, delaying provisions which had statutorily mandated start dates, ignoring other portions of the law, and granting waivers arbitrarily to his cronies and campaign donors. If Obamacare is established law, Obama might start acting like it. But even so, Congress alters, amends, funds, defunds, and repeals existing law with regularity.

But the most disturbing grab at extraconstitutional power came near the end of the recent debt ceiling standoff. President Obama framed the debate in terms of defaulting on America's debt, suggesting that if Congress did not allow him limitless borrowing authority, America would default. As I explained earlier, the Treasury collects more than enough money each month to cover its debt obligations. In fact, 9% of the monthly tax revenue is required for debt service. The Fourteenth Amendment requires that paying our debts is the first priority, so by law, Obama must take the first 9% of the tax revenue and use it to pay the interest and principle as required. The only way we could default is if Obama made the political decision to take that money and spend it on other things. Doing so would be his choice, but it would also be a violation of his oath of office and of the Constitution, a law far higher than even Obamacare. It is certainly true that being unable to borrow more money would force him to make some budgetary priorities. There would not be money available to continue his profligate spending binge. But the only way we would default is if Obama decided to default.

So Obama's talk of default was a threat, pure and simple. Obama was demanding that Congress give him all of the money and all of the borrowing authority that he wants, or else he will destroy the full faith and credit of the United States. And he had the Alinskyite gall to do it while calling House Republicans, who rightfully possess the power they were exercising, arsonists, terrorists, anarchists, and blackmailers negotiating with a bomb strapped to their chest.

This is a new low for demagoguery. Normally, a demagogue will suggest that if he does not get his way, someone else will do something harmful, as in Joe Biden telling a predominantly black group of voters that if Mitt Romney is elected, Romney will reinstitute slavery. Obama's threat was that if he didn't get everything he demanded, Obama himself would cause grave harm to America, and then blame Republicans for it, backed up by a media which had already bought the lie.

It may seem preposterous to suggest that the President would consider the various options for dealing with the debt ceiling and deliberately choose the most damaging course for the nation. But stop for a moment and consider how Obama managed the sequestration and the government shutdown. In both cases he decided to make the cuts as damaging as possible. He specifically instructed that air traffic controllers be furloughed due to the sequestration, a petty act intended to disrupt as many people's lives as possible. During the partial government shutdown he blocked payments to the families of American soldiers killed in Afghanistan and shut down trials of new cancer treatments for kids dying of cancer. Also, Obama barricaded monuments and national parks, and actually used rangers to make sure that people didn't pull off a road to look at Mount Rushmore. He spent more money trying to close the World War II monument than it would have cost to leave it open. So Obama's record of being vindictive with his execution of laws he does not like is well established.

Congress caved to that lawless threat, completing Obama's usurpation of the authority to borrow and spend. We no longer have a system of divided powers. Obama is consolidating power to himself to impose his statist fundamental transformation of America against the will of the people for whom he works.

Robert Yates was right.

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