Bruce Fein2013-06-19T05:20:28-04:00Bruce Feinhttp://www.huffingtonpost.com/author/index.php?author=bruce-feinCopyright 2008, HuffingtonPost.com, Inc.HuffingtonPost Blogger Feed for Bruce FeinGood old fashioned elbow grease.The Civilization Genome Projecttag:www.huffingtonpost.com,2013:/theblog//3.33067592013-05-21T09:11:58-04:002013-05-21T09:12:03-04:00Bruce Feinhttp://www.huffingtonpost.com/bruce-fein/
From time immemorial, civilization has been more the exception than the rule. The majority of the species are disinterested in the question, "Between ashes to ashes and dust to dust, is there a higher purpose beyond survival for the sake of survival, carnal pleasures, or the mindless pursuit of power or other ambition that excites the passions?" But leaders of impeccable character and long-headed intelligence can inspire them to rise above their natural appetites.
Misgovernment or man's inhumanity to man are responsible for the lion's share of the world's misery index, i.e., warfare, tyranny, oppression, arbitrary imprisonment, corruption, injustice, political persecution, poverty, religious, ethnic, racial or other invidious discrimination, the subjugation of women, etc. And the absence of enlightened leadership is responsible for the lion's share of misgovernment. Accordingly, a World Leadership Institute is urgent to instruct current and future leaders in the ten cornerstone principles of government and culture that are the double helix of civilization. They are as follows:
The final end of the state is to make men and women free to develop their faculties and to be morally accountable for their trajectories and destinies. Government directives that defeat or subvert that end are suspect. Paternalism--even for benevolent motives--stunts intellectual development and moral growth and robs individuals of the dignity of success or failure determined by their blood, sweat, and tears.
The nation-state is an artificial creation whose exclusive purpose is to safeguard the unalienable right of citizens (acting individually or in voluntary association with others) to pursue their ambitions and to seek fulfillment free from external or domestic aggression or predation. The nation-state has no interests that transcend the individual interests of its citizens, for example, seeking world domination or accumulating wealth.
The state must shoulder a heavy burden of public necessity to justify any encroachment on liberty. The individual is never obligated to justify liberty, which is presumed to be good.
Due process of law is the most important check on tyranny or injustice ever conceived. It marks the first recognition by man that, "I could be wrong;" that events are multidimensional and lend themselves to multiple rational interpretations (It has been said that there are no facts, only interpretations); that an accused must be provided an opportunity to confront adverse evidence and to present favorable testimony; and, that an independent and unbiased decision-maker is imperative to avoid miscarriages of justice. Due process must be honored not as an indulgence to suspected culprits, but because of what it says about us as a people willing to incur risks of danger in order to avoid complicity in punishing, killing, or injuring the innocent.
Power must be both limited and fragmented to insure that neither individuals nor factions may tyrannize or oppress. Power corrupts, and absolute power corrupts absolutely because of the ordinary depravity of human nature. Tyranny by the majority is still tyranny. Ambition must be made to counteract ambition. Government authority must be splintered among the legislative, executive, and judicial branches. Transparency must be the rule and secrecy the rare exception and only when necessary to safeguard lives. The most important legislative power is oversight and informing the public. Sunshine is the best disinfectant. In possessing a monopoly of legal violence, power to conscript and tax, and arsenal of weapons, government is a vastly greater danger to the life and liberty of its citizens than any miscreant or private organization. If the need is doubtful, government power should be denied.
The glory of a Republic is liberty. The glory of an Empire is domination, control, or conquest. The march of a Republic is a march of knowledge. The march of an Empire is the march of a foot soldier.
Chronic or permanent wars are irreconcilable with liberty. In times of war, the laws are silent. Individual liberty is readily subordinated to anthems of national security. The executive is predisposed to exaggerate danger to justify objectless wars because in times of conflict tyrannical powers are concentrated in the President, for instance, indefinite detentions without accusation or trial, warrantless surveillance based on the president's say-so alone, or the assassination of American citizens or non-citizens based on secret, unexplained, and politically unaccountable evidence. The exclusive power of Congress to authorize the initiation of warfare must be scrupulously honored. James Madison, father of the Constitution, wrote to Thomas Jefferson: "The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature." A President who commences war without prior express authorization from Congress has committed an impeachable high crime and misdemeanor within the meaning of Article II, section 4 of the United States Constitution and should be removed from office.
The sole justification of war is self-defense in response to an actual or imminent attack. All other wars constitute crimes of aggression under the international law principles established in the Nuremburg trials. Chief Prosecutor Robert Jackson elaborated: "To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."
A civilized culture pays homage to wisdom, virtue, humility and self-restraint and scorns the temptations of money, power, sex, creature comforts, or domination for the sake of domination. Civilized citizens believe it is better to be a discontented Socrates than a contented cow.
The predominant source of power of influence in a civilized nation is moral suasion founded on impeccable character and wisdom among community leaders in lieu of violence, coercion, or money through which power is primarily exercised in morally corrupted nations.
]]>A Scarlet Rtag:www.huffingtonpost.com,2013:/theblog//3.32748272013-05-15T14:48:03-04:002013-05-15T14:48:07-04:00Bruce Feinhttp://www.huffingtonpost.com/bruce-fein/
Rapists should be automatically expelled from the military, colleges, and universities. They should be required to wear a scarlet R. Fathers and athletic coaches should inculcate in their sons and players the idea that manliness means respecting the equal dignity and autonomy of women; and, refraining from exploiting superior physical strength or positions of authority to coerce, threaten, or dominate them. All forms of sexual coercion, degradation, or subjugation of women should be reprobated by males as contemptible and unmanly.
The sole legitimate source of male authority is moral suasion, not money, fame, or power. Women are not chattels. They are not sex objects. Women are entitled to pursue their ambitions and to seek fulfillment free from predation every bit as much as men.
These self-evident truths are resisted in virtually all cultures because males are politically, religiously, economically, and physically dominant. God is male. Abraham and Moses were male. Jesus was male. Mohammed was male. Buddha was male. Confucius was male. Males wrote the Old and New Testament and the Holy Koran. Males wrote the Declaration of Independence and the United States Constitution. All political philosophers have been male. Such examples are endless.
Without moral instruction and chastisement, males instinctively embrace and practice values that enable them to gratify adolescent passions--including sex. They reward women in all walks of life for sexual attractiveness. This prospect prompts women to spend stupendous sums on clothes, jewelry, perfume, cosmetics, and surgery to gratify male sexual fantasies. Prostitutes are absurdly deemed more morally culpable than their male clients. Promiscuous women are derided as sluts. Promiscuous men are admired as "ladies men."
Masculinity should find expression in sexual restraint, not coercion. It is up to male leaders to rescue the male species from obloquy.]]>Learning From Shakespearetag:www.huffingtonpost.com,2013:/theblog//3.32244662013-05-07T10:19:34-04:002013-05-07T10:19:40-04:00Bruce Feinhttp://www.huffingtonpost.com/bruce-fein/The Merchant of Venice, about which more anon. There is nothing new under the sun.
Contemplate the following. Republican Presidential candidate in 2008 and current Senator John McCain maintains: "[T]he Constitution establishes the United States of America as a Christian nation." All 166 Guantanamo Bay prisoners are Muslim. Predator drone killings in the thousands have targeted exclusively Muslims largely in Afghanistan, Pakistan, or Yemen. In 1953, the United States orchestrated the overthrow of Iranian Prime Minister Mohammed Mossadegh in favor of the Shah. We armed the Shah to the teeth and provided nuclear technology. At present, we support Israeli assassinations of Iranian scientists and cyber attacks to sabotage Iran's nuclear ambitions while acquiescing in Israel's hundreds of nuclear warheads developed outside the Nuclear Non-Proliferation Treaty.
For approximately 60 years since the Mossadegh overthrow, the United States has provided material assistance to oppressive Muslim regimes in the Middle East or South Asia through bribery, weapons sales, or the stationing or use of troops or Navy ships. (The United States criminally punishes material assistance by any private individual to a foreign terrorist organization.)
The United States stations 15,000 troops in Kuwait to bolster the House of Sabah which has been ruling tyrannically for three centuries. The U.S. Navy's Fifth Fleet, based in Bahrain, fortifies an oppressive Sunni regime against a Shiite majority. In Saudi Arabia, which prohibits liberty as a matter of principle, the Central Intelligence Agency operates a drone base employed to terrorize neighboring Yemen. The CIA is also assisting the House of Saud arm Sunni terrorists in Syria. The United States stationed troops in Saudi Arabia until 2003.
For long years when King Hussein was on the throne in Jordan, he was on the payroll of the Central Intelligence Agency. The United States is training Syrian rebels on Jordanian territory who are engaged in a violent campaign against secularism, Shi'ism, and Christianity in Syria. The United States propped up the regime of Egyptian dictator Hosni Mubarak with billions in annual military aid before his overthrow in 2011. The United States continues to provide military assistance to the successor regime of President Mohamed Morsi. We recently negotiated the sale of weapons to the United Arab Emirates despite its escalating human rights abuses.
These examples are but the tip of the iceberg. For more than 60 years, the United States has manipulated the internal affairs of every Muslim nation in the Middle East or South Asia by material assistance to advance our perceived interests. We have been and remain morally complicit in the respective tyrannies or oppressions of the regimes. Retaliation of some sort should be no surprise. To paraphrase from The Merchant of Venice, Act 3, Scene 1:
"Hath not a Muslim eyes? hath not a Muslim hands, organs,
dimensions, senses, affections, passions? fed with
the same food, hurt with the same weapons, subject
to the same diseases, healed by the same means,
warmed and cooled by the same winter and summer, as
a Christian is? If you prick us, do we not bleed?
if you tickle us, do we not laugh? if you poison
us, do we not die? and if you wrong us, shall we not
revenge? If we are like you in the rest, we will
resemble you in that...The villany you
teach me, I will execute, and it shall go hard but I
will better the instruction."
Muslim antagonism towards the United States would not have awakened if we had refrained from material military, economic, or diplomatic assistance in favor of oppressive Muslim regimes. That should be our current policy, as it was before the United States degenerated from a Republic to an Empire. Before the fall, then Secretary of State John Quincy Adams elaborated on the foreign policy of the Republic in words that have never been bettered: "But [America] goes not abroad, in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own...[America's] glory is not dominion, but liberty. Her march is the march of the mind."
Blowback against United States interventions is as certain as Newton's laws of motion. Shakespeare's Macbeth explained: "But in the case [of assassination] we still have judgment here; that we but teach bloody instructions, which, being taught, return to plague the inventor: thus even-handed justice commends the ingredient of our poison'd chalice to our own lips."]]>Squinting at Religious Discriminationtag:www.huffingtonpost.com,2011:/theblog//3.11218622011-12-02T12:14:12-05:002012-02-01T05:12:01-05:00Bruce Feinhttp://www.huffingtonpost.com/bruce-fein/
Article 19 of the Greek Nationality Code was brandished by the Government of Greece from 1959-1998 to strip approximately 50,000 Greek citizens of Turkish descent in Western Thrace of citizenship. The now-repealed article provided: "A person of non-Greek ethnic origin leaving Greece without the intent of returning may be declared to have lost his or her nationality." Nazi Germany's Nuremburg Laws similarly deprived German Jews of citizenship.
All of the tens of thousands of Turkish victims remain stateless. Exemplary is the arresting case of Burhaneddin Hakguder. The erstwhile Greek citizen recounts: "I was a student in the Law Faculty of Istanbul. It was March 1981, and I was preparing for the midterms. I noticed that my [Greek] passport had expired, so I applied to the Greek Consulate in Istanbul for an extension of my passport. Six months later, I was told that I was deprived of my Greek citizenship [which I never intended to abandon]."
Stripping any person of citizenship because of race, religion, or ethnicity is odious to civilized people. The United States Constitution withholds that awesome power from the United States government. The United States Supreme Court elaborated in Afroyim v. Rusk (1967): "Citizenship is no light trifle to be jeopardized any moment Congress decides to do so under the name of one of its general or implied grants of power. In some instances, loss of citizenship can mean that a man is left without the protection of citizenship in any country in the world--as a man without a country."
Circumstantial evidence is convincing that Greece deprived Turkish Muslim citizens of Greek citizenship based on religion or ethnicity. Greece's population is 98 percent Eastern Orthodox, but is less than 1 percent Muslim; and, Turkish Muslims were the overwhelming percentage of persons of non-Greek ethnic origin who were deprived of citizenship during Article 19's lifetime. It speaks further volumes that Athens is barren of even a single mosque.
The International Religious Freedom Act of 1998 created a 10-Member Commission on International Religious Freedom to identify religious persecution or discrimination abroad. The Commission is directed to publish an annual report on international religious freedom; and, to designate "Countries of Particular Concern." Sunshine is the best disinfectant.
But the Commission has ignored the continuing plight of stateless Turkish Muslims arbitrarily stripped of citizenship by the Greek government. The omission lends fuel to a perception by some that the Commission tilts in favor of Christianity. In the 2010 International Religious Freedom Report released in 2011, Secretary of State Hillary Clinton designated eight states as "Countries of Particular Concern," none of them Christian: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan. Moreover, the Report neglected Greece's notorious prohibition on Turkish Muslims identifying themselves and associating under a Turkish emblem. Greece banned the "Turkish Union of Xanthi", the "Rodopi Turkish Women's Cultural Association" and the "Evros Minority Youth Association." The European Court of Human Rights unanimously denounced the proscriptions as affronts to the right of freedom of assembly and of association. The International Religious Freedom Report's entry on Cyprus similarly overlooked the nineteen sites of Christian worship open in the Turkish Republic of Northern Cyprus, compared with but three mosques in Greek Cyprus.
In sharp contrast, the State Department has sounded justifiable alarm over discrimination or persecution of Christians amidst the political convulsions of Arab Spring.
Restoring Greek citizenship to all persons of non-ethnic Greek origin who were arbitrarily stripped of their citizenship would be no novelty. Even Syria, infamous for human rights atrocities, restored citizenship to a portion of the 300,000 Kurds who had been rendered stateless under Presidents Hafez and Bashar Assad.
Nothing ignites strife or resentment as readily as double standards. To avoid that hazard, the Commission on International Religious Freedom should urge Greece to restore citizenship to non-ethnic Greeks who were deprived of citizenship under Article 19. This is no time for the United States to create even an appearance that while all religions are equal, some are more equal than others.
]]>The Last Enclaves of Banking Freedomtag:www.huffingtonpost.com,2011:/theblog//3.10672652011-10-31T10:53:41-04:002011-12-31T05:12:01-05:00Bruce Feinhttp://www.huffingtonpost.com/bruce-fein/
To the army of regulators in the Obama administration, every lender looks like a potential problem that could mushroom into an A.I.G. debacle. They have spread their regulatory tentacles under the auspices of Dodd-Frank legislation to virtually every nook and cranny of the banking world.
The sole enclaves of banking choice are Native American tribes endowed with sovereign powers pursuant to treaties or otherwise. They offer sovereign lending to the spiraling number of the unbanked or under-banked who have been priced out of services offered by traditional lenders because of heavy-handed and costly Obama regulation.
Sovereign lenders are not targets of Occupy Wall Street. Their unbanked or under-banked borrowers are not clamoring for sovereign lending regulation by the Consumer Financial Protection Bureau of the Federal Reserve, or state or local government.
The reason is self-evident. The vast array of financial regulation inaugurated by the Obama administration under the banner of consumer welfare has dried up lending and hiked costs to traditional bank depositors. With friends like regulators, you can afford no enemies. No consumer is forced to utilize a sovereign lender. It is a matter of informed choice based on all the alternative lending options. And sovereign lenders compete among themselves for patronage. There is no sovereign lender monopolist. As the proverbial wisdom of owlish farmers goes, "If it ain't broke, don't fix it."
Like mercy, sovereign lending is twice-blessed. Borrowers' needs for immediate funds are satisfied. And jobs and wealth are created for Native American tribes. Sovereign lending has the potential to create thousands of jobs, and generate millions in revenue annually for economically challenged Native Americans.
It would be a monumental understatement to assert that Native American tribes have been historically exploited by the federal, state, or local governments. Wounded Knee is exemplary. Indeed, treaties have been so frequently broken and fiduciary duties dishonored that Congress established the Indian Claims Commission Act of 1946 to make partial amends. The United States Supreme Court elaborated on a handful of the treaty violations in United States v. Sioux Nation of Indians, 448 U.S. 371 (1980).
Under existing federal law, the special sovereign status of Indian tribes under the United States Constitution denies federal, state, or local arms of government authority to regulate lending businesses domiciled on tribal lands. The Supreme Court has characterized Indian tribes as "domestic dependent nations" or "quasi-sovereign tribal entities."
The status of the sovereign powers of Indian tribes, as interpreted by federal law, has been concisely summarized by Indian law maven Felix Cohen, in his Handbook of Federal Indian Law:
The whole course of judicial decision on the nature of Indian tribal powers is marked by adherence to three fundamental principles: An Indian tribe possesses, in the first instance, all the powers of any sovereign State. Conquest renders the tribe subject to the legislative power of the United States, and, in substance, terminates the external powers of sovereignty of the tribe, e.g., its power to enter into treaties with foreign nations, but does not by itself affect the internal sovereignty of the tribe, i.e., its powers of local self-government. These powers are subject to be qualified by treaties and by express legislation of Congress, but save as thus expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly constituted organs of government.
The Indian Reorganization Act of 1934 was enacted to strengthen tribal self-government and to preserve tribal culture. When Congress intends to encroach on tribal autonomy, it does so explicitly, not by implication, as with the Indian Gaming Act of 1988. Congress, however, has shied from legislation that would regulate lending activities conducted from tribal lands, in part because of the value of trial and error in fashioning enlightened public policy. What Justice Louis D. Brandeis said in New State Ice Company v. Liebmann, 285 U.S. 262 (1932) about States serving as laboratories for public policy experimentation applies in spades to diverse and independent tribal sovereigns: "It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."
There remains, however, a perfectly legal way for the Consumer Financial Protection Bureau or states to attack sovereign lending: issue or enact more consumer and business friendly lending rules to attract the current customers of sovereign lending, i.e., build a better mousetrap. ]]>Ruinous Victoriestag:www.huffingtonpost.com,2011:/theblog//3.10287062011-10-25T09:38:23-04:002011-12-25T05:12:01-05:00Bruce Feinhttp://www.huffingtonpost.com/bruce-fein/
But to borrow from King Pyrrhus of Epirus after defeating the Romans in the Battle of Asculum, these so-called victories threaten the ruination of the United States. They established precedents, practices, and principles that vandalized the Constitution, crippled the rule of law, subverted individual liberty, generated new enemies, and drained trillions from the national treasury. If there are better ways to destroy the handiwork of the Founding Fathers, they do not readily come to mind.
President Obama commenced war against Libya to save civilian lives. But Congress did not authorize the war as required by Article I, section 8, clause 11 of the Constitution. And Congress did not appropriate funds for the war as required by Article I, section 9, clause 7. Obama embraced the counter-constitutional principle without congressional challenge that the President is empowered to initiate war against any nation, organization, or person on the planet to advance whatever he unilaterally ordains is a national interest. The President also flouted the War Powers Resolution of 1973 by failing to receive congressional authority to continue the Libyan war longer than 60 days with the Orwellian excuse that dropping bombs and firing missiles are not "hostilities"-- unless the United States is the target.
Obama's Libyan adventure has been wrongly portrayed as a gain for human rights or democracy abroad. To be sure, Gaddafi was a tyrannical wretch, but he was not the responsibility of the United States. His successors could be worse, and the United States is now saddled with moral responsibility for their accession to power.
Generally speaking, Libyan allegiances are to tribe, ethnicity, religion, or oil riches. Due process, elections, the rule of law, a separation of religion from government, non-discrimination, and checks and balances are alien to their intellectual and cultural universes. Accordingly, revolutionaries detain thousands of Libyans without accusation or trial. Torture is routine. Black Africans have been imprisoned or killed solely because of race. And Gadaffi's execution in custody provoked no emphatic condemnation from the transitional Libyan government.
Political power in Libya grows out of the barrel of a gun. Libya's new Constitution contemplates Sharia as the guidepost for all laws, as announced by the departed head of the National Transitional Council. Convicted but freed Lockerbie bomber Ali al-Megrahi has not been delivered into United States custody. Finally, the Libyan war was fought without even a pretense of advancing American safety, freedom, or prosperity.
President Bush invaded Iraq in 2003 pursuant to an unconstitutional delegation of congressional authority to commence war. The reason for the invasion remains opaque. Many of the principals involved remain clueless as to what motivated Bush's decision. The intelligence products of the C.I.A. were manipulated or misrepresented by the Bush administration to manufacture public and congressional support for attacking Saddam Hussein. Abu Ghraib and Blackwater severely tarnished the American escutcheon. More American soldiers have died in Iraq than civilians were killed in the 9/11 abominations. The United States has expended $1 trillion on the Iraq war, excluding the costly medical care that will be required to treat injured or traumatized American soldiers.
The Iraq war unwittingly harmed professed United States national security interests. Iran became the regional hegemon, and accelerated its nuclear arms program. Iraq's oil production plunged. The United States alienated Turkey by cosseting Iraqi Kurds in the north, providing refuge for the PKK. Iraq is now hostile towards Israel and friendly towards the Palestinian Authority and Syria.
Even with the depraved Saddam as a benchmark, human rights and democratic practices have only marginally improved under Shiite Prime Minister Nouri al-Maliki. The judiciary is neither independent nor impartial. Iraq is a government of men, not of laws. Corruption is ubiquitous. Torture is commonplace. The nation is fractured between Shiite, Sunni, and Kurds, with the Shiite exerting political domination. There is no agreement on the division of oil revenues between the central and regional governments or the fate of oil-rich Kirkuk. The Iraqi Constitution makes Islam the official state religion and a fundamental source of legislation. No law may contradict its universal tenants.
The United States war in Afghanistan and against international terrorism gave birth to torture with impunity; indefinite detentions of alleged enemy combatants (including American citizens) at Guantanamo Bay without accusation or trial; military commissions denuded of the trappings of due process to prosecute alleged war crimes; illegal interceptions of the phone conversations or emails of Americans without judicial warrants in criminal violation of the Foreign Intelligence Surveillance Act; and, presidential assassinations of an American citizen and his 16-year-old apolitical son based on secret evidence and secret law. The war against international terrorism also established the precedent of perpetual war and a planet-wide battlefield where military force is always legitimate.
The United States has expended more than $1 trillion on the Afghan war at a rate of $350 million per day. Approximately 2,000 American soldiers have died there. Predator drones have created enemies by killing innocent civilians through imprecise or erroneous targeting. The Afghan Constitution makes Islam the state religion, and stipulates that no law may contradict the beliefs and provisions of the sacred religion of Islam. The Afghan government is corrupt, illegitimate, ineffectual, weak, and popularly execrated. Opium production flourishes. Loyalties are to tribes, ethnic groups, or religion--not to the nation. Women remain third-class citizens. Human rights like free speech, free press, and freedom of religion are honored more in the breach than in the observance.
The Afghan war is objectless. The United States can easily defend its sovereignty from any attack emanating from Afghanistan with soldiers deployed at home. An anticipatory self-defense perimeter thousands of miles away is preposterous and prohibitively expensive.
Politicians are chronically myopic and generally ill-educated. Whenever they claim victory, skepticism is justified. The United States crowed about evicting the Soviet Union from Afghanistan through underwriting the mujahedeen, including Osama bin Laden, the Haqqani network, and Gulbuddin Hekmatyar, with money and stinger missiles. And then came 9/11, perpetrated by our erstwhile anti-Soviet friends--turning a previous victory into ashes.
]]>Unconstitutional, Job Killing Regulatory Armytag:www.huffingtonpost.com,2011:/theblog//3.9768132011-09-26T12:19:37-04:002011-11-26T05:12:02-05:00Bruce Feinhttp://www.huffingtonpost.com/bruce-fein/
On September 19, the same day President Obama delivered a speech from the White House Rose Garden touting his American Jobs Act - highlighting the need to create more construction jobs - his Secretary of Labor, Hilda Solis, was across town organizing a new regulatory army that would decimate the building industry. This business unfriendly Cyclops includes the Department of Labor, the Internal Revenue Service and as many as 11 state-based agencies. Its objective is to reclassify workers to punish American job creators to placate labor unions.
The elusive distinction between independent contractors and employees made by federal labor and tax laws is more to be marveled at than imitated. No single earmark is dispositive. The following questions are relevant, but routinely yield answers that point in opposite directions. Does the company control or have the right to control what the worker does and how the worker does his or her job? Are the business aspects of the worker's job controlled by the payer, for example, how a worker is paid, whether expenses are reimbursed, who provides tools or supplies, etc.? Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a cornerstone of the business?
Obama's regulatory army is fighting a phantom problem that has been exposed in prior futile investigations.
The residential construction industry regularly confronts the independent contractor-employee conundrum, but few if any workers complain about their categorization. In these depressed economic times in an economically depressed industry, they are happy to enjoy a source of income at market rates. Home building fell to a 50-year low in 2009. Each home built creates an average of three jobs for a year and approximately $90,000 in taxes. In a sane world, willing businesses and willing workers collaborating to build houses would be encouraged, not disturbed. Further, the Department is undertaking a pioneering effort to saddle liability on homebuilders for the practices of their subcontractors.
The world of politics, however, is economically zany. Labor unions are major elements of President Obama's political base, and the Department of Labor is their echo chamber. Labor unions clamor for characterizing all construction workers as "employees" to inflate compensation levels and to diminish their competitive disadvantage with non-union labor. Employees are subject to minimum wage, maximum hour, and overtime rules that independent contractors are not.
In response to the Obama regulatory army's far-flung investigation into hypothetical violations of minimum wage or overtime rules in residential construction, a spokesman for the Leading Builders of America, and industry trade group, complained that its information demands would squander thousands of hours of work. The only immediate beneficiaries would be lawyers, who are dead weights on the economy. The chief executive of the National Association of Homebuilders protested that the independent contractors and subcontractors were the "lifeblood of the industry," which would be crippled if they were re-characterized as employees of home builders by edict of the Department. It is collaborating with trial lawyers in hopes of initiating class action suits on behalf of ostensible employees to coerce financial settlements from the fragmented home building industry.
Contrary to Regulatory Tsar Cass Sunstein's boasting of slashing burdens on industry, the Obama administration has met the enemy of job creation in residential construction or otherwise, and it is them.
]]>A Pyrrhic Victorytag:www.huffingtonpost.com,2011:/theblog//3.9896652011-09-03T12:00:07-04:002011-11-03T05:12:01-04:00Bruce Feinhttp://www.huffingtonpost.com/bruce-fein/
Even Adolph Eichmann, complicit in the Holocaust, received a due process trial before a civilian court in Jerusalem before execution by Israel.
In a nation that treasured both the rule of law and a common defense, al-Awlaki would have been indicted by a federal grand jury for material assistance to a foreign terrorist organization and subjected to an Eichmann-like kidnapping and trial held in a civilian court with all the trappings of due process. If al-Awlaki had sought to elude capture and his escape would have created a significant risk of physical harm to third parties, deadly force could have been employed against him by the FBI or the United States military under the United States Supreme Court's decision in Tennessee v. Garner. The Constitution is not a suicide pact. Its genius has been to accommodate due process, liberty, and safety in an equilibrium which is the hallmark of civilization. The al-Awlawki precedent, in contrast, crucifies the Constitution on a bogus national security cross.
]]>At the Edge of Self-Destructiontag:www.huffingtonpost.com,2011:/theblog//3.9051342011-07-20T17:14:51-04:002011-09-19T05:12:02-04:00Bruce Feinhttp://www.huffingtonpost.com/bruce-fein/
Character, accomplishment, and greatness are impossible without personal struggles against the ordinary depravities of human nature and the slings and arrows of outrageous fortune that flesh is heir to. Muscles atrophy from idleness. Emotional, psychological and spiritual strength wither without unflagging labors to discover and to act on unadorned truths about ourselves and the world.
A life undedicated to virtue and wisdom is philosophically empty and juvenile. A few lines from Plutarch's Livesspeak volumes: "It was not said amiss by Antisthenes when people told him that one Ismenias was an excellent piper. 'It may be so, but he is a wretched human being, otherwise he would not have been an excellent piper.'"
When the government showers the people with creature comforts, it steals the pride and dignity that emerge from self-discipline and encounters with hardship. Life is reduced to the animalistic. As Shakespeare's King Lear lectured: "O reason not the need! Our basest beggars are in the poorest thing superfluous." Except for the rule of law, common defense, and education, dependency on government gives birth to effeteness or vassalage. Americans should be made of sterner stuff.
Government treatment of citizens as adolescents needing paternalistic supervision stunts individual development and maturation. As with the physical sciences, individual trial and error is the path to self-knowledge, understanding and fulfillment.
But many absurdly scorn the idea of returning America to a time before the Great Society. It exalted hedonism and contrived environmental excuses beyond authentic handicaps for all manner of human failings or sin. Great Society afflictions include spiraling teenage pregnancies and children born out of wedlock; a vertical plunge in academic achievement and knowledge of civics; a quantum jump in the incidence of crime; deteriorating health occasioned by shocking levels of obesity; sex-saturated entertainment or lyrics; a national debt exceeding $14 trillion to be thrust on posterity; and, role models whose morals gyrate between the squalid and the reprehensible. The Great Society culture of creature comforts and juvenile dissipations has engendered national decay and social pathologies.
The United States has lost its philosophical soul. The nation's predominant motivations are money, sex, power, domination, fame and indulgence. These are the motivations of children and adolescents. The American people and their leaders are more excited about professional sports, American Idol, and fashion than they are agitated about presidential usurpations of the war power, the vandalizing of the rule of law, and government secrecy, which causes everything to degenerate, even the administration of justice.
The transcendent motivations of the Founding Fathers were virtue and wisdom -- the cornerstones of immortality. The signers of the Declaration of Independence pledged their lives, fortunes, and sacred honor to establish a nation conceived in liberty and dedicated to the proposition that all men are created equal. In 1780, John Adams, future President of the United States, wrote:
"I must study Politicks and War that my sons may have liberty to study Mathematicks and Philosophy. My sons ought to study Mathematicks and Philosophy, Geography, natural History, Naval Architecture, navigation, Commerce and Agriculture, in order to give their Children a right to study Painting, Poetry, Musick, Architecture, Statuary, Tapestry and Porcelaine."
In contrast to the second President of the United States, George W. Bush, the forty-third President, clucked to journalist Robert Draper in 2008 that his post-White House plan was "to give some speeches, just to replenish the ol' coffers." And the lives of contemporary marquee movie stars, performers, or athletes orbit around weight, clothes, and sexual allures or conquests. When they die -- unlike Abraham Lincoln -- none will belong to the ages.
It is the golden age of decadence. It is the golden age of sub-literacy. Only a leader of impeccable character and profound intellect can turn the culture away from self-destruction and drivel. Let's hope we elect to the presidency such a leader faster than Diogenes discovered an honest man.
]]>Mandatory Voluntary Guidelinestag:www.huffingtonpost.com,2011:/theblog//3.8946122011-07-11T11:21:07-04:002011-09-10T05:12:01-04:00Bruce Feinhttp://www.huffingtonpost.com/bruce-fein/
Take the food industry and the Interagency Working Group (IWG) on Food Marketed to Children, Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulatory Efforts. The IWG -- comprised from the Federal Trade Commission, the Food and Drug Administration, the U.S. Department of Agriculture, and the Centers for Disease Control and Prevention -- has decreed "voluntary" nutritional guidelines for food marketed to tiny tots or teenagers. Among other things, the interagency group decreed that: "By the year 2016, all food products within the categories most heavily marketed to children should meet two basic nutrition principles. Such foods should be formulated to... make a meaningful contribution to a healthy diet and minimize the content of nutrients that could have a negative impact on health and weight." The food categories in the government's crosshairs include "breakfast cereals, snack foods, candy, dairy products, baked goods, carbonated beverages, fruit juice and non-carbonated beverages, prepared foods and meals, frozen and chilled deserts, and restaurant foods."
In substance, the IWG has delivered an ultimatum to the food industry: either reformulate recipes to diminish sugar, sodium, and fats; or, cease ads or promotions on TV, radio, websites, in print, in movies, sponsorship of events, in-store marketing tools, etc. The goal is to manipulate the advertising marketplace in favor of more nutritionally healthy foods because of the government's distrust of parents or children to make enlightened nutritional decisions. The interagency group asserts: "The proposed recommendations are... designed to encourage children, through advertising and marketing, to choose foods that make a meaningful contribution to a healthful diet... and minimize consumption of foods with significant amounts of nutrients that could have a negative impact on health."
These guidelines are as much constitutional folly as they are economically ill-advised. It is estimated that these mandatory-voluntary guidelines would plunge related advertising expenditures by 20% and slash over 75,000 jobs -- leaving a $30 billion crater in our nation's already sagging economy. The constitutional ramifications are equally alarming.
The First Amendment prohibits the government from suppressing non-deceptive commercial speech from fear it will prove persuasive to the audience. The United States Supreme Court recently explained in Sorrell v. IMS Health Inc. (June 23, 2011): "The State may not burden the speech of others in order to tilt public debate in a preferred direction...[T]he fear that speech might persuade is no lawful basis for quieting it."
The government's voluntariness defense is unconvincing. The FTC regulates food industry advertising or mergers. The FDA regulates food safety. The U.S. Department of Agriculture decides the nutritional quality of school breakfasts and lunches. The food industry would be risking an onslaught of regulatory harassment or discrimination by resisting the "voluntary guidelines" of the interagency group. In the past year, the FTC demanded records from forty (40) food companies disclosing marketing expenses to persons younger than 18. Scott Faber, Vice President of Federal Affairs for the Grocery Manufacturers Association, acknowledges: "When regulators strongly suggest a course of action, it's treated as a rule, not a suggestion."
As the federal government has grown from a tiny acorn into a mighty oak, informal jawboning has proven as effective as official edicts in dictating industry behavior. During the Kennedy administration, United States Steel and sister industry members hiked steel prices over the objection of President John F. Kennedy. In swift response, the Defense Department announced plans to review steel contracts and switch to lower-cost suppliers. The Justice Department initiated an antitrust investigation into price fixing. The president commanded air time to denounce the price increase as detrimental to the public interest. The steel companies capitulated three days later.
In 1974, the Chairman of the Federal Communications Commission, Richard Wiley, embarked on "jawboning," to cajole the networks to reduce the amount of sex and violence in television programming without the need for any "formal" Commission action. The FCC licenses the broadcast industry, and enjoys a chokehold over its financial destiny. The Chairman's campaign involved: (1) five meetings between himself or members of the Commission staff and industry representatives at which various proposals for dealing with the problem of televised sex and violence were discussed; (2) three public speeches by Chairman Wiley in which he exhorted the industry to undertake its own action to avoid direct government involvement; (3) several telephone conversations between Chairman Wiley and various network executives; and (4) suggestions by Chairman Wiley that the National Association of Broadcasters expedite its consideration of an indistry Code amendment incorporating the family viewing policy. The code amendment was soon adopted in April 1975.
In Bantam Books v. Sullivan (1963), the Supreme Court condemned informal censorship effectuated by veiled threats of adverse government action as prohibited by the First Amendment.
The proper remedy for speech the government believes is misconceived, the High Court has lectured, is more speech, not enforced silence. Nothing in the Constitution prevents the Interagency Working Group from promoting more nutritional food choices by parents or youth through its own educational campaign. But it may not achieve that goal by holding a Sword of Damocles over food industry members to extort compliance with the government's nutritional principles.
]]>President Obama's Political Sepulchertag:www.huffingtonpost.com,2011:/theblog//3.8895392011-07-05T11:54:43-04:002011-09-04T05:12:01-04:00Bruce Feinhttp://www.huffingtonpost.com/bruce-fein/
To defeat fifty al Qaeda in Afghanistan, he has deployed tens of thousands of troops at an annual cost exceeding $120 billion to support a corrupt and tribal government devoid of popular legitimacy. President Hamid Karzai was elected with at least one million fraudulent votes. He is seeking to oust scores of parliamentarians to accommodate his own toadies. The signature of the now-failed Kabul Bank was a secret multi-million dollar, no document loan to political favorites of the Karzai administration. Justice is for sale.
President Obama has inflated the danger of al Qaeda manifold to justify his exorbitant fool's errand. If his troop to al Qaeda militant ratio in Afghanistan had been employed during World War II in fighting Germany and Japan, the United States would have deployed 3.5 billion military personnel abroad, vastly more than the entire United States population.
The Iraq war endures as ancient sectarian animosities and suspicions fuel partition and domestic strife. Tens of thousands of American troops remain there as Iraq totters on the brink of civil war.
President Obama's gratuitous war against Libya exhibits signs of an endless quagmire with no purpose relevant to the defense of the United States. If, as the president insists, saving civilian lives justifies war, scores of nations are in the queue for the United States to attack, for example, Syria, Bahrain, North Korea, Burma, China, Russia and Zimbabwe. Obama's continuation of a global and perpetual war against international terrorism has thrust the United States military and the C.I.A. into Pakistan, Yemen and Somalia. He has warned China over Taiwan and oil and gas in the South China Sea. He has threatened Iran with war if it acquires nuclear weapons.
In sum, President Obama is bettering the instruction of the Roman Empire. It initially fought to defend itself. Then it fought to defend allies. Then it invented allies to defend. Then it fought for the adolescent excitement of swagger. Finally, the Empire fell into bankruptcy and ruination from overreach and arrogance.
In fighting endless wars with national security spending approximating $1.2 trillion annually, Obama has compromised the Constitution. He has set a precedent of unconstitutional unilateral presidential war making that will lie around like a loaded weapon until a Caligula occupies the White House and overthrows the Republic. Obama has insisted that the President may initiate war at whim under the banner of regional stability, the credibility of the United Nations Security Council, or whatever he decrees is in the national interest. He sneers at the War Powers Resolution of 1973 enacted to handcuff illegal executive branch war making. He absurdly decrees that bombing or rocketing Libya is not "hostilities" because the destruction of the enemy excludes American ground troops and imminent danger to United States pilots. That argument would absurdly exclude as an act of war a United States nuclear missile attack on Libya featuring ICBMs and SLBMs that incinerated every living thing there.
Obama's constitutional pontificating over his war powers is indistinguishable from propaganda. As I explained in my Impeachment Resolution (drafted after President Obama initiated war against Libya), my demand for constitutional consistency from Vice President Joe Biden, my denouncement of Senator John McCain, and my Tea Party clarion call, Article I, section 8, clause 11 of the Constitution entrusts Congress with the exclusive power to cross the threshold from peace to war, which makes what is customarily murder legal. The decision to deny the President the authority to commence war--praised by many as the crown jewel of the Constitution--was no whimsy. The Founding Fathers feared that the executive branch would concoct excuses for military conflict to aggrandize presidential power, to conduct personal vendettas, to operate secret government shielded from congressional or public oversight, or to leave a mark in the annals of history. Unilateral war, the Constitution's makers understood, is irreconcilable with liberty, the glory of a Republic.
President Obama could easily extricate himself from his financially reckless adventurist wars by informing Congress that he will end offensive use of the American military everywhere in the world within 30 days unless a law is passed and sent to his desk for signature that demands that the offensives continue. Depend upon it, Congress would balk. Since World War II, Congress has ducked accountability for the Korean War, the Vietnam War, the Persian Gulf War, the Bosnian and Kosovo wars, the Iraq war, and American hostilities in Pakistan, Yemen, Somalia, and Libya.
But like Julius Caesar, Obama prefers the excitement of bestriding the world like a colossus to the quiet tranquility of non-belligerency and the rule of law. Whom the Gods would destroy, they first intoxicate with power.
]]>Bachmann Divorces the Constitutiontag:www.huffingtonpost.com,2011:/theblog//3.8855742011-06-28T08:50:32-04:002011-08-28T05:12:01-04:00Bruce Feinhttp://www.huffingtonpost.com/bruce-fein/
She earnestly argued that the Founding Fathers emancipated slaves. The Constitution retorted that slavery did not end until the Thirteenth Amendment was ratified in 1865 as a codicil to the Civil War.
Article I, section 8, clause 11 of the Constitution endows Congress exclusively with authority to commence war. Delegates to the constitutional convention worried about fighting too many wars, not too few. Wars impoverish with taxes and non-productive spending. They tarnish due process with military commissions and detentions without trial. They destroy the right to be left alone from government snooping. They fuel foreign resentments. They expose brave American soldiers to death.
The Executive, the Founding Fathers understood, was inclined to concoct excuses for war from trifles light as air to aggrandize power. During wartime, the president enjoys secrecy, spending, appointments, and the thrill of global transformation. James Madison, father of the Constitution, wrote to Thomas Jefferson, author of the Declaration of Independence: "The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislature."
But Congresswoman Bachmann stubbornly refuses to condemn President Obama's unilateral war against Libya as unconstitutional, and insinuates the president should unilaterally invade Iran in hopes of destroying its weapons of mass destruction. Her constitutional betrayal is stunning because Obama himself, Vice President Joseph Biden, and Secretary of State Hillary Clinton can be summoned to denounce presidential wars as illegal.
On December 20, 2007, Hillary Clinton sermonized as a Senator: "[T]he Constitution requires Congress to authorize war. I do not believe that the President can take military action -- including any kind of strategic bombing -- against Iran without congressional authorization."
Vice President Joseph Biden, speaking as a Senator at the Iowa City Public Library in 2007, maintained that presidential wars were impeachable high crimes and misdemeanors under the Constitution:
It is precisely because the consequences of war -- intended or otherwise - can be so profound and complicated that our Founding Fathers vested in Congress, not the President, the power to initiate war, except to repel an imminent attack on the United States or its citizens.
On December 20, 2007, then Senator Barack Obama insisted to the Boston Globe: "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."
Bachmann rejects impeachment for presidential usurpation of the war power, although the remedy was specifically fashioned to answer attempts to subvert the Constitution.
Congresswoman Bachmann's ill-informed divorce from the Constitution disqualifies her as a presidential candidate. Nothing is as dangerous as constitutional ignorance in action.
*This is the first in a series of "Constitutional Report Cards" for 2012 Presidential Candidates.]]>McCain Dethrones the Rule of Lawtag:www.huffingtonpost.com,2011:/theblog//3.8687762011-05-31T11:45:20-04:002011-07-31T05:12:02-04:00Bruce Feinhttp://www.huffingtonpost.com/bruce-fein/bugled last week, "No president has ever recognized the constitutionality of the War Powers Act, and neither do I. So I don't feel bound by any [60 day] deadline" to obtain congressional authorization to continue hostilities against Libya ordained by the Act.
The 2008 Republican presidential candidate effused over unlimited presidential war-making, insinuating that the downfall of the Republic would come from fighting too few wars, not too many: "Any President, Republican or Democrat, should be able to deploy armed forces whenever and wherever he deems necessary." Earlier in his political career, Senator McCain admonished that Congress has no "right to declare peace," and trumpeted: "[T]he fact is that the President of the United States is given the responsibility, the most grave responsibility of sending into harm's way our greatest national treasure, our young men and women."
Senator McCain's blather betrayed a sub-literate understanding of the Constitution and infidelity to his oath of office. The latter requires him to demand the impeachment and removal of President Obama for the greatest usurpation of congressional authority in the history of the United States. Instead, the Senator is conspiring with the president to facilitate the usurpation.
On McCain's gospel hangs an alarming tale. The rule of law has been dethroned and the president has been endowed with absolute power as the American Empire has eclipsed the American Republic.
Eleven score and fifteen years ago, our forefathers brought forth a new nation dedicated to the proposition that the law is king. They recognized that crowning the president with power to commence war unilaterally would be the death knell of the Republic. Thomas Paine sermonized in Common Sense, the Bible of the American Revolution, that "as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other."
In times of war, the law is silent and the executive is omnipotent. The Founding Fathers thus erected constitutional barriers against fighting too many wars. None fretted about fighting too few. Arresting portions of the Constitutional Convention of 1787 and the explanatory Federalist Papers were devoted to safeguards against military supremacy and the overthrow of civilian government.
The most important check against gratuitous wars that squander the lives and limbs of brave American soldiers was Article I, section 8, clause 11. It fastened on Congress exclusive responsibility for commencing war. Legislative power diminishes in wartime. Legislators have no incentive to concoct danger or other excuses to abandon peace. The president, in contrast, is strongly tempted towards war to aggrandize power and earn a place on Mount Rushmore. James Madison, father of the Constitution, elaborated with signature genius in a letter to Thomas Jefferson: "The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature."
In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.
James Wilson underscored at the Pennsylvania Ratifying Convention,
This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war.
Abraham Lincoln exposed Senator McCain's Orwellian warping of the Constitution:
Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose -- and you allow him to make war at pleasure.... Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, to-day, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, "I see no probability of the British invading us" but he will say to you "be silent; I see it, if you don't."
The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.
John Bassett Moore, an authoritative scholar of international law, observed:
There can hardly be room for doubt that the framers of the constitution, when they vested in Congress the power to declare war, never imagined that they were leaving it to the executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory, and killing their soldiers and citizens, all according to his own notions of the fitness of things, as long as he refrained from calling his action war or persisted in calling it peace.
Supreme Court Justice Robert Jackson voiced alarm at presidential war-making in his concurring opinion in Youngstown Sheet & Tube v. Sawyer:
[N]o doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture.
In sum, there is nothing in the text, subtext, context or judicial interpretation of the Constitution that empowers the president to initiate war without prior congressional authorization. Yet presidential lawlessness persists and metastasizes like a cancer without provoking congressional or public rebuke.
Executive branch violations of the Foreign Intelligence Surveillance Act, the Patriot Act, or the Convention Against Torture are ignored. The state secrets privilege is invoked to deny victims redress for torture or comparable constitutional wrongdoing. Suspected "enemy combatants" are detained indefinitely without accusation or trial. Military commissions supersede civilian courts. The United States claims unique authority to attack with predator drones or otherwise any nation on the planet to advance professed humanitarian causes, "regional stability," or the credibility of the United Nations Security Council.
The Department of Treasury or Board of Governors of the Federal Reserve print or spend money without proper congressional oversight or direction. Annual Pentagon spending approaching $1 trillion is not audited.
Depend upon it. The day will soon come when the president usurps the congressional power to tax and to spend to address an asserted economic emergency with impunity. Most Members of Congress will meekly submit to vassalage and rejoice at their escape from responsibility for anything non-trivial.
The final destruction of the Republic can be prevented if the American people vote to oust every Member of Congress and every president unfaithful to their oaths to uphold and defend the Constitution.
That would mark one of history's finest hours in self-government.
]]>The Constitution and the Tea Party Part Companytag:www.huffingtonpost.com,2011:/theblog//3.8622272011-05-16T08:47:42-04:002011-07-16T05:12:02-04:00Bruce Feinhttp://www.huffingtonpost.com/bruce-fein/
But as the proof of the pudding is in the eating, the proof of Tea Party Caucus Members is in action, not pontification. On that score, the Members have honored their proud boast more in the breach than in the observance -- at least in matters touching on national security.
President Obama usurped the exclusive congressional prerogative over war in gratuitously attacking Libya without congressional authorization required by Article I, section 8, clause 11 of the Constitution. The president concurrently sallied forth with the alarming Obama Doctrine. It embraces a counter-textual and counter-historical theory that crowns the president with power to commence war to promote "regional stability" or the "credibility or effectiveness" of the United Nations Security Council -- which means war at the whim of the president.
Congress is denied even a cameo appearance in the grave decisions to take the nation from a state of peace to a state of war. Military conflict means legalizing what is customarily murder, bloating government spending, substituting secrecy for transparency, crippling civil liberties at home, and sending brave men and women abroad to risk or give that last full measure of devotion. But Tea Party Caucus Members either whimpered or stood mute over Libya and the Obama Doctrine despite the clear unconstitutionality of presidential wars and their ominous implications.
Supreme Court Justice Robert Jackson warned in Youngstown Sheet & Tube v. Sawyer:
Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture.
James Madison, father of the Constitution, wrote to Thomas Jefferson in 1798:
The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.
James Wilson, future Justice of the Supreme Court, explained at the Pennsylvania convention to ratify the Constitution:
This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large; this declaration must be made with the concurrence of the House of Representatives; from this circumstance we may draw a certain conclusion, that nothing but our national interest can draw us into a war.
Article I, section 8, clause 12 of the Constitution empowers Congress: "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years." Its purpose was to prevent the president from maintaining a standing army without returning Congress at least once every two years to obtain necessary appropriations. Standing armies were thought dangerous to domestic liberties and civilian supremacy in the hands of the President alone.
The legislature of the United States will be obliged, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not at liberty to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence.
Pentagon spending, however, is unaudited. It cannot confirm compliance with the Constitution's two-year limitation on funds appropriated to support and maintain an army. The consequence is not academic. President Obama has already expended $750 million conducting an unconstitutional war against Libya without a congressional appropriation for that purpose. At present, the Pentagon enjoys a lavish "slush fund" to spend on endeavors for which there are no identifiable congressional appropriations. The link between two-year congressional appropriations and Pentagon spending has been unconstitutionally severed. Yet any protest from the Tea Party Caucus has been inaudible.
The Patriot Act, including provisions up for renewal at the end of May, flouts the Fourth Amendment right of citizens to be left alone from government surveillance or snooping without probable cause to believe crime is afoot. Yet the Tea Party Caucus is not clamoring for repeal.
Despite the good intentions of its architects, the Act betrays bedrock constitutional principles. The individual is the center of the Constitution's universe. Aggrandizing government is the center of the Patriot Act. The Constitution salutes freedom and citizen sovereignty over absolute safety and citizen vassalage. The Patriot Act turns that hierarchy on its head. Where experience and facts are inconclusive regarding the need for government authority, the Constitution's default position is liberty. Under the Patriot Act, if a threat passes a microscopic threshold of danger, a Big Brother government is embraced, a descendant of the 1% doctrine.
The makers of the Constitution venerated man's spiritual nature, his moods, and his intellect, to borrow from Justice Louis D. Brandeis. They sought to protect Americans in their beliefs, their attitudes, their seclusion, and their challenges to conventional wisdom. They crowned citizens with the right to be left free from government encroachments, the hallmark of every civilized society. To protect that right, Justice Brandeis sermonized, "[E]very unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." The Patriot Act, nevertheless, shrivels the right to be left alone from Government snooping and surveillance.
Every Founding Father -- every Member of the Constitutional Convention of 1787 -- would have been appalled at the Patriot Act. They were electrified by patriot James Otis' denunciation in 1761 of villainous Writs of Assistance -- general search warrants which empowered petty officers to invade privacy and liberty on bare suspicion without oath. Otis elaborated:
It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law that ever was found in an English law book...Every one with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner, also, may control, imprison, and murder any one within the realm.
Patriot John Adams was awed, and remarked, "[T]hen and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born."
The true patriots of the Constitution and the Republic are the "band of brothers" who stood or are standing in opposition to the misnamed Patriot Act. They understand that the secret of happiness is freedom. And the secret of freedom is the courage to accept risk as inherent to an enlightened and civilized existence. Proponents of the Patriot Act acted from weakness, not strength. Their motives were honorable. But as Justice Brandeis presciently observed:
"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent...The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding."
In conclusion, if Tea Party Caucus Members wish to keep their constitutional escutcheons unsullied, they should not tarry in taking legislative action against unconstitutional presidential wars, unconstitutional unaudited military spending, and unconstitutional encroachments on the citizen's right to be left alone.
]]>A Choice Between Honor and Ignominytag:www.huffingtonpost.com,2011:/theblog//3.8529072011-04-25T10:50:59-04:002011-06-25T05:12:01-04:00Bruce Feinhttp://www.huffingtonpost.com/bruce-fein/
It is not that he loves the Constitution less, but that he adores political power more, which explains his tacit endorsement of President Barack Obama's usurpation of the exclusive congressional power to commence war. In Reid v. Covert, the Supreme Court declared that treaties and laws enacted pursuant to them must comply with the provisions of the Constitution.
Last March 19, President Obama initiated war against Libya without congressional authorization as mandated by Article I, section 8, clause 11 of the Constitution ("the War Clause"). Moreover, the president proclaimed that the White House is empowered to unilaterally commence war not only to play Good Samaritan to the Milky Way, but also to advance "regional stability" or the "credibility" of the United Nations Security Council. That unprecedented principle would justify endless presidential wars anywhere, including South Ossetia, Chechnya, Tibet, Zimbabwe, North Korea, Iran, Syria, Saudi Arabia, Kashmir, the South China Sea, etc. Unless repudiated by the political leadership of the United States, the principle will lie around like a loaded weapon ready for invocation by some future self-deified Caligula to justify martial law.
There was a time when Mr. Biden bugled opposition to unilateral presidential wars. He denounced them as impeachable "high crimes and misdemeanors" subversive of the constitutional order. In November 2007, on the campaign trail, the then Chairman of the Senate Foreign Relations Committee threatened President George W. Bush with impeachment and removal from office if the Commander in Chief initiated war against Iran without prior congressional authorization. With uncharacteristic clarity for customarily fork-tongued politicians, Mr. Biden sermonized:
But let me tell you, I have written an extensive legal memorandum with the help of a group of legal scholars who are sort of a stable of people, the best-known constitutional scholars in America, because for 17 years I was chairman of the Judiciary Committee. I asked them to put together [for] me a draft, which I'm now literally riding between towns editing, that I want to make clear and submit to the United States Senate pointing out the president has no authority to unilaterally attack Iran. And I want to make it clear, I want it on the record, and I want to make it clear, if he does, as chairman of the foreign relations committee and former chair of the judiciary committee, I will move to impeach him.
And then came the elections of 2008. As Mr. Obama's running mate, Mr. Biden was elected vice president. His devotion to the Constitution shriveled in accord with Lord Acton's dictum, "Power tends to corrupt, and absolute power corrupts absolutely." He became enamored of Congressman Timothy John Campbell's retort to President Grover Cleveland's opposition to an unconstitutional bill: "What's the Constitution between friends?"
The Founding Fathers would be appalled and alarmed at such contempt for their handiwork. The Constitution's crown jewel was the assignment of the war power to Congress. All of human history demonstrated the propensity of the executive to inflate danger or otherwise concoct justifications for war to aggrandize power or to settle personal vendettas. James Madison, father of the Constitution observed: "Of all the enemies of public liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other.... War is the true nurse of executive aggrandizement."
The Founding Fathers knew that liberty was incompatible with constant war. Madison elaborated that "no nation could preserve its freedom in the midst of continual warfare." The Constitution's makers thus endowed Congress with exclusive authority to take the nation from a state of peace to a state of war (which legalizes murder). The legislative branch gains nothing from military conflict, and would be disinclined towards adventurism.
The original intent and meaning of the War Clause is manifest.
During the Constitutional Convention of 1787, James Madison explained that the power "To declare war" had been vested in the Congress in lieu of the power "To make war" to leave to the Executive "the power to repel sudden attacks."
Delegate Elbridge Gerry "never expected to hear in a republic a motion to empower the Executive alone to declare war," but still moved with Madison "to insert declare -- in place of make" in Article I, Section VIII, Clause XI.
Delegate George Mason was against "giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace." Yet Mason also "preferred declare to make."
James Wilson, a future Justice of the U.S. Supreme Court elaborated at Pennsylvania's Ratification Convention:
This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must he made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our national interest can draw us into a war.
Supreme Court Justice Robert Jackson warned against the principle of presidential wars in Youngstown Sheet & Tube v. Sawyer:
Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture.
President Harry Truman unconstitutionally commenced war against North Korea without congressional authorization. President William Jefferson Clinton similarly flouted the Constitution by unilaterally initiating wars over Bosnia and Kosovo when Congress balked. But those precedents do not exonerate President Obama's usurpation. The United States Supreme Court invalidated 50 years of unconstitutional encroachments on presidential authority in INS v. Chada. Lawlessness does not become lawful by repetition.
Vice President Biden confronts an epic choice. He may resign to protest President Obama's War Clause usurpation as Attorney General Elliot Richardson resigned over President Nixon's obstruction of the Watergate investigation. That choice would immortalize Mr. Biden. Or the vice president may acquiesce in the president's vandalizing of the Constitution like Attorney General Francis Biddle's silent acceptance of racist concentration camps for Japanese Americans in World War II. That choice would bring ignominy.
Mr. Biden, friends of the Constitution, the Republic, and the rule of law are watching.]]>