Our Constitution provides two separate & independent methods for the federal government to “call forth the Militia” to suppress Insurrections

By Publius Huldah

Because of its excellence and relevance to the insurrections being fomented in our cities by the Marxist organization “Black Lives Matter”, Antifa, and other revolutionary organizations; I sent the recent paper by Edwin Vieira, JD., Ph.D., titled, “The President’s Authority To Suppress Insurrections” [link], to my lists.

In response, some objected that the riots in the cities are local issues to be handled (or not) by the State and local governments – that they are not “federal” issues over which the federal government has jurisdiction. Some also asserted that Article IV, §4, US Constitution prohibits the President from sending the National Guard into a State to quell such disturbances, unless & until the Legislature or the Governor of the State requests it.

Those objections are not well-founded.

First: What’s going on in our cities is not something which can be prudently brushed aside. It is a classic manifestation of a Marxist revolution – see, e.g., this article from “Workers’ World”. Furthermore, as shown below, the President of the United States has constitutional and statutory authority to exercise his own judgment as to whether he should send in the “Militia” to suppress the uprisings.

Second: Our Constitution provides two separate and independent methods for the federal government to suppress such uprisings.

Dr. Vieira’s paper sets forth the other method of “calling forth the Militia” – the method provided for at Article I, §8, clauses 15 & 16, US Constitution. That provides for the intervention of the Militia within a State at the initiative of the federal government, regardless of whether the State requests it. ¹

When highly knowledgeable and experienced persons, such as Dr. Vieira, speak in their area of expertise, and their words contradict our existing beliefs; we ought to re-examine our beliefs, instead of dismissing what such persons say. ²

So let’s review Article I, §8, clauses 15 & 16, and some of the early Acts of Congress implementing them.

1. The American Militia is 400 years old

Throughout our colonial period, able-bodied free males were expected to be armed and trained and ready on short notice to defend their home, family, neighborhood and Colony. They were the “Militia”. In Mel Gibson’s movie, Patriot, Gibson’s character commanded a South Carolina Militia Company. The Militia was not “regular Army” – it was comprised of farmers, pastors, shopkeepers, etc., trained in the use of arms and prepared to fight for defense of Family and Community.

In our Constitution of 1787, our Framers provided for a regular Army and Navy at Article I, §8, clauses 12, 13 & 14. Pursuant to Article II, §2, clause 1, the President is Commander in Chief (CINC) of the Army and Navy. ³

Our Constitution also recognized the continued existence of the Militia, and assigned to it three specific federal functions: Article I, §8, clause 15 empowers Congress:

“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”. ⁴

Clause 16 authorizes Congress:

“To provide for the organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress”.

In 1792, Congress passed the Militia Act which “provided for” the arming of the Militia by requiring every able-bodied male Citizen of the ages 18-45 (with a few exceptions) ⁵ to acquire a rifle, bayonet, ammo pouch, ammo, ⁶ and report to his local unit for training. HERE is the Militia Act of 1792.

When the Militia of a State isn’t in the service of the United States for one of the three purposes listed in Clause 15, its function is to help in its own State – however the need arises. And in Federalist No. 46, James Madison says the Militia is to defend the State from the federal government in the event it becomes tyrannical. ⁷

2. Who has the authority to call forth the Militia into service of the United States?

Article I, §8, clause 15 authorizes Congress to “provide for” calling forth the Militia “to execute the Laws of the Union, suppress Insurrections and repel Invasions”. How does Congress “provide for” calling forth the Militia into the service of the United States?

In Martin v. Mott, 25 US 19 (1827), the Supreme Court considered the Militia Act of 1795 [link] which authorized the President to call forth the militia when he judged it necessary to repel an invasion or enforce the laws of the United States. The Court pointed out that the power had been entrusted by Congress to the President, and said that,

“We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.”

So! In the Militia Act of 1795, Congress “provided for” calling forth the Militia by delegating to the President the power to determine when it was advisable to call the Militia into national service to repel an invasion or to execute the laws of the Union. ⁸

3. Transformation of the Militia into the federally controlled National Guard

During the early 1900s, Americans elected Progressives [Fabian socialists] to office. And these “Progressives” commenced the conquest of our Country. They had to eliminate the threat the Militia posed to the totalitarian federal government they intended to create. So with the “Efficiency in Militia Act of 1903” (the “Dick Act”) [link], Congress federalized the Militia. And this is how the Militia of the several States, which is the primary defense of a Free People and the States against a tyrannical federal government [2^nd Amendment], was put under federal control. And the States went along with it because their People were ignorant, short sighted, and bought off with federal appropriations for the new federalized “National Guard”.

So we don’t have an organized & trained Militia – now, we have federal troops – some on active duty in the Regular Military; others as weekend warriors in the Reserves or National Guard.

4. Current Acts of Congress providing for calling forth the “Militia” (federal armed forces)

Today, the provisions of the US Code which address calling forth the “Militia” ⁹ into national service are: 10 USC §251, 10 USC §252, 10 USC §253, and 10 USC §254. Note that the President still has statutory authority to use his own Judgment respecting whether to send the “Militia” into any State:

♦ to enforce the Laws of the United States [10 USC § 252];

♦ to suppress uprisings which deprive the people of the rights, privileges and immunities, and protections recognized in the Constitution and secured by Law, and the State government isn’t protecting those rights [10 USC §253]; and

♦ to suppress uprisings which oppose or obstruct the execution of the laws of the United States or impede the course of justice under those laws [10 USC § 253].

5. Conclusion

Our Constitution is an elegant piece of work. Its parts are interconnected and fit together. So we must read each clause in the light shed by the other clauses and by the Principles of our Founding as set forth in our Declaration of Independence. We must never insert our own biases – no matter what they are.

One of the most valuable characteristics of our federal system is the ability of the state and federal governments to be “checks” on each other. In Federalist No. 28 (7^th para), Alexander Hamilton says,

“… in a confederacy ^[10] the people … may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general [national or 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. …”

We would be wise to celebrate the President’s constitutional and statutory authority to protect us from the death and destruction being brought about – with the connivance of State & local officials – by the Marxist revolutionaries. When State and local governments refuse to protect their people from such death and destruction, the President has a clear power to intervene.

Now, we must start electing Presidents who know and obey our Constitution. ¹¹

Endnotes:

¹ Our Framers thought of everything – including rogue State governments. See, e.g, Federalist No. 28.

² One of the themes of Proverbs is that a wise man listens and increases his understanding. Be wise.

³ To be CINC means that the President has the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy (Federalist No. 69).

⁴ Let that clause sink in! Our Framers did not want a standing Army [go here and search for “standing armies”] – that’s why appropriations for the regular Army were limited to two years (Art. I, § 8, cl. 12). National defense, enforcement of federal laws, & suppressing Insurrections were to be the responsibility of the Militia. When the federal gov’t needs to enforce its laws, it is to call forth the Militia – the armed and trained Citizens – to do the enforcing! During the Washington Administration, the federal gov’t called forth the Militia to enforce the federal excise tax on whiskey. Federal law enforcement is thus the province of the Citizens – the Militia! It is most manifestly NOT the province of armed thugs in the employ of the Executive Branch of the federal gov’t.

⁵ Pursuant to §2 of the Militia Act of 1792, federal officers & employees were exempted from service in the Militia. Can you figure out why they were exempted?

⁶ The arms, ammunition and accoutrements so acquired by the Militia Man were his personal property and were held free from claims of all creditors. They could not be seized and sold in payment for any judgments, debts or taxes. See last sentence of §1 of the Militia Act of 1792.

⁷ This is why Article II, §2, clause 1 provides that the President is CINC of the Militia only when it is called into national service. This is also why §2 of the Militia Act of 1792 exempts all federal officers and employees from service in the Militia.

⁸ The Militia Act of 1795 also provided that in cases of insurrection against a State government, the President could send in the Militia upon request of the State Legislature or Governor.

⁹ Even though we no longer have a “militia” within the meaning of Article I, §8, clauses 15 & 16; the current US Code uses the term in order to connect the activities of the federal armed forces with Art. I, §8, clause 15.

¹⁰ Our Constitution created a “federation” (“confederation”) of sovereign states which were united together for the sole purposes enumerated in the US Constitution.

^{11 I may have been wrong to fault President Trump for not sending the National Guard into the States to suppress the Insurrections.  In The Coming Coup? [link], Michael Anton writes:}

“…It started with the military brass quietly indicating that the troops should not follow a presidential order. They were bolstered by many former generals—including President Trump’s own first Secretary of Defense—who stated openly what the brass would only hint at. Then, as nationwide riots really got rolling in early June, the sitting Secretary of Defense himself all but publicly told the president not to invoke the Insurrection Act. His implicit message was: “Mr. President, don’t tell us to do that, because we won’t, and you know what happens after that.”

If that is true, then the President ought to fire Defense Secretary Mark Esper, and should “purg[e] the [military] officer corps of anyone not down with the program and promoting only those who are.”

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 President’s Enumerated Powers, Rulemaking by Executive Agencies, & Executive Orders.

By Publius Huldah.

On election night, November 2, 2010, Rep. John Boehner said in his victory speech:

“…While our new majority will serve as your voice in the people’s House, we must remember it is the president who sets the agenda for our government. …” [emphasis added]

Next morning, Ezra Klein commented in the Cult of the President lives on:

“I’d like Boehner to show us where in the Constitution it says that the president sets the agenda for the government.”

But Boehner is not as astute as Ezra Klein, and does not know that it is our Constitution which sets the “agenda” for the federal government.  The agenda the Constitution sets restricts the federal government to war, international relations & commerce; and domestically, the establishment of an uniform commercial system: a monetary system based on gold & silver, weights & measures, patents & copyrights, a bankruptcy code, and mail delivery (Art. I, Sec. 8, cls.1-16). ¹ And because none of the House Republicans seem to know that our Constitution sets the agenda, and don’t know that our Constitution also enumerates the powers delegated to the President, they are allowing Obama to carry out his “agenda” to transform our Country into a fascist dictatorship.

What are the Enumerated Powers of the President?

The powers of the President are “carefully limited” and precisely defined by our Constitution.  In Federalist Paper No. 71 (last para), Alexander Hamilton asks,

“…what would be … feared from an elective magistrate of four years’ duration, with the confined authorities of a President of the United States?…” [emphasis added] ²

The answer to Hamilton’s question is this: There would be nothing to fear if Presidents obeyed the Constitution. But they don’t obey it because the dolts in Congress don’t make them obey it!

Well, then!  Here is the complete list of the President’s enumerated powers:

Article I, Sec. 7, cls. 2 & 3, grants to the President the power to approve or veto Bills and Resolutions passed by Congress.

Article I, Sec. 9, next to last clause, grants to the executive Branch – the Treasury Department – the power to write checks pursuant to Appropriations made by law – i.e., by Congress.

Article II, Sec. 1, cl.1, vests “executive Power” [see below] in the President.

Article II, Sec. 1, last clause, sets forth the President’s Oath of Office – to “preserve, protect and defend the Constitution of the United States”.

Article II, Sec. 2, cl.1:

• makes the President Commander in Chief of the regular military, and of the Militia when they are called into the actual service of the United States. ³

• authorizes the President to require the principal Officers in the executive Departments to provide written Opinions upon the Duties of their Offices.

•  grants the President power to grant Reprieves and Pardons for offenses against the United States, ⁴  but he can not stop impeachments of any federal judge or federal officer.

Article II, Sec. 2, cl. 2 grants to the President the power:

• to make Treaties – with the advice and consent of the Senate. ⁵

• to nominate Ambassadors, other public ministers and Consuls, federal judges, and various other officers – with the advice and consent of the Senate.

Article II, Sec. 2, cl. 3 grants to the President the power to make recess appointments, which expire at the end of Congress’ next session.

Article II, Sec. 3:

• Imposes the duty on the President to periodically advise Congress on the State of the Union, and authorizes the President to recommend to Congress such measures as he deems wise.

• Authorizes the President, on extraordinary Occasions, to convene one or both houses of Congress [e.g., when he asks Congress to declare War]; and if both houses can not agree on when to adjourn, he is authorized to adjourn them to such time as he deems proper.

• Imposes the duty upon the President to receive Ambassadors and other public Ministers.

• Imposes the duty upon the President to take care that the Laws be faithfully executed, and

• Imposes the duty upon the President to Commission all the Officers of the United States.

That’s it! Anything else the President does is unlawful and a usurpation of powers not granted.

 What is the “executive Power”?

So!  The granting of the “executive Power” to the President is not a blank check giving him power to do whatever he wants.  The “executive Power” is merely the power to put into effect – to implement – those Acts of Congress which are within Congress’ enumerated powers.  Thus, if Congress establishes “an uniform Rule of Naturalization” (as authorized by Art. I, Sec. 8, cl. 4), it is the President’s duty to implement and enforce the law Congress makes. The President is to carry out – to execute – Acts of  Congress.

But note well:  His Oath of Office – to “preserve, protect and defend the Constitution”, shows that the President must use his independent judgment ⁶  as to which acts of Congress are and are not constitutional.  Thus, as shown in this paper, “The Oath Of Office: The Check On Usurpations By Congress, The Executive Branch, & Federal Judges“, the President has the duty, imposed by his Oath, to act as a “check” on Congress (and on federal courts, as well). Accordingly, when Congress makes a “law” which is not authorized by the Constitution, it

“…would not be the supreme law of the land, but a usurpation of power not granted by the Constitution”… Federalist No. 33 (last two paras); ⁷

and since the President’s Oath requires him to “preserve, protect and defend the Constitution“, the President must refuse to enforce an unconstitutional “law” made by Congress.  Otherwise, he’d be in collusion with the legislative branch to usurp power over The People. ⁸

So, then!  Acting as a check on Congress (and federal courts) by refusing to enforce unconstitutional “laws” (and opinions), as well as the duty of entertaining foreign dignitaries, are the only occasions where the President may act alone. His prime responsibility is to do what Congress tells him.

Article I, Sec. 1 & The Unconstitutional Administrative Law State

Now, you must learn of “administrative law” – i.e., rulemaking by Executive Agencies. ⁹ Article I, Sec.1, U.S. Constitution, says:

“All legislative Powers herein granted shall be vested in a Congress of the United States.”

That little phrase is of immense importance. It means what it says, that only Congress may make laws: laws are to be made only by Representatives whom we can fire every two years, and by Senators whom we can fire every six years.

But in Joseph Postell’s “must read” paper, “Constitution in Decline“, he shows that during the administration of the nefarious Woodrow Wilson, Congress began delegating its lawmaking powers to agencies within the Executive Branch.  Since then, Congress passes an overall legislative scheme, and delegates the details to be written by un-elected, un-accountable bureaucrats in the various Executive Agencies.  They write the “administrative rules” which implement the Legislation. The result is the execrable Code of Federal Regulations (CFR), which is accepted, by the indoctrinated members of my profession, as “law”. Go here to see the abominable CFR.

May the President Lawfully Make “Executive Orders”?

The Guiding Principle is this:  The President has no authority to do ANYTHING apart from constitutional authority or statutory authority (assuming the statute itself is constitutional).

1.    So!  Respecting those matters within his constitutional authority & duties, and authority & duties imposed by constitutional statutes, the President may make “orders” – call them “executive orders” if you like. For example: It is the President’s constitutional duty “to take care that the Laws be faithfully executed”. Thus, he has the duty to enforce [constitutional] laws made by Congress.  How does he enforce the laws?  Sometimes, by means of “orders”. To illustrate: Say Congress makes a law, as authorized by Art. I, Sec. 8, clause 6, making it a felony to counterfeit the Securities and current Coin of the United States.  If U.S. Attorneys are not prosecuting counterfeiters, the President should “order” them to do it. Or fire them.

But say Congress makes a law which purports to make possession of shotguns shorter than 18 inches a crime.  Since the President’s Oath requires him to “preserve, protect and defend the Constitution”, he is obligated to “order” the U.S. Attorney General and the U.S. Attorneys to refuse to prosecute anyone for possession of sawed-off shotguns. Why?  Because such a “law” is unconstitutional as outside the scope of the legislative powers granted to Congress in Our Constitution.  It also violates the Second Amendment. Clearly, such an order to refuse prosecution falls within the President’s constitutional duties (enforce the Constitution), and he is giving an order to people within the Executive Branch.

The President is the one who is charged with carrying out the Acts of Congress – he has the “executive Power”.  But because of his Oath, he may not carry out unconstitutional “laws”. That is one of the checks on Congress.

The President may also properly make orders addressing housekeeping issues within the Executive Branch:  Dress codes, no smoking or drinking on the job, he may encourage executive agencies to hire qualified handicapped people, and the like.  Just as if you have a business, you may make orders addressing such matters.

So! Do you see?  The President may lawfully make orders to carry out his constitutionally imposed powers and duties, and powers bestowed by statutes which are constitutional; and he may address “housekeeping” issues within the Executive Branch.

2.   But a President may not lawfully, by means of “orders”, exercise powers not delegated to him by the Constitution or by (constitutional) Acts of Congress.

Yet Obama has issued various executive orders which are unlawful because they are not authorized by the Constitution or by (constitutional) Acts of Congress. Here are two executive orders which are particularly pernicious because they undermine our foundational Principle of “Federalism”, and have as their object the “improper consolidation of the States into one … republic.”: ¹⁰

• E.O.13575 – Establishment of the White House Rural Council: This E.O. provides for over 25 federal departments & agencies to run every aspect of rural life!
• E.O. Establishing Council of Governors: The effect of this E.O. is to erase the Independence and Sovereignty of the States and consolidate us into a national system under the boot of the Executive Branch. Joseph Stalin couldn’t do better than this.

These E.O.s are blatantly unconstitutional as usurpations of powers not granted in The Constitution!  So,  Nullify them!

3.   Likewise, executive agencies may not, by means of “administrative rulemaking”, usurp the powers of Congress. (Remember, because of Art. I, Sec.1, all rulemaking by executive agencies is unconstitutional)! Here are several cases of such unconstitutional rulemaking:

a) When Congress refused to pass the DREAM ACT, which provided a path to citizenship for certain categories of illegal aliens, ICE had no authority to implement it, in whole or in part, by executive “memo”!  Power over Rules of Naturalization (i.e., who qualifies for citizenship and what are the procedures) is expressly granted to Congress by Article I, Sec. 8, cl. 4, which grants to Congress alone the Power “To establish an uniform Rule of Naturalization”. The President has no constitutional power over immigration & naturalization except to enforce the Acts of Congress respecting those subjects.  Article II, Sec. 3, which imposes upon the President the duty to “take care that the Laws be faithfully executed”, requires the President to enforce such constitutional Acts of Congress. But if Congress refuses to make a law respecting naturalization, a President who enacts it anyway,  via “executive order”, or “administrative regulation”, or “administrative memo” by his underlings in the various executive agencies, is acting lawlessly.  His unlawful acts should be nullified, and he should be removed from office for his usurpation.

b) Congress recently did not pass three sinister and grotesquely unconstitutional bills Obama wanted: “Card check“, “Cap and Trade“, and the Disclose Act.  These bills are unconstitutional as outside the scope of the legislative powers granted by our Constitution to Congress. Nowhere does our Constitution give Congress authority to make laws about labor unions (“card check”), or to regulate carbon emissions – CO², the stuff humans and animals exhale, and plants & trees need for photosynthesis (“cap and trade”), or requiring people with federal contracts to report their personal political activities to the Executive Branch (“Disclose Act”)!

Since Congress may not lawfully make laws on such subjects, no one can. Yet, Obama is circumventing the Constitution and implementing these three failed & unconstitutional bills by agency rulemaking or executive order!:

• The National Labor Relations Board, is implementing “card check” by agency regulation.  Read this.
• The Environmental Protection Agency is implementing “cap and trade” by agency regulation. Read this.
• And it appears that Obama – in furtherance of his “agenda” to reward his supporters and punish non-supporters – is considering signing an executive order to implement the Disclose Act. Read this.

So! Let us sum this up:  The President must always uphold our Constitution. When Congress makes an unconstitutional law, the President must refuse to implement it; and he may, by means of executive orders, instruct people in the Executive Branch not to comply.  E.g., if a President orders the U.S. Attorneys to decline to prosecute persons for possession of sawed-off shotguns, he would be acting lawfully because Congress has no authority to ban them. But the President is violating the Constitution when he implements “card check” by agency rules made by the NLRB; when he implements “cap & trade” by agency rules made by the EPA; and the “Disclose Act” by executive order, because the President and executive agencies (as well as Congress) do not have authority over these objects; and further, no one in the Executive Branch has authority to make “laws”!

What Should we do about illegal Executive Orders & Rules made by Executive Agencies?

A Congress filled with he-men and she-women, instead of ignorant cowards, wusses, and wimps, would impeach obama for his usurpations in signing unconstitutional executive orders, and in circumventing Congress by having executive agencies implement, by means of administrative rules, legislation which Congress did not pass.  In Federalist Paper No. 66 (2nd para), Hamilton expressly states that impeachment is an essential check on a President who encroaches on the powers of Congress; and in Federalist No. 77 (last para), points out that impeachment is the remedy for “abuse of the executive authority”.

But since the people in Congress are too ignorant and weak to rid us of the abomination in the White House, the States and Counties must nullify unconstitutional executive orders and administrative rules, or submit to slavery and the destruction of our Constitutional Republic. Since State and County officials have taken the Oath to support the U.S. Constitution (Art. VI, last cl.), they are bound by Oath to refuse to submit to illegal executive orders and illegal agency rules.

And of course, WE THE PEOPLE and our businesses must also spit on such illegalities by the Executive Branch. Our “creature” (Federalist No. 33, 5th para, Hamilton), has turned into Frankenstein, and has lost all legitimacy. PH

Endnotes:

¹  In Federalist No. 45 (9th para), James Madison, Father of Our Constitution, says,

“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, and the internal order, improvement, and prosperity of the State.” [boldface added]

²  In Federalist No. 48, Madison points out that in our representative republic,

“…the executive magistracy is carefully limited; both in the extent and the duration of its power… (5th para) [i.e., limited & enumerated powers and 4 year terms] …the executive power being restrained within a narrower compass [than that granted to the legislative branch], and being more simple in its nature…” (6th para)

In Federalist No. 75 (3rd para), Hamilton says,

“…The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate…” [boldface added]

In Federalist No. 78 (6th para), Hamilton says,

“…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 … The judiciary … has no influence over … the sword or the purse …and …must ultimately depend upon the aid of the executive arm … for the efficacy of its judgments.” [boldface added].

Read the list of the President’s enumerated powers!  The President’s powers really are “confined” and “carefully limited” to carrying out laws made by Congress and enforcing certain judicial decisions, military defense (a power shared with Congress), appointing officials (subject to Congress’ approval), and entertaining foreign dignitaries. That’s it!

³ Only Congress has the power to declare war (Art. I, Sec. 8, cl. 11)!  See clauses 12-16 showing that Congress has the power to determine the funding for the military, and to make the Rules for the discipline & training of the military and the Militia. The most instructive Federalist No. 69 (6th para) shows that as CINC, the President is merely the first General – the first Admiral.

⁴ Re “Offenses against the United States”: I explain here the criminal laws Our Constitution permits Congress to make.  It’s a short list.  Take note, you federal criminal defense lawyers.

⁵ I explain the treaty making power of the United States in two papers here .

⁶ During the Terri Schiavo case, Alan Keyes spoke on the radio about the constitutional powers of the President.  I seem to recall that Dr. Keyes spoke of the President’s obligation to exercise his “independent judgment” as to whether an act of Congress or a federal court opinion is constitutional. Whatever he said, he opened my eyes, and enabled me to see the elegant beauty and simplicity of our Constitution.

⁷  Hamilton also says in Federalist No. 33 (6^th para):

“…it will not follow…that acts of …[the federal government] which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of … [the States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such… [T]he clause which declares the supremacy of the laws of the Union [Art. VI, cl. 2]…EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION …” [caps are Hamilton’s, boldface mine]

⁸ 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; …” [boldface added]

The President must not collude with the legislative  or judicial branches to usurp power over The People!  He must honor his Oath!

⁹ Most of the existing “federal” executive agencies are unconstitutional.  They meddle in matters which are not the business of the federal government, as power over the matters is not granted by our Constitution to the federal government.  Here are a few of the unconstitutional federal agencies: the Departments of Agriculture, Labor, Health and Human Services, Housing and Urban Development, Energy, Education, Transportation, and Homeland Security.  Likewise for the Environmental Protection Agency, the Federal Communications Commission, the Office of Science and Technology Policy, the Office of National Drug Control Policy,  the National Economic Council, the Small Business Administration, the Council on Environmental Quality, etc., etc., etc.

¹⁰  Progressives have erased the concept of “federalism” from our minds. “Federalism” refers to the form of our government & the division of powers between the national government and the States. A “Federation” (which is what our Constitution creates) is an alliance of independent States associated together in a “confederation” with a national government to which is delegated authority over the States in specifically defined areas ONLY (i.e., the enumerated powers granted to Congress by our Constitution).  Those enumerated powers are the only areas wherein the national government is to have authority over the States.  In all other matters, the States have supremacy, are independent, and sovereign!

Learn more of “federalism” here and here.

Our Framers warned against the consolidation of the sovereign States into one national sovereignty:   In Federalist No. 32 (2nd para), Hamilton writes,

“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention [the Constitution] aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States….” [caps are Hamilton’s; boldface mine]

Federalist No. 62 (5th para) says,

“… the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.  So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.” [boldface mine]

And in Federalist No. 39  (6th para), Madison says,

” ‘But it was not sufficient,’ say the adversaries of the proposed Constitution, ‘for the convention to adhere to the republican form. They ought, with equal care, to have preserved the FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states; instead of which, they have framed a NATIONAL government, which regards the Union as a CONSOLIDATION of the States.’ And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision….” [caps are Madison’s]

Madison then gives a brilliant exposition of the “national” and “federal” aspects of Our Constitution.  More than any other Paper, No. 39 addresses the primary political problem of our Time:  The  destruction of “federalism” by eradicating all vestiges of sovereign & independent States.

We are a trusting People easily lead astray.  Make something sound “patriotic”, and we are all for it.  Since 1892, American public school children have been indoctrinated with the statist Lie that ours is an indivisible national government.  This was done by means of the Pledge of Allegiance:  “….one nation … indivisible…”.  Is it any wonder that the author of this nasty bit of poison, Francis Bellamy, was a socialist who worked with the National Education Association to institute this statist indoctrination into the public schools?  This pernicious pledge is why you don’t know, and no one knows, that our Constitution created a “federation” of sovereign & independent States, united only for the limited purposes enumerated in the Constitution. Wikipedia has good info on Bellamy. PH

August 30, 2011; revised Sept. 23, 2014.