06 December 2019

Our Post-Federal Government

the distribution of power in an organization (such as a government) between a central authority and the constituent units
James Madison, near the conclusion of Federalist 9, offered up this characterization of his vision of what the nascent United States government under the Constitution should be:
The definition of a Confederate Republic seems simply to be, "an assemblage of Societies," or an Association of two or more States into one State. The extent, modifications, and objects of the Fœderal authority, are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the Union, it would still be, in fact and in theory, an Association of States, or a Confederacy. The proposed Constitution, so far from implying an abolition of the State Governments, makes them constituent parts of the National Sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of Sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a Federal Government.
This was the government the Constitution established for the United States. This was the government that Benjamin Franklin opined was America's posterity "if [you] can keep it." 

 Keeping the Republic has always been the great challenge of this country. From the bloody carnage of the Civil War to the various oppositions of individual states to various pieces of national civil rights legislation, Franklin's skepticism about the durability of the Republic has repeatedly been shown to be well founded. The enduring constitutional controversies surrounding the Patriot Act are but the most vivid example of ways in which the national government challenges and arguably undermines the shared sovereignty model of federalist government articulated in the Constitution, with the ongoing debate over the Constitutionality of ObamaCare running a close second.

 The Constitution, as well as Constitutional governance, are subject to constant challenge. To date, elections and the courts have proven sufficient to meet the challenge, but the danger these means will eventually prove inadequate to the task has always hovered over all debate over the nature and future of the Republic.

With the spectacle of Adam Schiff and his Clown World Impeachment arrayed before us, it is time to acknowledge these means are failing us. The courts have not proven themselves immune to the contagion of partisan politics, with many jurists abandoning their sworn duty to impartially apply the law without fear or favor. Our elected representatives see fit to act in ways directly hostile to the Constitution, to champion such hostility, or are simply supine in the face of such hostility. Federalism, as promoted and promised by the Constitution, is no longer a distinguishing characteristic of the national government of the United States. Ours is now a "post-Federal" government--and that is not sanctioned by the Constitution.
Congress Ignores The Constitution

Nowhere is Congressional contempt for the individual citizen and the individual citizen's fundamental liberties more apparent than in Adam Schiff's recent casual revelation he had been surveilling the phone records of, among others, Rudy Giuliani, President Trump's personal attorney (the law generally frowns on anything which might compromise attorney client privilege) and independent journalist John Solomon (there is this pesky little thing in the First Amendment about not abridging the freedom of the press). Worse, that information was used to demonize and denigrate these people in social media and even during the hearings.
Some even speculated on Twitter that Schiff's compelling AT&T to produce the phone records might amount to extortion--which would be a supreme irony, given that is the allegation Schiff has leveled against President Trump.
What part of this conduct reconciles to the enumerated power granted to Congress by Article 1 Section 8 of the Constitution? Where is the power given to surveil citizens at will?

Even the FBI's execrable Operation Crossfire Hurricane surveillance of Donald Trump's Presidential campaign sought better legal bonafides than Schiff's subpoenas.

The States Ignore The Constitution

 For years, the legacy media has popularized the false notion that there is a "national popular vote" for President of the United States. After Donald Trump won the Presidency in 2016, this myth acquired new urgency--but, as I noted at the time, still lacks all credibility:
The most glaring error is a rather unforgivable error of fact--namely, that a popular vote for the nation's Chief Executive is somehow within the Constitutional order of things. It is not. The text of the Constitution flatly contradicts this idea:

Article II, Section 1, Clause 2 states:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
This particular clause of the Constitution has never been amended. Clause 3 of Article II, Section 1, was rewritten by the Twelfth Amendment, and Clause 6 by Amendments Twenty and Twenty-Five, but that is the extent to which Article II--which governs the office of the President--has been modified from the original text.
Put simply, the states, acting as corporate and sovereign entities, elect the President. There is not now nor has there ever been a "national popular vote" for the President of the United States. (Historical trivia note: South Carolina did not hold a popular vote in Presidential elections at all until after the Civil War, and fully half of the states did not begin holding a popular vote until well into the 19th century. 

 Yet several states have chosen to ignore historical and constitutional reality in the wake of Donald Trump's election, forming a compact among the states to circumvent the Electoral College by allocating their electors to the winner of the non-existent "national popular vote". There are two lethal defects to this strategem: 1) The Supreme Court has ruled that states may not bind electors, and once chosen, electors are free to vote for President however they wish (hence the origin of "faithless electors" who vote contrary to their state's expressed intentions); 2) the Constitution expressly forbids such alliances among the states in Article 1 Section 10 Clause 3:
No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
It hardly bears mentioning that this Electoral College "workaround" has not received the blessing of the Congress.

 Yet the states do not care at all for these inconveniences. For the sake of imposing upon the several states an electoral outcome only they desire, a minority of states claim authority to abrogate the Constitution.

 Nor is it simply in the realm of Presidential elections where the states shred the Constitutional order of things. An increasing number of states as well as cities have declared they will offer sanctuary to "undocumented immigrants" (illegal aliens), with California leading the way at the state level:
Supporters say the law — essentially making California the country’s first “sanctuary state” — would prevent immigrants like the woman in Mendota, who faced no criminal charges, from being turned over for deportation. If approved, the law could directly contradict federal directives, putting local law enforcement agencies in the difficult position of deciding whether to obey Sacramento or Washington. Legal battles are considered likely
As of this past April, 9 states have adopted "sanctuary" laws.

 Regardless of what one believes a just immigration policy would be, there can be no dispute that immigration policy is the province of the national and not the state government. Perversely, this was the view of most Democrats and progressives in 2010, when they raised much hue and cry over an Arizona statute calculated to bring enforcement of federal immigration law down to the state and local level.

 For its part, the Constitution is clear on the subject. Immigration and naturalization are unquestionably part of the enumerated powers of Congress--in particular Clauses 3 and 4:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
We may reasonably debate what the immigration laws for the United States should be, but we cannot debate that it is the role of the national government and not the state government to enact those laws. The crux of the immigration debate has always been a question of law, never a question of amorphous "justice". Illegal immigration is a crime, and it is seditious in the extreme for any state to seek to undermine federal law in an area that the Constitution unequivocally has assigned to the Federal Government.

 The Courts Ignore The Constitution

 The era of President Trump has become a distinctly lawless era, with many of the federal courts engaging in what is perversely termed "judicial resistance". Even legal scholars who are generally opposed to President Trump question the wisdom of the courts descending into the swamp that is politics.

 The courts have taken to ignoring the separation of powers within the Constitution, presuming to question the integrity of Executive Branch decision making in areas clearly within the purview of the Executive, such as national security. Disturbingly, many of the lower courts only give lip service to the notion of hearing arguments, dismissing without foundation any arguments from President Trump's administration. The first egregious example of this came in the opposition to President Trump's travel ban:
Robart’s seven-page order offered only the most threadbare analysis, giving no indication whether he thought the policy violated the due-process clause, the equal-protection clause, the establishment clause, or the free-exercise clause. Solely on the basis of this hasty and incomplete opinion, immigration officials around the country and consular officials around the globe were now enjoined from implementing the order. Less than a week later, a panel of the Ninth Circuit Court of Appeals affirmed the district court’s order — even though temporary restraining orders are not subject to appeal. The court nonetheless reached out to resolve difficult constitutional questions in this preliminary phase of the litigation.
The travel ban, readers will recall, was upheld by the Supreme Court on multiple occasions.

 The irrationality and unconstitutionality of the courts extends into the domestic sphere as well, such as in the controversial debate over "sanctuary cities"--cities that proclaim intent to shield illegal aliens from enforcement actions by US immigration officers. The courts have seen fit to invalidate Executive Orders withholding federal funds from such cities even as they acknowledge the power of the national government to do exactly that.  A notable and disturbing part of that ruling was a disbelief in the Trump Administration's presented arguments.
Third, the court continued the recent practice of citing statement made by the President, and now Attorney General, to contradict representations made in court by the Justice Department. At bottom, the court believes the executive branch is attempting to mislead the court. This distrust is part and parcel of the resistance by the judiciary.
As I have written previously, while the courts determine what the law is, it falls to We The People to determine what the law should be. Such contortions and convolutions by appointed judges to impose their view of what the law should be is incompatible with the role of courts in a society governed by the rule of law. Judicial activism has long been a fixture of American jurisprudence, but when such activism wraps itself in an ennobling rhetoric of pious "resistance", the courts have well and truly lost their way.

Undeclared Wars: The President Ignores The Constitution

In October President Trump created considerable controversy within the legacy media with sudden withdrawal of combat troops from Syria. While this was met with considerable opposition by Senators and Congressmen from both parties, Senator Rand Paul articulated why this was the proper move to make, and why it was long overdue.
Iraq. Afghanistan. Now Syria. We hear that our presence could be needed for decades. To what end? What do we hope happens during that time? I, for one, don’t see what our national interest is in policing the Middle East and nation-building. Thankfully, neither does President Trump.
I myself applauded the move. It was long overdue.
Unfortunately, it also ultimately did not happen. While a few troops were moved a short distance in Syria, 2,000 troops were sent to Saudi Arabia to bolster their defenses after a presumed Iranian drone strike on their oil production facilities. In all, troop deployments to the Middle East have increased by 14,000 since just this past spring. Meanwhile, Drone strikes have increased since the Obama Administration

The number of wars declared by Congress to authorize putting American troops in harm's way? ZERO. 

 The one governing entity with the power to commit the United States to combat abroad has had nothing to say about President Trump's commitments of troops into hostile areas, any more than it had anything to say about President Obama's commitments. Presidents have no authority to declare war, yet they have repeatedly entangled US troops in foreign wars. President Trump might deserve some credit for not starting new undeclared wars, but what he has done to actually end existing undeclared wars is minimal at best.

Disturbingly, many members of Congress actually approve of the policy of unconstitutional undeclared wars. Marco Rubio, a sitting US Senator, opposed Trump's troop redeployments, yet never articulated a desire to formally declare war on either Syria or ISIS.

Nor was he alone.

Nor was the sentiment contained to just Republicans. Nancy Pelosi publicly advocated a joint resolution of both Houses of Congress to reverse President Trump's troop redeployments.
"Our first order of business was to agree that we must have a bipartisan, bicameral joint resolution to overturn the president’s dangerous decision in Syria immediately," Pelosi said Monday.
Note that these are current members of Congress blithely ignoring that only Congress has the power to take the United States to war. Article 1 Section 8 Clause 11 of the Constitution makes that abundantly clear:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
No US military engagement in the Middle East has been the result of Congress declaring war. The last time Congress passed even a broad Authorization to Use Military Force (AUMF) was in 2001.
The last comprehensive congressional authorization to use military force (AUMF) came in 2001 when the legislative body authorized former President George Bush to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
On that authority has rested all US troop deployments to the Middle East since. Barack Obama used the Bush-era authorizations during his Administration, and President Trump has continued that unconstitutional policy. The Congress has actually encouraged this, despite its obvious Constitutional defects. 

In truth, Congress has always been tolerant of Presidents waging undeclared war. In the whole of American history Congress has issued only 11 formal declarations of war, and 6 of those involved the hostile powers in World War Two. The bloodiest of all US wars, the Civil War, is not among the 11 declarations. The assault on the Barbary Pirates immortalized in the Marine Corps Hymn ("to the shores of Tripoli") was undeclared, as were the interventions in Korea and Vietnam. Our longest and costliest expenditures of blood and treasure have never been sanctioned by formal declarations of war issuing from the Congress.

 Put another way, our longest and costliest expenditures of blood and treasure arguably have been illegal and unconstitutional.

Congress Despises Fundamental Civil Liberties

The malfeasance of Congress extends well beyond a Clown World Impeachment and explicit support for endless undeclared foreign wars. Here at home Congress continues its steady assault on fundamental civil liberties. While the legacy media has focused the nation's attention on the impeachment inquiry, Congress has quietly reauthorized the surveillance measures first introduced in the Patriot Act after 9/11.
Today, while everyone is distracted by the impeachment drama, Congress will vote to extend warrantless data collection provisions of the #PatriotAct, by hiding this language on page 25 of the Continuing Resolution (CR) that temporarily funds the government. To sneak this through, Congress will first vote to suspend the rule which otherwise gives us (and the people) 72 hours to consider a bill.

The scam here is that Democrats are alleging abuse of Presidential power, while simultaneously reauthorizing warrantless power to spy on citizens that no President should have... in a bill that continues to fund EVERYTHING the President does... and waiving their own rules to do it.

I predict Democrats will vote on a party line to suspend the 72 hour rule. But after the rule is suspended, I suspect many Republicans will join most Democrats to pass the CR with the Patriot Act extension embedded in it.
The Patriot Act has never enjoyed majority support among Americans, with as many feeling the surveillance powers granted go too far as feel the powers are appropriate for national security in a post-9/11 world.
In 2006, the public divided evenly over the Patriot Act, with 39% saying it is a necessary tool and 38% saying it goes too far. In 2004, a slight plurality (39%) said it goes too far and threatens civil liberties.
For Democrats and progressives in particular, the backdoor reauthorization is particularly troubling, because of their reflexive opposition to all things Trump.
Evan Greer, deputy director of digital rights group Fight for the Future, highlighted the provision on Twitter shortly after House Democrats released the continuing resolution (pdf), which would temporarily avert a looming government shutdown by providing funding for federal agencies through December 20. A House vote on the measure is expected as early as Tuesday.

"Wow," said Greer. "House Democrats are ignoring civil liberties and including a three month straight re-authorization of the Patriot Act (with zero reform) in the continuing resolution."
There is no great mystery as to why Congress resorts to such subterfuge. The Patriot Act's warrantless surveillance authorizations run afoul of the Fourth Amendment's prohibitions of unwarranted searches and seizures.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Abuses Are Not New

 Sadly, these abuses and usurpations are hardly anything new. The willingness of the national government to ignore or contravene the Constitution is as old as the national government itself. Overlooked in appraisals of Chief Justice John Marshall's historic Marbury v Madison (5 US 137) is the fact that the law declared unconstitutional in that ruling was a clause in one of the very first acts passed by Congress--the Judiciary Act of 1789.

 Five years before Marbury v Madison, Thomas Jefferson and James Madison authored the Virginia and Kentucky Resolutions, state legislative protests to the Alien and Sedition Acts of 1798.

 Despite the US Constitution having been drafted to bind the national government to the will of the people and of the states, the impetus of the national government since its inception has been to subvert the will of the people and of the states. This is part of the darker side of American history, the part rarely acknowledged in history books.

 As the record shows in abundance, no part of the national government is measuring up to its Constitutional duties, and has not for some time. Presidents overstep their authority, Congress encourages them to do so, and the courts blithely play along. No one is innocent.

 The Tipping Point

 Yet while the abuses and usurpations of the national government are lengthy, Adam Schiff's Clown World Impeachment Hoax represents a significant shift in the nature of the abuses. 

 From the outset, Adam Schiff has lied repeatedly. 

 He lied in his public statements about the Whistleleaker.

 He has lied about the laws covering government whistleblowers. 

 He has lied about the quality and content of testimonies and evidences.

 He has lied about President Trump's own words.

 Add to his litany of lies his contemptuous disdain for the civil liberties of others by surreptitiously seeking the phone records 

 In all of this, Adam Schiff has displayed a singular shamelessness--he simply does not seem to care that his actions are blatantly unethical if not downright illegal. He is empowered and facilitated by his fellow Democrats, who fatuously argue positions that are diametrically opposed to the Constitution as well as to common sense.

 Perhaps Schiff feels emboldened by the willingness of the judiciary to arbitrarily and with scant consideration of the strictures of the Constitution to oppose President Trump. Perhaps he takes Speaker Nancy Pelosi seriously when she describes President Trump as an "imposter". Whatever his reasoning, Adam Schiff demonstrates not merely an unwillingness to respect even the Congress, but blatant contempt and disdain for the government in its entirety. I am forced to conclude that Adam Schiff simply does not care what the Constitution or the laws say regarding his conduct--he means to do however he pleases and to hell with the rule of law.

 We are come at last to a point where Congressional Democrats no longer feel compelled to do more than pay the most sardonic of lip service to the Constitution, and where Congressional Republicans have, with a few exceptions, allowed them to do so. We are come to a point where Congress is contemptuous of its own responsibilities, and ignorant of the real powers and priorities of the Executive Branch. We are come to a point where vast portions of the government believe the choices and decisions of the permanent bureaucracy are superior to the policy positions of a duly elected President.

 A truly federal government would not tolerate such abuses by the officials within it. A truly federal government would be mindful of the fundamental rights of the people, and deferential to the sovereignty of the several states.

 We no longer have a federal government. We have a "post-federal government". We have the government structures that remain when ideals of federalism are discarded and put aside. We have merely a national government, with not even a notional allegiance to the Constitution but instead faithful only to pursuit of its own power, a national government that slides closer and closer to outright totalitarianism and corrupt authoritarianism. We have a national government that daily surrenders more and more of its fundamental legitimacy and credibility.

 We have a national government that has become a grave national problem.

 Can We Recover?

 Can we repair our government and restore the Constitutional order? In truth, I do not know.

 In theory, if the American electorate coalesces into a committed force for Constitutional governance and votes against the corrupt incumbents who in every respect are the problem, installing new representatives more attuned to the Constitutional obligations of the Congress, we may turn back the tide of corruption and restore good government. 

 In theory, if the American electorate is steadfast, it may prevail upon enough states to invoke Article 5 of the Constitution, and call a Convention of States, to enact suitable Amendments to the Constitution to remedy the defects manifest in the Congress and across the Executive Branch.

 In reality, more than 80% of Senators and Congressmen typically win reelection after reelection.

 In reality, while a number of states have passed resolutions ("applications" in Constitutional argot) for calling a Convention of States, the number of applications for any particular proposed amendment subject or for an unrestricted (plenary) convention to consider any proposed amendment is still well short of the necessary 34 out of 50 states needed to compel Congress to call such a convention.

 Can we repair our government and restore the Constitutional order? I do not know; there is no way to know.

 What I do know is that the current state of affairs cannot stand. No modern government has ever endured once it forsakes legitimacy and credibility in the eyes of the people it presumes to govern.

 Throughout the Federalist Papers, that series of essays undertaken to publicly advocate the adoption of the Constitution by the states, the Founding Fathers championed limited and divided government. In Federalist 44 and Federalist 45 they were particularly solicitous of concerns that the division of power between the national and state governments would produce  unhealthy factionalism. It is true that if the country hews faithfully to the Constitutional model of governing, the influence of nationwide political parties would diminish, and the capacity of each state to be sovereign within its own sphere would expand.

 Today we are faced with limitless and centralized government. A strong national government and a weak state government is NOT what the Founding Fathers envisioned. That distortion is merely the government we now have. That distortion is the government we must now repair.

 If the American electorate reawakens its slumbering interest in the proper Constitutional order, if the American electorate is willing to shake off the torpor of incumbent political hacks, electing with regularity new representatives and new Senators, and if the American electorate is willing to hold its elected representatives accountable for their sins, then we may yet restore to this country the rule of law.

 Should there be a Convention of States? Absolutely--for only through a convention may the States remind the national government of their authority.

 Should we vote out incumbents and demand more of our elected representatives? Absolutely--the Constitution puts "We The People" in charge. We are the sovereign, government is the subject.

 If we do not restore the rule of law, before long the rule will be no law at all.
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