Jan 06 2012

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While We Were Focusing on Iowa

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Had Enough?

Compelling news doesn’t just stop as we turn to the Republican nominating process. Indeed, some very significant news now gets less attention than it might otherwise warrant, as events in Iowa and New Hampshire take center stage.

Here’s a sampling of what we’ve missed.

The Citizens Guide to the 2011 Financial Report of the United States Government: OK, maybe not the page turner that you’d hope to take to the beach this summer, but this GAO report is must reading for anyone who is genuinely interested in the details behind our disintegrating public finances.

The very readable report, published in December, uses government numbers in a more realistic accounting method that would be familiar to any business owner.

The most startling fact?

As of today, future expenditures in excess of revenues necessary to fund Social Security and Medicare are a shocking $46 trillion. Again, that is not the cost of the program in the out-years; no, it is the gap between revenues and benefits due and owing that we will have to find to fund the program at current levels.

That figure is three times the GDP of the United States today.

We are haggling over fiscal minutiae while an epic financial tsunami is gaining strength before our eyes. Nothing that the Democrats or the President have proposed even remotely tackles this problem.

Civil Liberties and the National Defense Authorization Act (NDAA): President Obama signed the NDAA, which funds and sets policy for DoD, on New Year’s Eve. Buried in the bill is a suddenly controversial provision.

Section 1021 of the bill vastly expands the power of the President to “detain” would-be terrorists indefinitely.

The problem is, that under the current language of the section in the law, there is no distinction between Americans and non-Americans. Read broadly, the NDAA would give authority to the President to detain an American citizen indefinitely, in contravention of all constitutionally guaranteed legal rights.

Section 1022, which pertains to “custody” does specifically exempt Americans and legal aliens. The challenge, which anyone familiar with the logic and language of congressional legalese would know, is that the prohibition in Section 1022 does not apply to Section 1021.

Is there a dime’s worth of difference between “detention” and “custody?”

Clearly the White House though so, feeling compelled to issue a signing statement with the NDAA that said,  “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation.”

Of course, the ironies abound here.

President Obama’s ’08 campaign was premised  in part on his opposition to the “illegal” detention policies of the Bush administration.  Now POTUS has just signed on to take even more authority for such discretionary detentions.

And in attempting to reassure the American people that the new law would not be used to abridge their constitutional rights, the President utilized a signing statement – the very vehicle that Democrats characterized as a dagger at the heart of democracy when President Bush used them during his presidency.

Not a peep of course, now.

Considering that the United States has already targeted and killed an American without any due process – the American born Al Qaeda terrorist – Al Awaki – we should be vigilant regarding the vagaries of new detention policies that have the potential to further undermine American civil liberties.

Recess Appointments: this may sound like “inside baseball” to many, but President Obama has invited a constitutional crisis with a brazen exercise of executive authority that tramples the separation of powers and may very well exceed specific authorities granted to the Congress and President in the Constitution.

At issue is the President’s power to make appointments when Congress is in recess.

Article II, Section 2 of the Constitution states,” the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.”

Pretty clear. But what constitutes a recess?

Article I, Section 5 states, “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.”

Currently, the Senate is in “pro-forma” session, a process where a rotating group of Members open and close  the Senate every few days to meet minimum requirements for activity, while Senators are otherwise at home.

The pro-forma sessions effectively prevent President Obama from utilizing his recess appointments authority. However, while the sessions are light on substance, they do have the full authority of the Senate, as necessary.

For instance, on December 23rd, the Senate, acting in pro-forma session, passed the House-approved compromise budget bill, ending partisan funding dispute that lingered past mid-December.

Indeed, President Obama implicitly recognized the Senate’s authority to act in signing the bill.

But despite these predicates, on January 4th President Obama made the unilateral decision that pro-forma sessions of the Senate were constitutionally meaningless – indistinguishable from a recess or adjournment, and made four recess appointments to politically controversial positions, effectively circumventing the Senate’s pivotal “advise and consent” role on executive appointments.

The President’s actions not only shred the little remaining bipartisan comity on process (President Bush never challenged the authority of pro-forma sessions instituted by Harry Reid for the very same purpose), but now  also raise legitimate constitutional questions.

Consider that in addition to maintaining it’s pro-forma posture, the House never provided the Senate with consent to adjourn, as required by the Constitution. This legally requires the Senate to stay in session, providing a constitutional foundation to the pro-forma sessions.

That, in turn, makes President Obama’s recess appointments unconstitutional. To restore balance, the appointments must be overturned.

Given Team Obama’s track record on constitutional issues to date –  from the legality of the individual mandate for health care, to the expressed policy fiat of the EPA to regulate whatever it chooses, regardless of congressional authority – the appointments crisis is only the latest in a string of actions where constitutional constants are subject to the arbitrary elements of political necessity by the Administration.

Which brings us full circle.

As Republicans duke it out for the nomination – a healthy and necessary part of the process – no one should lose sight of the larger objective for which these news items provide context.

America cannot afford four more years of Barack Obama.







  1. mgarfin

    No question that the Obama Cordray appointment was a disingenuous power grab that probably will be ruled unconstitutional down the road when it no longer matters. I wish it were just that simple. It was primarily a very clever political move that was intended to give the Democrats one more thing to scream about. And scream they have, with the nuances lost for most behind the simple truth that in 8 years Bush made 171 recess appointments, to Obama’s 28 and counting. It was ruthless, intended to cause controversy, and timed perfectly. However flawed and ill conceived, we are talking about a newly created consumer protections watchdog agency, one that can’t function without a head. There was no easy or perfect response, and Republicans are getting creamed by this kind of cheap tactic. The point to take away from this is that unless the Republicans stop taking the political highroad and get RUTHLESS themselves, we are not going to win in November!

  2. pmintz

    Great article on how our freedoms are being taken, and the uncontrolled spending that might doom America if Obama is reelected.

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