Publius-Huldah's Blog

Understanding the Constitution

Yes! Trump has constitutional authority to secure our Southern Border

By Publius Huldah

Instead of reading our Constitution and seeing what it says, Americans get their legal advice from what “everybody says”.

Now, they are hearing about “emergency powers”, and are in a tail spin. Did Congress’ “Emergency Powers Act” delegate to the President the power to call whatever he wants an “emergency” & then do what he deems best?

Our focus shouldn’t be on what can be called an “emergency”; but what does our Constitution authorize the federal government to do (if anything) with respect to the hot topic of the day?

Let’s look at Migration (immigration) in the context of the hordes of aliens storming thru our Southern Border. What does our Constitution say about it?

Art. I, § 9, clause 1, delegates power over Migration (immigration) to Congress. So Congress is to make the immigration laws; & the President, as Chief Executive, is to put Congress’ laws into effect.

Art. IV, § 4 REQUIRES the United States to protect each of the States against Invasion.

Art. I, § 8, clauses 15 & 16, authorize the calling up of the Militia for 3 purposes: to execute the Laws of the Union; to suppress Insurrections; and repel Invasions.

Art. II, § 3 authorizes the President to recommend to Congress such measures as he deems necessary and expedient; to convene Congress on extraordinary occasions; and requires him to take care that the laws be faithfully executed (that includes the immigration laws.)

Art. II, § 2, provides that the President is CINC of the armed forces. He is CINC of the Militia when it is called into active service of the United States. As noted above, the Militia may be called into active service to “repel invasions”.

So those are the Constitutional Provisions which apply to the invasion of our Southern Border.

America is finished if we don’t control our Southern Border. Congress and the President have clear constitutional authority – actually, they have the DUTY – to control our Southern Border.

The best way the control the Southern Border is to build a wall. [I know from personal observation during the Cold War that the wall the Soviets built between East & West Germany prevented people in the East from escaping to the West.]

What if Congress refuses to fund the wall? Must the President tell the American People, “Well, I tried. But my hands are tied. You better get ready for civil war.”

No! Art. IV, § 4 imposes on the United States the Duty to protect each of the States against invasion. If Congress won’t do it, the President must. He is Chief Executive of the United States. For him to refuse to act for the reason that Congress won’t fund the wall would be as contemptible as the Husband and Father who refuses to get armed to protect his Family because the government says he can’t be armed.

So, the President may solicit donations from the American People for funds, labor, and construction materials, to build a wall.

About “calling up the Militia” to “repel invasions”

We no longer have the Militia provided for at Art. I, §8, clauses 15 & 16.

During 1903, the American People and their federal and state legislators (who had all “mainlined” on Progressivism) went along with the federalizing of the Militia. This was done with the grotesquely unconstitutional federal Dick Act of 1903. ¹ That unlawfully converted the Militia into the National Guard, which is an adjunct of the federal military.

If we still had the “Militia of the several States”, it would be obvious that the Militia must be  – and could be – called into national service to repel the “invasion” coming through our Southern Border.

But since we no longer have the Militia, we must rely on the closest thing to a Militia we have left: The National Guard.  Congress has passed a law which authorizes the President to call the National Guard into national service. When I get time, I’ll locate it and link to it – but the President probably has authority to call up the National Guard to protect our Southern Border and the construction workers while the Wall is being built.

But if Push comes to Shove, the President has the Clear Duty to protect our Southern Border and to “preserve, protect and defend the Constitution of the United States”.

Remember – the Questions are always: “What does the Constitution authorize” & “What Duties does the Constitution impose on the federal government?”

There is no substitute for reading the Constitution for yourself. Article by Article – and then seeing how the Articles all work together – hand in glove. It really was a 6,000 year miracle.

Endnote:

¹ The Dick Act was unconstitutional – as well as malignant – because it converted the Militia [which was controlled by the States unless called into federal service for one of the three stated purposes] into an entity which is controlled by the federal government.  That the Dick Act passed shows that Americans of 100 years ago were also ignorant, short-sighted, and foolish.

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January 15, 2019 Posted by | Article IV, Sec. 4, Build the Wall!, Control the Border, Dick Act of 1903, Militia | , , , , , , , | 47 Comments

The Invasion of Arizona – The Remedy When The Federal Government Refuses To Do Its Duty

By Publius Huldah.

Article IV, §4, U.S. Constitution, requires The United States to protect each of the States against Invasion. It says:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion… [emphasis added]

In Federalist No. 43 (3rd para under 6.), James Madison says of this provision:

A protection against invasion is due from every society to the parts composing it…

Article I, §8, clause 15 grants to Congress the power to provide for calling forth the Militia to [among other things] “repel Invasions”.

But the federal government has persistently refused to call forth the Militia to protect the States on our Southern Border from Invasion!

So! What are States to do when their Lands are invaded, their citizens murdered and kidnapped, their young corrupted by drug-trafficking invaders, and their budgets imploded from unconstitutional federal mandates that we subsidize the invaders? Are the States to sit with folded hands and be destroyed because the federal government refuses to perform its constitutional duty?  No! We are Americans! If the federal government refuses to perform its constitutional duty to call out the Militia to protect the States against Invasion, then the States must perform that Duty.  And as shown below, they have both an implied and an expressly retained authority to do so.

Article 1, §8, clause 16 grants to Congress the power to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States. This clause reserves to the States the Appointment of the  Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

What is the “Militia”?  Webster’s American Dictionary of the English Language (1828) tells us:

The body of soldiers in a state enrolled for discipline, but not engaged in actual service except in emergencies; as distinguished from regular troops, whose sole occupation is war or military service.  The militia of a country are the able bodied men organized into companies, regiments and brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations.

So! One of the functions of the Militia – that body of weekend warriors trained by the States and whose officers are chosen by the States, is to defend the States against Invasions. As we have seen, Congress is authorized to provide for calling the Militia into service to repel invasions.  But what if the federal government refuses to act?

Alexander Hamilton provides the answer in Federalist No. 29. Hamilton shows that one of the purposes of the Militia is to protect the citizens of the States from threats to their liberties posed by the federal government (7th & 12th paras); and that the States’ reservation of power to appoint the Officers secures to them an influence over the Militia greater than that of the federal government (9th para). On the use of the Militia to repel Invasions, Hamilton says (13th para):

…it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy…

True, it was contemplated that the “United States” would normally be the entity which protects the States against Invasion (Art. IV, §4). But when the federal government has demonstrated its determination that the States ARE TO BE OVERRUN BY INVADERS, then the States are within their Retained Sovereign Rights to employ the Militia to defend their People from those into whose hands the federal government has demonstrated its determination to deliver them.

Furthermore, Article I, Sec. 10, last clause: says:

No State shall …keep Troops…in time of Peace…or engage in War, unless actually invaded…

So, clearly, the Sovereign States may use their  State Militias and engage in War to defend themselves from the Invasions.

In Federalist No. 46 (7th & 8th paras), James Madison speaks of conflicts between the federal government and the States, caused by encroachments of the former. He does not counsel subservience by the States.  He does not counsel submitting the issue to a federal judge!  Instead, Madison describes various forms of non-violent Resistance properly employed by the States, alone or in unison with other States:

…and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.

In Madison’s magnificent 9th para, he speaks of a federal government so consumed with madness that it sends its regular army against the States:

…Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate [State] governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition [of the federal government], more insurmountable than any which a simple government of any form can admit of… [italics added]

Madison would be disappointed that we permitted this current state of affairs to arise:

…Let us rather no longer insult them [the American People] with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.

But we must start from where we are.  We can restore our constitutional republic. We can rein in a lawless federal government which usurps powers even while refusing to perform its basic constitutional duty of protecting the States from Invasion.

The Federalist Papers were written to explain the proposed Constitution and to induce The People to ratify it.  Madison is the “Father of  The Constitution”. These are the highest authority on the meaning of our Constitution.  Clearly, the States may use their Militia to defend their borders, and States may assist one another in this endeavor. And We the People must throw out of office the federal representatives and officials who refuse to perform their constitutionally mandated Duty to defend our borders. Madison writes in Federalist No. 44 (17th para) respecting remedies against a lawless federal government:

…and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers….

When the federal government refuses to obey the Constitution, the States must enforce it. And WE the People must throw the faithless ones out of office.  THIS is how we restore our constitutional Republic.  PH

May 4, 2010;  Revised June 9, 2010

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May 4, 2010 Posted by | Arizona Invasion, Article IV, Sec. 4 | 18 Comments

   

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