ALL OR NOTHING

According to Hamilton, politicians are supposed to govern in accordance with the will of the people: “The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs;”  Hamilton, The Federalist Papers, Letter 75.  Unfortunately, this principle does not work well for most politicians who always seem to have their own agendas.  Not surprising, these politicians have figured out that they can spend millions to manipulate public opinion with their spin doctors to ensure that the people will only think as they are told.  Fortunately, the people can only be fooled for so long as Obama learned from this last election.

In a speech given on October 2, 2014 at the Kellogg School of Management at Northwestern University just prior to the midterms, Obama declared unequivocally that “I am not on the ballot this fall.  . . . But make no mistake: these policies are on the ballot. Every single one of them.”  Apparently, he believed that his spin doctors could carry the day.  It must have come as a big shock that those policies were completely rejected by the voting public.

Some of the most important issues on the minds of voters concerned Obama’s “open borders’” policies and his prior actions granting amnesty to more than 800,000 young people allowing them to stay here in the US illegally without fear of deportation.  Despite the fact that the public rejected his policies so blatantly, it took less than a month following the elections for a defiant Obama to ignore the sense of the community. He went out and issued another executive order halting the deportation of approximately five million illegal immigrants living in the US as required by law.

Obama then spent time with his spin doctors on the MSM telling the nation that he had to take action because “our immigration system is broken and everybody knows it.”  Obama also claimed that he did not violate the Constitution with his executive order despite the fact that his so-called executive order implemented sweeping changes to the existing immigration laws passed by Congress.  If we look closely at the Constitution and the explanations provided by Hamilton and Madison, we learn that Obama actually did violate the Constitution.

The very first line of the Constitution reads: “ALL legislative Powers herein granted shall be vested in a Congress of the United States.”  US CONST. Art. I, §1.  The word ALL is an extremely important and unique addition to the legislative article of the Constitution.  When analyzing the other two departments of government, the astute reader will quickly surmise the absence of the same word in the other two articles creating the judicial and executive departments of government. 

Article II, for example reads: “The executive Power shall be vested in a President of the United States of America.”  US CONST. Art. II, §1.  The word ALL is conspicuously left out.  Similarly, we find the same word missing from the Judicial Article:  “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” US CONST. Art. III, §1.

Perhaps the uneducated reader will presume that the absence of the word ALL from Articles II and III was an oversight.  This presumption, of course, would be a gross underestimation of the Framers’ intelligence and their attention to detail.  To begin with, it is abundantly clear from James Madison’s notes on the Constitutional Convention that every word of the Constitution was extensively discussed and debated before being inserted into the text of the Constitution.  Oversight was clearly not the issue. 

The Federalist Papers tell us that the word ALL was left out of Articles II and III, because the Framers knew that they were blending some of the executive and judicial powers with the legislative branch but not the other way around.  In fact, this was one of the criticisms that Hamilton and Madison had to address.

Hamilton wrote that there were “men who object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers.”  Hamilton, The Federalist Papers, Letter 81.  In addition to acting in a judicial capacity by trying all cases of impeachment against the President, the Senate also exercises executive powers through the confirmation process.  When the President appoints “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States”, it is done “by and with the advice and consent of the Senate.”  US CONST. Art. II, §2, cl. 2.   Hamilton explained that this power is most definitely executive: “The remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices”.  Hamilton, The Federalist Papers, Letter 65.  Madison concurred with Hamilton’s assessment: “the appointment to offices, particularly executive offices, is in its nature an executive function”.  Madison, The Federalist Papers, Letter 47.

Clearly, the absence of the word ALL was not an oversight.  The Framers knew that the Senate would exercise judicial powers when it acted as a court of impeachment and that it would exercise executive powers when confirming appointments in the executive branch.  The important thing to understand is that these two powers are expressly discussed and expressly written into the Constitution.  There was nothing left to chance or interpretation.  No legislative powers were delegated to any branch of government other than the Congress.

So, what is legislative power as envisioned by the Framers?  Hamilton gives us a very clear and succinct definition:  “The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society;”  Hamilton, The Federalist Papers, Letter 75.  The only ones who should be regulating society, then, is the Congress.  They are supposed to write the rules for the regulation of society, and the President is supposed to “take Care that the Laws be faithfully executed.”  US CONST. Art. II, §2, cl. 3.  This is fairly basic and straightforward.   If we hold Obama’s so-called executive order up to this standard, it is easy to see that he is exercising legislative power.

Obama explained on national television that his order merely laid out “the criteria” for approximately five million illegal immigrants living in the US to avoid deportation.  He told those five million illegal immigrants that “if you meet the criteria, you can come out of the shadows.”  Clearly, Obama has exercised legislative powers, since by his own admission he prescribed the criteria/rules for the regulation of people living in our society for coming “out of the shadows.”

Obama also claimed that he had to issue this executive order because “mass deportation” as required by our current immigration laws would “be both impossible and contrary to our character.”  Again, this is the essence of legislative authority.  He is no longer acting as a President who took an oath to take care that the laws are faithfully executed.  He has now defined our society’s character and how to regulate society to make sure that we are acting in accordance with his vision of our character.

The most damning evidence of all, however, came during a speech given by Obama in Chicago.  After illegal immigration advocates interrupted Obama during that speech, he responded with this statement:  “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

It remains to be seen whether or not the Republican controlled Congress will recognize that Obama has violated the Constitution once again in a significant way and whether or not they will take the appropriate response to address the matter.  They can either impeach Obama or cut off his sources of revenue, since the Framers gave the power of the purse to the Congress. Simply suing Obama or passing another meaningless resolution will not solve this problem, and these kinds of action are most certainly not within the purview of the checks given to the Congress by the Framers.  The States also need to take action until this problem has been completely resolved.

Remember, Madison called the states a “double security” against a federal government gone rogue.  Madison, The Federalist Papers, Letter 51.  In particular, the border states should refuse to recognize Obama’s unconstitutional effort at regulating society and enforce their own borders and deport illegal immigrants living within their borders until we get a President who will enforce the laws Congress has already passed.

Hamilton’s words provide the legitimate basis for these actions: “The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded.” Hamilton, The Federalist Papers, Letter 33.  “It will not follow,” he explained, that laws “which are NOT PURSUANT to its constitutional powers” should be treated as law.  Those attempts are “merely acts of usurpation, and will deserve to be treated as such.”  Id.

Madison warned us that there is “no political truth” of “greater intrinsic value” to “liberty” than “the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct.”  Madison, The Federalist Papers, Letter 47.

“[T]he preservation of liberty requires that the three great departments of power should be separate and distinct.” Id.  If the Senate and the states acquiesce and allow this unprecedented assumption of legislative power by the executive branch then there will be nothing left of the separation of powers doctrine espoused and established by the Framers, and we can only assume that the politicians all have their own agenda which is clearly in opposition to the will of the People.

©December 2014 All or Nothing, Madame Publius™