Clearing up the confusion about Marbury v. Madison

By Publius Huldah

It is true that the Constitution does not expressly say that the federal courts have the power to strike down acts of Congress which are unconstitutional.

What Article VI of the Constitution does say, however, is that (a) the Constitution is the supreme law of the land and (b) judicial officers (among others) are under Oath to support the Constitution.

So what are the logical implications of the foregoing? That when an act of Congress violates the Constitution, and the issue is brought before a court in a lawsuit, it is the sworn duty of the Court to side with the Constitution and against Congress.

Let me give an illustration: Say Congress passes a law requiring all Jews to wear yellow armbands with the Star of David in black, and requiring all Christians to wear white armbands with the cross in black. And Congress makes it a felony for a Jew or Christian to leave their homes without wearing the arm bands. You – a Jew or Christian – go outside without wearing your armband and are arrested and charged with a felony.

If I am your defense counsel [I got my start as a criminal defense attorney and won almost all of my cases, so you would be in REALLY good hands!], the first thing I will do is to file a motion to dismiss the charge against you on the ground that the statute under which you are charged is unconstitutional as outside the scope of the powers granted to Congress AND as in violation of the First Amendment.

What do you want the Court to do? Do you want them to side with the Constitution? Or do you want them to side with Congress?

In Marbury v. Madison (1803), the Court said when an act of Congress violates the Constitution, the Court must side with the Constitution and against Congress. They were right! That is the Judicial Branch’s “check” on the Legislative Branch.

The Legislative Branch’s “check” on the Judicial Branch is to impeach and remove from office federal judges who violate the Constitution (see e.g., Federalist No. 81 (8th para).

The Executive Branch’s “check” on the Judicial Branch is to refuse to enforce their Orders and Judgments (see e.g., Federalist No. 78 (6th para).

The Executive Branch’s “check” on the Legislative Branch is to refuse to enforce their unconstitutional statutes.  So if Congress passed the armband law, it is the sworn Duty of the President, mindful of his Oath of Office to “preserve, protect and defend the Constitution”, to issue an Executive Order instructing the Attorney General, the United States Attorneys, and the US Department of Justice, that they are NOT TO ENFORCE the armband law. The President doesn’t need a “green light” from the Judicial Branch!  The Executive Branch has its own “check” against unconstitutional acts of Congress.

Our Constitution is an elegant piece of work.  Have you read it?

revised Jan. 9, 2020

Model Nullification Resolutions for State Legislatures.

The Proposed Tennessee Resolutions of 2012

PLEASE NOTE:  I have revised these model resolutions.  The revised version is better organized and reads better.   You can find the revised resolutions by clicking on the following hyperlink:

Now, How Do We Get Rid Of Obamacare?  Nullify It!

Do use the revised model for your study, instead of the one below.

The revised version – which you can find at the link – sets forth in a nutshell all one needs for a basic understanding of our Constitution – and how the supreme Court destroyed it.

As always, feel free to post your questions.  PH

Proposed by Publius Huldah.

1. Resolved, That the States composing the United States of America are not united on the principle of unlimited submission to the federal government; but that, with the Constitution for the United States, they established a federal government for limited purposes only.  That they delegated to this federal government only limited and enumerated powers; and reserved, each State to itself, all remaining powers, along with the right to their own self-government.

That whenever the federal government assumes undelegated powers, its acts are unauthoritative, void, and of no force.

That to these Principles, each State agreed as a State, and as the Parties to the Constitution.

That the federal government is not a party to the Constitution, but is merely the creature of the Constitution; and as the mere creature, was not made the exclusive or final judge of the extent of the powers delegated to it; since that would have made the creature’s will, and not the Constitution, the measure of its powers.  That as in all other cases of compact among powers having no common judge, each State has an equal right to judge for itself as to whether the creature has committed infractions, and as to the mode and measure of redress.

2. Resolved, That Art. I, Sec. 2, of the Constitution of The State of Tennessee acknowledges the Principle that the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.

3. Resolved, That the Constitution of the United States ordained and established a Federation of Sovereign States which united only for THE LIMITED PURPOSES enumerated in the Constitution: national defense, international commerce and relations; and domestically the creation of an uniform commercial system:  Weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy laws, and mail delivery.  That the 10^th  Amendment to the Constitution also declares that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

That nowhere in the Constitution of the United States was any power granted to Congress to make laws respecting agriculture, farming operations, labor and employment, or children and families; and that nowhere in the Constitution are powers over these matters prohibited to the States. These matters are altogether outside the scope of powers delegated to the federal government. Therefore, power over these matters is reserved solely and exclusively to the respective States and THE PEOPLE, each within its or their own territory.

4. Resolved, That Art. I, Sec. 1 of the Constitution of the United States provides that all legislative Powers granted by that Constitution are vested in CONGRESS; therefore, Departments within the Executive Branch are forbidden to make any “rules” or “laws” of general application whatsoever.  That administrative rules promulgated by the Department of Labor, one of the Executive Departments of the federal government, set forth at 29 CFR Part 570, and which pretend to regulate child labor throughout the several States; are altogether void, and of no force,  as in violation of Art. I, Sec. 1, of the federal Constitution.

5. Resolved, That child laborers, including agricultural workers and children who work on family and other farms, are under the jurisdiction and protection of the Constitution and laws of the State wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual States. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”; the rules of the federal Department of Labor set forth at 29 CFR Part 570, which assume powers not delegated by the federal Constitution over child laborers, including agricultural workers and children who work on family and other farms, is not “law”, but is altogether void, and of no force.

6. Resolved, That since children and their parents or employers are under the protection of the State Constitution and laws of the State where they are; in cases of any violations of the Laws of such State, they are entitled to have their cases handled by the duly convened Courts of such State.  That transferring power of defining, prosecuting, and judging any such violations from the three branches of the State Governments to bureaucrats within one of the federal executive departments, is altogether unlawful and an intolerable usurpation of power.

7. Resolved, That the misconstructions long and unlawfully applied by the federal government to the so-called “taxing”, “general welfare”, “interstate commerce”, and “necessary and proper” clauses, to the effect that these clauses bestow unlimited powers on the federal government, goes to the destruction of all limits prescribed to their powers by the federal Constitution. That the true and genuine meaning of those clauses is as follows:

a) The “taxing” and “general welfare” clauses:  Art. I, Sec. 8, cl.1, employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the general terms. It is “error” to focus on the “general expressions” and disregard “the specifications which ascertain and limit their import”; thus, to argue that the general expression provides “an unlimited power” is “an absurdity” (Federalist Paper No. 41, last 4 paras).

The federal Constitution declares that “the power of Congress…shall extend to certain enumerated cases.  This specification of particulars…excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended…” (Federalist No. 83, 7^th para).

b) The “interstate commerce” clause: “Commerce” is the buying and selling of goods – only that and nothing more. Webster’s American Dictionary (1828) says “commerce” is:

“an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals… by barter, or by purchase and sale; trade; traffick… inland commerce…is the trade in the exchange of commodities between citizens of the same nation or state.”

Federalist No. 22 (4^th para), Federalist No. 42 (9^th  &10^th  paras), Federalist No. 44 (at 2.), and Federalist No. 56  (5^th & 6^th paras), explain the two purposes of the “interstate commerce” clause: (1) to prohibit the States from imposing tolls and tariffs on articles of import and export – goods & commodities – merchandize – as they are transported through the States for purposes of buying and selling; and (2) to permit the federal government to impose duties on imports and exports, both inland and abroad.

Article I, Sec. 8, cl.1; Art. I, Sec. 9, cls. 5 & 6; and Art. I, Sec.10, cls. 2 & 3, of the federal Constitution give express effect to these two purposes of the “interstate commerce” clause.

c) The “necessary and proper” clause:  This clause merely delegates to Congress the power to pass laws necessary and proper to execute its declared powers (Federalist No. 29, 4^th para); a power to do something must be a power to pass all laws necessary and proper for the execution of that power (Federalist No. 33, 3^rd para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article” (No. 33, 2^nd para); and thus the clause is “perfectly harmless”, a  “tautology or redundancy” (No. 33, 3^rd para).  Madison writes to the same effect in (Federalist No. 44, at 1.).

The clause merely permits the execution of powers already delegated and enumerated in the federal Constitution.  No additional substantive powers are granted by this clause.

That contrary to the misconstructions long and unlawfully applied by the federal government, the federal Constitution is one of enumerated powers only:

“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 the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.”  (Federalist No. 45 , 9^th para)

“…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects….” (Federalist No. 39, 3^rd para from end)

“…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...” (Federalist No. 14, 8^th para)

“…It merits particular attention … that the laws of the Confederacy [those made by Congress], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land…Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…”[caps are Hamilton’s] (Federalist No. 27, last para).

That The Federalist Papers – and not the U.S. supreme Court – is the highest authority and evidence “of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning”. The supreme Court is merely a creature of the Constitution and is completely subject to its terms; and when judges on that and lower federal courts – who serve during “good Behaviour” only (Art. III, Sec. 1, cl. 1) – usurp powers, they must be impeached and removed from office (Federalist No. 81, 8^th para).

8. Resolved, That to take from the States all the powers of self-government and to transfer all powers to a general and consolidated national government, in defiance of the Constitution which was ordained and established by THE PEOPLE, is not for the peace, happiness or prosperity of THE PEOPLE.

Therefore this State is determined to refuse to submit to undelegated powers exercised over them by the federal government; and rejects altogether the notion that the federal government may exercise unlimited powers over them.

That in cases of an abuse of the delegated (enumerated) powers, the members of the federal government, being chosen by the people, a change by the people would be the constitutional remedy.

But, where powers are usurped which have not been delegated to the federal government – when the federal government acts outside of, and in defiance of, the federal Constitution by exercising powers not delegated to it by that Constitution; then a nullification of the unlawful act is the rightful remedy.

Thus every State has a natural right – which pre-dates & pre-exists the federal Constitution – to nullify of their own authority all such lawless assumptions of power within the boundaries of their State.  That without this pre-existing natural and original right, they would be under the dominion, absolute and unlimited, of whoever in the federal government chooses to exercise tyrannical powers over them.

The States alone are The Parties to the compact; and thus are solely authorized to judge in the last resort of the powers exercised under it.  Congress, the Executive Branch, and the Judicial Branch are not parties to the contract; but are merely the creatures of the compact (Federalist No. 33, 5^th para).  As mere creatures, they may exercise no powers other than those enumerated powers specifically delegated to them.

9. Resolved, That matters pertaining to “labor”, “employment”, “farms”, “children” and their employers or parents, are nowhere delegated to the federal government by the federal Constitution; but are among the countless multitudes of matters reserved to the States or THE PEOPLE.

Therefore, the federal Department of Labor is itself an unlawful department, and its mere existence an affront to the Constitution; and all of the powers it exercises are usurped powers as outside the scope of the powers delegated to the federal government by our Constitution.

That if the pretended “rules” of this spurious federal Department of Labor should stand, these conclusions would flow from them; that unelected bureaucrats within the Executive Branch of the federal government may force upon The States and THE PEOPLE their own ideas of what children and their employers or parents may and may not do; that they may place any act they think proper on a list of prohibited activities, that they will send out swarms of officers to trespass upon private farms and places of business, to harass employers, children and their parents;  and then prosecute and punish violations of their pretended “rules” in their own pretended “administrative courts” with their own pretended “administrative judges”.

That the federal departments within the Executive Branch of the federal government have established a pattern of unlawfully functioning as legislators, when they write “agency rules”; as executives, when they investigate and prosecute violations of “agency rules”; and as judges and juries when they decide whether violations of their “agency rules” have occurred.  Thus the Executive Branch unlawfully functions as legislator, accuser, judge & jury, in violation of the Constitution and of the Principles of Separation of Power and of Checks and Balances.

To this abomination is added the additional affront that the objects of these pretended “rules” are altogether outside the scope of the enumerated powers delegated to the federal government in our Constitution.

That in this way, those within the Executive Branch of the federal government are sweeping away all the barriers of our Constitution; and that no ramparts now remain between their unbridled and insatiable lust for power over THE PEOPLE except for the several States.

10. Resolved, That if the States do not now resist all such blatantly unlawful usurpations of power, THE PEOPLE of their States will be delivered into abject slavery subject to the unbridled control of whosoever occupies the office of President.  Our Representatives in Congress have shirked their constitutional obligation to support the Constitution (Art. VI, cl. 3), by acquiescing in the blatant usurpations by the Executive Branch; and  have failed in their duty to impeach and remove those within the Executive Branch who usurp powers (Federalist No. 66, 2^nd para, and No. 77, last para).  That the supreme Court long ago took the side of those who seek to exercise unlimited control over the States and THE PEOPLE; and that Congress has failed in their duty to impeach and remove federal judges who usurp powers (Federalist No. 81, 8^th para).

That pursuant to Art. VI, cl. 3 of our federal Constitution, all State legislators, State Officers and State Judges take a solemn Oath to support our federal Constitution. Therefore, they are bound to protect THE PEOPLE of their States from the usurpations of the federal government whose clear object is the establishment of an absolute Tyranny over the States and the People.

That our Framers anticipated the dangers we now face and provided wise counsel for such a time as this.  Federalist No. 28 (last 5 paras) states that when “the representatives of the people betray their constituents”, the people have no recourse but to exert “that original right of self-defense” [The Declaration of Independence, 2^nd para], against “the usurpations of the national rulers” (5^th para from end).

That in a Federation of States united under a federal government for only limited purposes,

“…the people… are…the masters of their own fate. Power being almost always the rival of power, the general [federal] government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress…” (4^th para from end)

Thus, THE STATE LEGISLATURES are the ultimate bulwark of The People and The Ultimate Human Protectors of our Constitutional Republic:

“It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.”  (3^rd para from end)

The last paragraph of Federalist No. 28 recognizes that when the federal government seeks

“… a despotism over the great body of the people … [the people] are in a situation, through the medium of their State governments, to take measures for their own defense…”

11. Resolved, That because men may not be trusted with power, the federal Constitution fixed the limits to which, and no further, the federal government may go.  Would we be wise if we permit the federal government to destroy the limits the Constitution places upon its powers? Would we be wise if we permit unelected bureaucrats in the Executive Departments of the federal government to regulate every aspect of our lives?

That if those who administer the federal government be permitted to transgress the limits fixed by the federal Constitution, by disregarding the limits on its powers set forth therein, then annihilation of the State Governments, and the erection upon their ruins, of a general consolidated  government, will be the inevitable consequence.

That the several States, being sovereign and independent, have the unquestionable right to judge of infractions to the federal Constitution; and that nullification by those sovereign States of all unauthorized acts of the federal government is the rightful remedy.

THEREFORE, this State, recurring to its natural rights in matters outside the scope of the powers delegated to the federal government, declares these acts void, and of no force, and will take measures of its own for providing that neither these acts, nor any others of the federal government not plainly and intentionally authorized by the Constitution, shalt be exercised within this State.

Notes:

1. The above is patterned on the relevant portions of The Kentucky Resolutions of 1798, written by Thomas Jefferson in response to the alien and sedition acts passed by Congress which purported to grant to the President tyrannical powers with respect to aliens & “seditious” words.

2. These proposed Resolutions focus on administrative “rules” made by a Department within the Executive Branch of the federal government. This Model may be easily adapted to address acts of Congress which are outside the scope of its enumerated powers; Executive Orders which are outside the scope of the President’s enumerated powers; and supreme Court opinions which exceed their enumerated powersand disregard the federal Constitution, such as their lawless rulings banning public expressions of the Faith of Our Fathers and misapplying Sec. 1 of the 14^th Amendment in order to undermine the morals of the People and to destroy the residuary sovereignity of The States.

3. Several attorneys, historians, and others who claim special knowledge on this subject have asserted that States have no right to nullify anything the federal government does; that the States and The People must submit to the federal government no matter what it does; that only the federal government may question the federal government; thatthe federal government created by the Constitution is the exclusive and final judge of the extent of the powers delegated to it; and the opinion of five supreme Court judges, not the Constitution, is the sole measure of its powers.

Such people may not understand the distinction between abuses of delegated powers (e.g., unwise bankruptcy laws – Art. I, Sec. 8, cl. 4), for which election of better Representatives is the answer; and usurpations of powers which have not been delegated and are thus outside the lawful reach of the federal government (e.g., obamacare), for which nullification is the proper answer. When any branch of the federal government steps outside of the Constitution to make laws or “rules” or issue “opinions” which exceed their delegated powers; the States must resort to those original rights which pre-date & pre-exist Our Constitution to nullify such usurpations by the federal government of undelegated powers.

Such people also do not seem to understand our Founding Principles: Our Declaration of Independence says:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it …”  (2^nd para)

In that one paragraph, we learn the five foundational principles of our Constitutional Republic:

• Our Rights are unalienableand come from God;
• The purpose of civil government is to protect our God-given Rights;
• Civil government gets its powers from THE PEOPLE;
• Civil government is legitimate only when it stays within the powers WE delegated to it; and
• When civil government becomes destructive of the purposes for which WE created it, WE may throw it off.

The Constitution is the formal expression of our Consent for the federal government to exist; and it is our formal statement of which specific powers WE agreed to delegate to the three branches of that government. Look atthe opening words:

“WE THE PEOPLE … do ordain and establish this Constitution for the United States of America.”

The federal government operates with our consent only when it restricts itself to the powers WE delegated to it – when it obeys the Constitution. When it exercises usurped powers which have not been delegated to it, it becomes illegitimate. 

When the federal government loses its legitimacy – as it now has – it is the sworn duty of the States, pursuant to Art. VI, cl. 3, of our Constitution, to resist.

4. Others who claim special knowledge on this subject insist that a single State may not nullify any act of the federal government; that only a majority of the States acting in concert may do so.

But they overlook the nature of the laws protested in the Kentucky & Virginia Resolutions. Those Resolutions addressed laws made by Congress which purported to grant to the President certain dictatorial powers and jurisdiction over “aliens” and “seditious words”. The States have no means of stopping the President from enforcing such laws since the President has the raw power to send out armed thugs to arrest people by night; and then to prosecute, convict, & execute them in secret tribunals and chambers. The States may object – but they can’t stop it. The supreme Court may denounce it, but can’t stop it. Only Congress can put an end to it by impeaching & removing such a usurping President (Federalist No. 66, 2^nd para & No. 77, last para).

But when Congress by means of a law (which is outside the scope of its delegated powers); or the President by means of an executive order (which is outside the scope of his delegated powers); or federal executive departments by means of administrative rules (which they are altogether prohibited by Art. I, Sec. 1 from making); or the supreme Court by means of opinions which contradict Our Constitution; purport to require THE STATES to do something, or stop doing something, then of course THE STATES – on an individual basis – have both the POWER and the DUTY (imposed by their Art. VI, cl. 3 Oaths of Office) to nullify such usurpatious acts within the boundaries of their States.   The proper battle cry in such events is, “Not in my state!”

Do you see? PH
Posted March 13, 2012

Postscript Added March 15, 2012:

The federal government is not God.  It is merely our “creature”. We The People created the federal government when We ordained and established Our Constitution. And when We enumerated the powers We delegated to each branch of the federal government, We told the federal government what We were giving it permission to do.

But we have now come to believe that the federal government may do whatever it wants; and we must obey it.  And because we have believed this for so long, a totalitarian fascist dictatorship is right now being imposed on us.

So what should we do?  Revolution and bloodshed? No!  There is a better way, and our Framers show us:  On behalf of The People of their States, The State Legislatures must now resort to that original right of self-defense which pre-exists & pre-dates The Constitution; and must nullify those acts of the federal government which are outside the scope of the powers We delegated to it in Our Constitution.

The Model Resolutions  set forth the Authorities on which they are based, so that State Legislators may propose them in their State Legislatures with complete confidence that Our Framers “have their backs”. PH

Recess Appointments by the President: What Our Constitution Really Says.

By Publius Huldah.

Much misinformation about The Constitution is put out by those who seek to circumvent its clear provisions.  In Peter Schroeder’s recent article in The Hill, he reports that David Arkush, director of Public Citizen’s Congress Watch division, makes two arguments which Arkush claims permit the President to make a “recess” appointment of someone (Richard Cordray) whose nomination has already been blocked by the Senate.

Arkush reportedly claims that Art. 2, Sec.3, U.S. Constitution, allows the President to force the House and Senate to adjourn; and then, pursuant to Art. II, Sec. 2, last clause, he would be permitted to make a “recess” appointment of his rejected nominee. ¹

Arkush’s next claim is this: The 20^th Amendment states that Congress shall assemble at least once a year, with each session beginning on Jan. 3.  Arkush says that in order to be able to start a session on Jan 3; Congress would have to have stopped a previous session – and between the stopping of the old and the starting of the new, the President may slip in there and make a “recess” appointment of his rejected nominee!

Rubbish.

So!  Let us see how easy it is to look things up in Our Constitution.  You do not have to settle for the rubbish spewed by others and uncritically reported by journalists. You can find out for yourself what Our Constitution really says.

Look It Up In Our Constitution!

FIRST: What does Our Constitution say about presidential “appointments”?  Article II, Sec. 2, cl. 2, says:

…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…[emphasis added]

Do you see?  The constitutional scheme is that the President nominates – the Senate confirms or rejects the President’s nomination.  This is the “check” which Our Constitution imposes on the President’s nominations.  The purpose is to protect us from the loons, incompetents, or toadies whom various presidents have, from time to time, nominated.

NOW let us see what Our Constitution says about recess appointments. Article II, Sec. 2, last clause, says:

   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. [emphasis added]

Do you see?  The Vacancy must have happened at a time when the Senate was already in Recess!

So!  The President may not properly circumvent the Senate’s constitutionally granted power to reject his nominations by means of cheap gimmicks such as forcing the Congress to adjourn, or by waiting until Congress is in recess, to “recess appoint” someone whom the Senate has already refused to approve!

Check It Out In The Federalist Papers!

The Federalist Papers are authoritative on the genuine meaning of Our Constitution, ²  so you always want to see what they say about any clause in Our Constitution. Here is an online edition of The Federalist Papers with a searchable text.  If you type in “recess”, you will get hits for The Federalist Papers which use that term.

Throughout Federalist No. 76, Alexander Hamilton explains the reasons for the constitutional provision requiring nominations by the President to be submitted to the Senate for their approval or disapproval. In the last 3 paras, Hamilton points out that the Constitution “requires” the cooperation of the Senate in appointments in order to “check” the President and “to prevent the appointment of unfit characters”; and that “the necessity of its [the Senate’s] co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate [the President].”

Now, let us see what The Federalist Papers say about “recess” appointments. In Federalist No. 67 (next to last para) Hamilton is very clear that Article II, Sec. 2, last clause, means what it says:

…The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”… [caps are Hamilton’s]

Do you see?  Article II, Sec. 2, last clause, means exactly what it says. Before this clause even kicks in, the vacancy must have happened while the Senate was in “recess”.

So!  The Constitution requires the President to submit his nominations to the Senate for their approval. A President who disbands Congress so that he can circumvent the constitutional provisions which grant to the Senate the power to reject the President’s nominations, is a usurper & a tyrant who should be promptly impeached and removed from office. ³

If the Senate rejects any nomination, the President may not circumvent that rejection by unconstitutional gimmicks such as those proposed by Arkush.

If people wish to show how clever, creative, or original they are, then they should write a novel. When applying Our Constitution, we must display only Obedience.

Now you know how to look things up in Our Constitution and check it out in The Federalist Papers.  Political consultants, journalists, TV pundits, talk show hosts, candidates for office, people in Congress, in the Executive Branch, and sitting on Federal Benches don’t know how to do this.  So you must do it and spread the Word if we are to restore our Constitutional Republic. PH

Endnotes:

¹ Article II, Sec. 3 authorizes the President to adjourn Congress only when there is a “Disagreement” between the Houses “with Respect to the Time of Adjournment”. He is not permitted to adjourn Congress so that he may then circumvent the constitutional provisions which grant to the Senate the Power to reject the President’s nominees!

² See the Minutes of March 4, 1825 of the Board of Visitors of the University of Virginia  (Thomas Jefferson & James Madison were present) where they voted to make The Federalist Papers one of the texts books for the Law School. They said:

…on the distinctive principles of the government of our own state, and of that of the US. the best guides are to be found in 1. the Declaration of Independance, as the fundamental act of union of these states. 2. the book known by the title of `The Federalist’, being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning…. (page 83)  [emphasis added]

³  On impeaching the President for usurpations of power – i.e., acting outside the few enumerated powers granted to the President by Our Constitution – see Federalist No. 66 (2^nd para) & Federalist No. 77 (last para). PH

Posted Dec. 17, 2011

 

Postscript added Jan. 28, 2013:

 I just skimmed “Noel Canning v. NLRB” (D. C. Cir. 2013)    http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf

HENCEFORTH:  When I heap scorn on federal judges for not knowing Our Constitution and The Federalist Papers, I will exempt from criticism Judges Sentelle (Chief Judge), Henderson, and Griffith. 

I never thought I would see the day when federal judges know and apply The Federalist Papers to Our Constitution, and actually follow The Constitution!

Well done, Your Honors!  PH

The Oath Of Office: The Check On Usurpations By Congress, The Executive Branch, & Federal Judges.

The Oath of Office is The Most Important “Check”!

By Publius Huldah.

Rush Limbaugh recently ¹ castigated our putative president for announcing that his regime would not enforce the Defense of Marriage Act.  Rush said:

“…He’s ordering his Justice Department not to defend a federal law.  Nobody has said the law is unconstitutional other than Obama and Holder, and they don’t have the power to do that … For a president to ignore a federal law … for him to act as legislature and court …is hugely troubling …”

Newt Gingrich commented to the same effect to Newsmax on Feb. 25, 2011; and added that “it’s a violation of his [Obama’s] constitutional oath” and “could lead to a constitutional crisis”.

Not so, Rush & Newt!  Actually, it is a President’s sworn duty to refuse to enforce any unconstitutional “law” made by Congress. And contrary to the misinformation with which we are constantly bombarded, judges are not vested with exclusive authority to declare Acts of Congress unconstitutional.

The Truth is that a President, the States, local governments, and individual citizens, together with the courts, all have the Right & Duty to overrule – to spurn & cast out – unconstitutional laws made by Congress. For it is a fundamental [though long suppressed] Principle of our Founding that an unconstitutional “law” is no “law” at all – it is a “mere usurpation, and deserves to be treated as such”.

Our Framers placed “Oaths of Office” in the Constitution. When honored, these Oaths function as “checks” on the powers of the federal government and protect us from usurpations. Each Branch of the federal government has “the check of the Oath” on the other two branches.

The States, whose officials also take the Oath of Office, have the same check on all three branches of the federal government.

And WE THE PEOPLE, the “original fountain of all legitimate authority” (Federalist No. 22, last para), have the Right to overrule violations of the Constitution by elected & appointed officials.

Ignorance of Our Founding Principles

WE THE PEOPLE forgot our Founding Principles. Conservative lawyers, politicians, judges, “intellectuals”, and radio & TV pundits don’t know them. The lawyers uncritically accepted what they were told in law school, and the non-lawyers accept what other people say. No one learns The Constitution – no one thinks independently – like Dufflepuds, they chant the prevailing dogma. As a result, our Country spirals downward at an ever quickening pace.

But if you read on, you will learn seven of our Founding Principles:

1. Who Really Is The Boss? WE THE PEOPLE?  Or the Federal Government?

WE THE PEOPLE created the federal government when we ordained & established the Constitution for the United States of America. WE created the three branches of the federal government and itemized the powers WE granted to each branch. ²Neither the Legislative, nor the Executive, nor the Judicial Branch may lawfully do ANYTHING unless WE authorized it in the Constitution. WE are the Creators; those in the federal government, be they Senators, Representatives, federal judges, Presidents or other officials, are merely our “creatures”.  When they disobey the Constitution, WE are to take action.  In Federalist No. 33 (5th para), Alexander Hamilton says:

“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed [the Constitution], and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” [emphasis added]

Did you get that? Read it again.

2. Congress’ Powers are Enumerated

In the Constitution, WE authorized Congress to make laws only on those objects WE listed in the Constitution. Those few objects on which WE authorized Congress to make laws applicable throughout our Country are itemized at Art. I, Sec. 8, clauses 1-16 (and in a few Amendments).  Here is an explanation of Congress’ Enumerated Powers.

3. When is a “Law” Not a Law?

When it’s a usurpation!  I.e., when Congress makes any “law” which the Constitution does not authorize it to make.  Our Framers understood that civil governments seek to expand their powers; but when our federal government does so, its acts are VOID. In Federalist No. 33 (last para), Hamilton says a law made by Congress which is not authorized by the Constitution,

“…would not be the supreme law of the land, but a usurpation of power not granted by the Constitution…” [boldface mine]

In Federalist No. 78 (10th para), Hamilton says:

“…every act of a delegated authority, contrary to…the commission under which it is exercised, is void. No legislative act … contrary to the Constitution, can be valid. To deny this, would be to affirm…that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” [emphasis mine]

Do you see?  If Congress makes a law which is not authorized by the Constitution, then it is no “law” at all.  It is a “mere usurpation” – it is “void” and “not valid“.

4. What is the “Rule of Law”?

Article VI, clause 2, says the Constitution, and the Laws & Treaties authorized by the Constitution, are the “supreme Law of the Land”.  The Rule of Law prevails when the civil authorities obey The Constitution.  Webster’s 1828 Dictionary says for “Constitution”:

“…In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution.”

If any Branch fails to obey the “supreme Law”, then, in order to preserve the Rule of Law, the other Branches, or failing that, the States or THE PEOPLE, must overrule them.

5. What Does the Oath of Office Actually Say?

Article II, Sec. 1, last clause, sets forth the President’s Oath of Office:

“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.”

Article VI, clause 3, provides that all other representatives, officers & judges (federal and state) are bound to support the Constitution.

6. The Check Provided by the Oath of Office

The Key is this:  One’s Oath is pledged to The CONSTITUTION – the Oath is NOT to go along with Congress, or to obey the Executive Branch, or submit to federal judges.

The President’s “Check” on Congress and Federal Courts

Say Congress makes a “law” which says Jews must wear a yellow star on their arm; Christians, a white cross; & that it’s a felony if they fail to wear the armbands.  Imagine you are President. You vetoed the bill; but Congress overrode your veto. Are you going to enforce that “law”?

Look at your Oath of Office.  Does your Oath require you to obey Congress ³ unless & until five people on the supreme Court say you don’t have to?  And even if those five side with Congress, will you allow U.S. Attorneys to prosecute Christians & Jews who don’t wear the arm bands?

Or will you look at your Oath of Office which recites that your Sworn Duty is to “preserve, protect and defend the Constitution of the United States”. The Constitution – not whatever law a majority of people in Congress pass & five people on the supreme Court approve. If you are faithful, you will review Art. I, Sec. 8, clauses 1-16, and you will ask, “Where is Congress authorized to make a law which requires Christians & Jews to wear armbands? You will see that The Constitution does not authorize Congress to make the law, and you will see that the supreme Court’s opinion upholding it is unconstitutional. You will denounce the pretended law & judges’ opinion as “mere usurpations”, and you will instruct the Attorney General & U.S. Attorneys NOT to prosecute violations of that pretended “law”. ⁴

Four Checks on Federal Judges

We were told in law school that the supreme Court is the ultimate authority on the Constitution, and when they [or rather, a majority of five] speak, we must all scurry to obey. Rubbish!

The Oath of Office (Art. VI, last clause) does require judges to strike down “laws” made by Congress which are unconstitutional.  Hamilton recognizes in Federalist No. 78 (9th para, et seq.) that judges have the power to strike down unconstitutional “laws”.

But this is the only “check” law students hear about!  Since they don’t know about The Federalist Papers & (thanks to progressive education) can’t think, they graduate law school believing that the only “check” is that of federal judges to declare laws made by Congress unconstitutional (“judicial review”). They believe that no one has a check on the supreme Court – that their word is final.

Not so! Federal judges are not gods. They are morally & intellectually fallible people who (as our Framers saw) can cause dreadful harm to our Country when they connive with another Branch.

Thus, they are subject to “the check of the Oath” for their usurpations – checks imposed by Congress, the Executive Branch, the States, and THE PEOPLE:

(a) Congress must impeach & remove federal judges who usurp power – they serve during “good Behaviour” only (Art. III, Sec.1).  Hamilton discusses impeachment of usurping judges in Federalist No. 81, 8th para. ⁵ So yes!  Congress may review the propriety of  judges’ opinions!

(b) The President must refuse to go along with unconstitutional opinions. Hamilton saw that federal judges might become “embarked in a conspiracy with the legislature” (Federalist No.16, next to last para).  So the President is bound by Oath to reject unconstitutional “laws” even when approved by the supreme Court.  And Hamilton understood that it might be appropriate for a President to refuse to enforce a federal court opinion.  He says in Federalist No. 78 (6th para):

“…The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary …  has no influence over … the sword or the purse; no direction … of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” [caps are Hamilton’s, other emphasis mine]

Do you see?

(c) The States must nullify unconstitutional opinions. ⁶ State officers & judges are bound by Oath to support the Constitution (Art. VI, last clause).  So they too are Honor bound to refuse to comply with unconstitutional federal court opinions, as well as unconstitutional federal laws, executive orders, & pretended treaties which affect them & their Citizens.

7. The People Have The Ultimate Power & Responsibility to Enforce The Constitution

For too long, we have shirked our Responsibility to enforce The Constitution – we let the supreme Court be in charge.

Look at what they have done with the power we relinquished to them: They approved Congress’ massive & grotesquely unconstitutional expansions of federal control over our lives [e.g., their “interstate commerce clause” & “general welfare clause” jurisprudence]; they outlawed the Faith of Our Fathers & used the 14th Amendment to bring about a radical redefinition of “Liberty” as freedom from moral restraints; and they connived with Congress in turning the once proud American People into parasites who clamor to live at other peoples’ expense. They usurped Our status as the “pure, original fountain of all legitimate authority”, and claim for themselves the power to “make policy” for our Country!

Our Framers Understood That Judges Could Be Dangerous – But Couldn’t Get Away With It Unless WE Concurred.

Hamilton says “an illegal usurpation of authority”, to be successful, “would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people.” Because judges may be “embarked in a conspiracy with the legislature”, Hamilton expected the People to be “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.” (Federalist No.16, next to last para).

“…liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments…” ( Federalist No. 78, 7th para).

James Madison says in Federalist No. 44 (last para before 2.):

“…the success of the usurpation [by Congress] will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; 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.” [boldface added]

So! It is up to The People, who are “the natural guardians of the Constitution” (Federalist No.16, next to last para), to take whatever action is necessary when their representatives in the federal government concur with the usurpations of another Branch – and thereby violate their Oaths to preserve The Constitution.

How do we become “enlightened enough” to do this?

Read The Declaration of Independence & The Constitution – read them often. The more you read, the more you will come to see that The Constitution gives effect to the Principles of the Declaration. Outline The Federalist Papers.  Get Mary Webster’s edition in modern English for yourself and the young people in your Family.  Consult Webster’s 1828 Dictionary for definitions. Be careful whom you trust – most conservative lawyers have minds like blank sheets of paper which got imprinted in law school; and the conservative commentators regurgitate what the indoctrinated lawyers tell them!  Study so that you can speak like this wonderful woman who challenged Rep. Pete Stark on obamacare.

Stop wasting your time on bizarre theories about the Uniform Commercial Code (UCC) , “emergency powers”, “corporations”,  gold fringe on flags & admiralty jurisdiction, and other such silly stuff.  It may be tempting to place the blame on others who are in a secret cabal to take away your rights via nefarious schemes such as the UCC, “corporate government” , or adding gold fringes to flags; but the Truth is that you, along with everyone else, haven’t bothered to do the Work to learn our Founding Documents & Principles.

Lose your pride in your own knowingness about The Constitution: What you think you know, just ain’t so; and the misinformation in your head blinds you to Truth. When you just repeat the stuff you hear, you add to the problem.  Millions of Americans heard Rush & Newt and were mislead by the misinformation those two spread.  And for Heaven’s Sake, don’t advocate ratification of Amendments to the Constitution until you fully understand the existing Constitution! [And if you fully understood it, the only amendments you would want are those repealing some of the previous amendments.]

Stop thinking like a slave – we have become a Country of “permission seekers”.  For every issue, we want to file a lawsuit in federal court. Why?  Because we don’t want to take Responsibility for dealing with the issue ourselves. Spend a few hours studying the Declaration & Constitution and you will know the Constitution doesn’t give Congress authority to force you into a government controlled “health care” system. You will know it doesn’t give the Executive Branch authority to control CO² emissions. You will know it doesn’t give the Executive Branch & Congress authority to force us into pernicious UN treaties such as the Declaration on the Rights of the Child & to implement [as they are doing right now] the UN’s Agenda 21 “sustainable development” scheme.  Many federal judges are our enemies – they are the last people you should ask for permission to have constitutional government.  WE need to “man up” and take responsibility.

As Madison advises, defeat elected federal & State officials who have betrayed us; and replace them with faithful servants who will annul the acts of the usurpers.

Learn your State’s recall statutes – recall faithless elected officers. Learn your State’s impeachment procedures – demand impeachment of faithless State judges and officers. Demand impeachment of faithless federal officials and judges. Demand that each house of Congress expel members who usurp power (Art. I, Sec. 5, clause 2).  Expel the loons in the House!

Learn about Nullification by States and restore Jury Nullification in criminal cases. ⁷

Learn about Federalism.  Urge repeal of the 17th Amendment to help restore “federalism”.

Learn from the heroic Rev. Dr. Martin Luther King, who practiced non-violent civil disobedience of  unjust State “laws” which enforced segregation.  Withdraw your concurrence to usurpations.

Endnotes:

¹ Rush’s show of Feb 24, 2011. When Rush speaks on the Constitution, beware!  He doesn’t know what he is talking about.   And Gingrich, who is supposed to be an intellectual & an expert, showed he is profoundly ignorant of our Founding Principles.

² Art. I creates the Legislative Branch & enumerates its powers.  Art. II creates the Executive Branch & enumerates its powers.  Art. III creates the Judicial Branch & enumerates its powers.

³ You may object, “But Art. II, Sec. 3 says the President “shall take Care that the Laws be faithfully executed!”  And I would remind you that an unconstitutional “law” is no law at all – it is “a mere usurpation and deserves to be treated as such” – it is “VOID” & “not valid“.

⁴ In Federalist No. 66, 2nd para, and Federalist No. 77, last para,  Hamilton points out that Congress may impeach & remove the President for “encroachments” on the powers of the Legislative Branch.  So if Congress objects to your ignoring their pretended law, they may impeach & remove you.

⁵ Hamilton says in Federalist No. 78 (7th para up from bottom) that judges may not

“…substitute their own pleasure to the constitutional intentions of the legislature … The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would … be the substitution of their pleasure to that of the legislative body...” [caps are Hamilton’s]

When federal judges substitute their pleasure for that of Congress [when Congress’ acts are constitutional] Congress is honor bound to impeach & remove them for their usurpation. And everyone else is honor bound to spit on the judges’ unconstitutional opinion. Yes! It takes he-men & she-women to enforce The Rule of Law!  Man up, People!

⁶ The supreme Court issues unconstitutional opinions all the time. Look at how they perverted the 14th Amendment and the 1st Amendment!  In these (& other) cases, they substitute their pleasures for the Will of The States and The People.

⁷ Webster’s 1828 Dictionary has the following entry under “jury”:

“…Petty juries, consisting usually of twelve men, attend courts to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions …” [emphasis added]

Would you convict someone for the “crimes” of failing to buy health insurance or failing to wear the armbands?  THAT is the essential purpose of  Jury Nullification in criminal cases. Get your State Legislatures to restore it and insist that it be applied in federal criminal trials conducted in your State. PH

March 29, 2011; revised Nov. 16, 2011; Sep. 26, 2015