Posts Tagged ‘precedent’

On Obama’s Viciously Divisive, Partisan And Unconstitutional Power Grab In Making Non-Recess ‘Recess’ Appointments

January 5, 2012

There’s something called “advise and consent.” Every Congress has had that – until the age of Obama. If Obama wins on this, there will no longer be such a thing. No president will ever again have to bother to present his nominees to the people and their elected representatives; rather, he will simply wait until recess and appoint the people he wants. He can appoint anyone, no matter how extreme or how out-of-step with the American people those “appointees” (they won’t be “nominees” because the president will merely appoint them) ever again.

The Senate has been meeting every three days to prevent Obama from doing the very thing he did. Three days kept the Senate officially in Senate by the Senate’s own rules; rules which DEMOCRATS created, for what that’s worth. And now the rule of law is simply meaningless because we have a fascist-in-chief ruling over us.

It is the act of a true fascist dictator and the result of a true fascist party.

You can read my thoughts on this shockingly partisan, divisive, un-American and unconstitutional action taken by Obama here.

But Politico has a decent article on the subject, too:

Obama recess appointment power is murky
By MANU RAJU and SCOTT WONG | 1/4/12 5:54 PM EST

What happens when the president makes a recess appointment when the Senate is not technically on recess?
 
Nobody knows.

But President Barack Obama’s decision to jam the Senate and install three labor nominees and a consumer watchdog without a confirmation vote raises unsettled legal questions that could have a long-lasting impact past his presidency.
 
“This is not a nice, clear-cut area at all,” said Robert Dove, a former Senate parliamentarian, when asked about the implications of the president’s move.
 
Legal experts said Wednesday that there was no precedent for such recess appointments and that it would likely be put to the test in the courts by industry groups seeking to challenge regulations issued by the new Consumer Financial Protection Bureau, whose new head, Richard Cordray, received an appointment even though the chamber was technically in session every few days.
 
Obama, they said, had effectively reasserted the power of the executive branch in the ongoing confirmation battles over the president’s nominees that have been dominated by the Senate during the past half decade.
 
But in concluding he had broad authority to install his appointments, Obama risks seeing other nominees bottled up by Senate Republicans who are privately vowing to retaliate against what they believe is a brazen power grab by the Obama administration. And if Republicans regain control of the Senate in the 2012 elections, it may be even harder for the president to win confirmation of controversial nominees if Obama wins a second term.
 
“What the president did today sets a terrible precedent that could allow any future president to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress,” Minority Leader Mitch McConnell (R-Ky.) said.
 
The gridlock was already bad in the Senate, but Obama’s moves could lead to a nuclear winter in a chamber where one senator could bottle up virtually any presidential nomination anytime in the future.
 
“It certainly will exacerbate the already bad relations between Republicans in Congress and President Obama, and I think this is a mistake,” former Senate Majority Leader Trent Lott (R-Miss.) said in an interview. “I do think this will wind up creating ill will and end up in legal actions.”
 
The controversy started Wednesday morning when Obama named Cordray to serve as head of the CFPB created by the 2010 Dodd-Frank Wall Street reform law. Cordray had been successfully filibustered by Republicans last month who had demanded a series of changes to the new bureau in order to roll back its sweeping regulatory powers.
 
Ignoring the outrage from congressional Republicans, Obama took his defiance of the Senate a step further by announcing Wednesday afternoon that he would install three choices to serve on the National Labor Relations Board — Sharon Block, Terence Flynn, and Richard Griffin — as the Senate remained on break until Jan. 23. Flynn is the Republican of the trio.
 
Recess appointments are typically controversial since presidents are circumventing the Senate by naming someone to a spot until the end of a year’s session. By this point in President George W. Bush’s second term, he had made 61 recess appointments, compared to 28 for Obama.
 
But Wednesday’s move took on a special significance because the Senate technically had not gone into recess. Instead, the Senate has been holding a series of pro forma sessions every few days in order to technically avoid recessing. The sessions are only a few seconds long, where one presiding senator — usually from nearby states such as Virginia, Maryland and Delaware — gavels the Senate in and out and goes home for the day.
 
Senate Majority Leader Harry Reid (D-Nev.) began holding pro forma sessions periodically in Bush’s second term in order to prevent controversial recess appointments like Steven Bradbury being named to the top ranks of the Justice Department. The Bush administration protested the move, but the president didn’t make recess appointments during the pro forma sessions.

When Republicans took control of the House, going into pro forma sessions became the norm since neither chamber can recess for longer than three days without the consent of the other.
 
But now that Obama has decided that pro forma sessions don’t matter much, Republicans warn there is no stopping presidents from undermining the Senate’s traditional advise-and-consent role.

“Any future president can recess appoint anyone he wants anytime the Senate goes home for the weekend, if this stands up in court,” said one GOP leadership aide.
 
The Obama White House said the pro forma sessions amount to a distinction without a difference since senators are on vacation and not conducting business.
 
“Gimmicks do not override the president’s constitutional authority to make appointments to keep the government running,” said one senior administration official, adding that Bush’s lawyers made a similar argument themselves.
 
White House spokeman Jay Carney called it a “no-brainer” as he was en route to Cleveland where Obama announced the Cordray appointment.
 
Obama attacked Republicans for holding up an agency head because of concerns over the agency.
 
“We shouldn’t be weakening oversight. We shouldn’t be weakening accountability. We should be strengthening it — especially when it comes to looking out for families like yours.”
 
Republican leadership aides said it was unlikely that senators would sue the administration over the matter, but industry groups said it was virtually certain it would be challenged in court. They said once the consumer agency issues a regulation, the constitutional issues will be raised.
 
Sen. Rob Portman (R-Ohio) even suggested the recess appointment could be challenged since the Dodd-Frank law calls for a Senate-confirmed head of the agency.
 
“At some point, there is going to be a challenge over something it does, and whoever is challenging it would almost be committing legal malpractice not to raise these ripe constitutional questions,”said David Hirschmann, senior vice president at the U.S. Chamber of Commerce.
 
“Ultimately, by letting the courts decide the legality of this, it’s going to put a dark cloud over how the consumer bureau will operate.”
 
Recess appointments have been challenged in court before, but courts have generally given broad power to presidents on the issue.
 
In 2004, when the Senate was on an 11-day recess, Bush named William Pryor, a former Alabama attorney general, to serve on a federal appeals court. The move infuriated Democrats, and the late Sen. Ted Kennedy sought to take the matter to court since it happened within the 10-day recess window that most presidents respected before giving a recess appointment.
 
But an appeals court rejected the Kennedy challenge, and the Supreme Court declined to hear the case.
 
Some think the same will happen in this case if it’s challenged in court.
 
“This is a power the president has always had and every president has exercised,” said Marty Paone, a former Democratic Senate leadership aide who was in charge of floor procedure. “This was a power grab by Congress to take it back. All this does is reorient it to what it’s always been. This restores the balance.”
 
The GOP has other recourse as well.
 
Republicans in Congress could block future executive branch appointments until Cordray is removed or changes are made to the CFPB. Or Republicans in the House and Senate can block action on any of Obama’s legislative priorities, like trying to “zero out” funding for the agency.
 
At the very least, Obama’s move could end the pro forma sessions that have been the norm in recent years, allowing the Senate to officially go on recess.
 
“In my experience, presidents do get away with recess appointments,” Dove said.

Obama’s act proves one thing: his Democrat Party is the official party of naked fascism in America.  His is a party that ignores the rule of law.  His is a party that flagrantly violates rules that they themselves devised and exercised.  His is a party that creates and perpetuates a spirit of anger and bitterness and revenge unlike anything America has ever seen.

I wrote an article nearly a year ago titled, “Why I Call Obama A Fascist.”   Read the above article and come to a different conclusion: Obama is abusing the power of the president more than anyone who has every occupied the office; and he is establishing precedents that will vaporize the separation of powers.  And what he is doing today will guarantee that America will descend into true fascist tyranny.

Barack Obama is the most polarizing and divisive president in American history.  Period.  We’ve known that from the very start of his regime.

It’s rather stunning to read what this vile and evil man has said about his fellow Americans.  You show me Bush saying crap like that about Democrats.  And yet Obama is a demonic demonizer on a daily basis.

If you want hate on top of hate on top of hate, and if you want a climate of anger and revenge that will poison America for years to come, please vote for Barack Obama. 

Because that is the “fundamental transformation” of America that he will be most remembered for when it’s all said and done.

So vote for the party and the president of God damn America.

Btw, one of the things that will come out of this, if it is allowed to stand, is a trillion dollar stimulus that will implode America with debt piled on top of debt and then more debt piled on top of that.

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Why They Are Dangerous: Liberal Justices Make Case Against The Constitution

July 2, 2010

The liberal justices pretty much say, “Screw the Constitution, except for the nonexistent “penumbra and emanations” parts of it that we can make up.”

The nonexistent right to murder your own baby that exists nowhere in the Constitution?  Check.  The clearly stated 2nd Amendment “right of the people to keep and bear arms (which) shall not be infringed”?  Well, the liberals say they don’t like it, they don’t want it to be there, so screw that right.

The Declaration of Independence makes it crystal clear: rights come from our being created in the image of God.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights

These are natural rights.  The Constitution doesn’t grant them to us; we have them naturally from God, regardless of where we live or what government we have.  And if a government doesn’t allow these natural rights to be expressed, the people have the right to remove that government.

Elena Kagan doesn’t give a damn about natural rights.  For her, they are meaningless.  Government is god; rights come at the whim of Big Brother.

That philospophy flies in the face of Abraham Lincoln’s view.  He believed that the Declaration of Independence DECLARED the foundation of and purpose for the Constitution, saying:

“I should like to know if taking this old Declaration of Independence, which declares that all men are equal upon principle and making exceptions to it where will it stop. If one man says it does not mean a Negro, why not another say it does not mean some other man?”

Our most fundamental rights derive from God.  They most certainly DON’T derive from government, or from the ideological whims of a bunch of half-wit morally idiotic liberal judges.

The fact that Kagan doesn’t believe that the Constitution itself derives from a more fundamental and more powerful authority, that there is no foundational moral law which itself stands above the Constitution, is why she believes that the government should have no power outside of it.  Which is why she believes that the government may have the power to dictate that you must eat your fruits and vegetables.

Another question which is emerging is exactly what constitutes judicial activism?  Is it violating the Constitution and imposing ones’ will upon it, or is it reversing a terrible decision that had violated the Constitution?

To Democrats, it is the latter:

Democratic Sen. Richard Durbin of Illinois, his voice dripping with sarcasm, said that for Republicans accusing Democrats of judicial activism, “I have two words for you: Citizens United,” the shorthand name of the campaign-finance case.

Democrats point to what they claim is a nearly century old Supreme Court principle limiting corporations from rights that American citizens clearly have, such as the right of free speech.  And that stare decisis makes overturning that ruling sacrosanct.

But their problem is that those who view corporations as having the same free speech rights as persons under the law has a nearly TWO century precedent supporting it:

In the United States, corporations were recognized as having rights to contract, and to have those contracts honored the same as contracts entered into by natural persons, in Dartmouth College v. Woodward, decided in 1819. In the 1886 case Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394, the Supreme Court recognized that corporations were recognized as persons for purposes of the 14th Amendment.[1][2]

From the railroad case:

In an 1886 tax dispute between the Southern Pacific Railroad and the state of California, the court reporter quoted Chief Justice Morrison Waite telling attorneys to skip arguments over whether the 14th Amendment’s equal-protection clause applied to corporations, because “we are all of opinion that it does.”

Why does violating “sacrosanct” stare decisis for “a nearly century old” precedent qualify as “judicial activism,” but violating a nearly TWO HUNDRED YEAR-OLD precedent not count as judicial activism?

Let’s set aside that we on the right have the oldest precedent on our side, such that the stare decisis argument becomes utterly null and void.  Let’s consider the merits of the case itself.  Heritage responds to that by pointing out:

However, those criticisms ignore the fact that the Austin decision on independent expenditures and the part of the McConnell decision on electioneering communications were outliers in the Court’s First Amendment jurisprudence. The majority’s actions in Citizens United did not constitute judicial activism, but rather upheld basic First Amendment protections against unlawful encroachments by Congress. It is not judicial activism when a judge overturns two relatively recent decisions that were wrongly decided and that are in conflict with a long line of other precedents—particularly if the decision corrects constitutional errors. If this were not true, then the same critics of the Citizens United decision must believe that Plessy v. Ferguson[15] should still be the law of the land today and racial segregation should still be considered “constitutional” since under their slanted and sophomoric definition, the justices of the Supreme Court engaged in judicial “activism” in Brown v. Board of Education.[16] After all, the justices in Brown overturned Plessy and repudiated the “separate but equal” doctrine as unconstitutional—and arguably did so when they decided subsequent cases striking down similar policies by recalcitrant jurisdictions that acted contrary to Brown and its progeny.

Which is to say that the Citizens United case wasn’t a case of judicial activism, in which judges literally invented out of their own warped minds by “penumbras and emanations” a right that had never existed.  It was, rather, a case of constitutional strict constructionists restoring the constitutional principles that had existed prior to a bad law (Austin) being enacted by a group of judicial activists.

You want REAL judicial activism?  How about the liberal justices who voted to overturn the 2nd Amendment guarantee of the individual right to keep and bear arms simply because they don’t like it?

Let’s look to see the vapid legal arguments “justifying” these four moral idiots’ votes:

Gun Shy: Four Supreme Court Justices Make Case Against Constitutional Rights
Jacob Sullum

On Monday, the Supreme Court ruled that the Second Amendment applies to states and cities as well as the federal government. Judging from their objections, the four dissenters were still reeling from the court’s landmark 2008 decision recognizing that the amendment protects an individual right to keep and bear arms.

In their dissenting opinions, Justices John Paul Stevens and Stephen Breyer (joined by Ruth Bader Ginsburg and Sonia Sotomayor) worry that overturning gun control laws undermines democracy. If “the people” want to ban handguns, they say, “the people” should be allowed to implement that desire through their elected representatives.

What if the people want to ban books that offend them, establish an official church or authorize police to conduct warrantless searches at will? Those options are also foreclosed by constitutional provisions that apply to the states by way of the 14th Amendment. The crucial difference between a pure democracy and a constitutional democracy like ours is that sometimes the majority does not decide.

Likewise, Stevens defends “state and local legislatures’ right to experiment,” while Breyer is loath to interfere with “the ability of states to reflect local preferences and conditions — both key virtues of federalism.” Coming from justices who think Congress can disregard state decisions about the medical use of marijuana because a plant on the windowsill of a cancer patient qualifies as interstate commerce, this sudden concern about federalism is hard to take seriously.

Another reason to doubt the dissenters’ sincerity: They would never accept federalism as a rationale for letting states “experiment” with freedom of speech, freedom of religion or due process protections. Much of their job, as they themselves see it, involves overriding “local preferences” that give short shrift to constitutional rights.

Second Amendment rights are different, Breyer says, because “determining the constitutionality of a particular state gun law requires finding answers to complex empirically based questions.” So does weighing the claims in favor of banning child pornography or depictions of animal cruelty, relaxing the Miranda rule, admitting illegally obtained evidence or allowing warrantless pat-downs, dog sniffs or infrared surveillance.

When they decide whether a law or practice violates a constitutional right, courts cannot avoid empirical questions. In cases involving racial discrimination or content-based speech restrictions, for example, they ask whether the challenged law is “narrowly tailored to serve a compelling state interest” and is the “least restrictive means” of doing so.

But unlike equal protection or freedom of speech, Stevens says, “firearms have a fundamentally ambivalent relationship to liberty.” How so? “Just as they can help homeowners defend their families and property from intruders,” he explains, “they can help thugs and insurrectionists murder innocent victims.”

Every right can be abused, with results that are immoral, illegal or both. Freedom of speech can be used to spread hateful ideas, promote pernicious political philosophies, slander the innocent or engage in criminal conspiracies. If there were no potential for harm from exercising a right, there would be no need to protect it, because no one would try to restrict it.

The dissenters’ most frivolous objection is that making states obey the Second Amendment “invites an avalanche of litigation,” as Stevens puts it. Every day we hear about cases in which people argue that the government has violated their rights under the First, Fourth, Fifth, Sixth or Eighth amendment. Neither Stevens nor Breyer wants to stop this “avalanche.” Only when the Second Amendment is added to the mix do they recoil in horror at the prospect that Americans will use the courts to vindicate their rights.

I have to laugh that the author of the above piece recoils in horror at the prospect of the Supreme Court voting to ban books because, if they do [read ‘when’], they’ve got a “book banning” advocate in Elena Kagan.

Justice Stevens does not have to worry that his home would be broken into by “home invasion” attackers who storm into a house and terrorize and murder the occupants in the home.  If he did, do you think he would still argue that the ability of a homeowner to protect himself and his family with a gun was somehow nullified by the fact that the criminals could have a gun, too?

Elena Kagan’s mentor was Justice Thurgood Marshall, who once famously said, “You do what you think is right and let the law catch up” (see Deborah L. Rhode, “A Tribute to Justice Thurgood Marshall: Letting the Law Catch Up,” in the 44 Stanford Law Review 1259 (1992).

WHAT IF WHAT THE JUSTICE THINK IS RIGHT IS REALLY DEAD WRONG?!?!?!

Activist judges have repeatedly throughout history justified slavery, segregation, and racism, abandoning the plain sense of the Constitution in order to impose their views upon the text.  Let’s not forget that it was Democrats who fought to impose slavery, and it was judicial activists who bound the country up with laws that took the bloodiest war in American history to overcome.

What did Thomas Jefferson say about the threat of Supreme Court Justices imposing their own will upon the Constitution and imposing laws on the nation based on nothing but their own wills?

“This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”
—Thomas Jefferson to Edward Livingston, 1825. ME 16:114

“The Constitution . . . meant that its coordinate branches should be checks on each other.  But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
—Thomas Jefferson to Abigail Adams, 1804. ME 11:51

“To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps.  Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”
—Thomas Jefferson to William C. Jarvis, 1820. ME 15:277

I don’t hear Jefferson praising “you do what you think is right and let the law catch up” as defining the role of our Supreme Court Justices.  In fact, I hear him turning in his grave over the abomination that Barack Obama’s and Elena Kagan’s philosophy is inflicting upon the nation.

[Note: I used the same quotes above in responding to the LAST abomination to the Supreme Court that Obama appointed].

Our Constitution is being poisoned by the left.  One day it will die, and they will be able to erect the Marxist-fascist state they’ve always dreamed of.

How long it will be before that evil day comes – which will undoubtedly occur in a 5-4 decision – is entirely up to you.