Zera's Blog

A Citizen's View from Main Street

Sen. Mike Lee Vows To Block Obama Nominees


Mike Lee went ballistic over President Obama’s recess appointments in January. This is how someone who believed in presumption of innocence might have worded it:

Senator Mike Lee formally responded to the President’s (allegedly) unconstitutional recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau. In a statement delivered at a Judiciary Committee business meeting, Lee outlined the (allegedly) unconstitutional nature of the appointments and criticized the justification offered by the Justice Department’s Office of Legal Counsel.

“President Obama used (in Lee’s opinion) deeply flawed legal reasoning to circumvent the Constitution’s clear requirement that the Senate must be in (official) recess in order to make such appointments,” said Sen. Lee. “The President’s assertion that he (the Office of Legal Counsel) may unilaterally determine for himself (the administrative branch of government) whether or not the Senate is in recess (allegedly) violates the Constitution’s fundamental separation of government powers and the Senate’s rightful prerogatives.”

“Although some Senate Democrats claim prior ‘obstruction’ of nominees during this Congress, in reality Senate Republicans have willingly allowed the overwhelming majority of the President’s nominations to pass through the Judiciary Committee with little controversy and receive an up or down vote on the floor.”

Passing a nominee out of committee does not necessarily mean that the nominee got an up-or-down vote.

Getting nominees confirmed has proved a challenge for the administration. A recent report from the Constitutional Accountability Center in Washington said the federal judiciary had had more than 750 days with at least 80 vacancies on the federal bench, which adds to the workload of an already overburdened judiciary.

“Never before has the number of vacancies risen so sharply and remained so high for so long during a president’s term,” wrote the group, which noted that all presidents come into office with a backlog that gets worked down more quickly over time.

Judicial nominations have been a source of escalating conflict since the fight over President Ronald Reagan’s attempt to nominate Robert H. Bork to the Supreme Court in 1987. Over the years, fights have included refusals by Senate Republicans to hold hearings on Mr. Clinton’s nominees and Democratic senators filibustering nominees of Mr. Bush.

Now that conflict is just one of many in a continuing battle between Congress and the president that also includes nominations to the executive branch and efforts to pass major legislation.

While Mr. Obama was relatively slow to nominate judges earlier in his term, his team has now sped up, the group said. But Congress has been slow to confirm nominees, some of whom “go through committee without any opposition and still spend months and months waiting for a vote on the Senate floor,” said Doug Kendall, the group’s founder. “That’s never happened before, and it’s a big part of the reason the judicial vacancy problem has reached crisis proportions.”

For Obama, a Record on Diversity but Delays on Judicial Confirmations

Back to Mike Lee (NO relation):

“Given this President’s (allegedly) blatant and egregious disregard both for proper constitutional procedures and the Senate’s unquestioned role in such appointments, I find myself duty-bound to (commandeer the authority of the judiciary to determine constitutionality, ignore my “advise and consent” responsibilities under the Constitution, and) resist the consideration and approval of additional nominations until the President takes steps to ‘remedy’ the situation. Regardless of the precise course I choose to pursue, the President certainly will not continue to enjoy my nearly complete(ly imaginary) cooperation, unless and until he rescinds his (allegedly) unconstitutional recess appointments.”

Now that we’ve seen the rant, let’s look at the Constitution.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

US Const. Article II, sec 1.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

US Const. Article II, sec 2

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

US Const. Article II, sec 3

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

US Const. Article VI

“I, (name of Member), do solemnly swear (or affirm) that I will support and defend the Constituti­on of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservatio­n or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
Mike Lee is only concerned with the Constituti­on when it is politicall­y advantageo­us. How many pledges of allegiance (like the Norquist pledge) did he swear to before he got to the oath of office?
  1. Lee has personally determined that these particular recess appointments are unconstitutional. He has no constitutional authority to make such a determination. His constitutional authority is limited to legislative actions, confirming specific actions of the President, and approving selected structural matters of the country. “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Unless he has legal standing to challenge a law in court, his only constitutional remedy is to change the law. In either event, he is obligated to support the law until it is legally determined to be improper.
  2. It is Lee’s Constitutional duty to support the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof”. While he has the authority to oppose specific nominees, he does not have the authority to reject the Constitutional mandate for a confirmation process.
  3. The President has a Constitutional obligation to “take Care that the Laws be faithfully executed”, and the obligation of a Senator to “support and defend the Constituti­on of the United States” and “bear true faith and allegiance to the same” requires him to support and enable the President to fulfill his own obligations to the Constitution.
  4. By putting his ideology ahead of his (alleged) commitment to the Constitution, he is rejecting his oath to “well and faithfully discharge the duties of the office”. He has set himself up as judge, jury, and executioner for laws that offend his ideology. This is how dictators operate, not American Constitutional officers. This could easily be considered an impeachable offense. If he does not like a law, his sole Constitutional remedy is to change the law.  Congress does not have the authority to implement, or prevent the implementation of, a law.

This is an anti-constitution power grab.

Lee has made at least two oaths he clearly holds above his oath of office. His loyalties are divided. Patriotism or subversion?

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February 4, 2012 Posted by | Constitution, Ethics, GOP, Governance, Government | , , , , , , , , | Leave a comment

Citizens United Amendment Summary


January 21, 2012 is the second anniversary of the Supreme Court decision of CITIZENS UNITED v. FEDERAL ELECTION COMMISSION

Joint Resolution Proposing the Twenty-third Am...

Today, I choose to look forward to the day it is overturned. In that vein, I offer a survey of Constitutional Amendments proposed to achieve that end. I will analyze them in future diaries. This is just a reference.

Article V of the Constitution provides for two methods of amendment. Congress can propose an amendment with 2/3 approval from each chamber. Joint Resolutions are the vehicles used for this process. Once approved by Congress and signed by the President, 3/4 of the state legislatures must ratify it.

—————————————————————————————————————————–

112th Senate Joint Resolution 29:

Section 1

Congress shall have power to regulate the raising and spending of money and in kind equivalents with respect to Federal elections, including through setting limits on–

(1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and

(2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates.

Section 2

A State shall have power to regulate the raising and spending of money and in kind equivalents with respect to State elections, including through setting limits on–

(1) the amount of contributions to candidates for nomination for election to, or for election to, State office; and

(2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates.

Section 3

Congress shall have power to implement and enforce this article by appropriate legislation.

—————————————————————————————————————————–

112th Senate Joint Resolution 33:

Section 1

The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.

Section 2

Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.

Section 3

Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.

Section 4

Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.

—————————————————————————————————————————–

112th Senate Joint Resolution 35:

Section 1

Congress shall have the power to regulate the contribution of funds by corporations, entities organized and operated for profit, and labor organizations to a candidate for election to, or for nomination for election to, a Federal office, and the power to regulate the expenditure of funds by corporations, entities organized and operated for profit, and labor organizations made in support of, or opposition to, such candidates.

Section 2

A State shall have the power to regulate the contribution of funds by corporations, entities organized and operated for profit, and labor organizations to a candidate for election to, or for nomination for election to, public office in the State, and the power to regulate the expenditure of funds by corporations, entities organized and operated for profit, and labor organizations made in support of, or opposition to, such candidates.

Section 3

Nothing contained in this Amendment shall be construed to allow Congress or a State to make any law abridging the freedom of the press.

House Joint Resolutions and others after the fold…

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January 21, 2012 Posted by | 112th Congress, Campaign Finance, Citizens United vs FEC, Constitution | , , , , , , , , , , , , , , , , , , , , , , , , , , , | 2 Comments

Richard Cordray’s Recess Appointment Gives Consumer Agency Full Power


In principle, I think that recess appointmen­ts are obsolete in these days of modern transporta­tion, communicat­ions, and longer sessions of Congress. But that depends on a properly functionin­g Senate. Obstructio­nist republican­s have thrown that out the window.

The reason for a recess appointmen­t is to fill major empty positions in the administra­tion (on a temporary basis) when the Senate is not available to confirm an appointmen­t and convening them for confirmati­on would leave the position open too long.

In this case, it is the intention of the republican­s to leave the position unfilled. This is a direct rejection of their oath of office to support and defend the Constituti­on, particular­ly the President’­s Constituti­onal obligation to administer the law. This has created a Constituti­onal Crisis.

By blocking the nomination for reasons unrelated to the qualificat­ions of the nominee, they have perverted the “advise and consent” authority of the Constituti­on, and created the very emergency situation that the recess appointmen­t exists to resolve.

Some claim that the language of the law prohibits recess appointments for the position of Director. The authority of the recess appointment is part of the Constitution, and cannot be revoked without a Constitutional Amendment.

Pro forma sessions are not addressed in the Constitution. There is precedent for using them to block a specific appointment, but that precedent includes objections based on controversy over the qualifications of a specific nominee – not the position or the law. This obstruction is without precedent, and an unprecedented response may be necessary to maintain a Constitutional government.
Read the Article at HuffingtonPost

January 5, 2012 Posted by | Administration, Constitution, Direction, GOP, Governance, Government | , , , , , , , , , , , , , | 1 Comment

For GOP, ‘Repeal And Replace’ Has Been Nothing But A Mantra On Healthcare Law


English: Data Source http://www.irdes.fr/EcoSa...

The fundamenta­l role of the health care industry is being fought over.
The republican­s think it is all about making money.
The Democrats think it is about providing health care.

The present situation is unsustaina­ble. As the number of people who cannot afford health care rises, the economic viability of the industry shrinks. Economic realities of the present system are pushing new doctors toward specialty practices, and away from rural medicine, general/fa­mily practice, and geriatrics­.

Conservati­ves want to lock in this failing trajectory­, but America needs a radical change in that trajectory­.

Consider what a free market NFL would be like: the big, wealthy market teams buy up the best talent. The smaller markets become uncompetit­ive, unprofitab­le, and drop out. As the size of the leagues shrink, so does interest in the sport – and profitabil­ity for the larger markets. In the end, the entire league fails.

At a micro level, measuring success in dollars is fine. But at a macro level, success must be measured in contributi­on to society, or the society fails.
Read the Article at HuffingtonPost

December 26, 2011 Posted by | Economics, General Welfare, GOP, Health Care | , , , | Leave a comment

112th Congress HJRes78 – A Citizens United Amendment


Ii I analyze any more Democrat Bills, I will have to come up with a new category for them.

The Joint Resolution:


[Congressional Bills 112th Congress]
[From the U.S. Government Printing Office]
[H.J. Res. 78 Introduced in House (IH)]

112th CONGRESS
  1st Session
H. J. RES. 78

  Proposing an amendment to the Constitution of the United States to 
   clarify the authority of Congress and the States to regulate the 
      expenditure of funds for political activity by corporations.
_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                           September 12, 2011

  Ms. Edwards (for herself and Mr. Conyers) introduced the following 
 joint resolution; which was referred to the Committee on the Judiciary
_______________________________________________________________________

                            JOINT RESOLUTION

  Proposing an amendment to the Constitution of the United States to 
   clarify the authority of Congress and the States to regulate the 
      expenditure of funds for political activity by corporations.

    Resolved by the Senate and House of Representatives of the United 
States of America in Congress assembled   (two-thirds of each House 
concurring therein), That the following article is proposed as an 
amendment to the Constitution of the United States, which shall be 
valid to all intents and purposes as part of the Constitution when 
ratified by the legislatures of three-fourths of the several States:

                              ``Article--

    ``Section 1. Nothing in this Constitution shall prohibit Congress 
and the States from imposing content-neutral regulations and 
restrictions on the expenditure of funds for political activity by any 
corporation, limited liability company, or other corporate entity, 
including but not limited to contributions in support of, or in 
opposition to, a candidate for public office.

    ``Section 2. Nothing contained in this Article shall be construed 
to abridge the freedom of the press.''.

                                 <all>

Analysis

Section 1:

This is similar to my second proposed amendment in that it works to deny Constitutional protection to corporate political spending. This is probably the least disruptive method from a legal standpoint, but it retains the “regulating the hand that feeds” conflict of interest problem.

It does not include organized religion, which should not be engaging in political campaigns but do anyway.

To be fair, it does not include unions either. On the other hand, unions are associations of actual people, not “artificial persons”. They do not pose the same threat to our sovereignty as corporations. Perhaps someday an adjustment will need to be made, but that becomes a slippery slope problem.

Section 2:

The freedom of the press must be maintained, though the corporate media undermines the Fourth Estate through the corrupt use of ownership powers.

Constitutional Authority Statement:

[Congressional Record Volume 157, Number 134 (Monday, September 12, 2011)]
[House]
[Pages H6097-H6098]

From the Congressional Record Online through the Government Printing Office [www.gpo.gov]

 By Ms. EDWARDS:
 H.J. Res. 78.

[[Page H6098]]

 Congress has the power to enact this legislation pursuant
 to the following:
 Article V of the Constitution.

Article V:

    • The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution,
    • or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments,
  • which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when
    • ratified by the Legislatures of three fourths of the several States,
    • or by Conventions in three fourths thereof,

    as the one or the other Mode of Ratification may be proposed by the Congress;

  • Provided
    • that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article;
    • and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Related Bills:


Conclusion

This is a simple and straightforward answer to Citizens United. Without a mandate, I think that there would be many partisan battles over regulation. Especially when one party confuses corporations with living people.

I also think it needs an enacting clause. Other than that, I like it.

November 8, 2011 Posted by | Campaign Finance, Citizens United vs FEC, Constitution, Legislation | , , , , | 1 Comment

112th Congress SJRes29 – A Citizens United Amendment


I usually reserve my analysis for the republican clunkers. This is the second time I have analyzed a Democrat Bill.

The Joint Resolution:


[Congressional Bills 112th Congress]
[From the U.S. Government Printing Office]
[S.J. Res. 29 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
S. J. RES. 29

    Proposing an amendment to the Constitution of the United States 
     relating to contributions and expenditures intended to affect 
                               elections.
_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                            November 1, 2011

   Mr. Udall of New Mexico (for himself, Mr. Bennet, Mr. Harkin, Mr. 
Durbin, Mr. Schumer, Mr. Merkley, Mr. Whitehouse, Mr. Begich, and Mrs. 
  Shaheen) introduced the following joint resolution; which was read 
          twice and referred to the Committee on the Judiciary
_______________________________________________________________________

                            JOINT RESOLUTION

    Proposing an amendment to the Constitution of the United States 
     relating to contributions and expenditures intended to affect 
                               elections.

    Resolved by the Senate and House of Representatives of the United 
States of America in Congress assembled (two-thirds of each House 
concurring therein), That the following article is proposed as an 
amendment to the Constitution of the United States, which shall be 
valid to all intents and purposes as part of the Constitution when 
ratified by the legislatures of three-fourths of the several States 
within seven years after the date of its submission by the Congress:

                              ``Article--

    ``Section 1. Congress shall have power to regulate the raising and 
spending of money and in kind equivalents with respect to Federal 
elections, including through setting limits on--
            ``(1) the amount of contributions to candidates for 
        nomination for election to, or for election to, Federal office; 
        and
            ``(2) the amount of expenditures that may be made by, in 
        support of, or in opposition to such candidates.

    ``Section 2. A State shall have power to regulate the raising and 
spending of money and in kind equivalents with respect to State 
elections, including through setting limits on--
            ``(1) the amount of contributions to candidates for 
        nomination for election to, or for election to, State office; 
        and
            ``(2) the amount of expenditures that may be made by, in 
        support of, or in opposition to such candidates.

    ``Section 3. Congress shall have power to implement and enforce 
this article by appropriate legislation.''.

                                 <all>

Analysis

Section 1:

I see three problems with this section:

  1. It does not cover issues. While issues are not directly on the ballot, they are still an integral part of a political campaign.
  2. It does not cover Constitutional Amendments.
  3. The politicians setting the regulations, without direction or mandate, are the ones who benefit from the current state of campaign financing. This leaves plenty of room for continued influence peddling.

Section 2:

There are similar problems with this section:

  1. It does not cover issues.
  2. It does not cover Constitutional Amendments.
  3. It does not cover referenda.
  4. It does not cover local elections.
  5. It does not cover other Questions put to the voters, such as millage.
  6. It does not cover cross-state interference in local politics. The sovereignty of the individual states is being challenged by out-of-state money.

Constitutional Authority Statement:

None given (yet), but Article V of the Constitution covers it.

Article V:

    • The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution,
    • or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments,
  • which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when
    • ratified by the Legislatures of three fourths of the several States,
    • or by Conventions in three fourths thereof,

    as the one or the other Mode of Ratification may be proposed by the Congress;

  • Provided
    • that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article;
    • and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Related Bills:


Conclusion

I do not believe that this proposed amendment goes far enough to protect our democratic process from the influence of non-citizens or the excessive influence of the very rich.

November 6, 2011 Posted by | Citizens United vs FEC, Constitution, Legislation | , , , | 1 Comment

Wall Street Occupation — a Cry to End Corporate Influence in Elections?


TAKE OUT THE TRASH #occupywallstreet

Image by otromundoesposible_com via Flickr

Corporate influence has robbed us of our sovereignt­y. Getting corporate money out of politics is key to restoring government by consent of the governed. I see two courses of action, both of which involve amending the Constituti­on. This poses a significan­t problem due to the appropriat­ely high bar to change imposed by the amendment process and the absolute devotion of republican­s to the corporatio­ns.

Option 1: Completely revoke recognitio­n of “personhoo­d” for corporatio­ns; and restore only the rights necessary to engage in contractua­l obligation­s and other basic functions of business, through changes to the law. Trying to end “personhoo­d” before developing an alternativ­e would create legal chaos that would be economical­ly disastrous­. Legislatin­g an alternativ­e while “personhoo­d” was still in effect would let corporatio­ns design the alternativ­e, rendering the effort expensive and self-defea­ting.

Option 2: Restrict corporate free-speec­h rights. This is doable, but a very slippery slope.

Read the Article at HuffingtonPost

October 8, 2011 Posted by | Citizens United vs FEC | , , , , , | Leave a comment

112th Congress HR1255 – Government Shutdown Prevention Act of 2011


HR1255 provides a learning moment in the annals of American civics, for those who would learn…

It certainly leaves the tea party republicans no incentive to seek compromise or negotiate in good faith. In fact, it also gives them incentive NOT to raise the debt ceiling.

The Bill:

[Congressional Bills 112th Congress]
[From the U.S. Government Printing Office]
[H.R. 1255 Introduced in House (IH)]

112th CONGRESS
1st Session
H. R. 1255

To prevent a shutdown of the government of the United States, and for
other purposes.

_______________________________________________________________________

IN THE HOUSE OF REPRESENTATIVES

March 30, 2011

Mr. Womack (for himself and Mr. Woodall) introduced the following bill;
which was referred to the Committee on Appropriations, and in addition

to the Committees on Oversight and Government Reform, House
Administration, and the Budget, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned

_______________________________________________________________________

A BILL

To prevent a shutdown of the government of the United States, and for
other purposes.

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Government Shutdown Prevention Act
of 2011”.

SEC. 2. FUNDING THE GOVERNMENT FOR THE REMAINDER OF FISCAL YEAR 2011.

(a) Deadline for Consideration of Legislation Funding the
Government for the Remainder of Fiscal Year 2011.–If the House has not
received a message from the Senate before April 6, 2011, stating that
it has passed a measure providing for the appropriations for the
departments and agencies of the Government for the remainder of fiscal
year 2011, the provisions of H.R. 1, as passed by the House on February
19, 2011, are hereby enacted into law.

(b) Publication of Act.–In publishing this Act in slip form and in
the United States Statutes at Large pursuant to section 112 of title 1,
United States Code, the Archivist of the United States shall include
after the date of approval, if applicable, an appendix setting forth
the text of the bill referred to in subsection (a).

SEC. 3. TREATMENT OF CERTAIN PAYMENTS TO MEMBERS OF CONGRESS AND THE PRESIDENT.

(a) Treatment of Members During a Government Shutdown.–The
Secretary of the Senate and the Chief Administrative Officer of the
House, respectively, shall not disburse to each Member or Delegate the
amount of his or her salary for each day that

(1) there is more than a 24-hour lapse in appropriations
for any Federal agency or department as a result of a failure
to enact a regular appropriations bill or continuing
resolution; or

(2) the Federal Government is unable to make payments or
meet obligations because the public debt limit under section
3101 of title 31, United States Code, has been reached.

(b) Treatment of the President During a Government Shutdown.–The
President shall not receive a disbursement of basic pay for any period
in which–

(1) there is more than a 24-hour lapse in appropriations
for any Federal agency or department as a result of a failure
to enact a regular appropriations bill or continuing
resolution; or

(2) the Federal Government is unable to make payments or
meet obligations because the public debt limit under section
3101 of title 31, United States Code, has been reached.

<all>

Analysis

First of all, it appears to be assigned to no less than 4 committees simultaneously. I’ve always understood that bills have to go from committee to committee sequentially. Otherwise, amendments could leave you with multiple versions of a bill – which cannot be. Unless, of course, no amendments are to be allowed – which in turn means that all discussion and debate is aimed not at the legislation, but at persuasion.

UPDATE: H. Res. 194 blocked any path for Democrats to alter the bill.

“All points of order against consideration of the bill are waived. The bill shall be considered as read. All points of order against provisions in the bill are waived.”

The “hear no evil, speak no evil” resolution.

UPDATE: H. R. 1255 has been passed by the House, making the number of simultaneous committees a rhetorical question.

“and for other purposes.”

Always a warning flag. It means that there is more to the bill than is reflected in the title.

Section 2:

“Deadline for Consideration of Legislation Funding the
Government for the Remainder of Fiscal Year 2011.–If the House has not
received a message from the Senate before April 6, 2011, stating that
it has passed a measure providing for the appropriations for the
departments and agencies of the Government for the remainder of fiscal
year 2011, the provisions of H.R. 1, as passed by the House on February
19, 2011, are hereby enacted into law.”

There are two issues here:

  1. “the provisions of” is not terribly explicit. If they had at least stated “DIVISIONS A through C”, it would have shown at least a little legislative skill. I seriously doubt the legitimacy of a law that references or attempts to enact the language of another bill, which never became law in it’s own right.
  2. This is the same sort of back-door legislative legerdemain that the republicans cried foul over, but without the cover of House/Senate rules. This is not the “deem and to pass” procedure despite the apparent similarities. The self-executing rule is a House rule that can only effect the authority of the House. It cannot speak for the Senate. The Senate already said no to the language of H. R. 1, so trying to enact it through the back door carries a decidedly anti-constitution stigma.

“(b) Publication of Act.–In publishing this Act in slip form and in
the United States Statutes at Large pursuant to section 112 of title 1,
United States Code, the Archivist of the United States shall include
after the date of approval, if applicable, an appendix setting forth
the text of the bill referred to in subsection (a).”

This is a sure sign that they know they are not doing this right, and need to tell the Archivist how to clean up their mess.

Section 3 has it’s problems as well:

shall not disburse to each Member or Delegate the amount of his or her salary for each day that”

Let’s check the Constitution:

“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.”

U.S. Const., Amend. XXVII

Oops, those “Read the Bill”/”Require each bill to identify the specific provision of the Constitution that gives Congress the power to do what the bill does.” people just gave themselves an egg facial.

UNCONSTITUTIONAL!

“The President shall not receive a disbursement of basic pay for any period in which”

Another trip to the Constitution:

“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”

U.S. Const. Art. II, sec. 1

The republicans aren’t even bringing their “C” game. If this is their best effort at “shall be bound by Oath or Affirmation, to support this Constitution”, then they need classes from non-conservatives. Whatever they learned from the conservatives does not pass muster. Or maybe they just do not understand the meaning of “shall”.

shall (merriam-webster)

“used in laws, regulations, or directives to express what is mandatory”

UNCONSTITUTIONAL!

“the Federal Government is unable to make payments or meet obligations because the public debt limit under section 3101 of title 31, United States Code, has been reached.”

This is the most insidious part of all. Even if an appropriations bill is passed into law, they could still shove H.R.1 down our throats just by thwarting efforts to raise the debt ceiling.

What is their justification?

By Mr. WOMACK:
H.R. 1255.
Congress has the power to enact this legislation pursuant to the following:
Section 2 is enacted pursuant to the rulemaking powers provided in clause 2 of section 5 of article I of the United States Constitution in furtherance of the appropriation power provided in clause 7 of section 9 of article I of the Constitution and spending power provided in clause 1 of section 8 of article I of the Constitution.
Section 3(a) is enacted pursuant to the rulemaking powers provided in clause 2 of section 5 of article I of the United States Constitution. Section 3(a) is consistent with article XXVII in that it does not vary the compensation of Members and Senators but only seeks to regulate its disbursement during certain periods.
Section 3(b) is enacted pursuant to clause 18 of section 8 of article I of the United States Constitution. Section 3(b) is consistent with clause 7 of section 1 of article II of the United States Constitution in that it does not vary the compensation of the President but only seeks to regulate its disbursement during certain periods.

And what do those clauses say?

“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

U.S. Const, Art I, sec 5 – second clause

This clause has no applicability to section 2 of H.R. 1255. Law cannot be enacted by House rules. If H.R. 1 had been incorporated into H.R. 1255, then this would be a stand-alone bill. As it is, I do not see any “deemed to pass”  type language here. This is of particular concern because the Senate has already rejected the language of H.R. 1.

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

U.S. Const, Art I, sec 9 – seventh clause

No problem here.

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

U.S. Const, Art I, sec 8 – first clause

No problem here either.

Personal Note: The preamble states promote the general Welfare while this clause states provide for the general Welfare – interesting variation in language.

Concerning section 3 of H.R. 1255:

The rules made by each House to proscribe the punishment of it’s Members do not withstand provisions in the Constitution.

It is not clear that “punish its Members” includes economic actions. Furthermore, “punish its Members for disorderly Behaviour” applies only when there is – DISORDERLY BEHAVIOR. Burning a budget on the House floor would be disorderly behavior, failing to pass one is not.

This section is intended to impair the people who would have to take action to start funding the government again. While most of them have their own funds to live on, not all have that kind of personal reserves. Just ask Sean Duffy. Not paying Congress or the President while they are working to fund the government could impair that effort. These are the people who MUST be on the job when nobody else is, if we are to have a government – and a country.

Also, there is no language to make up the missed payments. The bill explicitly states “shall not disburse” – which means that, contrary to Mr. Womack’s assertion, this does indeed “vary the compensation”.

There is no “article XXVII” in the Constitution. I presume this constitutional scholar means U.S. Const, amend XXVII. (Amendment 27)

Nit Pick: “Members and Senators” should be “Members of each House” if they want to be consistent with the clauses they reference. Otherwise, it should be “Senators and Members of the House” or some such. This is just mixing titles and designations.

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

U.S. Const, sec 8, eighteenth clause

This is a curious citation because the only application relevant to (3)(b) would be in support of paying the Debt, yet (3)(b) is about NOT paying a debt.

Again, there is no language to make up the missed payments. The bill explicitly states “shall not receive a disbursement” – which means that, contrary to Mr. Womack’s assertion, the President’s Compensation would indeed be “diminished during the Period for which he shall have been elected.

Lastly, the bill would have to be passed in both the House and Senate, and signed into law, on or before 8 April 2011, or it could not be anything but an unconstitutional ex post facto (retroactive) law.

“No Bill of Attainder or ex post facto Law shall be passed.”

U.S. Const, art I, sec 9, third clause

That would be a third strike on constitutionality alone.

Conclusion

With legislative sleight-of-hand, two unconstitutional provisions, a poison pill, and two ticking time bombs, this cannot be seen as a serious bill written by responsible people. It can only be seen as a propaganda tool to be used against the unwary. The most nefarious aspect is that it leaves republicans, especially the Tea Party caucus, NO reason to compromise or even negotiate in good faith. Further, it provides considerable reason NOT to raise the debt ceiling and let the government go broke. The negative consequences of this would be enormous.

You have been warned!

You have Rep. Steve Womack (R-AR) and Rep. Rob Woodall (R-GA) to thank for wasting your time, my time, and the limited time of the House of Representatives.

UPDATE: H. R. 1255 was passed by the House with 15 Republicans and all Democrats voting against it.

UPDATE: The republicans are still pushing this through the Senate.

UPDATE: With the passing of another continuing resolution, and particularly with passage of the pending budget bill, this bill would come into conflict with the deals already brokered. This bill is now beyond repair.

112th Congress H.R. 1255

March 31, 2011 Posted by | Constitution, Government, Legislation, Strangelove | , , , , , , , , , , , , , | 2 Comments

The Madison Protests: It’s Not About the Money



Over the past few years, I have likened the ideologica­l divide to a political civil war. The Democrats still embrace the Federalist view of government while the republican­s now embrace the anti-Feder­alist perspectiv­e.

“The accumulati­on of all powers, legislativ­e, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary­, self-appoi­nted, or elective, may justly be pronounced the very definition of tyranny.”
James Madison, Federalist 47

I am hoping that in this attack on the working class, people see the republican­s as going a bridge too far. That this turns into a Ft. Sumter moment for working America.

The country cannot function with this much conservati­ve extremism and hostility. The checks and balances have all broken down. The country is in decline. The political conversati­on has become all about picking sides and bundled agendas. We are facing a Constituti­onal crisis.

We need a major event. Something to rally around. Something that can push us past the propaganda­. Something that can be used to make us take a serious look at ourselves and our future.

9/11 involved an external threat. It was irrelevant to a constitutional crisis.

We have two diverging interpretations of the Constitution. The liberal view is a more principled interpretation, which has benefited the general welfare of the country far better but still needs better definition of it’s limitations. The conservative view is a more literal interpretation, which is more appropriate to a sparsely populated isolationist society with an agrarian economy. Conservative policies have done real harm to this country for decades, and threaten to make our current problems insurmountable.

We need an event that will lead to something like a town hall constitutional convention. A widespread and in-depth public conversation on what we want and need the Constitution to mean. Only then can we decide with confidence how we want to enforce or amend it.

Ignoring the Constitution, or pretending it says something it does not, are not options in a nation of laws.

Read the Article at HuffingtonPost

February 21, 2011 Posted by | Budget, Direction, Economics, Government, Labor, Unions | , , , , , , , , , , , , , , , , , , | Leave a comment

Scott Walker, Wisconsin GOP Poised To Cut Worker Rights In Budget Fix


Wisconsin Welcome Sign

Bring your money, leave your rights.

“In exchange for bearing more costs and losing leverage, public employees were promised no furloughs or layoffs. Walker has threatened to order layoffs of up to 6,000 state workers if the measure did not pass.”

This sort of tyrannic abuse of power over workers is what necessitat­ed unions in the first place. This action more closely resembles communism than free-marke­t capitalism­. Gives new meaning to “The Badger State.”

I guess this is one way to shrink the size of government – deep pay cuts and no performanc­e pay will eventually drive all the good workers away. A good way to discourage profession­alism and encourage corruption­…

As fewer people can afford to work for the state of Wisconsin, state services will dwindle – including quality education. Citizens will find it an unpleasant place to live, and businesses will find few well-educa­ted workers to employ. But what are employees and customers when you get all those tax breaks.

Wisconsin is taking the lead in the race to the bottom.
Read the Article at HuffingtonPost

February 17, 2011 Posted by | Direction, GOP, Government, Unions | , , , , , , , , , , , , | Leave a comment

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