“Unconstitutional Government”

Unconstitutional Government

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by Maryann Zihala, J.D.

Unconstitutional Government

In 1787 the Framers of the U.S. Constitution wrote a contract between the governed and the government. It is a contract that creates a “limited” government: a federal system that divides power between national and state levels of government, with a separation of powers and a system of checks and balances among and between the three branches at the national level – all designed to limit the power of government. Additionally, they added a Bill of Rights so that the newly created national government would be very clear about the rights retained by the people. This is known today throughout the world as the Madisonian model of limited government – in deference to the father of our Constitution: James Madison. Ours is a Constitution that clearly defines the powers and limits of the national government. There are delegated powers: those expressly given to the government; there are implied powers: those that are necessary in order to carry out the delegated powers; there are denied powers: those that cannot be exercised. Madison even explained this for us:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

The current government in Washington is certainly not the first to ignore the Constitution. Constitutional government in America has been eroding for the better part of a hundred years. Many of those who have occupied the Executive Branch have used inherent powers and executive privilege –neither of which appears in the Constitution– to usurp power never intended for that branch. Those in the Legislative Branch have used the general welfare clause, the interstate commerce clause, and the necessary and proper clause –all contained in Article 1 Section 8 of the Constitution– as justifications for expanding powers for the Congress way beyond what the Framers intended. That being said, the current holders of power in Washington have completely breached the contract we call our Constitution. More than disregarding it, they have shown utter disdain for its main principle of “limited” government.

Unconstitutional Presidency
President Barak Obama has exhibited tremendous contempt for the Constitution, evidenced by his words and his actions. He seems to believe that the limits placed on government by the framers of the Constitution are a hindrance. In a now famous interview on Chicago Public Radio WBEZ in 2001, Obama said:

“As radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution . . . that generally the Constitution is a charter of negative liberties; says what the states can’t do to you; says what the federal government can’t do to you, but it doesn’t say what the federal government or state government must do on your behalf. ”

As president, Obama has usurped power for the executive branch in a manner never seen before. Even if we were to allow that the executive has certain inherent powers, we cannot find justification for this president’s actions over the last year. In 1952, in the midst of war, the steelworkers threatened to go on strike and President Harry Truman seized the steel mills –steel being critical to the war effort– citing inherent power and national security. A mere two months later the Supreme Court ruled the president’s actions unconstitutional opining that this action was a violation of the principle of separation of powers because the president did not have “lawmaking power” as that belonged to the Congress alone.

Louis Fisher recently told the Senate Committee on the Judiciary of the danger associated with an executive invoking inherent powers –those powers beyond what is explicitly granted by the Constitution. “The Constitution is undermined by claims of open-ended authorities that cannot be located, defined, or circumscribed. . . .Whenever the executive branch justifies its actions on the basis of inherent powers, the rule of law is jeopardized. To preserve a constitutional system, executive officers must identify express or implied powers for their actions.”

Stimulus Bill
One of the first actions of the new government that took control of both sides of Pennsylvania Avenue in January was to pass an outrageous spending bill under the guise of stimulating the economy. This is money that will have to be borrowed or printed now – and the people will be taxed to pay for it later. And we have since seen that the money from that bill which has been spent has not stimulated the economy or created jobs – but much has gone to the favored constituent groups that placed these same politicians in office. On the spending limitations in the Constitution, Madison wrote: “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.”

Government Takeovers
Consider President Obama’s seizures of private businesses: AIG, Citigroup, Bank of America, Fannie Mae, Freddie Mac, GMAC, General Motors, Chrysler. He fired the CEO of GM, hired a new CEO, and appointed a Car Czar to make decisions about suppliers, unionization of workers, and types of cars to be built by the auto companies the U.S. government now owns.

The takeover of these companies, in and of itself, is a violation of the eminent domain clause of the 5th Amendment. The government can only take property if it is for public use and the previous owners of the confiscated property must be fairly compensated. These takeovers were not for public use and the bailout money cannot be considered fair compensation to the previous owners because the stockholders of these companies received nothing. Buying stock in a company is always a risk, but most stockholders did not even consider there was a risk that the company would be confiscated by the federal government rendering their stock worthless.

The original bailout program and the creation of TARP (Troubled Asset Relief Program) by Congress can be cited as authority for the president’s above listed actions. However, that fund was never intended to be used to buy auto companies. It was supposed to buy the toxic assets of financial institutions that were deemed “too big to fail.” So the president’s actions are not only unconstitutional, they are also not sanctioned by law. And even if the Congress passed a law authorizing the president to do the things he has done, such a law would be unconstitutional as well. The concept of “too big to fail” is anathema to our country, our culture, and our Constitution. We are a capitalist country; a read of the delegated powers in Article 1 Section 8 of the Constitution reveals that Congress has a duty to promote capitalism and free enterprise; it has no duty to protect companies that have become inefficient and are no longer able to compete in our capitalist economic system. When private companies are labeled “too big to fail” and are saved from bankruptcy by the taxpayers, we no longer have capitalism.

The president’s appointment of a Pay Czar to set salaries for these –and other– companies violates numerous constitutional principles. The argument that these companies are operating with taxpayers’ money, and, therefore, have to allow the government to control salaries and bonuses, fails on several levels. These companies were not informed that this would be the situation if they accepted bailout money. Without this upfront disclosure, changing the rules now amounts to an ex post facto law, disallowed by Article 1, Section 9 of the Constitution. Cutting the bonuses and salaries of employees is also a bill of attainder because these people are being singled out for punishment by the executive and legislative branches –also a violation of Article 1, Section 9, and a violation of the separation of powers principle. Only the judicial branch can mete out punishment and then only after the requirements of due process have been satisfied with a trial. Additionally, denying the salaries and bonuses promised to these employees in their employment contracts is a violation of the contracts clause of Article 1, Section 10. And if the original intention ever was to only control salaries and bonuses of those bailed-out companies, the Federal Reserve’s recent announcement that all of the banks it regulates –and it regulates them all– would now be given salary guidelines, speaks volumes.

Unconfirmed Presidential Appointments
On the subject of Czars: President Obama now has almost three dozen of these policy analysts working in the White House. In the past, Congress has created about a dozen offices for the president with the top position held by a Senate-confirmed presidential appointee. Obama has tripled this number and none of his new czars have been confirmed by the Senate. This is beyond any constitutional executive powers; this is legislating by presidential fiat. Article 2, Section 2 of the Constitution says: “He shall have power . . . and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls.” Article 2 does allow that the Congress may vest the appointment power in the president alone, by law – but Congress has not done this in regard to the cadre of new czars appointed by this president.

About the separation of powers, British Philosopher John Locke (whose writings were widely read by our Founding Fathers) said: “The legislative branch cannot transfer the power of making laws to any other hands.” Allowing the executive to arbitrarily create White House offices, and appoint un-confirmed czars to make policy, clearly violates the principle of separation of powers. Additionally, the Obama Administration will not allow these czars to testify before congressional committees on policy matters, thwarting the legislative oversight function of Congress and violating the system of checks and balances.

Unconstitutional Congress
Congress and health care reform pose another constitutional problem for the current government. The bill recently passed in the House, and the one about to be passed in the Senate, have raised numerous questions about the reach of government and the constitutionality of health care reform. There is absolutely no constitutional authority for the federal government to be taking over the health care system, forcing taxpayers to pay for the health care of others, and requiring individuals to have health care insurance – on pain of fines and incarceration. Various congressional leaders have been scrambling lately to explain from where this authority comes.

House Speaker Nancy Pelosi (D-CA), when asked about the constitutional authority for Obama’s health care reform proposal, responded: “Are you serious?” Her office later stated that the authority comes from the interstate commerce clause in Article 1, Section 8. This clause allows Congress to regulate only that commerce which crosses states’ borders. The intention of the Framers was that commerce between the states should be free from interference by state governments. According to Robert Levy, Chairman of the Cato Institute, “Instead of serving as that shield against interference by the states, the commerce power has become a sword wielded by the federal government in pursuit of a boundless array of regulatory programs.”

Faced with a similar inquiry, House Majority Leader Steny Hoyer (D-MD) said: “In promoting the general welfare, the Constitution obviously gives broad authority to Congress . . . Clearly this is within our constitutional responsibility.” On the general welfare clause in Article 1, Section 8, James Madison said: “With respect to the two words general welfare, to take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators . . . 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.”

Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee, on the question of constitutional authority for health care reform replied: “We have plenty of authority. I mean, there’s no question there’s authority. Nobody questions that.” Senator, call your office; there are some people who question that.

House Majority Whip James Clyburn (D-SC) may be one of the most honest politicians in Congress today. When asked by Fox News Legal Analyst Judge Andrew Napolitano about the constitutional authority for forcing Americans to buy health care insurance, Representative Clyburn replied: “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do.”

The People’s Responsibility
Our Constitution has been under continuous attack and is being violated with impunity. So why does this happen? How can the Constitution allow this to happen? The better question is: why do the people allow it to happen? Someone has to stand up and defend the Constitution and if our elected officials are not going to do that, then the people must do it. According to Anthony Gregory of the Campaign for Liberty, “Constitutions alone cannot limit government. What matters ultimately is the Constitution in the hearts and minds of the people. So long as the American public supports unconstitutional actions, such actions will commence. Eternal vigilance is the price of liberty, as Jefferson noted. The Constitution spells out great limits on the government, but without the support of the people, the document loses its teeth.”

The Enumerated Powers Act has been introduced in Congress by Representative John Shadegg (R-AZ) and Senator Tom Coburn (R-OK) numerous times. The Act requires that: “Each Act of Congress shall contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that Act.” While this would not stop the Congress from passing unconstitutional laws, it would at least require a conversation about and consideration of that document we once revered in this country. It seems the time is right to finally get the Enumerated Powers Act enacted.

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