Constitution

Loss of Scalia Spares Unions Another Damaging Blow

scalia

It is difficult to quantify the impact on the nation of the recent death of Supreme Court Justice Antonin Scalia. Adored by conservatives/originalists, and reviled by progressives and the “living Constitution” crowd, Scalia was not only arguably the greatest legal mind of his generation, but one of the most brilliant and articulate legal scholars in all of America history. Combining rapier wit with a towering intellect, he shaped the legal thinking of conservatives and liberals alike in the judiciary.

In recent years many of the most controversial rulings handed down by the Supreme Court have come in the form of 5-4 rulings, typically with Justice Anthony Kennedy being the swing vote. The loss of Scalia leaves the Court with eight justices, increasing the likelihood of 4-4 decisions that, rather than establish constitutional law precedent, leave issues unsettled and keep in place lower court rulings.

Gov. Fallin Correct to Defy OK Supreme Court on Ten Commandments

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Between the ignorance of the average American citizen regarding our nation’s rich religious history, and the open hostility by anti-religious Leftists across the country, it seems not a day passes anymore that doesn’t bring with it a story about religious freedoms of ordinary Americans being infringed by those determined to purge every last vestige of Christianity from American life.

A recent example of this came in the form of a ruling by the Oklahoma Supreme Court, which ruled that a Ten Commandments monument currently on the grounds of the state capitol violate the Article II, Section 5 of the state’s constitution, which prohibits the use of any government money or property to benefit religion.

After the ruling, Oklahoma Governor Mary Fallin declared the state’s high court got it wrong, and refused to remove the monument. State Rep. Mike Ritze, whose family paid for the monument in question, points out that the Court, in demanding the removal, ignored its own prior rulings upholding the right to have a 50-foot cross on the state fairgrounds, and many Native American paintings, monuments, and other pieces of art with religious meanings and tones on display at the Capitol and other state properties.

Obama marks Constitution Day by referring to our constitutional rights as “privileges”

Today, September 17, is Constitution Day. Spearheaded by the late Sen. Robert Byrd (D-WV), Congress passed a resolution in 2004 as rider to an omnibus spending bill setting aside this particular day to celebrate the ratification of the Constitution, the document that provides the framework of the federal government and the rights protected under the Bill of Rights.

The Constitution has experienced somewhat of a resurgence in the last several years, perhaps because of the polarization of political opinions in the United States as well as attempts by presidents from both parties attempts consume more power for the executive branch. The revelations about the National Security Agency, efforts to censor speech, expand gun control laws are just the tip of the iceberg of attempts to trample the rights guaranteed by the Bill of Rights.

In his presidential proclamation marking Constitution Day, President Barack Obama offered some insight into how he views the Bill of Rights. “Our Constitution reflects the values we cherish as a people and the ideals we strive for as a society,” Obama said in the release. “It secures the privileges we enjoy as citizens, but also demands participation, responsibility, and service to our country and to one another.”

Given that this White House is known for its expansive view of executive power, the fact that President Obama views these fundamental liberties to be “privileges” isn’t too terribly surprising. After all, President Obama treats the legislative branch — which is supposed to be a co-equal branch of the federal government — as an afterthought as it arbitrarily changes statues and even refuses to enforce laws.

Get ready for a showdown over free speech: Harry Reid will push partial repeal of the First Amendment next week

When the Senate returns to Washington next week, Majority Leader Harry Reid (D-NV) is expected to bring up S.J. Res. 19, a constitutional amendment proposed by Sen. Tom Udall (D-NM) that would effectively repeal political speech protections in the First Amendment.

Reid filed a motion to proceed on the constitutional amendment on August 1, just before the chamber adjourned for its summer recess. Although the original text of the amendment gave Congress the sole power to regulate political speech, including campaign finance regulations, the Senate Judiciary Committee approved the measure with substitute language to allow states to implement their own rules and regulations, in addition to those passed by Congress.

The measure, however, is an attempt to diminish the influence of issue-focused nonprofit organizations and political action committees, which, Senate Democrats say, are often funded by corporate interests. Section 2 of the amendment would allow Congress and state legislatures to prohibit “corporations or other artificial entities created by law…from spending money to influence elections.”

Obama is trying get around the Senate to enact a U.N. climate deal

There’s no ambiguity about the process by which the United States can enter into a treaty. The Constitution, in Article II, Section 2, states that a president “shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”

The ratification process is a very specific limitation on presidential power, one that provides a legislative check on the executive branch. But President Barack Obama can’t be bothered by the constitutional process. The New York Times reports that, in his latest move to get around Congress, President Obama’s State Department is negotiating a climate deal at the United Nations to update a 1992 treaty with new emission reduction targets (emphasis added):

Lawmakers in both parties on Capitol Hill say there is no chance that the currently gridlocked Senate will ratify a climate change treaty in the near future, especially in a political environment where many Republican lawmakers remain skeptical of the established science of human-caused global warming.
[…]
American negotiators are instead homing in on a hybrid agreement — a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification.

Supreme Court rejects Obama’s power grab: Justices unanimously invalidate NLRB recess appointments

The White House got a big reality check from the Supreme Court this morning. In a unanimous decision, the High Court invalidated recess appointments President Barack Obama made to the National Labor Relations Board in January 2012 because the Senate was technically in session.

The Constitution, in Article II, Section 2, allows a president to make appointments to fill vacancies when the Senate is not in session. These nominations are reviewed by the Senate when it reconvenes and must be approved by two-thirds of that chamber.

The issue at hand is that the Senate was in pro forma session — meaning that it had not formally adjourned — when President Obama made the appointments. The opinion in National Labor Relations Board v. Noel Canning, written by Justice Stephen Breyer, makes very clear that President Obama exceeded his constitutional authority by trying to sneak in bureaucrats who would rubber-stamp his and big labor’s agenda.

“In our view, however, the pro forma sessions count as sessions, not as periods of recess. We hold that, for pur­poses of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business,” Breyer wrote. “The Senate met that standard here.”

“The standard we apply,” he continued, “is consistent with the Constitu­tion’s broad delegation of authority to the Senate to determine how and when to conduct its business.”

House Republicans plan to sue Barack Obama over illegal executive actions

The House of Representatives is getting pretty tired of President Barack Obama going around the Constitution to enact laws through executive and regulatory fiat as well as ignoring laws passed by Congress. Roll Call reports that Speaker John Boehner (R-OH) is preparing a lawsuit against the White House over executive overreach:

The lawsuit could set up a significant test of constitutional checks and balances, with the legislative branch suing the executive branch for ignoring its mandates, and the judiciary branch deciding the outcome.

Boehner told the House Republican Conference during a closed-door meeting Tuesday morning that he has been consulting with legal scholars and plans to unveil his next steps this week or next, according to sources in the room.
[…]
Boehner’s legal theory is based on work by Washington, D.C., attorney David Rivkin of Baker Hostetler LLP and Elizabeth Price Foley, a professor of law at Florida International University College of Law.

Rivkin said in an interview that in addition to proving institutional injury, the House would have to prove that as an institution, it has authorized the lawsuit. A vote by the Bipartisan Legal Advisory Group would do so.

The suit would also have to prove that no other private plaintiff has standing to challenge the particular suspension of executive action and that there are no other opportunities for meaningful political remedies by Congress, for instance by repeal of the underlying law.

The potential remedies the legislative branch has to deal with executive overreach are limited, and not all of them are politically viable.

End the idol worship: Ideas over men

Statue of Freedom

In the final minutes of the 2005 film, V for Vendetta, Peter Creedy, the head of the dystopian government’s secret police, fires several rounds into the Guy Fawkes-masked protagonist, V, fearing for his life.

“Why won’t you die?!” he shouts as his revolver reaches an empty chamber. “Beneath this mask there is more than flesh,” V says. “Beneath this mask there is an idea, Mr. Creedy. And ideas are bulletproof.”

While he got the attention of the repressed people of England and encouraged them to stand up against a cronyist government and the surveillance state, V was a faceless symbol of an idea — an idea he hoped would live on after he died.

Edward Snowden got Americans’ attention last June after he, through journalist Glenn Greenwald, blew the whistle on National Security Agency’s vast surveillance apparatus. The disclosures continued throughout the last year and will, reportedly, end with a grand finale in the coming days when Greenwald releases a list of names the controversial intelligence agency has targeted for spying.

Just last week, Snowden, who is living a seclusion in Russia, gave an interview with NBC’s Brian Williams, the whistleblower’s first with a U.S.-based television network, in which, when asked, he said that he thought himself to be a patriot.

“Being a patriot means knowing when to protect your country, knowing when to protect your Constitution, knowing when to protect your countrymen from the violations and encroachments from adversaries,” Snowden told Williams. “And those adversaries don’t have to be foreign countries, they can be bad policies.”

Harry Reid defending ObamaCare with lies

Majority Leader Harry Reid (D-NV) has been making headlines with his comments on the Senate floor. Calling citizens liars, acting on behalf of the Koch brothers was round one, followed by a denial that he’d ever said that.

While generally despicable, this sort of commentary from Reid is not uncommon. Some might explain it away by pointing out that he’s getting old, and has been in Washington for too long. This sort of situation definitely makes a case for term limits, however that’s a debate for another time.

No, perhaps it is time to revisit a time-honored portion of the Constitution that Senators and Representatives have enjoyed — arguably has kept quite a few, like Reid, from facing legal issues over statements they have made.

Article I, Section 6 of the Constitution protects them from facing legal action for statements that they make on the floor of either house. While it’s idealistic to think that the Framers intended this to prevent problems arising from unintentionally erroneous statements, that probably wasn’t the case. Even then, politics was a blood sport, so they wanted the freedom to beat each other verbally without any restrictions against lying about each other — or the public.

Reid, if one does not buy senility or insanity as an excuse, has been trying to elevate this practice of fibbing on the floor to an art form. His latest target was fellow member Tom Coburn, and Reid definitely is reaching for new depths with this one. Coburn is a medical doctor and is battling cancer.

Federal judge dismisses legal challenge to NSA surveillance

A federal district judge ruled this morning that the National Security Agency’s phone metadata surveillance program is constitutional and dismissed a lawsuit filed by the American Civil Liberties Union (ACLU).

In a 53-page opinion, U.S. District Court Judge William Pauley acknowledged that the NSA phone surveillance program “vacuums up information about virtually every telephone call to, from, or within the United States.” But he opined that the program could have prevented the 2001 terrorist attacks.

“As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific,” wrote Pauley in ACLU v. Clapper. “Technology allowed al-Qaeda to operate decentralized and plot international terrorist attack remotely.”

“The bulk telephony metadata collection program represents the Government’s counter-punch: connecting fragmented and fleeting communications to re-construct and eliminate al-Qaeda’s terror network,” he added.

Pauley acknowledged that there have been “unintentional violations of guidelines,” but dismissed this at “human error” and “incredibly complex computer programs that support this vital tool.” He also wrote that the program is “subject to executive and congressional oversight” and “monitoring” by the Foreign Intelligence Surveillance Court (FISC).

Pauley was appointed to serve on the U.S. District Court for the Southern District of New York in May 1998 by then-President Bill Clinton. He was confirmed by the Senate in October 1998. The court on which Pauley serves is based in New York City.


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