Category Archives: US Constitution

Obama’s Troublesome Congress

Will no one rid me of this troublesome priest?—King Henry II
Why work with the Presidency when the man in office thinks he can simply change lawfully enacted legislation at a whim?
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The President of the United States went to Minneapolis the other day, where he gave a speech complaining about Republicans in Congress who stand in the way of what he wants to do. This excerpt is from the White House website:

“And, now, some of you may have read—so we take these actions and then now Republicans are mad at me for taking these actions. They’re not doing anything, and then they’re mad that I’m doing something. I’m not sure which of the things I’ve done they find most offensive, but they’ve decided they’re going to sue me for doing my job. I mean, I might have said in the heat of the moment during one of these debates, ‘I want to raise the minimum wage, so sue me when I do’.” (Laughter.) “But I didn’t think they were going to take it literally.”

With profound apologies to William Shakespeare, Barack Obama seems to have entered a Lear-on-the-heath phase of his presidency, raving at his enemies. Or perhaps it’s underappreciated Coriolanus

“They don’t do anything except block me,” the impatient president went on to the citizens of Minneapolis. “And call me names. It can’t be that much fun.” (Laughter.)

Mr. Obama is right about that. His presidency hasn’t been much fun. Not for Republicans, not for a lot of congressional Democrats. Or for the Washington press or even comedians.

Mr. Obama doesn’t do Washington politics, either because he doesn’t know how or he disdains people who do. At a Cabinet meeting in January, Mr. Obama said: “I’ve got a pen and I’ve got a phone.” Thus was born Mr. Obama’s theory of presidential authority.

The pen-and-phone presidency is generally attributed to current White House cardinal John Podesta and a 2010 paper, “The Power of the President,” published by the Center for American Progress. In its forward, Mr. Podesta, then CAP president, wrote: “The U.S. Constitution and the laws of our nation grant the president significant authority to make and implement policy.” Despite references to executive administrative authority, that is the last time the phrase “U.S. Constitution” appears in the Podesta paper.

But someone in the White House legal shop soon may have to stay late writing a Constitutional argument more compelling than Mr. Obama’s bland assertion this week that he only does these things when “Congress chooses to do nothing.”

The lawsuit Mr. Obama laughingly referred to in Minneapolis is the one House Speaker John Boehner plans to file, reasserting Congress’s role in the Constitution’s separation of powers provisions. Its target is Mr. Obama’s more than 30 unilateral alterations of the Affordable Care Act’s provisions, plus routine revisions, with no congressional approval, to other laws, such as No Child Left Behind.

Several times this week, the president heaped ridicule on the Boehner lawsuit. He did so with the ink barely dry on the Supreme Court’s remarkable 9-0 decision in NLRB v. Noel Canning striking down Mr. Obama’s theory of recess-appointment authority.

One wonders what amusements the courts will find when they compare the pen-and-phone presidency with the text of the Constitution to which Mr. Podesta alluded.

Everyone knows the Constitution’s first sentence: “We the people” and all that. What follows immediately in the text is this: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

You don’t have to be a Scalian to know why the Founders thought the locus of legislative authority should be Article 1, Section 1. Mr. Obama reduces these matters to mockery. “Instead of trying to mess with me,” the 44th president said in Minneapolis, Congress should be passing his bills. “I’m happy to share the credit.”

More and more, Mr. Obama’s speeches reflect the progressives’ impatience with politics of any sort and their preference for policy by imposition. Mr. Obama, though, goes further. He seems unable to admit the very idea of political disagreement with him, as he so often puts it.

In 2010, the Obama cap-and-trade legislation to limit carbon emissions failed in the Senate because Democratic senators from the coal-reliant Midwest and South refused to support it. They cited the hardship it would impose on their states.

Those Democrats opposed cap-and-trade because they represent constituencies—voters—who oppose the economics of Mr. Obama’s carbon policy. This political tension, inherent to the American political system, is inconvenient to Mr. Obama. So in June the Obama EPA announced a 30% reduction in carbon from U.S. power plants. West Virginia’s miners can eat their coal.

If congressional Republicans had even minimal institutional trust in the president, Mr. Obama would be able to assemble a majority to pass immigration reform. He can’t, or won’t, and so he rants. More than a few Americans watching parades pass by this weekend will recall that one man’s whim as the way we make laws has no support in the U.S. Not now, not ever.

Write to henninger@wsj.com

Henninger: Obama's Troublesome Congress – WSJ.

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US Personnel Required to “Bow” to Muslim practice during Ramadan?

Gideons can no longer distribute Bibles to service men/women, but all US service men/women will be required to adhere- more or less -to Muslim traditions during Ramadan. “A stricter practice of separation of ‘church and state'”. Say, what?!!
The ACLU’s position on this is, er, ….. Not sure they have gone public with their opposition just yet.
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MANAMA, Bahrain — U.S. personnel accustomed to drinking their coffee on the drive to work will have to put that habit on hold for about a month. It’s one of a few lifestyle changes Americans will have to make during the holy month of Ramadan.

Ramadan is the ninth month of the Islamic calendar. Officials expect Ramadan to begin at sunrise on Saturday, depending on when the new moon is sighted. The holy month lasts for approximately 30 days — until about July 28. For Muslims around the world, Ramadan is a month of fasting and devotion to God. Most Muslims fast from dawn to sunset, when families gather for Iftar — the meal that breaks the fast.

For the 8,200 U.S. personnel living here, and those serving throughout the U.S. Central Command area of responsibility — including servicemembers, civilian personnel, contractors and family members — the month may require changing some daily routines.

Businesses and government offices will reduce hours and most restaurants will be closed during daylight hours.

While not required to fast during Ramadan, in Bahrain, Americans can be fined or detained by local authorities for eating, drinking or smoking in public when off-base during daylight hours.

Navy officials are requiring U.S. personnel to dress more conservatively off-base during Ramadan. Although not a requirement by Bahraini authorities, the Navy is demanding that men wear long-sleeved shirts and women wear sleeved blouses that cover their elbows. Also, men must wear long trousers, and women should wear pants or skirts that cover the knees.

Base cultural advisers have spent the last few weeks conducting Ramadan briefs to educate Americans about the holy month. Ali Hassan briefed about 150 personnel Tuesday about Islam, the lunar calendar and customs and traditions during Ramadan.

“It actually made me want to do a lot more research into the religion,” said Petty Officer 1st Class James Ramirez. He said the additional requirements during the month aren’t a big deal to him. “For such a small period of time, it’s a small sacrifice,” he said.

Other servicemembers echoed that sentiment.

Hassan encouraged personnel to experience Iftar in a Ramadan tent, many of which are set up at various locations around Bahrain during the holy month and welcome non-Muslims.

“Make it a point to visit these tents while you’re here. You don’t know if you’ll ever come back to Bahrain in the future,” Hassan said during the brief.

While the tents offer a more traditional atmosphere, many restaurants put aside their regular menus during the month and serve special Iftar dinners.

Things to Know During Ramadan

Eating, drinking, chewing and smoking in public are civil offenses in some Islamic countries.
Men should wear long sleeves and pants. Women’s sleeves should extend below the elbow and pants or skirts should cover the knees.
Avoid critical remarks about fasting or any religious practice.
Most restaurants will be closed except those in 4- and 5-star hotels.
Businesses alter and reduce hours during the day; some open at night until early morning hours.
Arabs are good hosts and may offer you food or refreshments during daylight hours. Such offers should be declined.
All consumption of alcohol by U.S. military personnel is prohibited at any off base public venue in the U.S. Navy 5th Fleet Area of Responsibility during Ramadan.
It’s customary to say ‘Ramadan Kareem’ during Ramadan.
Source: NSA Bahrain Public Affairs, and Ali Hassan, cultural adviser on NSA Bahrai

US personnel in Bahrain prepare for Ramadan – Middle East – Stripes.

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IRS Lost Email Jeopardy

And the press, who hold to their sacred duty to expose Govt ‘mis-management’, is total absent this discussion.
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The IRS is spinning a tale of bureaucratic incompetence to explain the vanishing emails from former Tax Exempt Organizations doyenne Lois Lerner and six other IRS employees. We have less faith by the minute that there is an innocent explanation for this failure to cooperate with Congress, but even if true it doesn’t matter. The IRS was under a legal obligation to retain the information because of a litigation hold.

In 2009 a pro-Israel group called Z Street applied to the IRS for tax-exempt status. When the process was delayed, an IRS agent told the group that its application was undergoing special review because “these cases are being sent to a special unit in the D.C. office to determine whether the organization’s activities contradict the Administration’s public policies.” In August 2010 Z Street sued the IRS on grounds that this selective processing of its application amounted to viewpoint discrimination.

Under the Federal Rules of Civil Procedure and legal precedent, once the suit was filed the IRS was required to preserve all evidence relevant to the viewpoint-discrimination charge. That means that no matter what dog ate Lois Lerner’s hard drive or what the IRS habit was of recycling the tapes used to back up its email records of taxpayer information, it had a legal duty not to destroy the evidence in ongoing litigation.

In private white-collar cases, companies facing a lawsuit routinely operate under what is known as a “litigation hold,” instructing employees to affirmatively retain all documents related to the potential litigation. A failure to do that and any resulting document loss amounts to what is called “willful spoliation,” or deliberate destruction of evidence if any of the destroyed documents were potentially relevant to the litigation.

At the IRS, that requirement applied to all correspondence regarding Z Street, as well as to information related to the vetting of conservative groups whose applications for tax-exempt status were delayed during an election season. Instead, and incredibly, the IRS cancelled its contract with email-archiving firm Sonasoft shortly after Ms. Lerner’s computer “crash” in June 2011.

In the federal District of Columbia circuit where Z Street’s case is now pending, the operating legal obligation is that “negligent or reckless spoliation of evidence is an independent and actionable tort.” In a 2011 case a D.C. district court also noted that “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”

The government’s duty is equally pressing. “When the United States comes into court as a party in a civil suit, it is subject to the Federal Rules of Civil Procedure as any other litigant,” the Court of Federal Claims ruled in 2007. The responsibility to preserve evidence should have been a topic of conversation between the IRS chief counsel’s office and the Justice Department lawyers assigned to handle the Z Street case.

As it happens, the IRS also had a duty to notify Congress if it learned that discoverable evidence had been lost or destroyed. We now know that the IRS has been aware of Lois Lerner’s lost emails since at least February, but IRS Commissioner John Koskinen failed to mention this in his congressional testimony on March 26, saying instead that the IRS was fully cooperating with congressional requests.

Since the email destruction story broke, the IRS has pushed the narrative that losing or recycling emails was no big deal for the agency that wields the government’s fearsome taxing power. The agency isn’t nearly as cavalier about the responsibilities of groups whose tax status it handles.

One tax-exempt group represented by Washington lawyer Cleta Mitchell had a policy of retaining documents for one year. But under a deal insisted upon by the IRS, the group had to retain correspondence such as email for three years and permanently for “legal or important matters,” or it risked losing its tax-exempt status.

So much for the IRS living by its own rules, and on Tuesday at a House Oversight and Government Reform hearing we learned of another IRS legal failure. Archivist of the United States David Ferriero said the IRS “did not follow the law” when it failed to report the loss of Lois Lerner’s emails. All federal agencies are “required to notify us when they realize they have a problem that could be destruction or disposal, unauthorized disposal” of federal records, he said.

Attorney General Eric Holder won’t name a special prosecutor, but there’s still plenty of room for the judge in the Z Street case to force the IRS to explain and answer for its “willful spoliation” of email evidence.

IRS Lost Email Jeopardy – WSJ.

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Supreme Speech Victory

The Left would howl were they wearing the shoe.
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June 16, 2014 7:18 p.m. ET

Whatever its mistakes (ObamaCare), the current Supreme Court deserves praise for its willingness to police the growing regulation of political speech. The latest example was Monday’s 9-0 decision allowing the pro-life Susan B. Anthony List to challenge a politician’s claim that it criticized him falsely during an election campaign.

Hard to believe, but an Ohio law lets politicians charge critics with making allegedly false statements. Susan B. Anthony List wanted to put up a billboard in 2010 criticizing Rep. Steve Driehaus for supporting taxpayer-funded abortion by voting for ObamaCare. Mr. Driehaus complained to the billboard company and Ohio Elections Commission. The billboard never went up, Mr. Driehaus lost anyway, but Susan B. Anthony challenged the law as unconstitutional.

Monday’s decision concerned whether Susan B. Anthony was able to sue. The Sixth Circuit Court of Appeals had said it could not because Mr. Driehaus withdrew his complaint after he lost. But Justice Clarence Thomas wrote for the Court that this decision improperly minimized the burden on groups whose speech is chilled for fear that they could be sanctioned or sued. Lower courts will now revisit the constitutional challenge.

As it happens, Susan B. Anthony’s billboard claim has been vindicated by the Obama Administration’s rule forcing religious groups to finance abortifacients in their health-care policies for employees. In a democracy, voters rather than a priesthood of regulators are obliged to sort out the truth or falsity of political claims. Congrats to Susan B. Anthony, and perhaps the Sixth Circuit will seek out some remedial First Amendment education.

Supreme Speech Victory – WSJ.

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