Constitutional Voodoo from Marco Rubio

Sen. Marco Rubio apparently has gotten himself into a little pickle.

You see, the Florida Senator was one of the Republicans who signed onto a bill requiring lawmakers to provide constitutional justification for any legislation filed in Congress. That sounded like a really cool idea at the time. “Conservatives” LOVE that stuff!

Yay Constitution!

But what happens when you want to do something and no constitutional justification exists?

Well, you do what politicians have done since the beginning of time. You make crap up.

That doesn’t always prove easy, as Rubio is finding out. It takes time to conjure up a convincing lie out of thin air. Of course, that never stopped any politician practicing constitutional voodoo to further his agenda through the exercise of federal power – even if that authority doesn’t actually exist. They just call lack of constitutional authority an “inconvenience.”

It seems the Tea Party darling from Florida has a little “inconvenience” on his hands. He needs to reestablish his conservative creds, tattered by his support for immigration reform. What better way to rekindle conservative romance than to play the pro-life card? So, Rubio announced earlier this month that he wants to serve as the lead sponsor on a bill banning abortions after 20 weeks.

But three weeks later…no bill. Why? Well, it seems the Republicans are having a little difficulty agreeing on the enumerated power that authorizes the federal government to legislate on abortion. And I can tell you exactly why they are having this problem.

THE POWER DOESN’T FREAKING EXIST!!!

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Vote on Amash Amendment Reveals Ruse of Two-Party System

For all those who still believe that Republican=Constitutionalist and Democrat=Liberty-hating liberal, something happened on Capitol Hill that might change your mind.

As was reported by The New American, the House of Representatives narrowly defeated an amendment to the defense appropriations sponsored by Republican Congressman Justin Amash (shown) of Michigan and Democratic Congressman John Conyers, also of Michigan.

The Amash Amendment would have revoked authority “for the blanket collection of records under the Patriot Act. It would also bar the NSA and other agencies from using Section 215 of the Patriot Act to collect records, including telephone call records, that pertain to persons who are not subject to an investigation under Section 215” of the Patriot Act.

Despite the threat to the Establishment (or perhaps because of it), Amash’s measure failed by a vote of 205-217.

It’s the identity of the “ayes” and “nays” that tells the rest of the story.

An analysis of the roll call reveals that a majority of Democrats voted in favor of restricting the Obama administration’s wholesale surveillance of Americans, while a majority of the GOP voted to uphold the NSA’s unconstitutional surveillance of all electronic communications.

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A Libertarian Case for the Department of Education

Last week the Rooney-Blansten amendment requiring the federal Common Core curriculum to devote equal time to Republican presidents was narrowly defeated in the U.S. Senate, despite a RealClearPolitics poll showing 87.8921% of the public supported the idea.

I’m a libertarian who writes frequently for the Tenth Amendment Center, and years ago I donated to the Cato Institute. But despite these impeccable credentials, I support a yeasty view of the Constitution and believe it politically expedient to pass federal legislation that ensures Republican politicians receive the same favorable treatment as Franklin D. Roosevelt, Bill Clinton and Barack Obama in any national civics curriculum approved by the federal Department of Education.

Anti-federal supremacists need to refine their priorities, with an eye to keeping moderate Republicans in office. The focus on “federal involvement in education” is wrong-headed and counter-productive, and overlooks the legislatively-mandated benefit (explicitly affirmed in Rooney-Blansten) of having all public schools teach no fewer than 15 positive things each about Richard Nixon, the two Bushes, and even failed Republican presidential candidate Mitt Romney.

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Enemy of the State

In a published FOIA request, an Airman stationed in the UK was investigated after a mental breakdown caused by conflicting values of US military’s mission and her own political beliefs. She was found to sympathize with Bradley Manning, Julian Assange, and Wikileaks. She had admitted to communicating her political ideas with various organizations known for anti-war/anti-military sentiments on Twitter and to a UK journalist. She also attended the Julian Assange Trial. However, her own admission and tweets revealed that she was never asked to release any intelligence to these groups and denied volunteering any intelligence to any journalist or group. The US Airforce Office of Special Investigations filed a complaint report on matters alleging “Communicating with the Enemy.”

The Uniform Code of Military Justice (UCMJ) Article 104: Communicating with the Enemy states:

“Any person who–
(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
(2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly;
shall suffer death or such other punishment as a court-martial or military commission may direct.”

Who is the enemy in this document? Is it Julian Assange? Wikileaks? Journalists? Bloggers? Social media users? Those opposed to an unconstitutional and failed foreign policy? Anti-war organizations? The leaked document does not directly point to any person or organization but acknowledges who the Airman was in contact with and her activities surrounding her political beliefs. But, constitutionally speaking, who gets to determine the enemy?

The Constitution does not provide any structure to determine an enemy. An enemy could be those the US is at war with. Congress has the power to declare war but there is no framework as to what constitutes a declaration of war. In Federalist Paper number 3, it states, “The just causes of war, for the most part, arise either from violation of treaties or from direct violence.”

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Twelfthers?

It is amazing that during Thanksgiving week, there are still some obsessing publicly over the presidential election earlier this month.  A recent article from World Net Daily details how the Electoral College could be prevented from selecting a president.  To add to a Tenther’s list of reasons to be thankful, let’s include no longer being wrapped up in this nonsense.

Technically, Judson Phillips is correct as he outlines the ways in which the Twelfth Amendment can prevent President Obama from serving another term.  In order for the Electoral Votes to be certified, a quorum of two-thirds of the 50 states must participate in the Electoral College.  If seventeen of the twenty-four states can be persuaded to do this, the Electoral College will not have a quorum and will be unable to renew Obama’s lease at 1600 Pennsylvania Avenue.  Phillips calls on readers in what could call dubbed the “Twelfther” movement to contact the Secretaries of State in the states Romney carried and tell them not to participate in the Electoral College in the hopes of denying Democratic states the necessary quorum.

If the Electoral College does not choose a president, the decision constitutionally goes to the Congress, with the Republican-dominated House being likely to choose Romney as president and the enlarged Democrat majority in the Senate reelecting Vice President Joe Biden to his post.  If that happens, what then?

Phillips admits Romney would not be a great president, but he would be better than Obama.  How much better, in terms of results, would a Romney presidency be given the current makeup of Congress?  Let’s explore this.

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Texas Moves To Nullify NDAA

House Bill 149 (LS: 83R) – Texas Liberty Preservation Act.

Website: http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=HB149

HB149 is a Bill introduced in the Texas Legislative Process on Nov. 12, 2012, by its author (Rep. Lyle Larson) and currently sits at stage 1 (filed). The design of the Bill is to nullify portions of the National Defense Authorization Act (NDAA) implemented by the federal law. Specifically, sections 1021 and 1022 are being made invalid and illegal in the State of Texas. You can read the entire bill here: http://www.capitol.state.tx.us/tlodocs/83R/billtext/pdf/HB00149I.pdf#navpanes=0

Section (1) (b) (1) of the Bill lays out the constitutional groundwork of the findings that prompted the bill in the first place. It notes the limitations of the federal government under the 10th Amendment. It read:

(b) The legislature finds that:
(1) The Tenth Amendment to the United States Constitution authorizes the United States federal government to exercise only those powers specifically delegated to it under Article I, Section 8, United States Constitution;

Many people think that whatever the federal government creates as law it is the “supreme law of the land” but that is not true. Often the federal government creates laws that are thrown out because they go beyond the powers delegated to the government in the Constitution. Section (1) (b) (3) of the Bill makes this point eloquently clear. It reads:

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Farm Bill in Limbo, So is the Commerce Clause

Before Congress vacays for most of August, the 2008 Farm Bill will either be extended or replaced by a new 2012 version. One of the great debates to rise from this issue centers around Congressman Steve King’s (R-IA) amendment which nullifies state laws restricting trade with other states on issues of agriculture and food safety. Get this: some progressives are upset about a conservative citing the “power to regulate”! How does that work?

Typically, when a federal legislator invokes the Commerce Clause, some level of chicanery is afoot. Here, however, Steve King may actually have gotten it right. In 2008, California voters passed an initiative that in 2014 begins stricter regulations on egg production within the state as well as demanding the same level of animal protection from the other 49. The second half of that authority is what King recognizes as a violation of the Commerce Clause.

From steveking.house.gov:

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Who Voted Against the Constitution – Again?

In Who Voted Against the Constitution, we saw which of Pennsylvania’s Washington contingent voted for the unconstitutional provisions in the Patriot Act.

This post updates that information with another column to record how our legislators feel about the indefinite detention provisions in HR1540, the National Defense Authorization Act of 2012. The next-to-last column is the legislator’s vote for or against the Patriot Act, and the last column is the legislator’s vote for or against the 2012 NDAA.

Entries in red voted in favor of both acts. Entries in orange voted in favor of one, and entries in green voted against both.

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Leaving No Child Left Behind Behind

Though it expired in 2008, No Child Left Behind, the sweeping Bush-era education act that was passed in 2001 is still in effect, because federal lawmakers won’t just let it die.

“It’s time for it to go,” says Rep. Linden Bateman, R-Idaho Falls who believes that the law has forced educators to teach to a test and ignore other subjects, while unfairly labeling schools as “failing.” “It’s provided completely unrealistic expectations.”

HOUSE JOINT MEMORIAL NO.8 (2012) – No child left behind/request repeal per Rep. Bateman is a nonbinding and toothless resolution. Still, his position puts him at odds with the state’s education department, which wants to see the act re-authorized.

The question should be whether the federal government had the authority to enact the law in the first place. A cursory reading of the U.S. Constitution will not reveal the ‘educational clause’ or anything else to justify the Department of Education, or any laws that would mandate virtually unfunded educational requirements  placed on the States. So, if the federal government does not have the authority to do something, do they have the authority make others do it? Can you appropriate moneys for something you don’t have the authority to do so that you can ‘bribe’ others to do it?

“I’ve read the Constitution 100 times,” Bateman says. “I can’t see even a slight mention … that gives the feds any power in the field of education.” [The Constitution] does not say that the Federal government supersedes State laws and customs… instead, in that document’s own 10th Amendment, it states 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”

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Utah Bill Would Take Ownership of Federal Lands

The Utah bill H.B. 511 titled Eminent Domain of Federal Land was introduced February 27 and on March 2 it was submitted to Rules Committee.

As stated:
This bill authorizes a political subdivision to exercise eminent domain authority on property possessed by the federal government unless the property was acquired by the federal government with the consent of the Legislature and in accordance with the United States Constitution Article I, Section 8, Clause 17.

To the point this bill would require that the federal government turn over to the state all lands within the boundaries of the state of Utah that are presently under its control unless the state of Utah had deeded that land to them.

Now here is where it gets interesting:
As required by legislative rule and practice, the Office of Legislative Research and General Counsel provides the following legislative review note to assist the Legislature in making its own determination as to the constitutionality of the bill.

They have stated that:
Two clauses in the U.S. Constitution empower the federal government to own and retain land.  The first, the Enclave Clause, authorizes the federal government to “purchas[e] by the Consent of the Legislature of the State” land for specific and enumerated purposes like military structures “and other needful Buildings.” U.S. Const. art. I, sec. 8, cl. 17. This bill would not affect lands acquired by the federal government in accordance with the Enclave Clause.

The second, the “Property Clause,” authorizes Congress “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…” U.S. Const. art. IV, sec. 3, cl. 2. Unlike the Enclave Clause, the Property Clause does not require that the federal government receive a state legislature’s consent to own land. The U.S. Supreme Court has held that “Congress has the same power over [territory] as over any other property belonging to the United States; and this power is vested in Congress without limitation…”

Parties contesting federal control or ownership of public lands under the Property Clause have argued that the equal footing doctrine requires Congress’ recognition of a state’s sovereignty over public lands. “The equal footing doctrine is grounded in the idea that new states enter the Union with the same rights as the original states.” Koch v. United States, DOI, Interior Bd. Of Land Appeals, BLM, 47 F.3d 1015, 1018 (10th Cir. 1995) (citations omitted). The courts, however, have limited the equal footing doctrine to apply only to the title of land underlying navigable waters: “The equal footing doctrine simply does not cause land in non-navigable waters to pass from the federal government to the state.” Id. at 1019. See also Texas v. Louisiana, 410 U.S. 702, 713 (1973). Furthermore, the equal footing doctrine requires political, not economic or geographic, equality between the states. United States v. Texas, 339 U.S. 707, 716 (1950). See also Texas v. Louisiana, 410 U.S. at 713.

So, basically according to the Supreme Court if you are not one of the original 13 states the federal government can do what it wishes with the land that it has refused to turn over when the territory became a state. Who would have ever though that the Supreme Court made up of 9  federal employees, nominated by the President confirmed for life by the Senate would ever side with the federal government?

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