No, the president didn’t kill the process all by himself. Bush did it! Reagan did it! True or not, twenty years from now, the minions of some Republican Napoleon will be screaming ‘Obama did it!’ And they’ll have a sad story or a chilling warning that will justify why it’s ok. Because all legislative powers herein granted shall be vested in a Congress of the United States – unless the president says it’s super important. Then anything goes.
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Agree that we need to address the root cause of the power abuse. And while we’re at it, we need to take on the bureaucratic rule (law) making machines.
Be fair, it’s a feature of most of American history that if something is rated super important by the powers that be, the Constitution is ignored – starting no later than the Louisiana Purchase.
Dearieme, do some reading.
The Louisiana Purchase was …., a treaty. The Constitution specifically grants the president the power to negotiate treaties (Art. II, Sec. 2), which is just what Jefferson did.
Jefferson’s Secretary of State, James Madison (the “Father of the Constitution”), assured Jefferson that the Louisiana Purchase was well within even the strictest interpretation of the Constitution. Secretary of the Treasury Albert Gallatin added that since the power to negotiate treaties was specifically granted to the president, the only way extending the country’s territory by treaty could not be a presidential power would be if it were specifically excluded by the Constitution (which it was not). Jefferson, as a strict constructionist, was right to be concerned about staying within the bounds of the Constitution, but felt the power of these arguments and became willing to “acquiesce with satisfaction” if the Congress approved the treaty.[23]
The Senate quickly ratified the treaty, and the House, with equal alacrity, authorized the funding needed, as the Constitution specifies.
It was controversial for a number of reasons but it was legal, unlike Obama’s action. The Alaska purchase was also by Treaty. The Gadsden Purchase was also by treaty although there is a fair argument that the Mexican War was questionable.
It is a feature of most of American history. The Constitution has been honored in the breach on many occasions. The system isn’t perfect. What bothers me now is that the stakes are high, given the unprecedented size and intrusiveness of the federal govt, and that Obama appears to be following a malicious personal program to reshape the country despite widespread popular and legislative opposition.
Jefferson cheerfully said it was a breach of the Constitution and that he was going to do it anyway.
Dearie, reading is good for you. Show us the link to what you say Jefferson said.
I have no idea of the scholarly source where first I read it, but if I’m wrong I appear to have Wikipedia for company.
“Jefferson agreed that the U.S. Constitution did not contain provisions for acquiring territory, but decided to go ahead with the purchase anyway — to remove France’s presence in the region and protect both U.S. trade access to the port of New Orleans and free passage on the Mississippi River.”
And something called schmoop, whatever that is:
“The first problem was the Purchase’s constitutionality. Nowhere does the Constitution authorize the executive branch of the government to spend public funds to expand the boundaries of the nation. This was problematic for Jefferson, who had been elected behind a political philosophy that emphasized small government, low taxes, and “strict construction” of the Constitution—in other words, adhering rigidly to the Tenth Amendment’s stricture that all “powers not delegated to the United States by the Constitution… are reserved to the States respectively, or to the people.” During the 1790s, Jefferson had fought vigorously against Alexander Hamilton’s Federalist plan to charter a National Bank, since the Constitution delegated no specific bank-chartering powers to the government and Jefferson rejected Hamilton’s argument that such powers were “implied” by the Constitution.
So by Jefferson’s own standards, the Louisiana Purchase was clearly unconstitutional. When he received word of the Purchase from his emissaries in Paris, Jefferson first response was to draft a proposed constitutional amendment that would have legitimized his actions by authorizing the president explicitly to purchase new territory. However, fearing the amendment would not pass in time to ratify the treaty, Jefferson quickly abandoned his plans for amending the Constitution, instead taking the easier (if more hypocritical) path of claiming the power to acquire territory was “implied” in the Constitution’s clause on treaty-making.
Jefferson’s flip-flop on “strict construction” and implied powers could be seen as a straightforward abandonment of principle for power. Jefferson’s own rationalization for the decision was less than entirely convincing, offering little to counter the perception that simple expediency had carried the day: “It is the case,” he said, ” of a guardian, investing the money of his ward in purchasing an important adjacent territory; and saying to him when of age, I did this for your own good.” For Jefferson—normally a staunch defender of individual liberty—to resort to an analogy casting the American people as ward of the state was almost shocking.”
The billofrights institute says:
“Jefferson argued that a constitutional amendment was needed. He wrote in 1803, “The General Government has no powers but such as the Constitution gives it… it has not given it power of holding foreign territory, and still less of incorporating it into the Union. An amendment of the Constitution seems necessary for this.”
Jefferson drafted an amendment that would authorize the purchase of Louisiana retroactively. But Jefferson’s cabinet members argued against the need for an amendment, and Congress disregarded his draft. The Senate ratified the treaty in October of 1803.
Jefferson may have had to compromise his most sacredly-held principles for the Louisiana Purchase to go forward…”
Even something called ‘president profiles’, while largely as hagiographic as you’d expect, manages:
“Jefferson himself worried about the constitutionality of the treaty. As he explained to a Republican senator, John Breckinridge of Kentucky,
The Constitution has made no provision for our holding foreign territory, still less of incorporating foreign nations into our Union. The executive in seizing a fugitive occurrence which so much advances the good of this country, have done an act beyond the Constitution. The Legislature in casting behind them metaphysical subtleties, and risking themselves like faithful servants, must . . . throw themselves on their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it.
Jefferson therefore drafted a constitutional amendment to sanction the acquisition retroactively …”
I have to say that US history is far more interesting than the ragbag of foundation myths that so many Americans treasure.
To repeat: The Louisiana Purchase was …., a treaty. The Constitution specifically grants the president the power to negotiate treaties (Art. II, Sec. 2), which is just what Jefferson did.
There was a period early in our history when interpreting the Constitution was a cottage industry.
For example, Marbury vs Madison in which holding that the provision of the Judiciary Act of 1789 that enabled Marbury to bring his claim to the Supreme Court was itself unconstitutional, since it purported to extend the Court’s original jurisdiction beyond that which Article III established. The petition was therefore denied.
From this we get all subsequent history of judicial review. Read the linked piece, Dearie. This is where a lot of US history starts.
Jefferson argued for “strict construction”: the Constitution says that if it doesn’t explicitly grant a power to the Union, then the Union doesn’t have it. He knew that what he was doing was, by his own lights, unconstitutional. He even tried to make it constitutional by retrospective legislation. But realpolitik won; the powers that be – Congress and Jefferson himself – saw the purchase as a low risk/huge reward deal, so they did it anyway, and let the Constitution go hang.
As Paul Johnson puts it “Jefferson was prepared to dismiss the Constitution’s provisions as ‘metaphysical subtleties’ if they stood between the United States and what would soon be called its Manifest Destiny …”
You are indulging in wilful blindness.
The Constitution’s silence on presidential authority to acquire new territory is not comparable to the president repudiating the law and his obligations to enforce it.
“The Constitution’s silence on presidential authority to acquire new territory is not comparable to the president repudiating the law and his obligations to enforce it.”
Don’t tell Dearie. He’s on a riff.
“The Constitution’s silence on presidential authority to acquire new territory is not comparable to the president repudiating the law and his obligations to enforce it.” Why is it not comparable? Apart from the Louisiana Purchase being far more important? Obama too will concoct some legal-sounding cock-and-bull story to justify his realpolitik, in the style of Madison.
It would be as if there had been a law enacted that specified “The president shall not purchase any land to enlarge the country”. Such a “specific law” did not exist for Jefferson in the 1800s. Such a “specific law” exists WRT immigration.
He’s chosen to not enforce existing laws that pertain to the situation. The issue (of border protection and illegal persons) has been addressed by congress and laws have been passed. He apparently doesn’t give a damn about what the representatives of the people or the people themselves think. He’s acting lawlessly and should be impeached.
The constitution specifically charges the president and congress to protect the borders. They’re both been disregarding their responsibilities to such an extent that it is treasonous.
> Why is it not comparable?<
the constitution doesn't mention the executives duties regarding land purchases. it does talk about the system of how laws are made and enforced. the baracky be peeing on the latter.
OK, you’ve convinced me. Like Jefferson, Obama is a racist, sexist, fascist, homophobic member of the lawless, tyrannical governing elite whose squirearchical, capitalistic goals are include the genocidal extermination of the natives by a Stalin-like population replacement. Since we can’t hang Jefferson, let’s hang Obama twice.
“Obama too will concoct some legal-sounding cock-and-bull story to justify his realpolitik, in the style of Madison.”
No doubt. Obama, when he bothers, has the patter down. Reminds me the niceties of the USSR’s constitution, all which were a beard. He sure has fine words, all of which are intended to deceive, delay, demoralize and none of which are true.
If congress really wants the fear of god to guide Obama’s conscious, they should focus on removing or reducing the power of executive privilege. If Obama wants to rule by decree, then all bets are off.
Think of the about face he would have if he was faced,with the threat of a crowd sourced investigation into his administration
Call his bluff
@dearieme,
As I recall you’re actually not American?
So see yourself out, mischief.
No actually no President ever did this before, the others acted to fill in gaps in policies understood and debated.
Jefferson acted fast on a fantastic opportunity to secure the nation’s future swiftly. Congress wisely endorsed it.
FDR had convoys escorted to keep England afloat ahead of war, but after America openly committed to Lend/Lease.
Reagan and Bush acted to close loopholes in laws the President signed.
Obama is rescinding law broadly by decree, in defiance of Congress and elections 2 weeks ago. This is open Constitutional Crisis and there is no precedent.
What Obama is doing is tossing away the Constitution while betraying the nation’s people.
Who and what we are as a nation is as important or more so than our political contract or Laws.
Obama is betraying us, he is opening the borders and refusing to defend the nation, as he and everyone who takes the Oath are sworn to do.
This is Treason Twice.
Now that he’s caused a constitutional crisis in the way he did it is actually fortunate, for now we aren’t bound by Oath or Law.
No, we’re not. And no one cares what lawyers, scholars, bloggers have to say about it.
All our laws flow from the Constitution. The Foundations of Law are smashed.
Anyone who is bound now by law deserves slavery or death.
As you can well imagine, this is a topic on a number of other sites. I beg the indulgence to quote an exchange between myself and another person on one of those sites. Dearieme, as a Brit, this is offered to you; although you may not comprehend the depth of feeling involved.
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Republicans won’t act in the lawless manner that Democrats do.
And they know this. That’s why they aren’t afraid.
There is an inherent difference between Democrats and Republicans.
Bigbullets on November 22, 2014 at 1:35 PM
“Republicans” won’t, but shortly after they refuse to stand and fight, there will no longer be a Republican Party.
The legitimacy of the law, and the government as a whole is based on consent of the governed under the rules set out under the Constitution. When Emperor Buraq chose to rule by decree totally outside the Constitution [take a look at Article I, Section 8 which gives Congress exclusive authority over immigration law. Further, in over half a century of reading the Constitution I have yet to encounter the “sick and tired of waiting so the President rules by decree” clause] he violated the contract between the American people and the government. If he is not reined in, right smartly, the contract will be void. And the power of the Federal government will only extend as far as the reach of the guns of those of its employees who violate their oaths.
And the new American sport will be hunting Leftists in the street with dogs.
Subotai Bahadur on November 22, 2014 at 3:21 PM
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We ended the rule of Kings in this country over two centuries ago. We will not have an Emperor. Consent Rescinded.
Subotai Bahadur