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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The King and I

To the dismay of many Americans, President Obama has delayed implementation of Obamacare another year, or at least the employer mandate. Never mind the fact that the entire law needs to be postponed indefinitely, and truly should be repealed, King Obama has decreed he is granting special favor to businesses nationwide, which will coincidentally help Democrats in mid-term elections next year.

Why is the king granting this special dispensation?

Because he can.

When Obamacare was voted into law, it gave the president unprecedented powers to control its implementation. This special dispensation is a major blow to freedom and liberty.

This comes as no surprise, considering that this is not the only time the president has been given sweeping authority. The National Defense Authorization Act of 2012 handed over tyrannical powers to our king…oops, president. This precedent of relinquishing or ceding power to the president needs to stop!

Where’s the Proof?

Taken directly from the NDAA 2012:

SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

(a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

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Obama Wants Us to Trust Him

BALANCE“If people can’t trust not only the executive branch, but also don’t trust Congress, and don’t trust federal judges, to make sure that we’re abiding by the Constitution with due process and rule of law, then we’re going to have some problems here.” Obama added that the National Security agents behind the surveillance programs “cherish our Constitution…You can shout Big Brother or program run amok, but if you actually look at the details, I think we’ve struck the right balance,” he explained.

I actually felt a sense of relief when I read Obama’s statement. Finally, he gets it. We don’t trust him, or Congress, or the political appointees we loosely call federal judges. I can’t think of a single reason to place my faith in any of them.

Can you?

In my lifetime, the last executive I felt willing to trust was Kennedy.

And I was three.

I may have been taken in!

Look, we shouldn’t trust these people. And history bears this out.

Take Lyndon Johnson and his winking Congress. They led us into the undeclared Vietnam catastrophe. Did you know that the Viet Cong were quite comfortable ignoring the Geneva Convention because we didn’t formally declare war? As a result, U.S. POWs could be classified as political criminals…and tortured.

And of course, we were all disgusted with Nixon’s betrayal of the country in the Watergate affair. But like jailing Capone for tax evasion, we hardly nailed Nixon’s greatest crime. Under his leadership, supported by Congress, and repeatedly upheld by our courts, the shredding of the Fourth Amendment became a federal past-time. Thanks to the criminalization of drugs, policing shifted from community service to community intimidation. RICO laws sank to IRS levels, eliminating due process. Suddenly, property could be taken from an individual just on the suspicion of wrongdoing – no conviction required. DUI checkpoints, once illegal, became commonplace. Prior to that, police had to observe driving behavior and have probable cause in order to stop you. Oh, and if pulled over, our automobiles used to be safe from police searches under the Fourth Amendment. No longer. All thanks to the War on Drugs.

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Give ‘Em an Inch

Operating pretty much in the shadows, the Foreign Intelligence Surveillance Court (FISA Court) has issued a series of rulings vastly expanding National Security Agency power.

The New York Times reports that the secret court has issued hundreds of rulings creating a vast body of law empowering the NSA to gather all kinds of data on Americans. The FISA Court initially limited itself primarily to approving wiretaps in foreign intelligence investigations. But the court has gradually taken on a much broader role, even assessing and ruling on broad constitutional issues. According to the Times, the FISA Court has gone as far as carving out an exception to the Fourth Amendment.

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

Ever since Truman decided in 1946 that intelligence gathering is a civilian, peacetime activity rather than one restricted to wartime, we’ve quietly succumbed to a creeping loss of Fourth Amendment rights. I keep thinking of the old Steve McQueen movie, “The Blob”. The Blob was a slow-moving, gooey…well, blob. The unwary that merely touched the creature would be inexorably sucked in and consumed. Sort of a mobile La Brea tar pit. So goes the federal government. Give ‘em and inch, they’ll take a mile. Perhaps two.

In this case, we see court-creep. In 1989, the Supreme Court allowed drug testing of railroad workers, reasoning the “minimal intrusion” on privacy was outweighed by the need to keep people safe.  Who can argue with keeping drugged up engineers from running trains, right? Fast forward 24 years and we have a super-secret court building on the precedent to allow the NSA to gather up every American’s phone calls and Internet data. Of course there were in-between stretches of that 1989 ruling. There were airport security checkpoints and DUI roadblocks. That raised some eyebrows, but really – it was just to keep us safe.

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Should ALL laws be enforced? Madison said NO!

In a day and age when the federal government is despised, out-of-control and has so many laws on the books that it makes your head spin, there is at least one ‘conservative’ who is concerned that the federal government isn’t dishing out enough law and order.

In a recent post at the conservative legal blog Volokh Conspiracy, Todd Zywicki finds it appalling that the Department of Justice is celebrating the fact that the Defense of Marriage Act was declared unconstitutional by the Supreme Court. He doesn’t feel this way because of his opinion on DOMA, but rather he is concerned that the law is being disrespected by the Obama administration.

“I am clearly not alone in being concerned about the unwillingness of state and federal officials to defend the duly-enacted laws of their states. Indeed, refusing to defend the law and acquiescing in an adverse judgment against it seems tantamount to a retroactive veto by the Executive Branch. If Eric Holder is ‘delighted’ that the law is invalid, wouldn’t the appropriate response in our system of government be for the President to propose the repeal of the law with which he disagrees, rather than effectively retroactively vetoing it?”

Zywicki has a point about the law being disrespected by the Obama administration. From drone murders, to illegal surveillance, to arming drug gangs as a pretense to curtail gun rights, to funding Islamic extremist dictators, the Obama administration has made a complete mockery of the rule of law in America. But the recent DOMA ruling isn’t the case to complain about. Whether you support the decision or not, the idea of state non-compliance with federal laws shouldn’t be on trial here. The problem with our country clearly isn’t the fact that too many states have rebelled against the edicts of the federal government. On the contrary, it has been the states routinely jumping into the federal snake pit that has gotten us into this mess.

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Dreaming of Shutdown

Recently, I saw an article written by a former White House drone Robert Reich. His points were the usual dribble. But I thought it might be fun to reply.

In his opening shot, he says “conservative Republicans” have shut down Congress.

Really? Is Congress shut down? It seems to be meeting and continuing its attempts to garner more power for itself. Obamacare, disarming the people, groping the people, spying on the people, taxing the people into poverty, using the IRS as a control mechanism to keep the people in line – the list goes on.

Do you see a shut down? I sure don’t. Frankly, a shutdown would be a nice change. Imagine that: no government regulations handed down from on high. The idea of a shutdown might cause some Americans to cringe in horror, but not so for some of us. The tide would still come in, the earth would still spin, and without Congress pulling, the clouds would still roll by. We would keep right on breathing  -  maybe more easily!

But I must get back on topic here and address more silliness I see in the scribbling before me.

In his article, he laments that states are passing more and more legislation locally. That is by design. The states are sovereign, and should indeed be producing laws and regulations according to their own citizens’ needs and desires. If the citizens of Vermont want local school boards to decide on curriculum for their children, that is their business. If the citizens of Utah elect representatives to delete any need for conceal carry permits, that is their business. If the citizens of Arizona want to defend the international border they have by rounding up law-breaking aliens and sending them back to the country they came from, it isn’t the business of the busybodies in DC.

Mr. “big government is good” seems to have a problem with the idea that the states created the federal government. They are OUR servant. The states agreed to give only very limited powers to the federal government, and to abide by a broad set of principles. They did not agree to acquiesce to the demands of a far distant and greedy central government.

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Clash of Intrastate and Interstate Commerce in Los Angeles

Once again, the nine robed federal employees filling seats at the Supreme Court failed to check constantly expanding federal power.

The feds have tried to unconstitutionally regulate intrastate commerce in many ways through agencies under the purview of the executive branch. Using a several different alphabet agencies, they have maintained  bans on hemp and marijuana, and even regulated food, environmental conditions and  firearms within the borders of individual states.

While the Constitution delegates power to the federal government for regulation of interstate commerce – trade crossing state lines – the federal government was never intended to interfere with economic activity confined within the borders of the state.

On June 13, the Supreme Court rubber stamped this unconstitutional exercise of federal power, concluding federal acts override state and local laws.

In 1997, the Port of Los Angeles (“the Port”) introduced a plan to expand its cargo terminals to better accommodate its high shipping volume. Following public concern that the plan could significantly increase air pollution, the Board of Harbor Commissioners adopted a Clean Air Action Plan (“CAAP”). The CAAP aimed to reduce emissions and specifically targeted the Port’s drayage truck business. Roughly 16,000 drayage trucks regularly serve the Port, transporting goods between customers and the cargo terminals. Beginning in 2008, the CAAP banned drayage trucks from the Port, unless the carriers entered into a series of concession agreements. These agreements imposed a progressive ban on older trucks and provided incentives for drayage truck operators to convert their aging fleets to cleaner trucks.

American Trucking Associations (“ATA”), a national association of motor carriers, challenged several provisions within the concession agreements and brought suit against the City of Los Angeles and its Harbor Department. ATA argued that the Federal Aviation Administration Authorization Act (“FAAA”) preempted the agreements. The FAAA Act prohibits a state from enacting any regulation related to the “price, route, or service of any motor carrier.” ATA claimed that the concession agreements amounted to such a regulation. ATA further argued that the State could not limit a federally licensed motor carrier’s access to a port.”

The FAAA legitimately preempts state and local laws when regulating commerce in such places as ports, where interstate and foreign commerce takes place. However, off-site parking falls under to state and local authority and not federal regulation. But the Supremes opined that since neither California nor the city of Los Angeles ever had a problem with FAAA regulating things just outside the port before, well, then it’s just fine and dandy for the feds to regulate it under the FAAA now. Therefore, the strict regulations imposed by the state of California and the city of Los Angeles are now null and void under this ruling. Not only that, the FAAA can stop a city or state from preventing trucks access to a port based on consignments of statute all across the U.S.

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Federal Court Decides: Federal Rangers Supreme

In a move that would make Joseph Story and John Marshall rise from their graves and offer him high-fives, 10th Circuit Judge David Nuffer made himself the sole arbiter of federal and state powers, ruling last Friday that federal park rangers’ authority supersedes that of the State of Utah in matters concerning local law.nuffer

Gov. Gary Herbert signed  HB155, on April 3. The new law prohibits federal Land Management officers from acting as agents of state and local law by “limiting the authority of specified federal employees to exercise law enforcement authority within Utah.” The bill came in response to officers of the Forestry Service taking it upon themselves to administer local traffic laws, making such unauthorized actions class-B misdemeanors; punishable by a $1,000 fine and six months in jail.

We don’t want Utah citizens going before a federal magistrate for a speeding ticket,” said Utah AG Swallow, in the AG’s press release on May 13. “Federal officers should be enforcing federal laws and state and local officers should be enforcing state and local laws. We are concerned about the federal government once again encroaching on states rights and we will vigorously defend the constitutionality of HB 155.[Emphasis added.]

Federal attorneys promptly sued, and on May 13th, Nuffer granted a temporary injunction, stopping the law from taking effect. Last Friday’s ruling extends the injunction until the issue is settled at trial.

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Federal Laws: To Infinity and Beyond!

How many federal laws are on the books?  500?  1,000?  5,000?  Go ahead, take a guess.

Give up?

Yeah, well, so does the Library of Congress.  In an attempt to answer the frequent question of how many federal laws there are, Senior Legal Research Specialist Shameema Rahman recently reported that “trying to tally this number is nearly impossible.”  Well, that’s great.  Congress has officially passed so many laws that their own repository of documentation can’t even keep track of them all.

As it turns out, the federal government hasn’t been able to keep track of their own laws for quite some time.  Rahman reports that, “in an example of a failed attempt to tally up the number of laws on a specific subject area, in 1982 the Justice Department tried to determine the total number of criminal laws. In a project that lasted two years, the Department compiled a list of approximately 3,000 criminal offenses.”

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Is Obamacare on Life Support?

Remember a couple of months ago when the Obama administration sent letters to four states promising to use federal agents to enforce Obamacare if the states failed to?  Well, it appears that smug arrogance may have been a bit premature.

Reuters reported last month that many of the Affordable Care Act’s supporters are getting concerned that the states are not doing enough to support the legislation and that, without their help, enough people may not sign up.  It turns out that there is good cause for these concerns because “most states have balked at the exchanges and the Medicaid expansion.”  The exchanges are the infrastructure on which Obamacare is built and the states’ refusal to create them has created complexity for the federal government’s efforts to implement it.

Talking about the federal government’s limited ability to advertise the program, one advocate said, “It’s going to require a very robust effort in the private sector.”  The expectation of this would appear to be an unwarranted exercise in optimism given the fact that the public “is highly skeptical…about the most complex social legislation since…the mid-1960s.”  A recent poll shows that only 37% of Americans think that Obamacare is a good idea while 49% believe that it is bad.  Only 38% of respondents think they will be better off as a result of the ACA.

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