Saturday, June 30, 2012
Thursday, June 28, 2012
The Shameful Robertscare "Tax" Decision: The Incoherent And Illogical Opinion Of John Roberts In Upholding Obamacare In Violation Of The Constitution
The Constitution was betrayed today, not as usual by the swinging Justice Anthony Kennedy siding with the illegitimate "living Constitutionalists," but by the Justice appointed by President George W. Bush to head the Supreme Court. John Roberts and the four liberals upheld the individual mandate in Obama's health insurance legislation. How the Chief Justice went about achieving his result is all the more troubling and needs to be explained. Roberts used an argument that courts throughout the land roundly rejected because it is patently contradictory and nonsensical. Today, the House of Representatives held Attorney General Eric Holder in contempt. For this decision abusing our most Basic Law in so transparent a fashion, they probably should have held Roberts in contempt as well.
THE COMMERCE CLAUSE
The challenged provision of Obamacare stated that a private citizen who can afford to must purchase health insurance from a private company or else face a penalty. Every reasonably knowledgable observer understood this to be a case revolving around the Commerce Clause. In Article I, Section 8, Clause 3 the Constitution grants Congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." The same way it cannot regulate economic activity or inactivity within a foreign nation or within Indian tribes, it certainly could not do so within the States. The Clause was originally meant to allow Congress to regulate the exchange of goods or services across national lines, between Indian and American boundaries, and between that which crossed from one State to the next. Domestically, it would allow Congress to prevent protectionism from one State against the others.
On this issue Roberts refused to let the Court to continue to extend the modern reach of the Commerce Clause (which had already allowed Congress under this Clause to regulate a farmer's growing of wheat for personal use in Wickard v. Filburn in 1942, or ruled that the Federal government could criminalize growing marijuana in one's backyard for personal medical purposes in accord with State law in Gonazelez v. Raich in 2005 ). Ruling on Obamacare's individual mandate as an exercise of the Commerce Clause, Roberts wrote:
“The power to regulate commerce presupposes the existence of commercial activity to be regulated. . . . The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. . . . Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.”The decision should have ended here. The Roberts opinion, like the joint dissenting opinion, could have then stated that "[t]he Act before us here exceeds federal power...in mandating the purchase of health insurance... In our view it must follow that the entire statute is inoperative... It threatens that [constitutional] order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers... [T]he theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government." But he did not. He instead made the most ridiculous arguments concerning the power of Congress to tax, shameful absurdities that belong nowhere in the records of Supreme Court opinions.
THE TAXING POWER: THE "NON-TAX TAX" DEFENSE OF THE INDIVIDUAL MANDATE
The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” This means that if the mandate and its associate penalty were in fact a "tax" it could not be challenged in federal court until it were actually paid. This would require dismissing the case for another day when the tax man had already come collecting.
Roberts, however, ruled that Obamacare "does not require that the penalty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-Injunction Act. The Anti-Injunction Act therefore does not apply to this suit, and we may proceed to the merits." Why? Because Roberts declares that Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. This is largely because Obamacare labels it a “penalty,” not a “tax.” As to whether the tax statute applies to Obamacare, "it makes sense to be guided by Congress’s choice of label on that question."
Immediately after arguing that it is not a tax because Obamacare itself terms the provision a “[s]hared responsibility payment” and a “penalty,” Roberts then begins to state that Congress has the ability to exercise the powers found within the mandate under its power to tax in Article I, Section 8, Clause 1. If it is construed as a tax for Constitutional purposes, according to Roberts, the provision can survive judicial scrutiny. He airily proclaims to be applying a "functional approach" to the mandate and its penalty by "viewing its substance." Suddenly "for constitutional purposes" the mandate's penalty may be considered "a tax, not a penalty." He therefore upholds this legislation as a legitimate exercise of Congress's taxing power. What was not a tax but a few paragraphs before, becomes a tax a few paragraphs later.
The dissent calls this reasoning "feeble" and the "flimsiest" of arguments, pointing out that it is only legal acrobatics of the worst nature that could disagree with the unavoidable fact, evident in the text of the statute, that "Congress imposed a regulatory penalty, not a tax... [T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it... Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry." In the lower courts this was almost universally accepted by both those striking down and upholding Obamacare. Yet the majority opinion from the Supreme Court, as the dissent correctly points out, "would have us believe in these cases...that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists."
The judges who did consider it a "tax," such as the Fourth Circuit Court of Appeals, ruled that the case had to be dismissed under the Anti-Injunction Act. The problems with Roberts approach is manifold. Not only can laymen notice the inherent contradictions and the abuse of the English language, but it is inexcusable on its face for a number of other basic reasons. Firstly, if everyone were to comply with the mandate, the government would raise no revenue. Further, if everyone complies with the mandate then it would be only private health insurance companies that receive all payments. This is the result this mandate would hope to achieve. But a tax cannot have the possibility of being revenue-free for the government and being collected by private parties and in any way still be considered a "tax."
Furthermore, Justice Samuel Alito asked the Federal government's lawyer, Solicitor General Donald Verrilli, the following question: “Today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?” Verrilli acknowledged the fact that this has not ever been done, though he then immediately argued that the Court could use the argument that Roberts ended up adopting. Roberts just etched that precedent in the Supreme Court's tablets allowing for all mandates to have Constitutional imprimatur so long as it is labeled a tax.
Finally, Federal District Court Henry Vinson reminded us that President Obama expressly declared the mandate was not a tax, asking the Federal government's lawyers, “They denied it was a tax. The president denied it. Was he trying to deceive the people?” I suppose Roberts would answer in the affirmative. In fact, the first Federal District Court Judge to rule in the case, Roger Vinson, called the entire reasoning now adopted by the Supreme Court “an Alice-in-Wonderland tack," appendeding a footnote that quoted Alice in Lewis Carroll’s “Through the Looking Glass”: “The question is whether you can make words mean so many different things.”
THE POWER TO "AFFECT INDIVIDUAL CONDUCT"
Perhaps the most troubling aspect of the ruling is that Roberts admits that "the payment is...intended to affect individual conduct." However, he claims this does not disallow it from being considered a tax rather than a penalty for not adhering to a mandate, because "taxes that seek to influence conduct are nothing new" such as taxes "to encourage people to quit smoking." This fails to realize the most basic point. That sort of example is an illustration of a sales tax paid directly to the government when purchasing a product. There is no government coercion directing the citizenry to purchase cigarretes, or any other product. It has no resemblance to this newly announced "taxing" power that is used to coerce the economically inactive. This is not a tax on your income, on purchase, on property, or similar to any other tax that exists today. It is a "tax" on a decision. The decision to not purchase health insurance.
The damage is done. We now live under a faux Constitutional order in which the Federal government has the prerogative to go about via mandate affecting every citizens conduct at the cost of financial penalties. This is no longer a government of limited and enumerated powers, a structure itself meant to protect individual liberty. We live in the ultimate nanny-state where the government may force you to do your homework or else take away your allowance. This has no resemblance to the Constitution of James Madison and the rest of the ratifiers. It is therefore a brazen act of judicial activism to allow this legislation to stand under such contorted illogical pronouncements.
THERE IS NO SILVER LINING
Some conservative commentators have been eager to find a silver lining in the paragraphs devoted to the Commerce Clause in this case, to give John Roberts a benefit of the doubt they would never afford any other liberal Justice. Rebutting the likes of conservative luminaries like George Will and Charles Krauthammer should suffice to dispell any idea that conservatives somehow gained anything from the Supreme Court ruling.
GEORGE WILLIn one of the dumbest articles ever authored by George Will, he declared that "[c]onservatives won a substantial victory Thursday." That is a laughable proposition. This, he claims, is because of some sensible rhetoric on the Commerce Clause which he calls a "consolation prize." Firstly, the Roberts opinion does not question a single existing Commerce Clause precedent and can not be used to challenge the vast unconstitutional regulatory structure of the modern Federal government. It keeps all this in place, while signaling to Congress that any mandate in the future should simply be labeled a tax to be legitimate (but that even if they fail to label it as such he will step in as the Supreme-committee on Legislation and rewrite the law in order to uphold it). As relates to the Commerce Clause rhetoric, Will writes:
"At least Roberts got the court to embrace..." "If the mandate had been upheld under the Commerce Clause, the Supreme Court would have..." "By persuading the court to reject a Commerce Clause rationale..."Roberts was not needed to get the Court to do anything. He was not needed to persuade the Court to reject anything. The entirety of Obamacare would not have been upheld if Roberts joined the dissenters. There were four Justices willing to throw all of Obamacare out and issue a principled decision on the Commerce Clause. That's what the case was all about and that's what he could have provided.
Roberts instead joined the liberal wing of the Court. He is not someone worth lauding at all, when what he should and could have done is simply join the four Justices who were forced to dissent. That's what should have happened, and articles like those from Will are simply not facing up to this obvious reality. Will's point would only make sense if Kennedy were in the majority as well. If that were the case, then by joining the majority and writing the opinion, he could craft it the way he wanted to squeak out whatever he could. But Kennedy was firmly in the dissent. There was no benefit at all to what he did. It was shameful and in no way beneficial to the Constitution that was today betrayed, and Will should acknowledge this.
CHARLES KRAUTHAMMERKrauthammer wrote that Roberts is "acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger courts..." In truth, the decision today shows Roberts as the contemporary permutation of Warren and Burger. In order to avoid this, Krauthammer states, Roberts engaged in the "ultimate finesse" that amounts to: "Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce clause contained, constitutional principle of enumerated powers reaffirmed." This is folly. Yes, Roberts did not go as far as Justice Ruth Bader Ginsburg who would have said the mandate was Constitutional as an exercise of the Commerce power. But there is no reason he needed to be sided with Ginsburg. He could have joined the ranks of Alito, Thomas, Scalia, and even Kennedy. In so doing he would have taken his Constitutional duties seriously, not allowing his potential concerns over legacy or perception of the Court to become paramount.
Furthermore, and more importantly, Roberts reigned in nothing. The most expansive legislation still stands and will continue to stand unassailable under the false guise of the Commerce Clause. In addition, a new unprecedented power to mandate has now been granted, and with a wink and a nod, Roberts has provided instructions to Congress to simply refer to it as a tax in the future for it to meet the Supreme Court's idea of Constitutional muster.
CONCLUSION
Last night every American laid down his head in rest with the last vestiges of Federalism potentially salvageable. On Thursday morning Americans woke up to find the death knell, the nail in the coffin, pronounced to our Constitution's structure of government. Roberts just read the American Constitution its last rites. Yesterday, there was hope that the United States of America could still have a federal government responsible to free men as envisioned by those who ratified our nation's charter. Today we know we are slaves. Slaves in the sense of being subjects of the federal government, rather than enjoying a federal government "of the people, by the people, for the people." We can have as much of our wages garnished as our overlords in Washington determine. We can labor for them, rather than have the government work for the people. We can have our real property taken from us to hand to other private developers. We can have decisions made for us as to how we must go out and spend our own money, or else face penalties. Property rights are long gone. Individual liberty is a thing of the past. Though I hate to end in despair, I do not wish to engage in false hopes. The federal government of limited and enumerated powers bequeathed to us by the Founding Fathers has been choked to death by a Supreme Court's "living, breathing Constitution" that those Framers could never recognize.
Can we repair the damage? Yes, but only by getting truly originalist Justices, in the mold of Clarence Thomas, on the Court. This alone will bring us back to the Constitutional system that was intended. This means electing a President that is more likely to appoint a Justice like Thomas. Thomas is a Justice who in a very brief dissent was able to cut through the nonsensical cloud of legal obfuscation and issue an opinion in line with the Constitution's original meaning on the central issue in question:
I adhere to my view that 'the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.' United States v. Morrison, 529 U. S. 598, 627 (2000) (Thomas, J., concurring); see also Lopez, supra, at 584–602 (Thomas, J., concurring); Gonzales v. Raich, 545 U. S. 1–69 (2005) (Thomas, J., dissenting). As I have explained, the Court’s continued use of that test 'has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.' Morrison, supra, at 627. The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects interstate commerce is a case in point.If we can fill the Supreme Court with Justices such as this should empty slots arise over the next four years, and for years to come, the tides could eventually change. For now, we have this precedent set. This more than ever means making Supreme Court nominations a front and center battle in Presidential elections. Of course for this upcoming November, it is as essential as it has ever been with a number of aged Justices, including on the liberal wing of the Court. Let me allow the dissenting opinion to offer the final conclusion:
The case is easy and straightforward... What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there... are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs. That clear principle...[should have carried] the day here... The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty. The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most im- portant ones, for which reason they alone were embod- ied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.Tweet
Wednesday, June 27, 2012
WH Spokesman Jay Carney Claims House Contempt Vote Is Just Politics
No, it's actual contempt that I assume members of the House share with many of their constituents who are disgusted by the coverup of a gun-walking program that put guns in the hands of drug cartels that killed hundreds of Mexicans and an American border agent. Tweet
Tuesday, June 26, 2012
Senator Marco Rubio Visits "The View" And Discusses Immigration, His Family
Joy Behar looks visibly displeased just sitting next to him: Tweet
Monday, June 25, 2012
Sunday, June 24, 2012
The Truth About Executive Privilege: Original Meaning, Early Precedents, Abuse By Modern Presidents, And The Lessons That Should Be Learned
For those who have been in a coma for the last week, or else cryogenically frozen for the last 60 years, executive privilege is the assertion by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government. Just this past week, President Barack Obama shamelessly claimed this privilege in order to not have to hand over documents being requested of the Department of Justice by the House Government Reform and Oversight Committee regarding the "Fast and Furious" scandal.
The question that deserves a thorough analysis, one that of course the media cannot be trusted to explore, is the basis of this supposed privilege and whether it is actually legitimate. If one is to criticize President Obama, or any other President, for asserting the privilege, one must understand whether such a privilege exists in the first place, and if it does what the strictures of asserting it are.
THE CONSTITUTION'S TEXT AND ORIGINAL MEANING
What needs to be understood in any discussion of executive privilege is that the privilege is completely absent from the Constitution's text. Article II lays out the powers of the President, and there is nothing within it that provides the President with this power to thwart and ignore congressional investigation.
The Committee of Detail at the Philadelphia Constitutional Convention called Congress the "Grand Inquest of the Nation." This title in England referred to Parliament which had clearly unimpeded powers of investigation of officers of the Crown. References to the House of Representatives as the "Grand Inquest of the Nation" are found through the records of the several Ratifying Conventions as well. James Madison wrote in 1788 in Federalist No. 51, "[I]t is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates."
Certainly the colonial experience under King George III that lead to the American Revolution was an important consideration in shaping executive power. All of this of course weighs against the existence of an executive privilege.
On the other hand, the Constitution was meant to allow for, as Alexander Hamilton stated in Federalist No. 70, an "energetic executive," which would help overcome the weaknesses of the Articles of Confederation. However, it was specifically having a single executive rather than some sort of Presidential council that was meant to allow for this. Hamilton explained, "That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished" (emphasis added). There is nothing to indicate this meant secrecy in the sense of being able to refuse Congress's power of investigation, but rather simply that having one President rather than more than that would help prevent what we today call government leaks.
In fact, Alexander Hamilton also wrote in Federalist No. 65, "Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation, as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or in other words of preferring the impeachment ought to be lodged in the hands of one branch of the legislative body." Justice Joseph Story wrote in his 1833 Commentaries on the Constitution, "In England the constitutional maxim is, that the king can do no wrong. His ministers and advisers may be impeached and punished; but he is, by his prerogative, placed above all personal amenability to the laws for his acts... [T]he constitution of the United States, on the other hand, holds out a deep and immediate responsibility, as a check upon arbitrary power; and compels the chief magistrate, as well as the humblest citizen, to bend to the majesty of the laws." While these quotes are more directly referring to Congress's power to impeach, it is fair to say that it applies to the issue of the legitimacy of executive privilege as well.
Harvard legal historian and law professor Raoul Berger famously called executive privilege a "constitutional myth." The text of the Constitution provides evidence that he was right. When it comes to the need for secrecy in government deliberations, the Constitution provides for it. In Article I, Section 5, Clause 3 it is Congress that is given the power "to keep a Journal of its proceedings, and from time to time, publish the same excepting such parts as may in their judgment require secrecy." No comparable clause regarding secrecy appears in Article II delineating Presidential powers. Not only that, but Article II, Section 4 actually states, "The President...shall be removed from Office on Impeachment for and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors." How could impeachment proceedings be properly conducted if the executive branch could simply withhold all information? Furthermore, Article II, Section 3 contains the famous provision that the President "shall take care that the laws be faithfully executed." This demonstrates an inherent responsibility to Congress which passes the laws. If Congress wants to investigate whether the President is failing on this most basic of Constitutional duties, it runs against this provision to claim the President can simply refuse to comply.
Finally, a relevant yet weaker piece of textual evidence can be seen with the duty of the President to provide a State of the Union of Address: "He shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient." The purpose of this is largely to allow for Congress to be informed in making legislative determinations. However, it can also show that the President has a duty to report to Congress. If Congress is conducting an investigation, the President should comply.
CONGRESS ON ITS POWERS OF INQUEST
A survey of just a few examples of what Congress has thought of its own power of investigation is worth noting. The first Congress passed legislation mandating the Secretary of the Treasury to give Congress information "respecting all matters referred to him by the House of Representatives, or which shall appertain to his office." Rep. Elias Boudinot had noted that, "this power is essentially necessary to the Government … it is absolutely so." There were no contrary arguments. This first Congress was of course packed with framers and ratifiers of the Constitution. This of course stands as the most important evidence on Constitutional meaning from the Congress itself.
An 1843 House Report stated the following: "The House of Representatives has the sole power of impeachment ... a power which implies the right of inquiry on the part of the House to the fullest and most unlimited extent." Even those who advocate for the most expansive views of executive power must realize this argument is difficult to assail. An 1860 report of the House of Representatives goes even farther stating, "The conduct of the President is always subject to the constitutional supervision and judgment of Congress; while he, on the contrary, has no such power over either branch of that body."
EARLY PRECEDENTS SET BY EARLY PRESIDENTS
If such an executive privilege does exist despite the evidence just put forward, it is clearly absent in the text of the Constitution. Therefore, it would exist as an "implied power" from the structure of the government itself. The idea of certain communications being privileged is not an outlandish idea as a practical matter, and communicative privileges exist throughout the law. But it is early American history that actually provides the strongest basis from which to adjudge the legitimacy of the privilege in practice.
It is critical to look to the actions of early Presidents not for evidence of original meaning of the Constitution's phrases, but rather for evidence of the first application of the Constitution in actual government. It is important to learn from how the Constitution unfolded early in American history, to see what it meant when the document was actually applied (or misapplied, e.g., the Sedition Act of 1798). Looking to Presidents George Washington and Thomas Jefferson are essential to this inquiry.
PRESIDENT GEORGE WASHINGTONThe first ever example of executive privilege in our Constitutional republic came with a congressional request to investigate the 1791 failure of General Arthur St. Clair against American Indians in the Battle of Wabash River. Washington's cabinet convened, and his Secretary of State Thomas Jefferson later wrote: "We had all considered and were of one mind... that the Executive ought to communicate such papers as the public good would permit, & ought to refuse those the disclosure of which would injure the public. Consequently were to exercise a discretion." However, Washington being a man of immense integrity and aware that his actions served as precedent for all future Presidents, released the requested information because he determined such release would not harm the national interest. This despite the fact that revealing information on a failed military expedition could obviously not benefit his personal political interest.
In 1794, Congress asked for correspondences between Washington and France. His cabinet again believed he could withhold such information. Yet in response to this request, Washington allowed the Senate to examine some parts of the correspondence subject to his approval.
In 1796, Washington finally stood his ground. Congress wanted information from the President on the negotiations over the Jay Treaty. Specifically, a House resolution requested that Washington provide information concerning instructions given to the U.S. Minister [Ambassador] to Britain. This time, Washington didn't comply. Washington said that "The nature of foreign negotiations requires caution, and their success must often depend on secrecy... The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate..." He further explained, "the boundaries fixed by the Constitution between the different departments should be preserved... To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent." That being said, Congress didn't take action, but did actually pass non-binding resolutions to show they disagreed, and Congressman James Madison defended the House's "right" to request information.
PRESIDENT THOMAS JEFFERSONThomas Jefferson made statements tantamount to a privilege as well. In the 1807 treason case against former Vice President Aaron Burr, the defendant requested the court subpoena certain letters of President Thomas Jefferson in an attempt to prove the charges were politically motivated. A House resolution asked that President Jefferson "lay before this House any information in possession of the Executive, except such as he may deem the public welfare to require not to be disclosed." Jefferson responded by declaring Burr's guilt "beyond question." However, Supreme Court Chief Justice John Marshall sat as the trial judge on this case and he would have none of it. Marshall issued the subpoena stating, "Courts should issue subpoenas based on the character of the information sought, not the character of the person who holds it." Though Jefferson disagreed, he turned over the letters.
WHAT DOES THIS ALL MEAN?First it must be recognized that actions of early Presidents do not serve as actual evidence for original Constitutional meaning, because as James Madison stated in a letter in 1826: "[T]he sense of the Constitution, where alone the true one can be found: in the proceedings of the Convention, the contemporary expositions, and above all the ratifying Conventions of the States." The reason this should be seen as preeminent in explaining Constitutional meaning is, as Madison wrote in a letter in 1824: "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution."
That being said, there are important lessons that can be gleamed from early Presidents. That is that should such a privilege exist, it should never be asserted for the purpose of hiding political misbehavior. If anything, it should be asserted, like Washington with the Jay Treaty, when the President is engaged in performing his Constitutional duties and Congress's curiosity could only serve to harm. There is little basis to believe that a blanket privilege that is meant to allow the President to remain unaccountable to Congress for political malfeasance has basis even in the actions of the earliest Presidents.
SUPREME COURT PRECEDENT
The Supreme Court in the 1927 case of McGrain v. Daugherty stated
"In actual legislative practice power to secure needed information by such [investigative] means has long been treated as an attribute of the power to legislate. Itwas so regarded in the British Parliament and in the Colonial legislatures before the American Revolution ..."Clearly, the most important Supreme Court precedent is the 1974 case of United States v. Nixon. In that ruling the Court stated:
"[N]either the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide."In the 1997 case of Clinton v. Jones, the Supreme Court also ruled that separation of powers does not mean that the the President can use a privilege that would mean refusing to take part in civil litigation. The Court ruled:
"In sum, '[i]t is settled law that the separation of powers doctrine does not bar every exercise of jurisdiction over the President of the United States.' Fitzgerald, 457 U. S., at 753-754. If the Judiciary may severely burden the Executive Branch by reviewing the legality of the President's official conduct, and if it may direct appropriate process to the President himself, it must follow that the federal courts have power to determine the legality of his unofficial conduct."Suffice it to say that while the Supreme Court has not refused to recognize Presidential privileges outright, it has been unwilling to allow the President to utilize such a notion to be held unaccountable in civil court or for potential criminal conduct.
ABUSE OF EXECUTIVE PRIVILEGE BY MODERN PRESIDENTS
Harry Truman is the first modern President that should be looked to for refusal to cooperate with Congress. Conservative Journalist M. Stanton Evans writes in his book Blacklisted by History (p. 23):
"From 1946-1948 several flagrant security cases at State and elsewhere became known to members of the House and Senate, who exerted pressures behind the scenes to have some of the more obvious suspects ousted. There then followed a series of congressional investigations...[culminating in] the Hiss-Chambers case that sufarced in the summer of 1948. At this point, however, congressional efforts to learn more about the problems would be stalled out by secrecy orders from the President Truman, denying FBI and other executive data on seucirty problems to members of the Congress. Investigation of the State Department and other cases was accordingly stymied, and the whole was left handing behind a veil of omerta and denial."Thus starting with Truman we have the President of the United States refusing to cooperate with Congress to prevent investigations regarding communists working within the federal government at the Cold War's infancy.
Then we have President Eisenhower asserting the privilege during the Army-McCarthy hearings in 1954. It was revealed during the hearings that the White House was planning an attack on Senator Joseph McCarthy far in advance of the hearings. McCarthy then did not have access to necessary evidence as President Eisenhower invoked the privilege over 40 times during the hearings. We thus have two modern Presidents asserting privilege, one to hide evidence of potential communist infiltration of government, and the other to patently not allow for a fair hearing for Senator McCarthy (the very symbol of domestic anti-communism). Paradoxically, opponents of Richard Nixon would later scoff at the idea of utilizing executive privilege to hide the truth regarding the Watergate scandal.
Aside from President Nixon, President Clinton asserted the executive privilege and became the first President since Nixon to lose in federal court, ruling that Clinton aides could be called to testify in the Lewinsky scandal. Other Presidents have invoked it on other occasions for dubious or clearly ridiculous reasons as well, but a survey of but a few instances since Truman certainly serves to make the point that this privilege has been abused in being used to simply cover the President's backside.
Today, President Obama asserts the privilege when Congress is requesting documents regarding a gun-walking operation where the federal government sold weapons to Mexican drug cartels resulting in hundreds of dead Mexicans and the death of Border Agent Brian Terry.
CONCLUSION
The executive privilege has no basis in the Constitution's text or original meaning. It has some basis in the actions of early Presidents. The Supreme Court has thus far not taken a terribly fond view of the privilege, and it has certainly been abused in the modern era. This Presidential privilege may not actually exist at all given the lack of evidence for it during the Constitution's ratification process. In fact, there is evidence that runs directly against its existence.
The abuse by modern Presidents of this supposed privilege should demonstrate why this privilege is dangerous in allowing the executive branch to remain unaccountable for its misdeeds. That being said, the strongest evidence for its existence revolves around early American Presidents like Washington and Jefferson. But even they showed that they would provide information on St. Clair's Defeat or bend to the will of a trial court in a treason case where the defendant was a political opponent, as well as the judge. What is made clear is that covering up political or criminal malfeasance is certainly no part of any constitutional executive privilege. If such a privilege is to exist, and that remains a dubious proposition, it cannot be asserted in cases where Congress is investigating the executive for misconduct. If the President is, on the other hand, in the midst of exercising his Constitutional duties and such investigation would impair such abilities (e.g., negotiating a treaty) the case for such a privilege is strengthened.
Now we have indeed explored the basis for executive privilege. And we are now on firm ground in critiquing President Obama's recent use of this immunity. What should now be beyond doubt, whether the privilege is nonexistent or limited to some early examples of the first Presidents, is that President Obama's assertion of executive privilege in the "Fast and Furious" scandal is utterly and completely illegitimate. And given the context of the scandal which resulted in dead Mexicans and a dead American, it is absolutely shameful. Tweet
Muslim Brotherhood's Mohammed Mursi Wins Egypt's Presidential Election
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