Wednesday, October 17, 2018

My speech in Los Angeles about Natural Rights

Posted by Douglas V. Gibbs





-- Political Pistachio Conservative News and Commentary

Temecula Constitution Class: Faithfully Execute


We meet each Wednesday ... I'll bring the pizza and the pocket constitutions if you'll bring a notebook and a desire to learn.

6:00 pm - 7:30 pm

Riverside County Republican Party Headquarters

Address: 28120 Jefferson Ave #205, Temecula, CA 92590



Constitution Class Handout
Instructor: Douglas V. Gibbs



Lesson 7: Faithfully Execute

He

The first word of Article II, Section 3 is “He.”  The word refers to the President of the United States.  I have actually had some people, who oppose the Constitution, tell me that the word “He” being used is evidence that the Constitution disallows women from being President.  They then argue that if a woman was to become President, because of the word “He” being used in the Constitution, anything she did in office would be unconstitutional since the Constitution does not allow women to be President of the United States.

Not necessarily.

As with other writings, such as the Holy Bible, often the word “He” may be used as a general term to represent both sexes.

In the case of the Constitution, it is conceivable, considering the mindset of the day, that the Founders did not think a woman would someday become President of the United States.  I assure you, people like John Adams and Aaron Burr were exceptions to that line of thinking.

Aaron Burr was Vice President under Thomas Jefferson, and he actually was one that proposed that there be a uniform rule across the nation that enabled women to vote.

If you look through the Constitution, there is no place in the Constitution that says women cannot vote, or run for office.  The reason women were not able to vote, or run for office, was because the States were given the authority over the rules of elections, and during that time the States did not allow women to vote or hold office.  Much of that changed in some States and territories long before the Suffrage Movement, but it took a Constitutional amendment to make the practice uniform among all States.

Therefore, the first word of Article II, Section 3, being “He,” is simply a general term.  Whoever the first female President is in the future, she will be fully entitled, upon being elected, to assume the Office of the President of the United States.

            State of the Union

“He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.”

The State of the Union address is supposed to be as it is worded in the Constitution, a speech about the state of the union addressed to Congress by the President.  It is not supposed to be a campaign speech, it is not supposed to be a popularity speech, nor a chance to take a stab at political opposition.  The speech is simply supposed to be an opportunity for the President to give the Congress information regarding the state of the union.

The speech is also not supposed to be designed as an address to the people, either.  It was expected that the electorate would be interested in hearing the speech, and that the press would report on the speech, for it is in our interest to know what the state of the union is.  But, the specific reason for the State of Union address is to give Congress information of the state of the union.

There is an additional reason for the State of Union address should the President deem it necessary.  According to the Constitution, he may during the speech “recommend to their Consideration such measures as he shall judge necessary and expedient.”  Of course, he can do this during the normal course of his presidency, as well.  The word “recommend to their consideration” in this part of the clause gives us a clue to the limits on the powers of the President.

Article I, Section 1 reads: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

This means that the authority to make law, modify law, repeal law, and strike down law - “all” legislative powers - are granted to the Congress by the States.

Article II, Section 3 says the President can “recommend” to their “consideration” such measures.  He cannot act without Congress, he cannot put measures into place “with or without Congress,” and at best he can “recommend” to Congress his own ideas regarding legislation that he would like to see Congress initiate.  The President can only “recommend to their consideration,” because he has no legislative capacity.  He cannot make Congress do anything, and he cannot act legislatively without Congress.

            Executive Orders

The President has the authority to issue Executive Orders.  An Executive Order is a proclamation.  Executive Orders began back when George Washington was President.  His Thanksgiving Proclamation was an Executive Order.  Executive Orders serve two functions.  They may be used to change the processes within the Executive Branch, because the rules of the internal workings of the Executive Branch are up to the President.  Or, an Executive Order may be used to issue a proclamation that is not legally binding.

No place in the Constitution does the document give the President the allowance through Executive Order to modify, repeal or make law.  Executive Orders have been used often in history to modify law, but that is an unconstitutional executive action.  The President does not have that kind of authority.

Since all of the regulatory agencies in the United States Government are a part of the executive branch, they are also bound by the same limitations.  Like the President, regulatory agencies cannot act legislatively.  Whenever they make a regulation that is not to directly regulate (put in good order and execute) an existing constitutional law, but to regulate an unconstitutional law, or to create a new law, it is outside the authorities granted to the executive branch by the Constitution.

On March 26, 2012, Cap and Trade auto emission legislation failed to pass through Congress. The Environmental Protection Agency began to auction greenhouse gas allowances anyway, effectively taxing emissions and regulating in a manner consistent with Cap and Trade should it have passed as a piece of legislation.

On December 20, 2010, when an Internet regulation bill failed to pass through Congress, the Federal Communications Commission announced it would regulate the Internet anyway. The FCC's new regulations controlled the way service providers may manage their network transmissions.

The regulatory agencies are under the Executive Branch, and are not a part of the Legislative Branch.  A Separation of Powers exists, limiting each branch to only the authorities granted to it, and any part of the executive branch, including the regulatory agencies, do not have any legislative authority.

            Extraordinary Occasions

“He may, on extraordinary occasions, convene both Houses, or either of them.”

What is an extraordinary occasion?  That would be an emergency, or during a time that matters are urgent.  If the President believes a matter needs to be tended to, he can compel the Congress to be in session.  In other words, it is constitutional when the President says something like, “I’m working, so Congress needs to be, too.”

An extraordinary occasion can be wartime, budget discussions, or anything else the President determines to be an extraordinary occasion.

This includes when there is a “disagreement between them (the Houses).”  The President may choose when the Houses will meet, as he feels is proper.

The President was expected to be a man of sacred honor, and it was believed he would use this authority wisely, and not in excess based on the whims of his ideology fancy.

In Article I, Section 5 the Constitution instructs that the Houses may not adjourn without the permission of the other House.  But what if they refuse to allow the other House to adjourn?  This is where the President comes in.  If, because of disagreement, the Houses won’t allow each other to adjourn, the President, if he feels it is necessary, “may adjourn them to such time as he shall think proper.”

The President can compel the Houses to convene, or adjourn, as he feels necessary, as well.

He can’t force them to make particular laws, per se, but he can make them be in session to get the work done, or take a break if he sees it as necessary.

As much as Congress has control over when they convene or adjourn, the President does have the authority if things are getting out of hand, or for whatever other reason he deems necessary, to override Congress’ decision of when to convene or adjourn.

An appropriate example would be during wartime.  The President’s war powers enable him to put the military into action.  If he feels there should be a declaration of war, would like to discuss his war plans with the Congress, or requires an apportionment of funding for the military effort, he can compel them to be in session.  He cannot force Congress to declare war, or approve of his actions, but he can ensure they are in session so that the politics of war may be discussed.

If some of the members of Congress have a problem with the actions of the President so that they refuse to convene, he can then order Congress to convene so that he may discuss with them the issues at hand.  If there are enough to qualify as a quorum, it is not necessary to compel the absent members to be in attendance.  If Congress does not meet the requirement for a quorum, and the President believes the matter to be an extraordinary occasion, he can then compel the absent members to attend.

            Receiving Ambassadors and Other Public Ministers

The President may invite important people to Washington, be they ambassadors, or other officials.  Having the Chinese leader over for a dinner at the White House, or entertaining a group of diplomats, for example, is completely constitutional.

            Regulatory Agencies

“He shall take Care that the Laws be faithfully executed.”

This clause establishes the enforcement arm of the Executive Branch, which eventually became the regulatory agencies.

The clause is definitive in its instruction to the President regarding the execution of the laws of the United States by using the word “shall.”  The words “take Care” places an additional importance upon ensuring the laws of the United States are executed.  The word “Care” in this clause is capitalized, placing emphasis on the word in a manner that we use today with italics.  The laws must be executed with Care, and the Laws are expected to be “faithfully executed.”  Faithfully, without exception, without preferences, and without ideological interference.

Laws, under the federal government, are only valid laws, if they are constitutional.  If the laws are not made in line with the authorities granted to the federal government by the Constitution, they are not legal laws.  The executive branch shall “execute” the laws - constitutional laws.

Some people say the Executive Branch is supposed to “enforce” the laws - and in a sense that is correct.  But really, the Executive Branch is supposed to execute the laws - ensure they are carried out - Laws that were put into place constitutionally.

We are the final arbiters of the Constitution, but there are other steps along the way to ensure that unconstitutional laws don’t go into effect.  The President represents one of those checks.

When President Obama determined DOMA was unconstitutional, and decided his agencies would not execute that law, he was acting constitutionally.  The law is the law, however, and there is much discussion regarding if, considering that the President has decided the law is unconstitutional, he is compelled to ensure the law is executed.  Also, if he refuses to execute constitutional law, calling it unconstitutional, it is our responsibility that he is removed, and replaced with somebody who will execute the laws appropriately.

The constitutional check in the hands of the President is not supposed to be utilized “after” a bill becomes a law, however.  Unconstitutional laws are supposed to be caught before they get that far.  The early President of the United States vetoed bills based on the constitutionality of the bill, and not necessarily because they disagreed with it ideologically.

In 1817, when President Madison deemed a public works bill unconstitutional, he simply refused to sign the bill into law, indicating in his written reason why he vetoed the bill that the proposed law was unconstitutional.

Congress can override a President’s decision not to execute a law on the books because he deems it unconstitutional, just like they can override a veto.  The States may also enforce the law if the President refuses.  Article I, Section 8 grants to Congress the authority to “provide for calling forth the Militia to execute the Laws of the Union.”

The reverse is also true.  If the President tries to execute law, calling it constitutional, when it is not constitutional, the States can ignore those federal laws, or nullify them.

            Officers of the United States

“… and shall commission all the Officers of the United States.”

The “United States,” as mentioned here in this final part of Article II, Section 3, does not mean The United States as a country.  The United States is mentioned often in the Constitution, and whenever the “United States” is mentioned, it means one of two things.  Either, it means “these States that are united,” or the “federal government.”  Remember, to these early Americans, who considered themselves citizens of their States before they considered themselves “Americans,” the United States meant “these States that are united,” rather than a single, nationalistic, entity.

In this particular clause the “United States” means “federal government.”

As a result of that definition, you could also say that this part of the Constitution reads: “and shall commission all the officers of the federal government.”

The Senate must give consent, as indicated in Article II, Section 2 and Article I, Section 3, to the appointment of these officers, therefore, giving the U.S. Senate (and therefore “the States” prior to the 17th Amendment) the power of oversight over the President’s choices.  This, in turn, means that any and all of the President’s czars are unconstitutional.  Officers of the United States are any office holders in the government exercising significant authority pursuant to the laws of the United States, and czars are included in that definition.

            Impeachment

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Impeachment is a term that means “To charge with misconduct.”  Removal from office does not happen unless the official is “convicted.”  In the case of the President and Vice President, the hearings are held by the U.S. Senate.

The reasons for impeachment may be for “Treason, Bribery, or other high Crimes and Misdemeanors.”

Treason is defined in Article III, Section 3 as “levying War against them (these States that are United), or adhering to their Enemies, giving them Aid and Comfort.”

Bribery is defined as meaning the exchange of money, promises, or other things, with someone in office, in order to influence that person’s views or conduct.

The real confusion comes when we talk about the final part: “or other high Crimes and Misdemeanors.”

When it comes to the phrase, "high crimes and misdemeanors" and the meaning of that phrase to the Founding Fathers, we must recognize the language used.

The word “high” in this context does not necessarily mean "more serious".  It refers to those punishable offenses that only apply to high persons, meaning “public officials,” or those who, because of their official status, are under special obligations that ordinary persons are not under.

For an official who was placed in office by the people, a crime offends the sense of justice of the people.  When a public official commits these crimes, they can be more serious than if the same crime is committed by a citizen, because of the trust put into the office the official holds.

One of those high crimes is Perjury, which is more than merely “lying under oath".  Under the definitions used by the Founders, perjury also means "violation of one's oath (or affirmation)".  Therefore, the President refusing to protect and defend the Constitution, could be considered perjury.

The President is bound by his oath of office in all matters until he leaves office to follow the oath of office. While he holds that office, he is always under oath, therefore his failing to uphold the oath, or lying at any time, constitutes perjury if it is not justified for national security.

An executive official is also ultimately responsible for any failures of his subordinates and for their violations of the oath he and they took, which means violations of the Constitution and the rights of persons.  The President's subordinates include everyone in the executive branch, and their agents and contractors.  It is not limited to those over whom he has direct supervision.  He is not protected by plausible deniability.  The President is legally responsible for everything that everyone in the executive branch is doing.

Impeachment and removal proceedings may then encompass a full range of offenses against the Constitution and against the rights of persons committed by subordinate officials and their agents which have not been adequately investigated or remedied.

The meaning of the phrase "high crimes and misdemeanors," was common knowledge during the time of the founding of this nation.  The phrase imports a concept in English Common Law of the word “misdemeanors” that essentially means bad behavior.

“Misdemeanors" in the language of the Founders, then, did not necessarily refer to a criminal act as many believe, but opened up the opportunity for impeachment of the President should he be guilty of gross incompetence, gross negligence, or outright distasteful actions which clearly show "malevolence toward this country and constitution, which is unabated."

The subject of impeachment was adopted from the English concept of this idea.  In England impeachment was a device to remove from office someone who abused his office or misbehaved, but who was protected by the Crown. 

James Madison said during the federal convention that impeachment ought to be used to reach a bad officer sheltered by the President and to remove him “even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers.”

At first, during the debates in the Constitutional Convention, the grounds for removal of the president were to be upon conviction “of mal-practice or neglect of duty” and subsequently this was changed to “Treason, or bribery.”  George Mason objected to this limitation, saying that the term did not encompass all the conduct which should be grounds for removal.  So, Mason proposed adding the term maladministration following ''bribery.''

Madison objected, believing the term to be too vague, or too general.  Mason then suggested ''other high crimes and misdemeanors,'' which was adopted without further recorded debate.

Term:

Adjourn - Suspend proceedings to a later time and/or place.

Bribery - The exchange of money, promises, or other things, with someone in office, in order to influence that person’s views or conduct.

Cap and Trade - Emissions trading; a regulatory approach to control pollution by providing economic incentives for achieving reductions in the emissions of pollutants; central control limit of amount of pollutants that can be emitted (cap), and companies are permitted to sell the unused portion of their limits to other companies who are struggling to comply (trade).

Executive Branch - The branch of government responsible for executing, or carrying out, the laws.  An executive in government can be a president, or a governor.

Executive Order - An order issued by the President of the United States that may be a proclamation, or an order to change the processes within the Executive Branch.

High Crimes - Punishable offenses that only apply to high persons, meaning “public officials,” or those who, because of their official status, are under special obligations that ordinary persons are not under.

Legislative Authority - See Legislative Powers.

Legislative Branch - Congress; the branch of the federal government that is vested with all legislative powers and consists of two Houses, the House of Representatives, and the United States Senate.

Legislative Powers - The ability to make law, modify law, repeal law, and anything else that has to do with affecting law.

Maladministration - Inefficient or dishonest administration; mismanagement.

Misdemeanors - In the Constitution the definition is bad behavior including, but not limited to, gross incompetence, gross negligence, or outright distasteful actions which clearly show “malevolence toward this country and constitution, which is unabated”; maladministration.

Nullification - State power to ignore unconstitutional federal law.

Perjury - Lying under oath, violation of one’s oath (or affirmation).

Plausible Deniability - Circumstances where denial of responsibility or knowledge of wrongdoing cannot be proved as true or untrue due to a lack of evidence proving the allegation; when high ranking officials deny responsibility for or knowledge of wrongdoing by lower ranking officials; any act that leaves little or no evidence of wrongdoing or abuse.

Quorum - Minimum number of members of an assembly necessary to conduct the business of that group.

Regulatory Agencies - Agencies within the Executive Branch tasked with executing the laws of the nation; the enforcement arm of the Executive Branch.

Separation of Powers - A division of governmental authority into three branches: legislative, executive, and judicial; division of powers between the States and federal government.

State of the Union address - A speech about the state of the union addressed to Congress by the President.

Treason - Levying war against the States, or adhering to the enemies of the States, giving aid and comfort to the enemy.

Veto - The power of a chief executive to reject a bill passed by the legislature in order to prevent or delay its enactment into law.

Questions for Discussion:

1. During what kind of circumstance can the President of the United States act legislatively?  Why?

2.  What kind of circumstances do you believe would be considered extraordinary by the Founding Fathers?

3.  What is the proper role of the Regulatory Agencies?

4.  Should failing to preserve and protect the United States Constitution be an impeachable offense?  Why, or why not?

Resources:

Jon Roland, Meaning of "High Crimes and Misdemeanors"; Constitution

Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).

Madison’s Notes Constitutional Convention, Avalon Project, Yale
University: http://avalon.law.yale.edu/subject_menus/debcont.asp

Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –
Volume Four – Article I, Section 8, Clause 5 to Article VII; Indianapolis: Liberty Fund (1987)

Vincent Gioia, What is a ‘Misdemeanor’ Under the Constitution and


Copyright Douglas V. Gibbs 2015


Constitution Association Executive Board Weekly Meeting

Non-voting members, and non-members are welcome to attend, and learn about what we are doing.

Big plans, new programs, would love to see you there.

Constitution Association Weekly Meeting
4:00 pm at the Riverside County Republican Party Headquarters
28120 Jefferson Ave (at Del Rio cross-street)
in Temecula (same shopping center as Rosa's Cafe and Mr. Kabobs)

I'll have an agenda waiting for you. . .

-- Political Pistachio Conservative News and Commentary

Reset

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host



Hillary Clinton once gave a gift to Russia, which was designed to be a symbol of the Obama administration's desire for improved relations with the once primary geopolitical enemy against the United States, in the world.  Russia was once the central control location of the former Union of Soviet Socialist Republics.  The Cold War, however, has ended.  The Soviet Union has collapsed.  Russia has made an attempt to be more capitalistic.  The Great Bear has shown a desire to rejoin the family of nations who try to get along through negotiations, and mutual understanding.

The gift was a reset button.  The Democrats believed a simple reset could be achieved through Neville Chamberlain-style negotiations where you bend over backwards to accommodate your opposition, and do whatever you can to not offend them with any portrayals of strength or firm determination.  Forgive and forget, even if the enemy is sharpening their knives in front of you.

I suppose you could call it the wet noodle approach.

The reset button was presented to Russian Foreign Minister Sergey Lavrov, who was quick to point out that the Russian words on the symbolic device were wrong.  The words did not read what the Democrats intended, but instead read, according to Lavrov, "overcharged."

Sometimes a "reset" works, and sometimes it doesn't.  A reset in a relationship requires both sides to be truly and honestly sincere.  Getting the words right might help, too.

Usually, when it comes to adversaries, a reset is not possible.  Making peace with an enemy whose animosity for you, or whose lust for advancing their own agenda, is not something you even fully understand, is a tough row to hoe.  Therefore, dealing with them from a position of strength is likely your only option.  Someone who wants to kill you backs off when they believe their own life could be at risk.  When dealing with foreign enemies, keeping them off balance, and using your own strengths, is usually the only way to achieve true peace.

Ronald Reagan called it "Peace through Strength."

George Washington said, "To be prepared for war is one of the most effectual means of preserving peace."

Using the Neville Chamberlain technique of appeasement does nothing other than give them time to reload their weapons.

President Donald J. Trump has truly used a reset button.  His reset button, however, was not the gift of appeasement, but a stern and firm warning using language, positioning, and sanctions.  His firm hand on the foreign affairs front has brought North Korea to the negotiations table, has Iran backing off with nervousness, and Russia dialing their garbage back a little.  Europe, Japan, and our North American trading partners have all agreed to new trade deals due to Trump's firm hand, fiery rhetoric, and use of our stronger economy as a prod.  Even China has shown a little uneasiness under Trump's firm grasp of the situation.

In the end, we didn't have to reset anything.  America is being America.  It is the world that is resetting because finally the President of the United States understands the power of being in a position of strength, and has the willingness to use it.

-- Political Pistachio Conservative News and Commentary

Tuesday, October 16, 2018

Corona Constitution Class: Executive Branch, Faithfully Execute

Posted by Douglas V. Gibbs


Tuesday Night's Corona Constitution Class
6:00 pm Tuesdays

AllStar/CARSTAR Collision
522 Railroad Street
Corona, CA

Constitution Class Handout
Instructor: Douglas V. Gibbs
douglasvgibbs@reagan.com
Lesson 6: Powers of the Executive Branch
Article II, Section 2
Commander in Chief
Section 2 of Article II establishes the President as the Commander in Chief of the Army and Navy, and of the Militia of the several States, when called into the actual Service of the United States.
This allows for the President to wage war, if necessary, without Congressional approval. However, if Congress does not agree with the President's actions, they can pull the funding, which would force a discontinuation of the use of the military for whatever operations the President chose them to operate. In the Articles of Confederation, the powers to wage war, and to declare war, were listed as separate authorities, although in the Articles of Confederation both powers were granted to the Congress.
There were extensive debates over war powers. In fact, when the founders were debating over war powers in regards to Article I during their assembly on August 17, 1787, they considered giving to Congress the power to "make war." A number of reasons brought up during that debate convinced the delegates to give Congress the power to declare war, instead. This decision left the power to make war with the President, as Commander in Chief.
When the Framers of the Constitution were creating the executive branch, the President they had in mind was George Washington. He was, in their eyes, the perfect President.   The executive branch was fashioned around Washington's personality, and abilities. The expectations were that the presidents to follow Washington would be similar to Mr. Washington in their level of sacred honor, humility, and ability to properly apply the war powers as necessary, while refraining from becoming involved in foreign entanglements that did not directly affect the United States of America.
Among Washington's strengths was that he was a great general. It became apparent that the President would need to be a strong military leader. However, the consideration that an executive may take that power and abuse it was in play. Therefore, a number of checks and balances against the power of the executive branch were put into place.
Part of the reason the power to make war was given to the President, and not Congress, has much to do with the time period. One must consider that when the members of Congress were at home in their districts, it could be as far as the southernmost State of Georgia. Considering the lack of technology, members of Congress could not just get on a plane, or take a drive, to get to Washington, D.C., quickly. Even the time it may take to get the messages out to the members of Congress could take longer than the time needed to begin necessary war maneuvers.
When it came to war powers, the need was for the Commander in Chief to be quick, decisive, and take care of business as needed. However, if we have a President acting in a tyrannical manner, launching military operations when it is not necessary, aside from the ability to electorally vote the President out of office, the Congress has two ways to check his behavior.
First, Congress can pull funding. If there is no money, the troops must be brought home. Second, the Congress has the power to impeach the President if he is becoming tyrannical, or is doing things that he shouldn't (maladministration).
One concern that has arisen in today's political environment, largely as a result of the change in the dynamics of our political system by the 17th Amendment in 1913 that changed the Senate from being the voice of the States, to an assembly directly voted into office by public vote, is if both Houses of Congress are in collusion with the President. A White House administration with both Houses of Congress working with the President could be a recipe for disaster in regards to the rule of law, creating an opportunity for those three parts of the federal government to collude against the people, which would inevitably lead to the rise of an unchecked oligarchy.
In the cases of the wars in Iraq, Afghanistan, or Libya, the President had every right to launch those operations. That is not to say the decisions were correct, or in the best interest of our country, but that the President had the constitutional authority to wage war in those theaters without his actions being accompanied by a congressional declaration of war.
When it came to foreign entanglements, the Founders preferred America to stay out of such conflicts unless American interests were directly influenced. George Washington in his farewell address is actually quite clear on the subject.
Congress holding the power to declare war does not mean that the President must ask Congress for permission before waging war. In today's world it would seem to be the reasonable thing to do, and I believe it would be the proper thing to do, but as far as the Constitution is concerned, congressional approval for a military action is not necessary.
A reference used to support the concept of "no war without a declaration" is The War Powers Act of 1973. The War Powers Act was simply a piece of legislation, and did not change the authorities of the President when it came to his war powers. The War Powers Act is unconstitutional. Only amendments can change the authorities granted to the President of the United States.
The two Barbary Wars, the first two international wars the United States found herself engaged in, were waged by Thomas Jefferson and James Madison. Jefferson's engagement against the Muslim States of the Barbary Coast was fought from 1802 to 1805, after Jefferson refused to continue paying a tribute to the Barbary Pirates for safe passage through the Mediterranean Sea. Hostilities were reignited in 1815, during Madison's presidency. Both wars were undeclared, waged by Jefferson and Madison without a declaration of war from the Congress, but Congress did appropriate funding for both campaigns.
            Calling forth the Militia
The President of the United States is not supposed to be all powerful, or the final decision maker in the federal government. The American System of government is full of checks and balances. Even as the Commander in Chief, if he is abusing his power as the head of military operations, Congress can defund war efforts, or impeach the President.
In Article II the Constitution states that the President is the "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United States." Some have argued that means he is only Commander in Chief when "he" is called into service to do so, which is accomplished by a declaration of war. That is an erroneous opinion.
As Commander in Chief, the President may engage the Army and Navy in war operations as necessary. This power of Commander in Chief does not extend to the militias at the President's whim. The President is only the Commander in Chief of the Militia of the several States, when the militia is called into actual service of the United States.
The distinction was established so that the President could use military forces against foreign enemies if a quick and decisive decision was necessary, but not against the States, or the American people. The standing army is not for domestic use to suppress insurrections, or repel invasions. That is what the militias are for, and the militia can only be put into action by Congress, or State leadership. The President does not control the militias, nor does he determine when they go into action. His only relationship with the militias only emerges when they are called into actual service of the United States by the United States Congress. Then, and only then, the President serves as Commander in Chief over the militias.
Article I, Section 8 states that "Congress shall have power to provide for calling forth the Militia to execute the laws of the Union, suppress Insurrections and repel invasions."
States cannot call their militia into action "unless actually invaded, or in such imminent Danger as will not admit of delay." (Article I, Section 10)
Though the President is tasked with "faithfully executing the laws of the United States" as stated in Article II, Section 3, and he can do so with executive departments such as I.C.E., and the Border Patrol, the actual call for the militia (National Guard, State Militias, unorganized militia) to protect the border is the responsibility of Congress, and State leadership.
            Executive Departments and Agencies
Article II, Section 2, Clause 1 indicates the President may "require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective offices." This part of this clause is a good indication that the Founding Fathers felt the President should consult others when making decisions, especially those familiar with the departments in question.
The existence of the different executive departments is constitutional, as long as they are established to handle constitutional duties of the federal government, and their powers are limited within constitutional allowances. Originally, there were only four executive departments (and five if you separate the War Department and Department of the Navy); the War Department, the State Department, the Department of the Treasury, and the Department of Justice. The Department of the Navy served as a separate department until 1947, but worked closely with the Department of War.
There are many departments in the executive branch that are unconstitutional, and should not have even been established. The Education Department, for example, is unconstitutional in its current form because there is no place in the Constitution that gives the federal government the authority to regulate, or be involved in, education. Therefore, as per the 10th Amendment, education is a State issue.
The Energy Department and the Environmental Protection Agency are also unconstitutional. The federal government has no authority to regulate those issues. However, if those departments did not regulate, but only kept studies and records of those issues, then the existence of those agencies may be acceptable.
The executive branch can have departments and agencies that study issues not authorized by the Constitution to fall under the federal government, but they cannot have any regulatory power because any federal laws regarding those issues are not constitutionally authorized to the United States Government. Regulations are directly connected to laws, and laws must be constitutional in the first place in order to be considered the supreme law of the land.
Despite these agencies not being legally allowed to regulate unconstitutional law, agencies like the EPA are doing just that. In fact, the EPA is regulating independently, literally legislating through regulations. In other words, the EPA, as well as other agencies, have been enacting their own regulations without the benefit of a law being on the books, revealing the danger of having unconstitutional departments and agencies.
This is not to say we should not have the various departments and agencies of the executive branch. Some of them are constitutional, and absolutely necessary.
Correction of federal unconstitutionality can be sought through concepts known as Republic Review, and nullification. By using a convention of delegates from the several States to determine the unconstitutionality of particular laws, actions, or departments of the federal government, the States can be encouraged to work together to nullify the unconstitutional regulations set forth by the various federal agencies. The States have the authority to take care of their own business, and if a federal agency tries to regulate an issue that falls under the State's powers, the States have the right to ignore that regulation.
A common belief is that if we do not have these various federal agencies regulating things like food, energy, and actions against the environment, people will just act in ways that are unacceptable and dangerous. The opposition to the Constitution will tell you that we need the federal government to make sure that our food is safe, energy is used properly, and corporations are not polluting our fragile environment.
Local issues are supposed to be handled at the local level, and the people, through their States, are more than capable of properly regulating these issues as necessary, but in a manner that is consistent with the local opinion of the electorate.
The Founding Fathers did not trust a large, centralized, national government, hence, the reason the Framers only granted to the federal government authorities regarding external issues, and the power to act as a mediator between the States in the case of disagreement.
            Reprieves and Pardons
The President is also given the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. This was one of the first functions President Gerald Ford took advantage of when he took office after President Richard Nixon resigned, pardoning Nixon so that no criminal cases could be brought against him. No impeachment procedure had ensued, so Ford was constitutionally allowed to grant the pardon. It has been suggested that is why Nixon resigned. If he had not resigned, and was impeached, the next President would not have had the authority to pardon him.
The President is granted the ability to make treaties and to nominate members to the executive branch, Supreme Court, and other offices not expressly provided for in the Constitution. Agreement and consent of two thirds of the Senate is necessary for any treaty, or nomination for that matter, to become effective. The advise and consent powers granted to the United States Senate was a way of disallowing the executive branch from mirroring the centralized British Model of unilateral control under the king. The authority also gave the States the allowance to approve or disapprove any action by the President by requiring that the Senate concur with two-thirds vote.
The purpose of giving advise and consent powers to the U.S. Senate refers us back to the original dynamics of the United States government. The Senators in the U.S. Senate were appointed by the State Legislatures before the appearance of the 17th Amendment in 1913. The Senate was the States' representation in the federal government. The Senators were the voice of the States. Treaties, appointments, and other executive functions, though executed by the President, requires approval by the Senate. The States, as with the granting of powers to the federal government in the first place through the articles of the Constitution, had the power to approve or disapprove the President's actions through the U.S. Senate in a manner much like parents grant permission to their children before a child can perform a particular action. After all, the Senate was the voice of the States, and it was the States that created the federal government in the first place.
This was an important check upon the executive branch by the States.
The executive branch requiring the consent of the U.S. Senate for some of its actions reminds us of the amendment process. As with treaties and appointments by the executive branch, amendments must be approved, or ratified, by the States. In the case of amendments, however, the vote is three-quarters of the States in order to ratify.
The federal government, be it through amendments, or executive actions, needs the permission of the States.
Remember, the States once held all powers. It was the States that provided the authorities to the federal government so that it may exist, and function. The States had original authority over all powers, and decided to grant a few authorities to the federal government so that it may operate in a necessary manner - specifically for the purpose of protecting, preserving, and promoting the union.
The States gave permission to the federal government to function in a manner prescribed by the Constitution.
An opponent to the originalist viewpoint of the Constitution once said to me, "You have it all wrong. The federal government tells the States what to do."
If that was the case, then why would the President need to get the consent of the U.S. Senate to make treaties, and two-thirds of the Senators present have to concur? Why would the President's nominations need to be interviewed and approved by the Senate? And with that in mind, remember that before the 17th Amendment in 1913, the Senate was the voice of the States.
The executive can do very little without the Senate's approval.
War Powers seems like an exception on the surface, but even the authority to make war has its checks by Congress.
For the most part, it is up to the people and the States through Congress to ensure the President does not act in a manner unbecoming of the office.
This check is designed to protect us from tyranny.
Imagine how different the appointment hearings of Supreme Court justices have become, now that the Senate is no longer the representation of the States, anymore. The questions are probably very different than they otherwise would be. Now, the House and the Senate are really not a whole lot different. They are both voted in by the popular vote. Before 1913, the Senate was the voice of the States.
I wonder how the questions posed to the Supreme Court nominees would be different if the Senate still belonged to the States. Perhaps the questions would be more in line with protecting State sovereignty. Surely the concerns of the States would be behind much of the questioning.
The 17th Amendment changed the dynamics of our government. One of the reasons our federal government is constantly acting unconstitutionally is because it is now structured unconstitutionally. The people voting for the Senators, rather than the Senators being appointed by the State legislatures, is not in line with what was originally intended. With the voice of the States removed, the government cannot function as intended because the proper checks and balances are not in place. The 17th Amendment introduced ideology into the Senate, and removed one of the checks necessary to protect us against a federal government constantly seeking to become more expansive.
            Recess Appointments
The final clause of Article II, Section 2 of the U.S. Constitution states: 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.
This clause refers to what is called a recess appointment. A recess appointment is the appointment of a senior federal official (department head, judge, etc.) by the President while the U.S. Senate is in recess. As the voice of the States in the federal government, the Senate must confirm all appointments of senior federal officers before they assume office. However, while the U.S. Senate is in recess, and during the early years of this nation that meant they could be a few days ride away, the President can make a recess appointment without Senate confirmation. However, the appointment only remains in effect until the next session. A recess appointment must be approved by the Senate by the end of the next session of Congress, or the position becomes vacant again.
Remember, the House of Representatives and the Senate were originally made up very differently from each other. The Representatives go to Washington to serve their district, and to act in accordance with the will of the people in their district, making the House of Representatives literally the voice of the people in the federal government.
The Senate was made up of Senators appointed by the State legislatures. The Senators represented the States, and they made up the State coalition of the federal government. It was through the Senate that the States had representation in the federal government, and could ensure, along with the House of Representatives, to provide a series of checks against the executive branch.
Part of the way to control power is to divide it. Then, after you divide the power, divide it again. Then, make the powers of the separate branches different from each other, that way they do not collude together against the people, or other branches of government.
One of the fears of the Founders was that the branches would collude together in an effort to take away individual freedoms.
By requiring the Senate to confirm appointments by the Executive, it kept a leash on the Executive. Even in a recess appointment, when the President could appoint without confirmation by the Senate, confirmation would still eventually be needed or else the seat became vacant again. This kept the Executive from surrounding himself with a group of cronies the States did not approve of.
Terms:
Advise and Consent Powers - Treaties, appointments, and other executive functions, though executed by the President, requires the advise by, and the approval of, the Senate.
Collusion - Conspire together.
Foreign Entanglements - Unnecessary involvement with other nations.
Ideology - A set of political or economic ideas that forms the basis of economic or political theory and policy.
Impeachment - To charge with misconduct. Formal process that may lead to removal of an official accused of unlawful activity; impeachment does not mean the removal from office, though removal from office is often the result of impeachment proceedings.
Militia - An army composed of ordinary citizens rather than professional soldiers; a military force that is not part of a regular army and is subject to call for service in an emergency; the whole body of physically fit civilians eligible by law for military service.
National Government - Any political organization that is put in place to maintain control of a nation; a strong central government that does not recognize the individualism or local authorities of the smaller parts, such as states, of the nation.
Nullification - State power to ignore unconstitutional federal law.
Nullify - See Nullification.
Oligarchy - Government by a few powerful persons, over the many. A state governed by a few persons.
Recess Appointment - The appointment of a senior federal official (department head, judge, etc.) by the President while the U.S. Senate is in recess.
Republic Review - A convention of delegates representing the several States in order to audit the laws, actions, and composure of the United States federal government; a review of unconstitutional characteristics of the federal government based on the amendment ratification concept that if it takes three-quarters of the States to ratify an amendment, a quarter (plus one) of the States determining a law, action or department of the federal government to be unconstitutional allows the States to nullify the item.
United States Senate - The House of Congress in which each State enjoys equal suffrage of representation, with two Senators per State. The appointment of Senators was originally by their State legislatures, creating a natural check and balance between the House of Representatives, and the U.S. Senate. The appointment of Senators was changed to the popular vote of the people by the 17th Amendment in 1913.
War Power - Power exercised in the prosecution of war.
Questions for Discussion:
1. What is the difference between the power to Wage War, and the power to Declare War?
2. What is meant by "Commander in Chief?"
3. Why should, or shouldn't, the United States engage in foreign entanglements?
4. Why is the War Powers Act of 1973 unconstitutional?
5. How can the States protect against a President abusing his war powers?
6. When are State Militias under State authority, and when are they under federal authority?
7. When is the President the Commander in Chief over the State Militias?
8. Regulatory Agencies are constitutional, but their regulations must conform to what authorities granted?
9. What is the difference between impeachment, and being removed from office?
10. When are recess appointments allowed?
11. What is a pro-forma session?
Resources:
Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
Madison's Notes Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
Copyright Douglas V. Gibbs 2015
 Lesson 7: Faithfully Execute

He

The first word of Article II, Section 3 is “He.”  The word refers to the President of the United States.  I have actually had some people, who oppose the Constitution, tell me that the word “He” being used is evidence that the Constitution disallows women from being President.  They then argue that if a woman was to become President, because of the word “He” being used in the Constitution, anything she did in office would be unconstitutional since the Constitution does not allow women to be President of the United States.

Not necessarily.

As with other writings, such as the Holy Bible, often the word “He” may be used as a general term to represent both sexes.

In the case of the Constitution, it is conceivable, considering the mindset of the day, that the Founders did not think a woman would someday become President of the United States.  I assure you, people like John Adams and Aaron Burr were exceptions to that line of thinking.

Aaron Burr was Vice President under Thomas Jefferson, and he actually was one that proposed that there be a uniform rule across the nation that enabled women to vote.

If you look through the Constitution, there is no place in the Constitution that says women cannot vote, or run for office.  The reason women were not able to vote, or run for office, was because the States were given the authority over the rules of elections, and during that time the States did not allow women to vote or hold office.  Much of that changed in some States and territories long before the Suffrage Movement, but it took a Constitutional amendment to make the practice uniform among all States.

Therefore, the first word of Article II, Section 3, being “He,” is simply a general term.  Whoever the first female President is in the future, she will be fully entitled, upon being elected, to assume the Office of the President of the United States.

            State of the Union

“He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.”

The State of the Union address is supposed to be as it is worded in the Constitution, a speech about the state of the union addressed to Congress by the President.  It is not supposed to be a campaign speech, it is not supposed to be a popularity speech, nor a chance to take a stab at political opposition.  The speech is simply supposed to be an opportunity for the President to give the Congress information regarding the state of the union.

The speech is also not supposed to be designed as an address to the people, either.  It was expected that the electorate would be interested in hearing the speech, and that the press would report on the speech, for it is in our interest to know what the state of the union is.  But, the specific reason for the State of Union address is to give Congress information of the state of the union.

There is an additional reason for the State of Union address should the President deem it necessary.  According to the Constitution, he may during the speech “recommend to their Consideration such measures as he shall judge necessary and expedient.”  Of course, he can do this during the normal course of his presidency, as well.  The word “recommend to their consideration” in this part of the clause gives us a clue to the limits on the powers of the President.

Article I, Section 1 reads: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

This means that the authority to make law, modify law, repeal law, and strike down law - “all” legislative powers - are granted to the Congress by the States.

Article II, Section 3 says the President can “recommend” to their “consideration” such measures.  He cannot act without Congress, he cannot put measures into place “with or without Congress,” and at best he can “recommend” to Congress his own ideas regarding legislation that he would like to see Congress initiate.  The President can only “recommend to their consideration,” because he has no legislative capacity.  He cannot make Congress do anything, and he cannot act legislatively without Congress.

            Executive Orders

The President has the authority to issue Executive Orders.  An Executive Order is a proclamation.  Executive Orders began back when George Washington was President.  His Thanksgiving Proclamation was an Executive Order.  Executive Orders serve two functions.  They may be used to change the processes within the Executive Branch, because the rules of the internal workings of the Executive Branch are up to the President.  Or, an Executive Order may be used to issue a proclamation that is not legally binding.

No place in the Constitution does the document give the President the allowance through Executive Order to modify, repeal or make law.  Executive Orders have been used often in history to modify law, but that is an unconstitutional executive action.  The President does not have that kind of authority.

Since all of the regulatory agencies in the United States Government are a part of the executive branch, they are also bound by the same limitations.  Like the President, regulatory agencies cannot act legislatively.  Whenever they make a regulation that is not to directly regulate (put in good order and execute) an existing constitutional law, but to regulate an unconstitutional law, or to create a new law, it is outside the authorities granted to the executive branch by the Constitution.

On March 26, 2012, Cap and Trade auto emission legislation failed to pass through Congress. The Environmental Protection Agency began to auction greenhouse gas allowances anyway, effectively taxing emissions and regulating in a manner consistent with Cap and Trade should it have passed as a piece of legislation.

On December 20, 2010, when an Internet regulation bill failed to pass through Congress, the Federal Communications Commission announced it would regulate the Internet anyway. The FCC's new regulations controlled the way service providers may manage their network transmissions.

The regulatory agencies are under the Executive Branch, and are not a part of the Legislative Branch.  A Separation of Powers exists, limiting each branch to only the authorities granted to it, and any part of the executive branch, including the regulatory agencies, do not have any legislative authority.

            Extraordinary Occasions

“He may, on extraordinary occasions, convene both Houses, or either of them.”

What is an extraordinary occasion?  That would be an emergency, or during a time that matters are urgent.  If the President believes a matter needs to be tended to, he can compel the Congress to be in session.  In other words, it is constitutional when the President says something like, “I’m working, so Congress needs to be, too.”

An extraordinary occasion can be wartime, budget discussions, or anything else the President determines to be an extraordinary occasion.

This includes when there is a “disagreement between them (the Houses).”  The President may choose when the Houses will meet, as he feels is proper.

The President was expected to be a man of sacred honor, and it was believed he would use this authority wisely, and not in excess based on the whims of his ideology fancy.

In Article I, Section 5 the Constitution instructs that the Houses may not adjourn without the permission of the other House.  But what if they refuse to allow the other House to adjourn?  This is where the President comes in.  If, because of disagreement, the Houses won’t allow each other to adjourn, the President, if he feels it is necessary, “may adjourn them to such time as he shall think proper.”

The President can compel the Houses to convene, or adjourn, as he feels necessary, as well.

He can’t force them to make particular laws, per se, but he can make them be in session to get the work done, or take a break if he sees it as necessary.

As much as Congress has control over when they convene or adjourn, the President does have the authority if things are getting out of hand, or for whatever other reason he deems necessary, to override Congress’ decision of when to convene or adjourn.

An appropriate example would be during wartime.  The President’s war powers enable him to put the military into action.  If he feels there should be a declaration of war, would like to discuss his war plans with the Congress, or requires an apportionment of funding for the military effort, he can compel them to be in session.  He cannot force Congress to declare war, or approve of his actions, but he can ensure they are in session so that the politics of war may be discussed.

If some of the members of Congress have a problem with the actions of the President so that they refuse to convene, he can then order Congress to convene so that he may discuss with them the issues at hand.  If there are enough to qualify as a quorum, it is not necessary to compel the absent members to be in attendance.  If Congress does not meet the requirement for a quorum, and the President believes the matter to be an extraordinary occasion, he can then compel the absent members to attend.

            Receiving Ambassadors and Other Public Ministers

The President may invite important people to Washington, be they ambassadors, or other officials.  Having the Chinese leader over for a dinner at the White House, or entertaining a group of diplomats, for example, is completely constitutional.

            Regulatory Agencies

“He shall take Care that the Laws be faithfully executed.”

This clause establishes the enforcement arm of the Executive Branch, which eventually became the regulatory agencies.

The clause is definitive in its instruction to the President regarding the execution of the laws of the United States by using the word “shall.”  The words “take Care” places an additional importance upon ensuring the laws of the United States are executed.  The word “Care” in this clause is capitalized, placing emphasis on the word in a manner that we use today with italics.  The laws must be executed with Care, and the Laws are expected to be “faithfully executed.”  Faithfully, without exception, without preferences, and without ideological interference.

Laws, under the federal government, are only valid laws, if they are constitutional.  If the laws are not made in line with the authorities granted to the federal government by the Constitution, they are not legal laws.  The executive branch shall “execute” the laws - constitutional laws.

Some people say the Executive Branch is supposed to “enforce” the laws - and in a sense that is correct.  But really, the Executive Branch is supposed to execute the laws - ensure they are carried out - Laws that were put into place constitutionally.

We are the final arbiters of the Constitution, but there are other steps along the way to ensure that unconstitutional laws don’t go into effect.  The President represents one of those checks.

When President Obama determined DOMA was unconstitutional, and decided his agencies would not execute that law, he was acting constitutionally.  The law is the law, however, and there is much discussion regarding if, considering that the President has decided the law is unconstitutional, he is compelled to ensure the law is executed.  Also, if he refuses to execute constitutional law, calling it unconstitutional, it is our responsibility that he is removed, and replaced with somebody who will execute the laws appropriately.

The constitutional check in the hands of the President is not supposed to be utilized “after” a bill becomes a law, however.  Unconstitutional laws are supposed to be caught before they get that far.  The early President of the United States vetoed bills based on the constitutionality of the bill, and not necessarily because they disagreed with it ideologically.

In 1817, when President Madison deemed a public works bill unconstitutional, he simply refused to sign the bill into law, indicating in his written reason why he vetoed the bill that the proposed law was unconstitutional.

Congress can override a President’s decision not to execute a law on the books because he deems it unconstitutional, just like they can override a veto.  The States may also enforce the law if the President refuses.  Article I, Section 8 grants to Congress the authority to “provide for calling forth the Militia to execute the Laws of the Union.”

The reverse is also true.  If the President tries to execute law, calling it constitutional, when it is not constitutional, the States can ignore those federal laws, or nullify them.

            Officers of the United States

“… and shall commission all the Officers of the United States.”

The “United States,” as mentioned here in this final part of Article II, Section 3, does not mean The United States as a country.  The United States is mentioned often in the Constitution, and whenever the “United States” is mentioned, it means one of two things.  Either, it means “these States that are united,” or the “federal government.”  Remember, to these early Americans, who considered themselves citizens of their States before they considered themselves “Americans,” the United States meant “these States that are united,” rather than a single, nationalistic, entity.

In this particular clause the “United States” means “federal government.”

As a result of that definition, you could also say that this part of the Constitution reads: “and shall commission all the officers of the federal government.”

The Senate must give consent, as indicated in Article II, Section 2 and Article I, Section 3, to the appointment of these officers, therefore, giving the U.S. Senate (and therefore “the States” prior to the 17th Amendment) the power of oversight over the President’s choices.  This, in turn, means that any and all of the President’s czars are unconstitutional.  Officers of the United States are any office holders in the government exercising significant authority pursuant to the laws of the United States, and czars are included in that definition.

            Impeachment

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Impeachment is a term that means “To charge with misconduct.”  Removal from office does not happen unless the official is “convicted.”  In the case of the President and Vice President, the hearings are held by the U.S. Senate.

The reasons for impeachment may be for “Treason, Bribery, or other high Crimes and Misdemeanors.”

Treason is defined in Article III, Section 3 as “levying War against them (these States that are United), or adhering to their Enemies, giving them Aid and Comfort.”

Bribery is defined as meaning the exchange of money, promises, or other things, with someone in office, in order to influence that person’s views or conduct.

The real confusion comes when we talk about the final part: “or other high Crimes and Misdemeanors.”

When it comes to the phrase, "high crimes and misdemeanors" and the meaning of that phrase to the Founding Fathers, we must recognize the language used.

The word “high” in this context does not necessarily mean "more serious".  It refers to those punishable offenses that only apply to high persons, meaning “public officials,” or those who, because of their official status, are under special obligations that ordinary persons are not under.

For an official who was placed in office by the people, a crime offends the sense of justice of the people.  When a public official commits these crimes, they can be more serious than if the same crime is committed by a citizen, because of the trust put into the office the official holds.

One of those high crimes is Perjury, which is more than merely “lying under oath".  Under the definitions used by the Founders, perjury also means "violation of one's oath (or affirmation)".  Therefore, the President refusing to protect and defend the Constitution, could be considered perjury.

The President is bound by his oath of office in all matters until he leaves office to follow the oath of office. While he holds that office, he is always under oath, therefore his failing to uphold the oath, or lying at any time, constitutes perjury if it is not justified for national security.

An executive official is also ultimately responsible for any failures of his subordinates and for their violations of the oath he and they took, which means violations of the Constitution and the rights of persons.  The President's subordinates include everyone in the executive branch, and their agents and contractors.  It is not limited to those over whom he has direct supervision.  He is not protected by plausible deniability.  The President is legally responsible for everything that everyone in the executive branch is doing.

Impeachment and removal proceedings may then encompass a full range of offenses against the Constitution and against the rights of persons committed by subordinate officials and their agents which have not been adequately investigated or remedied.

The meaning of the phrase "high crimes and misdemeanors," was common knowledge during the time of the founding of this nation.  The phrase imports a concept in English Common Law of the word “misdemeanors” that essentially means bad behavior.

“Misdemeanors" in the language of the Founders, then, did not necessarily refer to a criminal act as many believe, but opened up the opportunity for impeachment of the President should he be guilty of gross incompetence, gross negligence, or outright distasteful actions which clearly show "malevolence toward this country and constitution, which is unabated."

The subject of impeachment was adopted from the English concept of this idea.  In England impeachment was a device to remove from office someone who abused his office or misbehaved, but who was protected by the Crown. 

James Madison said during the federal convention that impeachment ought to be used to reach a bad officer sheltered by the President and to remove him “even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers.”

At first, during the debates in the Constitutional Convention, the grounds for removal of the president were to be upon conviction “of mal-practice or neglect of duty” and subsequently this was changed to “Treason, or bribery.”  George Mason objected to this limitation, saying that the term did not encompass all the conduct which should be grounds for removal.  So, Mason proposed adding the term maladministration following ''bribery.''

Madison objected, believing the term to be too vague, or too general.  Mason then suggested ''other high crimes and misdemeanors,'' which was adopted without further recorded debate.

Term:

Adjourn - Suspend proceedings to a later time and/or place.

Bribery - The exchange of money, promises, or other things, with someone in office, in order to influence that person’s views or conduct.

Cap and Trade - Emissions trading; a regulatory approach to control pollution by providing economic incentives for achieving reductions in the emissions of pollutants; central control limit of amount of pollutants that can be emitted (cap), and companies are permitted to sell the unused portion of their limits to other companies who are struggling to comply (trade).

Executive Branch - The branch of government responsible for executing, or carrying out, the laws.  An executive in government can be a president, or a governor.

Executive Order - An order issued by the President of the United States that may be a proclamation, or an order to change the processes within the Executive Branch.

High Crimes - Punishable offenses that only apply to high persons, meaning “public officials,” or those who, because of their official status, are under special obligations that ordinary persons are not under.

Legislative Authority - See Legislative Powers.

Legislative Branch - Congress; the branch of the federal government that is vested with all legislative powers and consists of two Houses, the House of Representatives, and the United States Senate.

Legislative Powers - The ability to make law, modify law, repeal law, and anything else that has to do with affecting law.

Maladministration - Inefficient or dishonest administration; mismanagement.

Misdemeanors - In the Constitution the definition is bad behavior including, but not limited to, gross incompetence, gross negligence, or outright distasteful actions which clearly show “malevolence toward this country and constitution, which is unabated”; maladministration.

Nullification - State power to ignore unconstitutional federal law.

Perjury - Lying under oath, violation of one’s oath (or affirmation).

Plausible Deniability - Circumstances where denial of responsibility or knowledge of wrongdoing cannot be proved as true or untrue due to a lack of evidence proving the allegation; when high ranking officials deny responsibility for or knowledge of wrongdoing by lower ranking officials; any act that leaves little or no evidence of wrongdoing or abuse.

Quorum - Minimum number of members of an assembly necessary to conduct the business of that group.

Regulatory Agencies - Agencies within the Executive Branch tasked with executing the laws of the nation; the enforcement arm of the Executive Branch.

Separation of Powers - A division of governmental authority into three branches: legislative, executive, and judicial; division of powers between the States and federal government.

State of the Union address - A speech about the state of the union addressed to Congress by the President.

Treason - Levying war against the States, or adhering to the enemies of the States, giving aid and comfort to the enemy.

Veto - The power of a chief executive to reject a bill passed by the legislature in order to prevent or delay its enactment into law.

Questions for Discussion:

1. During what kind of circumstance can the President of the United States act legislatively?  Why?

2.  What kind of circumstances do you believe would be considered extraordinary by the Founding Fathers?

3.  What is the proper role of the Regulatory Agencies?

4.  Should failing to preserve and protect the United States Constitution be an impeachable offense?  Why, or why not?

Resources:

Jon Roland, Meaning of "High Crimes and Misdemeanors"; Constitution

Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).

Madison’s Notes Constitutional Convention, Avalon Project, Yale
University: http://avalon.law.yale.edu/subject_menus/debcont.asp

Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –
Volume Four – Article I, Section 8, Clause 5 to Article VII; Indianapolis: Liberty Fund (1987)

Vincent Gioia, What is a ‘Misdemeanor’ Under the Constitution and


Copyright Douglas V. Gibbs 2015