Detroit Bankruptcy Constitutional Issues

Bankruptcy proceedings underway in Detroit will go a long way in determining what path cities might take in reducing unsustainable pension benefits. Attorneys for the City of Detroit are taking an aggressive stance in arguing that the city has standing in federal bankruptcy court.  However, the key issue of pension "impairment" is not addressed directly by the city's filing.  City lawyers skirted the constitutional issue of pensions by arguing in their filing that no impairment of pensions has yet been taken by their filing.  An excerpt from Michigan's constitution highlights the conundrum:

§ 24 Public pension plans and retirement systems, obligation.
Sec. 24. The accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby.

One would think this is case closed, the state of Michigan, through its constitution, is now on the hook for Detroit's pensions.  However, this case has a federalist element.  The bankruptcy was filed under federal bankruptcy laws.  Was it the intent of Congress in passing the bankruptcy laws to supplant state constitutions?  If so, under the Supremacy Clause in Article VI, the city's lawsuit should be heard and trump federal law.  There is an entire section of the bankruptcy code devoted to municipalities, Chapter 9.  Pensioners are arguing that the courts must first hear constitutional issues before the bankruptcy hearing can proceed and have moved to remove the case out of bankruptcy court to district court.

Since I am not a lawyer, I turn to the analysis of University of Pennsylvania law professor David Skeel, to make the case.  From the WSJ:

Article IX, Section 24, of the Michigan state constitution says: "The accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby." Yet Chapter 9 of federal bankruptcy law clearly authorizes a city to restructure its obligations to restore financial health. How will the conflict be resolved?

Chapter 9 should prevail. The U.S. Constitution (Article VI) states that the laws of the United States are "the supreme law of the land," and furthermore, that judges in every state are bound by them, "anything in the constitution or laws of any state to the contrary notwithstanding."

Seem clear enough to me.  Here is some more perspective.

Seven states have specific clauses in their constitutions that protect public employee pensions: Alaska, Arizona, Hawaii, Illinois, Louisiana, Michigan, and New York.

Some of these states might eventually have the biggest bankruptcies from pension obligations.  Without at least the threat of bankruptcy, I don't think unions are ever going to back off from claims that the constitution protects retiree benefits, even if there are no taxpayers left to foot the bill.

Who's going to pay for the pensions now?

Big Brother In Motion - The Highway Bill

The transportation bill working its way through the Senate is a hodge-podge of pork barrelism and big brother intrusiveness that really ought to be defeated. Smooth sailing through the House is predicted. Of course it has the Orwellian name Moving Ahead for Progress in the 21st Century (MAP-21) aka SB 1813. If by progress you mean the IRS having the power to keep you from traveling, new black boxes for your car and rules to prevent a car from being built with a tv screen in the driver's view. (I guess they haven't heard of 4G and smart phones.)

It has an awesome purpose of course: To reauthorize Federal-aid highway and highway safety construction programs, and for other purposes. Of course, some of those other purposes leave us gasping. It gives me serious pause about my 2008 switch to the GOP.

Mandatory Event Recorders
Not later than 180 days after the date of enactment of this Act, the Secretary shall revise part 563 of title 49, Code of Federal Regulations, to require, beginning with model year 2015, that new passenger motor vehicles sold in the United States be equipped with an event data recorder that meets the requirements under that part.

Of course there are all sorts of privacy protections for the data, which could be later repealed.

Revocation or Denial of Passport in Case of Certain Tax Delinquencies
If the Secretary receives certification by the Commissioner of Internal Revenue that any individual has a seriously delinquent tax debt in an amount in excess of $50,000, the Secretary shall transmit such certification to the Secretary of State for action with respect to denial, revocation, or limitation of a passport pursuant to section 4 of the Act. . .

So the IRS can deny you a passport on their say-so. We have seen politicization of the IRS for other purposes, even a "mix up" could be used to seriously impact someone with plans to travel abroad. How does this pass the due process clause restrictions in the constitution?

Here are some other gems.

Jason's Law.
It is the sense of Congress that it is a national priority to address projects under this section for the shortage of long-term parking for commercial motor vehicles on the National Highway System to improve the safety of motorized and nonmotorized users and for commercial motor vehicle operators.
Another national crisis brought under control by our ever vigilant Congress critters.

Striking a blow for federalism.

Open Container Law.
. . .if a State has not enacted or is not enforcing an open container law described in subsection (b), the Secretary shall reserve an amount equal to 2.5 percent of the funds to be apportioned to the State on that date under each of paragraphs (1) and (2) of section 104(b) until the State certifies to the Secretary the means by which the State will use those reserved funds in accordance with subparagraphs (A) and (B) of paragraph (1) and paragraph (3).

But we will mandate efficiencies by gum, here is the section on efficiencies in the bill.

Program Efficiencies
The first sentence of section 102(b) of title 23, United States Code, is amended by striking ‘made available for such engineering’ and inserting ‘reimbursed for the preliminary engineering’.

Yep, that's it, that's all the efficiencies we could get . We are awesome.

And because we have so many Chevy Volts on the road, there is this clause.

Electric Vehicle Charging Station
The addition of electric vehicle charging stations to new or previously funded parking facilities shall be eligible for funding under this section.

And while were moving forward for progress, let's not score the cost.

Budgetary Effect
PAYGO Scorecard- The budgetary effects of this Act shall not be entered on either PAYGO scorecard maintained pursuant to section 4(d) of the Statutory Pay-As-You-Go Act of 2010.

Reading legislation is dang close to watching sausage being made.

Obamacare - Taxing Issue

Hot Air is reporting, actually re-reporting from Philip Klein, that even the liberal justices were skeptical of the idea a tax not called a penalty could be called a tax. Congress explicitly withdrew language from Obamacare that called the penalties enforcing the individual mandate a tax.

On the first day of oral arguments in the case challenging President Obama’s national health care law, justices seemed skeptical that the individual mandate should be considered a tax — one of the main consitutional defenses being offered for the law.

To be clear, today’s 90 minutes of oral arguments did not concern the underlying merits of the case, but whether an 1876 law called the Anti-Injunction Act bars the Court from ruling on the suit at this time. Under the Anti-Injunction Act, people cannot challenge a tax in court until after they have paid it, something that would effectively punt the issue until at least 2015. However, there is some overlap between this question and the idea of whether the mandate is a tax, and justices on both sides of the ideological fence expressed skepticism that the mandate should be treated as a tax.

Even though the smart money seems to be on the Justices upholding the law, I remain optimistic that the vast overreach of stretching the commerce clause will come to its limit. Frankly, if the individual mandate is not overturned, I don't see how the federal government can have any constitutional limits to its reach.

Obamacare Quote of the Week

Dean, at Beers with Demo, takes down Nancy Pelosi idiocy about how Obamacare is constitutional because it enables the pursuit of happiness, which is of course in the Declaration, not the Constituion. Read it all here, but the money quote follows:

It's done. Some 236 years later, we've completed the journey started by our founding fathers. Not merely content with inherent or God-given rights, we've progressed to a point in our post-constitutional republic where a back room deal-brokered, kick back-laden, lobbyist-written piece of legislation that nearly two years from full enactment is going to cost twice as much as advertised as when it was voted into law, will now be the guarantor of life, liberty and the pursuit of happiness.

America's Vital National Interests

I am taking a class on strategic planning that includes discussions of America's national interests. I was pleasantly surprised at the constitutional view of the national interest implied in the course's definition. From Graham Allison's document America's National Interest.

. . . we subscribe to the sturdy one-line summary of American vital interests, first
formulated in the late 1940s: to “preserve the United States as a free nation with our
fundamental institutions and values intact.” According to this summary America’s vital interests include (1) survival as a free nation with our fundamental institutions and values; and (2) the international conditions required therefor—in current vernacular, to safeguard and enhance the well-being of Americans in a free and secure nation.

However, this definition of vital national interest got me thinking about the words "free nation" and "fundamental institutions." Both concepts require a little more elucidation to be applied meaningfully to future planning. They are also a little slippery when we grapple with them. For example, what it means to be a "free nation" has undergone revision over time. Today, we might not call a nation free that allowed slavery, and only allowed male land owners to vote. By that standard, today's Saudi Arabia, would be considered more of a free nation than post-revolutionary America. Yet, we consider our nation the enduring continuity of that grew from that original revolution and we consider ourselves exemplars of what it means to be free. The same might be said of the concept of fundamental institutions, which has the misfortune of using part of the euphemism once used to describe slavery, "peculiar institution." Just what institutions are considered fundamental in a republic such as ours? Are only the institutions of government fundamental? I feel confident that de Tocqueville would think otherwise. So how does one determine which institutions are fundamental and what freedom means?

I don't have a full answer to the questions of institutions, but the concept of maintaining our status as a free nation seems clear. The freedoms enshrined in the Constitution of the United States form the basis of deciding whether or not we remain a "free nation." The interpretation of these freedoms does change over time, but they are enduring enough to form a stable basis for making a judgement about what is vital to the national interest. This means that the rights enshrined in the Bill of Rights and the limits placed on the federal government in the constitution must be observed. This also has the benefit of restricting the grandiosity of our planning inside the federal government. Regardless of the threat we might face, we must respond within that framework or we are not truly acting in the national interest. This is a deeply political understanding for those of us in the federal government, enshrined in our oath of office.*

With regards to the concept of our fundamental institutions, those can only be inferred by observation. Unfortunately, it seems that the concept as discussed in "America's National Interest" only applies to the institutions of government. Other institutions such as the integrity of the family unit or the web of volunteer organizations that alleviate so many ills of our society, are worthy of protection under the meaning of fundamental institutions. However, it is not up to the government, federal or otherwise, to prop any of them up in any particular form, merely the government should do no harm. It is my belief that the constitution, as originally intended, limits the power of the federal government to do so; but the meaning of those limits have been so stretched that government is intruding into areas where American's voluntary groups have traditionally held sway. Recognizing the practical as well as constitutional limits of government might be a start.


*Full text of federal employee oath of office:

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

The federal Office of Personnel Management helpfully adds this explanation:

As Federal civil servants, we take an oath of office by which we swear to support and defend the Constitution of the United States of America. The Constitution not only establishes our system of government, it actually defines the work role for Federal employees - "to establish Justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty."

Constitution Day and the Tea Party

Happy Constitution Day, tomorrow September 17th. This should be the national holiday of the Tea Party. From yesterday's National Journal article, where Dawn was quoted multiple times.

But, tea partiers say, if you think moving votes and passing bills are what they are really all about, you have not taken the full measure of their ambition. No, the real point is to change the country's political culture, bending it back toward the self-reliant, liberty-guarding instincts of the Founders' era. Winning key congressional seats won't do that, nor will endorsing candidates. "If you just tell people to vote but you don't talk about the underlying principles," Martin says, "you just have to do it again and again and again, in every election."

What will work, they believe, is education: DVDs on American history; "founding principles" training; online reading lists; constitutional discussion groups; cultural and youth programs. In Tennessee, says Anthony Shreeve, an organizer there, groups are giving courses on the Constitution and "socialism and the different types of isms," bringing in speakers from around the state. "Our members have gotten more involved and learned about our local government, how it works, and what kind of influence we can have," Shreeve says. "Education has been the biggest thing."

It all comes back to this little amendment, my favorite, the 10th:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

My favorite lefty litmus test is to ask this, "Under the Interstate Commerce Clause and the 10th amendment, what if any limits are there on federal authority to regulate economic activity?" Your lefty, knowing he/she is trapped, will him and haw and not answer the question.

Exhibit A:



Notice how the question never gets answered. This is what we get when we ignore the principles of our founding. This is why the Tea Party isn't just a good idea, it's a necessity to save the nation. Please join our protests and educate yourself on the constitution.

Programming note: Sarah's video montage with Muses' Uprising so perfectly captures the spirit of our movement that I decided to unilaterally make it the Official Music Video of the movement, as noted in the column at right.

The sadly obligatory Pete Stark video post

What is up? Dean here again filling in for B-Daddy as he is spending time with the family Down Under.



This does qualify for Nancy's Nuances: a journey of discovery (things we're finding out about ObamaCare after ObamaCare has passed (Letting the Mask Slip sub-set)) not only based upon chronology but also on the merits of Stark's justification for passage of ObamaCare: We won.



Great points all, made by this young lady as it's readily apparent that she is talking at a level way above Stark's pay grade as he has no concept nor interest in understanding how the 5th, 10th and 14th amendments would prevent you from being compelled to sign up for health care just as it would prohibit the confiscation of goods and services from others as is the case when you declare particular goods and services a right.

Stark is a thug. There is simply no other way to put it.

Another memo to our goo-goo (good government) liberal friends: Sure, you would like to see the government play an active role for good in society but does Pete Stark's vision of a Thomas Friedman-esque totalitarianism look like your view of liberalism? Does what Pete Stark is saying sound anything remotely like, "Keep your laws off my body?"

The Democratic Party, which has for years been informed by notions of the limitless power of government dared not actually say it, until now. The passage of ObamaCare has proved to be truth serum to its authoritarian acolytes who now attend town hall meetings and impassively tell their constituents:

I think that there are very few constitutional limits that would prevent the federal government from (making) rules that could affect your private life.

Well, shoot-howdy, that doesn't sound like the bra and draft card burning Democratic Party of dear old Mom and Dad, now does it, gang?



If they can do this, what can't they do?


P.S. We have no idea who the young woman in the video is, however, her identity along with other private details of her life will no doubt be exposed by the Wasilla Dumpster Diving Posse.




This has been cross-posted over at Beers with Demo.

Eat Your Vegetables? Don't Expect Relief From Kagan

Who says that Supreme Court Justice confirmation hearings are vapid and hollow charades? Tom Coburn, apparently reading George Will, asks the Supreme Court nominee if Congress has the constitutional authority to tell us to eat our vegetables, obfuscation follows.



Kagan's non-response is a clear indicator to me that she doesn't believe that the constitution limits the Congress in any meaningful way when it comes to economic rights. For those on the left who proclaim the need for constitutional government, and bitterly complained about Bush, I ask, how can you support a nominee who disdains any notion of limits on the federal government?

And for those on the left who believe that you can somehow separate personal from economic freedom, I commend some study of Hayek. From Ilya Somin of The Volokh Conspiracy:

Third, as Hayek contended in “The Road to Serfdom,” political freedom and economic freedom are inextricably intertwined. In a centrally planned economy, the state inevitably infringes on what we do, what we enjoy, and where we live. When the state has the final say on the economy, the political opposition needs the permission of the state to act, speak and write. Economic control becomes political control....

This is why I oppose the left in all of its guises. Maybe they aren't socialists, but they certainly put us on a path to less freedom.

Targeting U.S. Citizens

The Obama administration is certainly winning no friends on the left with the news that a radical Muslim cleric, Anwar al-Awlaki, born in New Mexico has been added to the CIA hit list. But just because the left is unhappy, it doesn't mean conservatives should cheer. From the NYT article:

Administration officials take the view that no legal or constitutional rights can protect Mr. Awlaki, a charismatic preacher who has said it is a religious duty to attack the United States and who the C.I.A. believes is actively plotting violence. The attempted bombing of Times Square on May 1 is the latest of more than a dozen terrorist plots in the West that investigators believe were inspired in part by Mr. Awlaki’s rhetoric.

“American citizenship doesn’t give you carte blanche to wage war against your own country,” said a counterterrorism official who discussed the classified program on condition of anonymity. “If you cast your lot with its enemies, you may well share their fate.”

Seems fair enough, right, you engage in war against the United States and your "rights" are not protected, because, hey we're at war. But are we really? Consider this:

Section 8 - Powers of Congress
...
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

So, when did the Congress of the United States declare war on al-Qaeda? Never, to my recollection. Without a formal declaration of war that specifically calls out the theater of operations and the nation or group with whom we are at war; what are the constitutional limits on targeting U.S. citizens? None. Further, even if this cleric is engaged in anti-American rhetoric, targeting someone for assassination far from the actual war zones seems extra-legal and without constitutional precedent. As always, my concern is over reach and the potential for targeting of U.S. citizens for far lesser offenses, like criticizing Obamacare while in a foreign country. Any legal doctrine that ascribes powers to the President outside the lawful and constitutional framework essentially ascribes unlimited powers in that area. This is why the founders made clear the need to declare war before the President, as commander-in-chief of the armed forces, could wage war.

How do we deal with such an individual? Certainly he is committing treason by his statements and actions. We should seek extradition from Yemen, and since that might not be forthcoming, then perhaps those Letters of Marque and Reprisal might have a salutary effect.

Times Square Bomber and the Constitution

I have seen some commentary on the right stating that the Times Square Bomber should be handed over to a military tribunal. John McCain, most prominently, seemed to be saying that the suspect, Faisal Shahzad, shouldn't have been given his Miranda rights. The linked article suggests a similarity with the Christmas day bomber, Umar Farouk Abdulmutallab. This is a dangerous road for conservatives to take. Through incompetence or not, Shahzad was a U.S. citizen, who committed his crime on U.S. soil. In my view, this makes the issue a police matter, even if there are international connections. A treason charge wouldn't change his legal status and might be appropriate, but the constitution is clear that until convicted of treason, the suspect loses no rights.

The first danger from this approach is that it undermines pretty decent arguments for military tribunals for foreigners we capture as part of the war on terror, or whatever we are calling it. Conservatives will be seen as willing to suspend the rights of anyone and feed the suspicion of the some that we are closet fascists. We need to clearly make the case that foreigners lack the rights that U.S. citizens retain, in order to maintain public support for a realistic approach against foreign fighters. By lumping all categories of terrorists together, we actually tie the hands of our military overseas, because legal issues become overwhelmingly intrusive on the battlefield.

Even more importantly, we must respect constitutional safeguards if we are to remain a free people. As Glen Beck pointed out last night, the Constitution matters most when it is most inconvenient. Imagine for a moment that you attended a rally that called for the repeal of Obamacare and generally lambasted government excess in general. Of course, a couple of kooks might show up, LaRouche followers perhaps; who start advocating the violent overthrow of the government, in some sort of black hat op. If you were rounded up by the police and charged with terrorism, just because you were there, wouldn't want your rights of habeas corpus, Miranda, and to an attorney to be respected? Our constitutionals rights form a bulwark against tyranny that is perhaps more fragile than we believe.

Conservatives have been sloppy over the last decade on this issue. Even though I supported the military tribunal process while Bush was President, I did not support his extra-legal approach, abrogating powers not granted to him by law or the constitution. Same for foreign wire tapping; I support the effort, if codified into law and given judicial oversight. Our case for our methods are undermined if we fail to support the rule of law and conformance to the constitution. One of the strengths of argument we have against the over reach of the current administration is our adherence to constitutional principles. Let's not fritter away that strength. Go ahead and Mirandize Shahzad.

Addition to post: Volokh Conspiracy, as usual, has a decent legal analysis of the issue. I am kicking myself for not reading it first. They make the great point that the FBI did not need to Mirandize the suspect under the public safety exception if they needed to get further information about other plots.

The Census and the Constitution

Article 1, Section 2 of the Constitution of the United States of America (in part):

The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.

Enough said.

Every household should fill out the census. It is used for the legitimate and lawful purpose of determining the apportionment of the Congress. If you don't like the question about race, write in "American" or any thing else truthful, but fill it out. It's a legitimate exercise of the Congress' authority.

Constitutional What? - Update

I admit to not having listened to much of Obama's SOTU speech this evening. I can't stand his tone, his air of moral superiority, when he is at the core of the "Washington" culture he uses as an epithet.

But as a committed Federalist I was most appalled by this little gem.

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections. (Applause.) I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

That was zero deference whatsoever to separation of powers; the Court just ruled that prior legislation trampled on freedom of speech and your response is to pass more legislation likely to also get smacked down. It was ever more egregious because he taught courses in constitutional law and his supporters moaned and complained incessantly about Bush's lack of respect for the constitution during the prior administration.

UPDATE

Obama also appears to have been inaccurate with his assertion about foreign influences. From the NYT Caucus blog:

But in his majority opinion in the case, Citizens United vs. the Federal Election Commission, Justice Anthony Kennedy specifically wrote that the opinion did not address the question of foreign companies. “We need not reach the question of whether the government has a compelling interesting in preventing foreign individuals or associations from influencing our Nation’s political process,” he wrote.

H/T to The Volokh Conspiracy, probably the best legal blog you're not reading.

Freedom Blogging - What Are We Fighting For?

On Veteran's Day, I thought it would be worthwhile to remember not only the veterans but what the veterans have prepared and fought for. Early in the formation of the nation, our founding fathers had the wisdom to insist that the oath taken by our armed forces be a pledge of allegiance not to a man or even the nation, but to the constitution of the United States. Commissioned Officer's oath:

I, (state your name), having been appointed a (rank) in the United States (branch of service), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foriegn and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the office upon which I am about to enter. So help me God.

Enlisted member's oath:

I, (state your name), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.

These are very political oaths, but not in the sense that we think of politics today. The oath to the constitution is to a very specific form of government, that of a republic, whose powers are limited to those enumerated and further constrained by a bill of rights. Further, the members of the military have forsworn any attempt at a coup or other subversion of democratic principles. Finally, the members of the military are swearing that they will obey the lawful order of the President, the elected leader of the nation. We sometimes take all of this for granted.

In the great sweep of history over the last 230 plus years we have seen our form of government become the accepted standard against which all others are judged. By force of arms our veterans have defeated:

• Monarchism - Defeating the British in the Revolutionary War and then preventing any reconquest of the Americas through the Monroe doctrine. Again in World War I we fought and prevailed against countries ruled by monarchs.
• Slavery - In the civil war.
• Fascism and Nazism - In World War II.
• Communism - By fighting in Korea and Vietnam (even if a loss) and by the great persevering struggle of the Cold War.

Today, we are faced with another threat, not nearly as great as previous threats, in the ideology of islamic theocracy (islamofascism). We are fighting right now in Afghanistan and Iraq, but like many ideologies we have faced in the past, victory may take a while and come in fits and starts.

To those veterans who paid with their lives we offer our gratitude and we honor their memory by remembering the cause for which they gave their lives, the cause of freedom.

After we win this conflict, let us remember the words of Abraham Lincoln from his second inaugural address:

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.

American soldiers in the Battle of the Bulge defeat the Nazi counterattack.

Harry Reid Constitutional Update #5

UPDATE #5 (and hopefully the last)

Apparently Harry Reid has given up on his fight against the constitution and the Senate is going to seat Roland Burris. Full story here. This is an amazing development if, and it's a big if, you ever took Harry's "fight to the death" rhetoric seriously. Even the funsters at DailyKos have been taking their shots at Harry. Hopefully he will have a long tenure as leader of the Senate Democrats.

Also, I find the outcome comforting. For all the twists and turns and out and out criminality, it looks like the rule of law will prevail, both in seating Burris, and in removing Blagojevich in the constitutionally accepted manner of impeachment and trial in the state senate.

ORIGINAL POSTS FOLLOW:


Reuters is mindlessly parroting Harry Reid's assertion that he has the sole authority on whether or not to seat Roland Burris, Blago's pick for Illinois Senator. Read this quote:

Under the Constitution, Reid said, "We determine who sits in the Senate. And the House (of Representatives) determines who sits in the House. So there's clearly legal authority for us to do whatever we want to do. This goes back for generations."

As I posted earlier, this is so much rubbish and is settled case law at that. This is just further evidence of why the Democrat run Senate and House can't break 20% approval ratings. Clear legal authority to do what we want to do? So much for the constitution, so much for elections for that matter, why doesn't Harry just pick all the senators himself?

UPDATE #2

As expected today, the Secretary of the Senate refused to seat Roland Burris because "his credentials were not in order." Meanwhile Governor Blagojevich has called a special election to fill the vacated House seat of Obama Chief of Staff Rahm Emmanuel. Is he governor or not? The Democrats only have themselves to blame for neither impeaching Blago immediately nor passing legislation to remove his power to fill the senate vacancy. From the Chicago CBS affiliate story:

Roosevelt University policy studies professor Paul Green said there is no reason why Burris should not be seated."One doesn't know what's going on, because legally, (Burris is) absolutely correct, and there should not be any debate; there should not be any discussion. Secretary of State White really has no function in this; the statute is clear. The governor makes the selection," Green said. "I don't know how you bar somebody from a sovereign state who was legally appointed not to go to the U.S. Senate – which, by the way, is not known for being the home of many vestal virgins – and all of a sudden you have everyone shocked, outraged by this process."

Exactly.




UPDATE #3

Rumor has it that Senate Democrats are seeing the writing on the wall and preparing themselves to seat Roland Burris. More here.

UPDATE #4

As legal analysts come around to my position, this from Greta Van Susteren this evening:

I wish the President-elect and Harry Reid would just say, we didn't have time to read the seventeenth amendment to the constitution.

I guess it's just asking too much for lawmakers to be versed at all in the consitution. Especially former consitutional law perfessers.

Harry Reid Constitutional Update #2, #3 #4

Reuters is mindlessly parroting Harry Reid's assertion that he has the sole authority on whether or not to seat Roland Burris, Blago's pick for Illinois Senator. Read this quote:

Under the Constitution, Reid said, "We determine who sits in the Senate. And the House (of Representatives) determines who sits in the House. So there's clearly legal authority for us to do whatever we want to do. This goes back for generations."

As I posted earlier, this is so much rubbish and is settled case law at that. This is just further evidence of why the Democrat run Senate and House can't break 20% approval ratings. Clear legal authority to do what we want to do? So much for the constitution, so much for elections for that matter, why doesn't Harry just pick all the senators himself?

UPDATE #2

As expected today, the Secretary of the Senate refused to seat Roland Burris because "his credentials were not in order." Meanwhile Governor Blagojevich has called a special election to fill the vacated House seat of Obama Chief of Staff Rahm Emmanuel. Is he governor or not? The Democrats only have themselves to blame for neither impeaching Blago immediately nor passing legislation to remove his power to fill the senate vacancy. From the Chicago CBS affiliate story:

Roosevelt University policy studies professor Paul Green said there is no reason why Burris should not be seated."One doesn't know what's going on, because legally, (Burris is) absolutely correct, and there should not be any debate; there should not be any discussion. Secretary of State White really has no function in this; the statute is clear. The governor makes the selection," Green said. "I don't know how you bar somebody from a sovereign state who was legally appointed not to go to the U.S. Senate – which, by the way, is not known for being the home of many vestal virgins – and all of a sudden you have everyone shocked, outraged by this process."

Exactly.




UPDATE #3

Rumor has it that Senate Democrats are seeing the writing on the wall and preparing themselves to seat Roland Burris. More here.

UPDATE #4

As legal analysts come around to my position, this from Greta Van Susteren this evening:

I wish the President-elect and Harry Reid would just say, we didn't have time to read the seventeenth amendment to the constitution.

I guess it's just asking too much for lawmakers to be versed at all in the consitution. Especially former consitutional law perfessers.

Harry Reid and the Constitution

Rod Blagojevich has announced his intention to appoint some hack who happens to be black to the former Senate seat of Barack Obama. Harry Reid has said that any appointment by Blagojevich will be blocked by the Senate. Glad to see that Democrats' new found respect for the constitution during George W. Bush's tenure as President is conveniently chucked out the window at the first inauspicious moment.

First, consitutionally, the governor has the power to appoint a replacement senator if the legislature has previously passed enabling legislation. In Illinois, it has. Second, the governor has not been indicted nor impeached. What could the Democrats do? Instead of playing games, they could have repealled the law.

Under what consitutional basis does Harry Reid believe he can deny seating Burris? Reid makes reference to the qualification of the governor to make the appointment, seeming to allude to Article I, Section 5 of the constitution, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members..." However, in Powell vs. McCormack,

The Court determined in this case that no Congress could exclude a not-yet member (i.e., a candidate member) from being sworn in and taking their seat in the House. The Court found that if the Congress went beyond a determination that a candidate member had satisfied the Constitution’s qualifications for membership (and had been duly chosen by, and through the laws of their state) it could not (under the Constitution) go further in examining and possibly rejecting a candidate member before administering the oath of office, and seating them.

So Dingy Harry's only real recourse is to expel Burris after he is seated and for that he needs a two-thirds majority. Should Republicans help him? Not if they respect constitutional government. Worst of all, the President-Elect seems to share Reid's lack of respect for constitutional process.

Today is Victory in Iraq Day

What if we won a war but nobody gave a parade to celebrate the victory? Gateway Pundit makes the most compelling case that we have won the war. Zombietime has organized the pro-freedom wing of the blogosphere to recognize an event that the MSM and our government don't want to acknowledge. I am proud to add my voice to this effort, small though it may be.

I am ill equipped to add to Gateway Pundit's fine analysis of how and why the war was won. I am more concerned about the reasons that the administration won't declare victory. I believe it is a combination of embarassment (remember "Mission Accomplished") and cowing by the MSM. But here is where the weaknesses of the Bush administration become so glaring. This administration has never been temperamentally suited to the traditions of the republic. Too often it is willing to go it alone and take unpopular stances. So far, so good, if they are upholding the best interests of the nation. Unfortunately, our form of government calls for congressional oversight of the executive and counts on a free press to monitor the actions of the federal government. That puts the responsibility for making the case for unpopular actions on the President of these United States. George Bush failed to make his case, an even more glaring crime when one considers that the facts were on his side. Bill Clinton was criticized for being in perpetual campaign mode, but I believe that is necessary to achieve the agenda of the Presidency.

Further, the President failed to involve the Congress in achieving consensus on the means to prosecute the war. The foreign wiretapping issue is perfectly illustrative. When finally put to an up or down vote, Congress approved legislation that allowed the executive to take the required actions. But Bush's unilateral pursuit of this course of action appeared made him appear lawless and unconstitutional, thereby undermining support for the war. Same for the Gitmo tribunals. No way do the terrorists deserve the protections of the U.S. constitution. But the President lacks the constitutional authority to set up tribunals outside of the purview of courts or the congress.

Sorry to rain on the celebration, but this is important to remember as conservatives and libertarians lay out the principles that will rest the moral high ground from the left.

MOST IMPORTANT OF ALL, WE SAY THANK YOU TO THE TROOPS, WHO MADE VICTORY POSSIBLE.