By Publius Huldah ——Bio and Archives--August 30, 2011
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...While our new majority will serve as your voice in the people's House, we must remember it is the president who sets the agenda for our government. ... [emphasis added]
I'd like Boehner to show us where in the Constitution it says that the president sets the agenda for the government.But Boehner is not as astute as Ezra Klein, and does not know that it is our Constitution which sets the "agenda" for the federal government. The agenda the Constitution sets restricts the federal government to war, international relations & commerce; and domestically, the establishment of an uniform commercial system: a monetary system based on gold & silver, weights & measures, patents & copyrights, a bankruptcy code, and mail delivery (Art. I, Sec. 8, cls.1-16). 1
...what would be ... feared from an elective magistrate of four years' duration, with the confined authorities of a President of the United States?...[emphasis added] 2The answer to Hamilton's question is this: There would be nothing to fear if Presidents obeyed the Constitution. But they don't obey it because the dolts in Congress don't make them obey it! Well, then! Here is the complete list of the President's enumerated powers: Art. I, Sec. 7, cls. 2 & 3, grants to the President the power to approve or veto Bills and Resolutions passed by Congress. Art. I, Sec. 9, next to last clause, grants to the executive Branch - the Treasury Department - the power to write checks pursuant to Appropriations made by law - i.e., by Congress. Art. II, Sec. 1, cl.1, vests "executive Power" [see below] in the President. Art. II, Sec. 1, last clause, sets forth the President's Oath of Office - to "preserve, protect and defend the Constitution of the United States". Art. II, Sec. 2, cl.1:
...would not be the supreme law of the land, but a usurpation of power not granted by the Constitution"... Federalist No. 33 (last two paras); 7and since the President's Oath requires him to "preserve, protect and defend the Constitution", the President must refuse to enforce an unconstitutional "law" made by Congress. Otherwise, he'd be in collusion with the legislative branch to usurp power over The People. 8 So, then! Acting as a check on Congress (and federal courts) by refusing to enforce unconstitutional "laws" (and opinions), as well as the duty of entertaining foreign dignitaries, are the only occasions where the President may act alone. His prime responsibility is to do what Congress tells him.
All legislative Powers herein granted shall be vested in a Congress of the United States.That little phrase is of immense importance. It means what it says, that only Congress may make laws: laws are to be made only by Representatives whom we can fire every two years, and by Senators whom we can fire every six years. But in Joseph Postell's "must read" paper, "Constitution in Decline", he shows that during the administration of the nefarious Woodrow Wilson, Congress began delegating its lawmaking powers to agencies within the Executive Branch. Since then, Congress passes an overall legislative scheme, and delegates the details to be written by un-elected, un-accountable bureaucrats in the various Executive Agencies. They write the "administrative rules" which implement the Legislation. The result is the execrable Code of Federal Regulations (CFR), which is accepted, by the indoctrinated members of my profession, as "law". Go here to see the abominable CFR.
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. [boldface added]2 In Federalist No. 48, Madison points out that in our representative republic,
...the executive magistracy is carefully limited; both in the extent and the duration of its power... (5th para) [i.e., limited & enumerated powers and 4 year terms] ...the executive power being restrained within a narrower compass [than that granted to the legislative branch], and being more simple in its nature... (6th para)In Federalist No. 75 (3rd para), Hamilton says,
...The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate... [boldface added]In Federalist No. 78 (6th para), Hamilton says, ...The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules ... The judiciary ... has no influence over ... the sword or the purse ...and ...must ultimately depend upon the aid of the executive arm ... for the efficacy of its judgments. [boldface added]. Read the list of the President's enumerated powers! The President's powers really are "confined" and "carefully limited" to carrying out laws made by Congress and enforcing certain judicial decisions, military defense (a power shared with Congress), appointing officials (subject to Congress' approval), and entertaining foreign dignitaries. That's it! 3 Only Congress has the power to declare war (Art. I, Sec. 8, cl. 11)! See clauses 12-16 showing that Congress has the power to determine the funding for the military, and to make the Rules for the discipline & training of the military and the Militia. 4 Re "Offenses against the United States": I explain here the criminal laws Our Constitution permits Congress to make. It's a short list. Take note, you federal criminal defense lawyers. 5 I explain the treaty making power of the United States here and here. 6 During the Terri Schiavo case, Alan Keyes spoke on the radio about the constitutional powers of the President. I seem to recall that Dr. Keyes spoke of the President's obligation to exercise his "independent judgment" as to whether an act of Congress or a federal court opinion is constitutional. Whatever he said, he opened my eyes, and enabled me to see the elegant beauty of our Constitution. 7 Hamilton also says in Federalist No. 33 (6th para)
...it will not follow...that acts of ...[the federal government] which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of ... [the States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such... [T]he clause which declares the supremacy of the laws of the Union [Art. VI, cl. 2]...EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION ... [caps are Hamilton's, boldface mine]8 Madison says in Federalist No. 44 (last para before 2.):
...the success of the usurpation [by Congress] will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; ... [boldface added]The President must not collude with the executive or judicial branches to usurp power over The People! 9 Most of the existing "federal" executive agencies are unconstitutional. They meddle in matters which are not the business of the federal government, as power over the matters is not granted by our Constitution to the federal government. Here are a few of the unconstitutional federal agencies: the Departments of Agriculture, Labor, Health and Human Services, Housing and Urban Development, Energy, Education, Transportation, and Homeland Security. Likewise for the Environmental Protection Agency, the Federal Communications Commission, the Office of Science and Technology Policy, the Office of National Drug Control Policy, the National Economic Council, the Small Business Administration, the Council on Environmental Quality, etc., etc., etc. 10 Progressives have erased the concept of "federalism" from our minds. "Federalism" refers to the form of our government & the division of powers between the national government and the States.A "Federation" (which is what our Constitution creates) is an alliance of independent States associated together in a "confederation" with a national government to which is delegated authority over the States in specifically defined areas ONLY (i.e., the enumerated powers granted to Congress by our Constitution). Those enumerated powers are the only areas wherein the national government is to have authority over the States. In all other matters, the States have supremacy, are independent, and sovereign! Learn more of "federalism" here and here. Our Framers warned against the consolidation of the sovereign States into one national sovereignty: In Federalist No. 32 (2nd para), Hamilton writes,
An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention [the Constitution] aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.... [caps are Hamilton's; boldface mine]Federalist No. 62 (5th para) says,
... the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic. [boldface mine]And in Federalist No. 39 (6th para), Madison says,
"But it was not sufficient," say the adversaries of the proposed Constitution, "for the convention to adhere to the republican form. They ought, with equal care, to have preserved the FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states; instead of which, they have framed a NATIONAL government, which regards the Union as a CONSOLIDATION of the States." And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision....[caps are Madison's]Madison then gives a brilliant exposition of the "national" and "federal" aspects of Our Constitution. More than any other Paper, No. 39 addresses the primary political problem of our Time: The national government's destruction of "federalism" by eradicating all vestiges of sovereign & independent States. We are a trusting People easily lead astray. Make something sound "patriotic", and we are all for it. Since 1892, American public school children have been indoctrinated with the statist Lie that ours is an indivisible national government. This was done by means of the Pledge of Allegiance: "....one nation ... indivisible...". Is it any wonder that the author of this nasty bit of poison, Francis Bellamy, was a socialist who worked with the National Education Association to institute this statist indoctrination into the public schools? This pernicious pledge is why you don't know, and no one knows, that our Constitution created a "federation" of sovereign & independent States, united only for the limited purposes enumerated in the Constitution. Wikipedia has good info on Bellamy. PH
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Publius Huldah is a retired lawyer who lives in Tennessee USA. She writes on the U.S. Constitution. Before getting a law degree, she got a degree in philosophy where she specialized in political philosophy and epistemology (theories of knowledge).