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USA: Imperial Presidency

Matthew Spalding, Ph.D.
June 22, 2012 at 9:06 am

The United States was born when rebellious colonists declared their independence from an imperial ruler who had vastly overstepped his bounds. “The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States,” they wrote in their Declaration of Independence.

Today’s presidency lacks the regal air of George III. But imperialism is back, in a big way.

Last week, the Obama Administration’s Department of Homeland Security issued a memorandum instructing U.S. immigration officials to use their “prosecutorial discretion” to create a policy scheme contrary to existing law, designed to implement legislation that Congress hasn’t passed.

The President himself has admitted he doesn’t have the authority to do this. “The idea of doing things on my own is very tempting, I promise you, not just on immigration reform. But that’s not how our system works,” he told Hispanic activists last year. “That’s not how our democracy functions.”

Indeed.

We can now see before us a persistent pattern of disregard for the powers of the legislative branch in favor of administrative decision-making without—and often in spite of—congressional action.  This violates the spirit—and potentially the letter—of the Constitution’s separation of the legislative and executive powers of Congress and the President.

Examples abound:

  • Even though the Democrat-controlled Senate rejected the President’s cap-and-trade plan, his Environmental Protection Agency classified carbon dioxide, the compound that sustains vegetative life, as a pollutant so that it could regulate it under the Clean Air Act.
  • After the Employee Free Choice Act—designed to bolster labor unions’ dwindling membership rolls—was defeated by Congress, the National Labor Relations Board announced a rule that would implement “snap elections” for union representation, limiting employers’ abilities to make their case to workers and virtually guaranteeing a higher rate of unionization at the expense of workplace democracy.
  • After an Internet regulation proposal failed to make it through Congress, the Federal Communications Commission announced that it would regulate the Web anyway, even despite a federal court’s ruling that it had no authority to do so.
  • Although Congress consistently has barred the Department of Education from getting involved in curriculum matters, the Administration has offered waivers for the No Child Left Behind law in exchange for states adopting national education standards, all without congressional authorization.

Likewise, the Administration has often simply refused to enforce laws duly enacted by Congress:

  • Since it objects to existing federal immigration laws, the Administration has decided to apply those laws selectively and actively prevent the state (like Arizona) from enforcing those laws themselves.
  • Rather than push Congress to repeal federal laws against marijuana use, the Department of Justice (DOJ) simply decided it would no longer enforce those laws.
  • DOJ also has announced that it would stop enforcing the Defense of Marriage Act or defending it from legal challenge rather than seeking legislative recourse.

On Tuesday, the President invoked executive privilege to avoid handing over some 1,300 documents in an ongoing Congressional investigation.  The Supreme Court has held that executive privilege cannot be invoked to shield wrongdoing.  Is that what’s happening in this case? “Congress needs to get to the bottom of that question to prevent an illegal invocation of executive privilege and further abuses of power. That will require an index of the withheld documents and an explanation of why each of them is covered by executive privilege—and more,” Heritage legal scholar Todd Gaziano writes.

Earlier this year the President crossed the threshold of constitutionality when he gave “recess appointments” to four officials who were subject to Senate confirmation, even though the Senate wasn’t in recess. Gaziano wrote at the time that such appointments “would render the Senate’s advice and consent role to normal appointments almost meaningless. It is a grave constitutional wrong.”

There is no telling where such disregard may go next, but the trend is clear, and it leads further and further away from the constitutional rule of law.

The President has unique and powerful responsibilities in our constitutional system as chief executive officer, head of state, and commander in chief. Those powers do not include the authority to make laws or to decide which laws to enforce and which to ignore. The President – like judges or Members of Congress – takes an oath to uphold the Constitution in carrying out the responsibilities of his office.

Indeed, the President takes a unique oath, pledging he “shall faithfully execute the Office of President of the United States” and “preserve, protect and defend the Constitution of the United States.” We don’t need a new Declaration of Independence, but we do need a President who will defend and vigorously exert his or her legitimate powers, recognizing that those powers are not arbitrary or unlimited.

Dr. Matthew Spalding is the Vice President for American Studies and Director of the B. Kenneth Simon Center for Principles and Politics at The Heritage Foundation. He is also the author of We Still Hold These Truths.

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Shredding the Constitution

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By Janet Levy

The U.S. Constitution, which has guided American society for over two centuries, inspiring nations worldwide and serving as a model for governance, is under serious threat today.  Ironically, that threat comes from the very individuals charged with protecting the Constitution — federal, state, and local government officials.

All these public officials take an oath to support the Constitution and to refrain from actions or laws that interfere with individual rights and liberties specified in the Constitution.  Yet President Obama and officials all along the way down to local police chiefs are today actively engaged in the daily shredding of the U.S. Constitution.

The Obama administration has expanded its executive branch powers under a comprehensive czar system and myriad executive orders.  Meanwhile, Congress quietly passes questionable legislation with the potential to limit personal freedoms — and U.S. agencies, such as the Department of Homeland Security (DHS) and the Department of Justice (DOJ), engage in activities that raise serious concerns about constitutional violations.  Even local law enforcement officials have become increasingly intrusive and hostile to civil liberties.

Several dramatic examples illustrate this growing problem and highlight the need for increased vigilance and public scrutiny if we are to remain a constitutional republic with our individual rights intact.

Obama Administration

Obama has established a precedent of not working with legislators from both parties to pass congressional bills, instead resorting to changing laws and policies through executive fiat.  With over 40 czars controlling various functions, he has structured a second tier of unaccountable government officials that operate behind the scenes away from the glare of public scrutiny.  This shadow government undermines Congress, the people’s representatives, and the Cabinet secretaries who undergo a Senate vetting process.  It subverts the foundational principle of government by representation for government by proxy.

A dramatic example is the Council of Governors, established in January 2010 when Obama signed Executive Order 13528.  The stated intent was to solidify the relationship between the federal and state governments and protect the nation.  State governors representing ten FEMA regions in the United States were appointed and serve at the pleasure of the president to “represent the Nation as a whole.”  Their duties include “reviewing matters related to the National Guard of the various states, homeland defense, synchronization and integration of State and Federal military activities in the United States[.]”

Also on board are the secretaries of defense and homeland security, the U.S. Northern Command commander, the commandant of the Coast Guard, the chief of the National Guard, and other federal officials.  The secretary of defense designates an executive director.

One small problem: the Council in effect ignores the 1878 Posse Comitatus Act, a law that bars the military from exercising domestic police powers.  The Council’s existence also erodes the power of the states and their ability to control their militias.

Meanwhile, on Friday afternoon, March 16, with little fanfare, Obama issued another executive order, the National Defense Resources Preparedness Order.  In this one, he granted himself absolute power over all American resources during times of peace and national emergency, including food, water, livestock, plants, energy, health resources, transportation, and construction material — all without the consent of Congress and the American people.  Although this represented an amendment to an existing order, the new phrase, “under both emergency and non-emergency conditions,” fueled speculation that the new order could allow peacetime martial law.

As for who has the authority to declare war, the Obama administration apparently believes that it has no need to consult Congress, although the power to declare war is clearly enumerated to Congress in the U.S. Constitution.  In March, Defense Secretary Leon Panetta denied any need for Congressional involvement and explained that the administration would instead seek permission from NATO and the U.N. for an “international legal basis” to commit U.S. troops abroad.  This, despite the fact that our country’s founders clearly specified that only Congress shall declare war so that the People could be closely involved in a decision that could gravely impact their lives.

Congress

Congress, meanwhile, in February passed the Federal Restricted Buildings and Grounds Improvement Act of 2011.  Signed into law by President Obama in March, the act empowers the Secret Service to designate areas in which free speech, association, and redress of government grievances are prohibited, even temporarily for specific events or if individuals are attending who are protected by Secret Service.  Under the Act, anyone who congregates in a restricted area may be prosecuted and, if found guilty, imprisoned for up to ten years.  In other words, Secret Service agents may decide where to create “no free speech zones” in which protests may be banned and protestors subject to arrest.  This constitutes blatant government suppression of speech.

Also in February, Congress passed a $63-billion FAA appropriations bill, H.R. 658, that could result in up to 30,000 unmanned aerial vehicles surveilling the United States by the end of the decade.  The bill authorizes the government to fly across the country conducting warrantless aerial searches but fails to address serious privacy issues raised by the drones.  These unmanned aircraft have sensitive surveillance technology to see, hear and record, including GPS, high-power zooming, infrared, ultraviolet, and see-through capabilities.

Federal Departments

Also involved with drones is the Department of Homeland Security (DHS), currently building its drone fleet for deployment along U.S. borders, allegedly to curtail the flow of human trafficking, weapons, and contraband.  This stated use for DHS drones seems suspect in light of a recent DHS order for an unprecedented 450 million rounds of hollow-point ammunition.  As has been demonstrated in Afghanistan and Pakistan, drones are capable of being weaponized and also hacked and captured by opposition forces.  All of this deserves heightened concern in light of the ill-fated Fast and Furious operation, in which the Bureau of Alcohol, Tobacco, Firearms and Explosives, under the supervision of the Holder Justice Department, put weapons into the hands of Mexico’s narco-terrorists and then lost track of the firearms.  The guns were linked to crimes, including the murder of a U.S. Border Patrol agent.

Further, recent policies belie the stated purpose for employing drones.  The Justice Department is suing Arizona, Alabama, South Carolina, Georgia, and Utah for upholding immigration laws that are mirror-images of federal illegal immigration statutes, and the DHS is blocking deportation of illegal immigrants.  Meanwhile, Obama signed an executive order to stop the automatic deportation of illegal aliens.

Local Government

On the local government level, the New York police department is testing gun detection technology with a scanner placed on police vehicles to reveal concealed weapons.  This could constitute a violation of Second Amendment rights to bear arms as well as a challenge to the 4th Amendment, which prohibits illegal search and seizure.  Broad use of this new technology represents a trespass on personal property for information-gathering when a reasonable expectation of privacy exists and law enforcement lacks a judicially sanctioned warrant, which would check police power.

Police have also stepped up their attacks against the First Amendment right to religious expression.  In May 2010, when junior high school students from an Arizona Christian academy visited the U.S. Supreme Court on a field trip and stopped to pray outside the building, a police officer abruptly interrupted their prayers and ordered the group to stop.  The students were told they were violating the law.  Later, a public information officer for the court stated that no policy prohibits prayer.

In Dearborn, Michigan, in June, 2010, a pastor and two lay Christians were arrested outside an Arab festival, under the pretense that they were blocking a tent entrance, creating a public danger, and “screaming into a crowd.”  Video footage of the event clearly showed that this was untrue.  Last year, an assistant evangelical pastor from a Southern California church and two church members were arrested by the California Highway Patrol for reading the Bible outside a DMV office to those waiting in line almost an hour before opening time.  Although the Christians were 50 feet away from the entrance, they were cited for “impeding an open business.”

On an individual basis, any of the above orders, laws, and actions might seem innocuous and make concerns over government usurpation and abuse of power seem exaggerated and unsubstantiated.  However, taken collectively, they represent an alarming trend of a small and steady overthrow of our constitutional guarantees and liberties by elected representatives and unelected government officials.

At a time when the president is using the EPA to limit access to vital energy resources and to impinge on private property rights and has instituted an unpopular, unprecedented mandate to purchase government health care under threat of legal action, the fight for constitutional restraint couldn’t be more critical.  If Americans can be ordered to purchase health care and prohibited from the free and clear use of their private property, where does it end?  Are our rights, guaranteed under the U.S. Constitution and the Bill of Rights, safe?

The Constitution’s unprecedented fundamentals — separation of powers among the three branches of government with its enumerated powers and checks and balances, the principle of limited government and the concept of a government that exists solely to represent the interests of the governed — were exquisitely designed to protect the natural liberties of the people and prevent government tyranny.  The Bill of Rights, the first ten amendments to the Constitution, guarantees specific personal freedoms, limits the government’s power in judicial proceedings, and reserves all unspecified power for the states.  The time to reaffirm and reinvigorate these constitutional principles, to limit government power, and to preserve individual liberties is now.

Read more: American Thinker

National Hispanic GOP Group Announces Immigration Solution

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March 10, 2011 | by HS News Staff

SOMOS REPUBLICANS is the largest conservative Hispanic Republican grassroots organization in the country committed to promoting positive, principled conservative solutions that confront our community and the nation today. We are happy to announce our 12 Steps to Securing Our Borders and Legal Immigration Plan.  We are sharing and delivering our plan to everyone with emphasis given to our church leaders, business leaders, all Congressmen, Senators and the President of the United States.

A healthy and legal immigration solution will secure our borders, create a safer North American Continent and promote a stronger relationship with our contiguous neighbors.  Enforcement-only initiatives promote a situation that emulates the failed days of Prohibition, which serves only to encourage the underground labor market.  Our government needs the additional tax revenues that new immigrants generate in order to sustain the burgeoning entitlement programs baby boomers require as they continue to retire.  By developing a reasonable legal immigration plan, we create a system where immigrants share American tax burdens as they continue to contribute millions of dollars into our tax coffers.  New immigrants sharing our tax burdens will help discourage our government from increasing taxes, because under the current system these entitlement programs will drain all federal revenues within 15 years.

Our 12 point plan addresses securing our borders, fixing the immigration system, developing a process for legal immigrants to enter, demand for labor, the D.R.E.A.M Act, sustaining international trade relationships, and employer sanctions that will assuredly be implemented by the current Congress.

12 Steps to Securing Our Borders and Legal Immigration

Authored by DeeDee Garcia Blase, Alex Gonzalez and Joe Penalosa

1.    BORDER SECURITY:  The preservation of our national security must be the paramount objective of the immigration policy of the United States.  At least 5,000 additional border patrol agents should be added on the border between the United States and Mexico and an additional 10,000 border patrol agents should be assigned to duty on the North border. In addition, the Department of Homeland Security (DHS) should work in conjunction with the Drug Enforcement Agency (DEA) to take appropriate measures, including the addition of drug and bomb sniffing canine units that will deter drug activities.

2.    PROCESSING APPLICATION FEES:  The creation of a path to citizenship for undocumented persons should not increase the bureaucracy in Washington or add to the already heavy burdens on the American taxpayer.  All applications for legal status by undocumented immigrants should be processed as efficiently as possible and all expenses in connection with the processing of such applications, including background checks, should be borne by the applicant in the amount of $500.00

3.    OFFENSE FINE: There is no right that we Americans hold more dearly than the privilege of calling ourselves citizens of the United States.  We do not advocate amnesty, therefore, undocumented individuals should be required to pay a fine as a civil penalty (not to exceed $1,500 per person of $5,000 per family) for entering in the country illegally and after a background check clearance has been carried out.

4.      REGISTRATION: Upon enactment, undocumented persons must register with the DHS for background check, and wait until the border is certified as “secure” by DHS in order to trigger legalization. Persons should be given the opportunity to remain in the United States as residents with a temporary legal status

5.    REGULARIZATION PROCESS: Upon certification, undocumented immigrants who satisfy the requirements for temporary legal status with moral character and no criminal record will enter into a six year program before becoming citizens of the United States.  No participants in the program shall be entitled to receive any federal government assistance while they are in the program which will consist of three phases.

6.    PAYING BACK TAXES: Undocumented immigrants must apply for a Social Security Number from the IRS and pay any income taxes owed.  We recognize that undocumented immigrants contribute to the system by paying state and federal sales, use and excise taxes.

7.    ASSIMILATION AND MANDATORY ENGLISH EDUCATION: Undocumented immigrants who are qualified to enter the Regularization Process shall be required to take courses in English and Civics as a condition to obtain a certificate of completion for citizenship.  The hours of study should be twice the amount to what the Reagan Administration had proposed as part of immigration legislation championed by the President in the 1980s.

8.    THE U.S. LABOR MARKET / AG JOBS / D.R.E.A.M. ACT: Individuals who satisfy all of the requirements of the Regularization Process shall become permanent legal residents of the United States.  Depending upon the labor demands, the DHS can begin the Green Card process if employment levels are 5% or below.  If the national unemployment levels are greater than 6%, the DHS will only process those (a) undocumented immigrants working in unskilled industries where the demand for their labor remains very high such as the case in the agricultural and hospitality sectors, (b) highly skilled workers in competitive industries where demand cannot be satisfied by the existing population of legal residents of the United States and (c) individuals who complete or have previously completed four (4) years of service in the United States Armed Forces. Individuals not satisfying such criteria would be granted a two year extension of the Regularization Process status.

9.    GUEST WORKER PROGRAM:  The adoption of a guest worker program would permit individuals registering with DHS to legally enter into the United States to work in states whose governors, or other legally authorized persons, certify that demand for labor cannot be satisfied by existing populations of legal residents will strengthen the economy.  The number of workers admitted to such a program would depend on the demand levels identified by the States, and can suspend the program in the event that the national unemployment rate exceeds certain levels.

10.  H-1 VISAS:  At a bare minimum, the number of H-1 Visas issued in any given year should be increased from their insufficient current maximum of 85,000 to at least 200,000.  The H-1 Visa program should be revamped to cut unnecessary red tape out of the process and take into account the aging baby boomer population which has resulted in a shortage of labor in the fields of education, science and math.

11.    TARGETING CIRCUMVENTING CRIMINALS (TCC) / E-VERIFICATION: Although cooperation between state and federal law enforcement officers is essential to the protection of our borders, Section 287(g) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) has not provided a proper framework for the establishment of cooperation between state and federal law enforcement officers, this despite the fact that the costs of the administration of the 287(g) program sky-rocketed from $5 million in 2006 to $55 million in 2010. According to a report by DHS, the 287(g) enactment does not require sufficient focus on the identification and deportation of that small percentage of undocumented immigrants guilty of violent criminal offenses.  The ineffectiveness of the 287(g) program has resulted in an epidemic of states seeking to usurp federal authority by taking immigration matters into their own hands and adopting misguided legislation, most notably in Arizona, that unfairly scapegoat immigrants.  We need to get smart and concentrate on training and supervision that will focus on circumventing criminals that wish to do us real harm. Congress should consider replacing most of 287(g) resources with a national E-verification program that will discourage future illegal immigration only “after” Congress passes a reasonable immigration solution where the Electronic employment eligibility verification would not immerse America’s workers and business in burdensome bureaucracy and avoid eroding the freedoms of the American citizen.

12.  FREER TRADE RELATIONS FOR SAFER NORTH AMERICAN CONTINENT: The United States should continue honoring trade agreements, such as NAFTA, so that we do not undermine the stability of the economies and our relationships with our neighbors.

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Alaska: Escopeta Reports Massive Gas Discovery in Cook Inlet

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Escopeta Oil Company LLC, a Houston-based independent, has discovered what it estimates to be 3.5 trillion cubic feet (99 billion cubic metres) of natural gas at a prospect in southern Alaska’s Cook Inlet, a company official said on Saturday.

The estimate is based on results of a single well and represents in-place reserves, not recoverable reserves, said Bruce Webb, a company vice president in Alaska. “Usually the recoverable reserves are somewhere in the neighborhood of 50 to 80 percent of gas in place,” he said.

The discovery, at the offshore Kitchen Lights unit, appears to be the biggest in 25 years in Cook Inlet, said Escopeta, which is privately held. The basin is Alaska’s oldest producing oil and gas region, with production dating back to the 1950s, and it supplies natural gas mostly to regional markets in and around Anchorage.

Webb said Escopeta plans further exploration drilling, through at least 2014, and will also test deeper oil-prone levels.

Escopeta’s well was drilled from a jack-up rig that the company shipped to Alaska on a foreign-flagged vessel, in violation of federal maritime law. Escopeta had hoped to win a Jones Act waiver from the U.S. Department of Homeland Security while the rig was in transit, but that did not materialize, Webb said.

For its Jones Act violation, Escopeta faces a $15 million fine assessed last month by the Department of Homeland Security, he said. “We rolled the dice and took the chance. It didn’t work out. So now we’re subject to the penalty,” he said.

The company hopes to convince the department to reduce the fine, he said.

By Yereth Rosen (Reuters)

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