Category: Congress

Cline on the Constitution

Cline on the Constitution

Cline on the Constitution, Impeachment Chronicles, Part Four

As of this writing, Senators are availing themselves of the opportunity to take to the floor of the Senate to explain how they will vote regarding the impeachment of the President. And why.  Their speeches at this point it is all about home district consumption. 

While District Attorney, I traveled to Washington D.C. a few times to work with members of Congress on legislation and to secure funding for important projects like the Rural Crime Program.  More often than not we were working in the Capitol building at night and I was always struck by the ever-present T.V. broadcasting speeches from the floor when the only person present on the floor was the member talking.  Turned out those speeches were being filmed for the constituents back home so they could see how their congressman or Senator had taken to the floor in support or opposition of whatever it was they were supporting or opposing.  Given the angle of the camera, it mattered little there was no one on the floor listening to all the fine talk.

Though there has been a swirl of activity during the impeachment trial with arguments by the House Managers and President’s counsel, much of it has been repetitive and little new ground has been plowed from a Constitutional perspective.  Most of it has been covered in prior posts.  I discussed the inadequacy of the Articles of Impeachment and the modern dangers presented by slip-shod one-party impeachment attempts being employed to weaken a President politically. Kenneth Star surprised me with his eloquence in addressing this very issue.  And, as I predicted, the pattern and practice of attempting to influence the proceedings by placing and perfectly timing the release of “bombshells” continued.  This one involved John Bolton and his book.  

In regard to the Bolton issued, Senate Majority Leader, Mitch McConnell, showed once again he is the Master of the Senate.  Knowing a little about politics and political maneuvering, I marveled at how one of his best friends just happened to show up as one of the four Senators whose views were soft enough to have the media and the other party salivating over the prospect they would vote against their party and open up the Senate trial to Bolton and an endless series of “bombshell” witnesses.  And then I smiled as his friend brought one of the other three with him to vote down the proposal.  Mighty Mitch won again.  

As for the performance of the presenters, it was the usual mixed bag.  For the House Managers, Adam Schiff was the worst.  He reminded me of a lot of defense attorneys I tried cases against over the years.  Flamboyant to a fault, there was never a fact they wouldn’t embellish, never a legal point they wouldn’t overstate, never a comment about an opposing view they wouldn’t exaggerate.  Many a client of theirs was impressed. And they shared how good a show their attorney had put on in their trial.  Usually to their cellmates. Because the attorney’s perfidy inevitably leaded through as the true facts of the case came out, they just as inevitably lost.  

On the other hand, Congresswoman Zoe Lofgren of California was very effective. She was low key, respectful but precise and persuasive.  She had actually participated in one capacity or another in all three impeachments we have seen in our lifetime.  Her experience and maturity showed.

For the President’s team, the worst was professor Dershowitz.  And erstwhile Constitutional Law professor he got way out over his skis and fell flat.  Like so many of his colleagues in Academia he got lost in the weeds.  He was so intent on winning his debate with another Constitutional Law professor, Lawrence Tribe, he forgot the proceeding were not about him.  He stretched his argument so far it provided fodder for the other side to color him in the tones of a fool.

The best on the President’s side was the steady one, Philbin.  Precise, measured, careful of his own credibility, he knew not only his case, but the opponent’s case so well all their bluffs and puffery went “Poof!” when he walked to the podium and spoke.  He’s the type that wins.  And he wins big.

On reflection, there were a couple of issues in the Constitutional Law field that were touched upon that are worthy of discussion.

The President’s Power over Foreign Affairs is paramount.  The President derives his power implicitly from the language of the Constitution, practically through historical practice and explicitly from decisions of the Supreme Court.  Modernly, both Congress and lower federal courts frequently attempt to intervene and frustrate Presidential actions in foreign affairs, but their acts are eventually deemed unconstitutional when challenged. 

As to the Constitution, the President is granted the power over making treaties on behalf of the U.S., appointing ambassadors and ministers, receiving foreign ambassadors and ministers, and his command over military affairs are intimately tied to the conduct of foreign affairs, 

In 1936, the Supreme Court in the case of U.S. v. Curtiss Wright Export Corp., upheld the actions of the President in prohibiting the sales of arms to combatants in South America in a situation similar to what occurred with Ukraine.  

The Court said, “The President alone has the power to speak or listen as a representative of a nation . . .  The President is the sole organ of the nation in external relations, and its sole representative with foreign nations.” 

There is a rationale for this recognition of Presidential power.  The Court explained, “[the President], not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war.  He has his confidential sources of information. He has his agents in the form of diplomatic, consular, and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results.”

Given, the power over Foreign affairs, Does the President have the power to withhold funds appropriated by Congress for the use of Foreign nation?  

Article 2 of the Constitution, provides that the President “shall take care that the laws be faithfully executed.”  

Seems straightforward enough.  However, the courts have recognized that there is an element of executive discretion in the enforcement of laws.  Like District Attorney’s nationwide the President possesses Prosecutorial Discretion, that is he has the power to decide whether and when to investigate, prosecute, settle, and appeal individual cases.  For example, President Obama ordered U.S. Attorneys not to prosecute violations of federal marijuana statues.  Similarly, if the President determines a law is unconstitutional, he can either refuse to enforce it or refuse to defend it in Court like what was done in the Defense of Marriage Act (DOMA), regarding the inheritance rights of Gay couples.

But does he have the discretion to withhold funds appropriated by Congress?  There is a significant history of Presidents taking actions to impound funds appropriated by Congress when the President decided to exercise his discretion and not spend the funds. Though the cases are relatively few the general rule is that if it is a domestic appropriation the President’s refusal is an interference with the fiscal powers expressly delegated by the Constitution to the Congress.  On the other hand, if it deals with foreign relations then the Presidential prerogative is more persuasive.  For example, Congress would be encroaching on the Presidential powers by funding an embassy in a nation from which the President has withdrawn diplomatic recognition.  Congress did, a few years back, pass an Impoundments act to restrain Presidents from such exercises of discretion, but its constitutionality has been denied by all Presidents since its passage. 

So, while there was a dispute over why the President delayed releasing the funds to Ukraine.  It seems clear, the Constitution delegated to him the power to do so.  

Impeachment Part Three

Impeachment Part Three

Cline on the Constitution – Impeachment Chronicles, Part Three – On to the Senate!

Last week, members of the House of Representatives finally showed up in the Senate to pursue the Impeachment of President Trump.

I followed the proceedings in the Senate, with an idea of picking out various constitutional issues to discuss.  What the week in the Senate brought home, however, is that this is not and has never been an Impeachment by the Congress.  It is, instead, what the Framers warned against.  It is an Impeachment by one party in Congress, the Democratic Party. 

Although I prefer to not discuss party affiliation concerning Constitutional issues, the process in the House, crystallized by the presentation in the Senate, was so partisan it is unavoidable. And now, regrettably, that same extreme partisanship appears to have bled over into the Senate.

First it is reflected in the weakness of the Articles themselves. Although the Articles, as written, purport to describe “High Crimes and Misdemeanors,” they do not.  There is no attempt to allege a crime nor criminal conduct.  As I have outlined in previous posts, misfeasance, malfeasance, maladministration and the like were explicitly rejected by the Framers who wanted only the narrowest of grounds to seek removal of the President, only those that would constitute direct criminal conduct against the United States government.  Alleging, without any direct evidence, it was all done “to benefit his re-election” does not rise to that level. The use of innuendo, speculation, opinion, hearsay and inference doesn’t cut it. And, were this not an exercise by one party and only one party it would not be allowed. 

Suggesting a foreign leader to look into rumored corruption in his country that impacts the United States is neither a High Crime nor unusual, unless it is filtered through a partisan prism. Although a couple of the presenters went to pains to proudly repeat their new axiom, “If this is not impeachable, nothing is.” the opposite is more apropos. “If this is impeachable, then everything is.”  

Especially is the partisanship apparent in the overlay of what has become today’s playbook in the politics of personal destruction.  The coordinated disclosure of “new” information from sources whose credibility is questionable designed to drive the new cycle.  We last saw this in the Kavanaugh hearings. One might call this the “Avenatti Maneuver” named after the disgraced and crooked attorney who became a CNN media star and erstwhile presidential candidate by peddling lies and distortions.  

Finally, it can’t be ignored that no one, in or out of government, expects a conviction on either article of impeachment and the fact there are no members of the House Republican caucus, none from the other party, who support or even stand neutral about this attempt to impeach this President, we are left with the inevitable conclusion that despite the elevated paeans to high Constitutional principles the only possible motive in this pursuit of the removal of the President are purely political, to cripple his chances of re-election and/or gain control of the Senate.  

This is also a consideration in the “Obstruction of Congress” Article.  It is not Obstruction of congress to refuse to kneel before the Hangman.  Only Democrats, not Congress as a whole, sought to breach the traditional confidentiality of the Executive Branch.  And they took procedural shortcuts which made their attempts subject to legal challenges.  They knew the failings and consequently refused to seek redress in the courts when their target refused to send bullets to his firing squad who already had publicly avowed to execute the prisoner. 

And, again, were this not an exercise that was completely partisan they may have been persuaded to follow the law and take the time necessary to it right. And when you seek to remove the President from office, one wants to do it right.

As the House argued their case in the Senate, though mind numbingly repetitive, there was a couple of issues that I found interesting.  I will just touch of one in this post and save others for later.  

First, is it Constitutionally proper for the President to exercise Executive power when 1) subordinates disagree or 2) outside “experts” disagree?  

President Trump, to the consternation of detractors, wanted to know if rumors he heard about Ukraine being involved in the 2016 election were true and if evidence like a missing server might be located there.  Extensive time and effort were expended in attempting to establish this was a “debunked” theory and, therefore, his wishing to know was corrupt. It was emblematic of how many of his actions were questioned.  The real issue is who gets to decide what the President thinks is important or true?  Ambassadors, Career Service Officers, outside “Experts” or him? Dare he ignore their collective wisdom and act on his own?  

Article II provides that “The Executive Power shall be vested in a President of the United States of America.”  It was placed there to correct a weakness in the original Articles of Confederation by which the nation was governed before the Constitution was ratified by the States. Is the term “Executive Power” just window dressing? 

The power of the nation’s Chief Executive is just that. He doesn’t have to listen to or believe subordinates or others.  Even if it is more prudent to do so. Even if the “experts” and “careerists” find it insulting that he dares act inconsistently with their understanding of “current” practice or past “policy.” That is in the nature of being an Executive.  Consensus, a majority vote, accepted theory is not necessary for an Executive to ask. And opposing the actions of a Chief Executive, due to a misunderstanding of who owns the power, can be detrimental to a subordinate.  

I will cite just one example from my own experience at running a large public department.  When I assumed the office of the District Attorney, I was very anxious to bring online new programs that I thought were needed. One was a Consumer Fraud unit.  I personally selected a Deputy D.A. who I thought would be well fitted to head up the program and he worked out. For a while.  

At the same time, I had delegated to an Assistant D.A. the task of bringing together dozens of policies and practices the office had been following into one Policy Manual.  He completed his work and I had him circulate the manual for all personnel to sign off that they had read and understood the contents of the manual.  By then the Consumer Fraud attorney had, in his own mind, carved out a special position which he believed made him exempt from compliance with general orders applicable to the rest of the staff.  He declined to read or sign off on the manual.  He registered his dissent on a Thursday.  I was notified on a Friday.  Monday morning, he was doing misdemeanor calendars in a different part of the county and I had a new Consumer Fraud attorney.  He grieved, he complained, he appended a few choice descriptors to my name and heritage, but that was too bad.  I had indeed acted brutally, swiftly and didn’t wait to build a consensus about what was appropriate and not offensive.  I was the Chief Executive of my department and it was my decision to make and his job to comply.

The problem with the Deep State is that they get in their mind they own the outfit and the Executive must have their permission, their buy in, their sign off to act in contravention of their views.  

It’s never been true, not in business and not in government.  And when a President acts on his own beliefs and priorities, their disagreement is not evidence of an impeachable offense. 

For more writings by Phil Cline, visit philcline.com.

Cline on the Constitution

Cline on the Constitution

Impeachment Chronicles – Part III

I admit to being somewhat mystified. 

My goal in writing these posts is to make the Constitution understandable to the citizens to whom it belongs.   However, even for someone steeped in the more intricate elegance of the Constitution and the Bill of Rights, the events of the last couple of weeks have been, — well, I really can’t find another word for it, — weird.

So rather than taking my usual Eagle’s eye view, I decided to focus on a few basic aspects of the Constitution in the context of what’s been going on in Washington. Keep at ground level so to speak.  It always pays rich dividends to go back to the original language.

Events in the House of Representatives.

Article I, Section I of the Constitution states: “The House of Representatives shall choose their Speaker and other Officers: and shall have the sole Power of Impeachment.” 

Okay so far  

Article II, section 4 specifies the grounds for impeachment:

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Two elements here.  The removal from office can only be made after two events occur.  First, an impeachment and Second, Conviction of the specific offenses.

That’s it.  There are no other procedures.  And there are no other grounds.  Those three.  Nothing else.

First as to grounds, some commentators, relying on Hamilton’s explanation in the Federalist Papers of high crimes and misdemeanors as addressing “the misconduct of public men . . . from the abuse or violation of some public trust,” contend no crime is required.  That, however, is not what the Constitution says and is not what Hamilton said.  The historical context of the phrase “high crimes and misdemeanors” makes it clear there has to be a crime, and it must be a crime committed against the State.  

The other two grounds for impeachment are Treason and Bribery.  There was some talk about those.  Even by the so-called expert Constitutional law professors testifying before the Judiciary committee.  However, the case was too weak and no allegation of either was included in the Articles of Impeachment passed by the House.

Another aspect to impeachment provision, which we ignore at our peril, is its applicability to other civil officers.  This includes federal judges, including members of the Supreme Court. More on that later.

The Actual Articles of Impeachment passed by the House (after a mind-numbing day of inane commentary doled out in precious guarded minutes to the members of the House) are first, “Abuse of Power” and second, “Obstruction of Congress.”

The Articles failed to allege any of the Constitutional grounds for impeachment.  

An ironic consequence of not adopting Articles which are based on actual grounds specified in the Constitution is that it theoretically invites a constitutional crisis the Majority party say they fear though never very convincingly. There may be an actual threat here.  

Hypothetically if, in fact there was a conviction in the Senate, it would, on its face, be Unconstitutional.  For the millions of supporters of the President it would be illegitimate.  As the only remedy is removal from office, what if the President said No?  

It’s the difference between the legal authority to do something and the actual raw power to do something. It’s a distinction not well understood by many of those in Congress who have no experience in what it is like to project power as opposed to just endlessly talking about it.  For the vast majority of citizens, it’s one thing to be convicted after a legitimate trial. The expectation is the average citizen says, “well, I don’t like it, but he had his day in Court and he lost. Time to move on.”  It’s quite another for them to be faced with the indisputable notion that the conviction is tainted and fraudulent.

There is also a problem with Vagueness. What do the terms Abuse of Power mean?  What does Obstruction of Congress mean?

A little know aspect of Due Process is known and used by law students and lawyers when challenging a law or a regulation. It is the Void for Vagueness doctrine. It seems like the simplest concept in the world.  A person charged with an offense must have knowledge of the what constitutes violating the law beforehand.  If it is too vague to understand how are they know how to conform their conduct to the requirements of the Law? When a charge or offense is Void for Vagueness it is unconstitutional. 

There has been a significant amount of discussion concerning rules and precedents within each chamber. i.e. what was done in the past, what were the rules used before? 

Article I, Section 5 of the Constitution states “Each House may determine the Rules of its Proceedings, punish its members for disorderly Behavior, and with the Concurrence of two thirds, expel a Member.”

That means the House and Senate get to make their own rules and Courts have no power, no authority to intervene if they are unfairly applied.  Simply because a rule says something or there was some parliamentarian precedent doesn’t mean the rule can’t be changed by the majority.  The only restraint on the rules is Comity.  A high-sounding word mostly observed out of fear that what you do to the minority party will be, someday, done to you if you lose the majority.  

One of the Congressmen did make a point that stuck home with me.  As many have said and as I warned in my last post there is a real danger if impeachments become a routine political tool used to remove a President whom a majority in the Congress object to.  But is there a further danger?  

This Congressman compared the danger of routine impeachments to what has happened to Senate Confirmation battles over appointments to the Supreme court. Before Ted Kennedy led a brutal assault against Justice Bork (see previous posts) confirmation hearings were formal, and dignified affairs.  Since then they have devolved to scurrilous and baseless character assassinations as was done to Justice Thomas and Kavanaugh.  Are we on the verge of seeing a similar development as to Presidents and will that lead to using the same tool being against other civil officers such as sitting federal judges including Justices of the Supreme Court?

And what’s more the Court’s don’t get to interfere.  Other than the Chief Justice presiding, the courts can’t influence impeachment proceedings.  In the case of Nixon (the judge not the President) vs. U.S. decided in 1993 it was held that whether the Senate had properly tried the impeachment of a federal judge was not judicially reviewable.  Fair or unfair, the courts could not stop it.

On to The Senate

Article I, Section 3 states: “The Senate shall the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside:  And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgement in cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United State: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to law.”

Two things here.  Nothing says the Senate has to try an Impeachment.  Having sole power means the ability to proceed as desired or not at all.  And there is nothing requiring a physical transfer of the Articles nor any rule requiring the Senate to hear from the House at all. As to an oath: one is required, but it is not defined.

The maneuver taken by the House majority in holding back the Articles reminded me of my days as a District Attorney when a high-profile crime received a great deal of press attention.  There were always a few a Police Chiefs and even a Sheriff’s captain or two who sought to shift responsibility for the case to my office before they did necessary and sometimes difficult investigation which was required to actually prove the case.  Their assumption was that the political pressure of doing an arrest would require us to file the case before it was ready to be filed.  They recklessly wagered I would not want to face the public fall out by seeing the arrestee released by refusing to file the case before the evidence was nailed down. 

They learned different.  I considered it a cheap trick and I told them so to their face and showed them I knew how to surf the political winds of making difficult intensely scrutinized decisions as well as they. They learned not to short circuit their investigations and to do their job before they submitted a case.  

It seems that the Majority didn’t learn that lesson.  They rushed their investigation, got a little cute with their charges and then thought they could use the case as leverage to require another entity to do their work for them.  And take responsibility for it.  I don’t know if Leader McConnell will fall for it or if his razor thin majority will hold. It’s easy to talk about but facing down a hostile press and taking the long view in a critical political situation isn’t easy. I had absolute control as a chief executive of a department with plenary power.  McConnell’s situation is more nuanced. 

But he’s a wily old fox. 

Good luck.

Impeachment continued

Impeachment continued

Cline on the Constitution

Impeachment Chronicles – Part Two

The Judiciary Committee of the House of Representatives held a hearing last week. It was a yeoman’s attempt to underpin all the speculations and opinions being passed off as facts with legal speculations and opinions on whether all the speculations and opinions would be enough to rid the country of the awful man in the White House.  All in all, it was a sad attempt. 

The panel was made up of four Constitutional Law Professors.  Three were selected by the controlling party and one by the minority party.  

Of the three; heavyweights as far as academic credentials go, lightweights as far as real life credentials go; they had their minds made up years ago that this President had to go.  They had staked out their position long before the matter of Ukraine entered the general consciousness. To a tee they acted out their role of elite patricians talking down to the plebeians, the mob, the rest of us common wretches who might dare to question why Congress was expending so much time and money on a fool’s errand.   

John Healey, a columnist for the L.A. Times wrote of the three, “None showed a glimmer of doubt making them seem at times more like ideologues than academics. It would have been better to have professors more interested in gray areas and who acknowledged the possible existence of other explanations for Trump’s behavior. That sort of witness might have prompted committee members to abandon their prepared statements, put down the leading questions prepared by their staffs and engage in a real back and forth exploring the Constitutional principles.”

Indeed. Their bias was so extreme it could only be termed bitter.  Even mean. One of their number so consumed with her disdain she thought nothing of causing the public humiliation of the President’s 14-year-old son.  As professors of law the three turned out to be poor examples.   Maybe on other subjects related to the law, they can brilliantly recount case decisions and relate them to unique fact patterns, but on the subject of impeaching this President their bitter and overreaching bias led them to contentions ludicrous to anyone with a basic grounding in Constitutional law.

The Fourth member of the panel, Professor Jonathan Turley of George Washington University Law School was more circumspect.  He reaffirmed principles I outlined in my last blog concerning the limited meaning of “High Crimes and Misdemeanors,” and the danger that proceeding to impeachment on such a thin record the House has produced to date with such, as he put it, “a paucity of evidence” is a mistake with far reaching consequences.  It will inevitably lead to the routine use of impeachment as a political tool.  Something the framers had specifically warned against.  He also urged everyone to put down the hate and anger and engage in a civil discussion of such weighty issues.  I knew this meant trouble for him.

As I sat in my comfortable living room with my nice hot cup of coffee, I thought to myself, “Oh no, John, the Brownshirts of the Left are going to come after you, Son.”  And they did.  His home and office were already receiving death threats and hate filled messages while he was still seated at the table in the hearing room.  I predict they aren’t through with the poor bastard yet.  Expect lies, deception, and attempts to destroy his career.  A professor, in today’s environment on college campuses, arguing it would be better if everyone put aside their anger and act rationally?  Yeah.  Good Luck with that, John.

The attorneys for the Majority and Minority who did most of the questioning were little better.  As my coffee grew cold, I was thinking, “My God, is the best my profession can muster for as important enterprise as this?”  

Alan Dershowitz, himself a Harvard professor of Constitutional Law, wrote, “Wednesday’s House Judiciary Committee impeachment hearing squandered an opportunity to educate the public about the criteria for impeaching a president. Instead of each side cross-examining opposing witnesses, Democrats and Republicans mostly threw softballs at their own witnesses. There were a few momentary exceptions, but for the most part what we heard from four legal scholars were prepared lectures that repeated what the witnesses had previously written.”

He went on to say that because the witnesses were allowed to “express their rehearsed views without having them challenged by adversarial questions, they studiously avoided the facts and kept their comments conclusionary as if their elite academic status brooked no challenge from such small concerns as the true facts and actual evidence.”

He concluded with a bit of prescient wisdom concerning the abject failures of the Attorneys hired to assist with questioning. 

“Our nation is deeply divided over the impeachment issue. There is far too little reasoned dialogue and there have been too few constructive exchanges about these different views. Effective cross-examination can force advocates to modify extreme views and to bridge differences. Perhaps neither side wanted that. Their bases demand the uncompromising advocacy of extreme positions. But the American public is entitled to nuance and narrowing of differences. Had the Democratic experts been effectively cross-examined, they would have had to justify their contention that the governing criteria for impeachment include abuse of office, corruption, violation of public trust, maladministration, bad conduct, placing partisan interests above national ones, and other vague, open-ended criteria of the kind the framers explicitly rejected.”

There was discussion of proposed grounds for impeachment articles reportedly drafted before the hearing opened.  I discussed “High Crimes and Misdemeanor” in my last post.  “Bribery”, a further ground delineated in the Constitution and “Obstruction” nowhere mentioned were also discussed though the points being made were difficult to follow through the fog of posturing and self-serving obfuscation.

Two relevant Supreme Court cases were mentioned.

The first case reference people might have heard but not understood was to McDonnell vs. United States. The Pro-impeachment professors avoided discussing it because they wanted to expand the definition of the crime of bribery when in the McDonnell case the Supreme Court had specified it was limited.  

In the case, the governor of Virginia, Robert McDonnell and his wife were indicted and convicted by a jury of accepting over 175K in loans, gifts, and benefits from a Virginia Businessman.  These included buying 20K in designer clothes for the wife, 15K to help pay for daughter’s wedding and a 50K loan to help with their financial situation. The businessman had developed a nutritional supplement made from a compound found in tobacco.  He wanted to have his product researched by public universities and hoped the Governor would facilitate his obtaining those studies.   The Governor had arranged meetings between the businessman and government officials, hosted events featuring the product at the governor’s mansion and made numerous contacts with university and pubic officials concerning the research studies the businessman wanted done.

The U.S. dept of Justice, contended that all the efforts made by the Governor were “official acts” done on behalf of the businessman and fit within the bribery stature that made illegal receiving any sort of gift, loan etc. in return for an official act.  The Court of Appeal had upheld the conviction.  But the Supreme Court reversed and threw out the conviction.  And the vote was unanimous.

The opinion was written by Chief Justice Roberts.  

The court found that the Department of Justice had given such an expansive definition to an “official act” that it raised significant constitutional concerns.

In the context of the Ukraine imbroglio the term quid pro quo has been much bandied about.  In the McConnell opinion, Roberts wrote that under the government’s interpretation “nearly anything a public official accepts from campaign contributions to lunch counts as a quid and nearly anything a public official does – from arranging a meeting to inviting a guest to an event counts as a quo.”  And such an interpretation is unconstitutional.

Sounds familiar.

The danger, an old one: The attempt to politicize the criminal law or criminalize politics

The court said “we decline to construe the (Bribery) statue in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of good government for local and state officials.” 

As to “Obstruction,” an effort was made by some on the committee to equate non-compliance with a subpoena from Congress as Obstruction of Justice. It is not. The differences in opinion were largely based on procedural notions.  Some contended just the act of denying a Congressional Subpoena is Obstruction.  It is not until there is an attempt to enforce it which requires taking the matter to court.  And when the Congress goes to Court, they must overcome justifications for the Executive Branch not complying such as the assertion of Executive Privilege. 

What is Executive Privilege and what is its Constitutional basis?

Article II of the Constitution vests in the President of the United States the “Executive Power.”  Contrary to some loose commentary, Congress does not have “oversight” of this function.  There is no constitutional basis for an assertion that one branch of government has “oversight” over a co-equal branch of government regarding their core powers. They may investigate.  They may hold hearings. Within limits.  But they do not have “oversight” of the exercise by the President of the “Executive Power.”  

And in the exercise of the Executive Power, the Supreme Court recognizes the existence of an “Executive Privilege” over confidential material and an unwarranted intrusion upon Executive Privilege violates the Separation of Powers.

However, the Privilege is not absolute, no more than any power vested in a branch of government is absolute.   However, the Privilege is entitled to “great deference” as Chief Justice Warren Burger stated in U.S. v. Nixon, the case referenced in the hearings, but which remained unexplained.

Burger in the U.S. v Nixon described the basis for the Privilege:

“The valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion.  Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.”

Chief Justice Burger went on to say, “The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity of protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision making.  A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”  

And those considerations, Justice Burger says, provide the basis for a “presumptive privilege” for Presidential communications.

However, the ruling was qualified.  It was repeatedly pointed out that the assertion of Executive Privilege by the Nixon administration was a general one and that the President had not claimed confidentiality based upon a need to protect “military, diplomatic or sensitive national security secrets.”

There is a clear implication that if such an assertion had been made, the court may have upheld the declaration of Privilege.  

One more interesting aspect to this:  The Court appended a proviso that a federal court would take care that the information was reviewed and assessed in camera, out of the public eye, where the confidentiality of the material could be protected.  Good thing.  One must question whether Congress any longer contains men and women who can be entrusted with confidential information. 

And on it goes.  So far, we have seen little that measures up to the standards we would expect for an exercise of a serious Constitutional power like Impeachment. 

But, we ain’t done yet. 

For more writings by Phil Cline you are invited to visit philcline.com   

Right to Confront Witnesses

Right to Confront Witnesses

In 1603, Sir Walter Raleigh, one of the most celebrated men of his era, was brought to trial for treason based upon accusations generated by the Spanish Ambassador. The evidence used against him was testimony taken in secret and a letter by an alleged accomplice, a man named Cobham.  Raleigh demanded the witness against him be brought forward so that his motives to lie could be examined in public.  He proclaimed, “Cobham is absolutely in the King’s mercy; to excuse me cannot avail him; by accusing me he may hope for favour.”  Raleigh suspected that if the witness was called to the stand before the judges he would recant. Raleigh demanded that the judges require the witness to appear, arguing that “[t]he Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face ….”  

His request was refused.  He was convicted, sentenced to death and beheaded.  One of the judges at Raleigh’s trial later said of the proceedings, “the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.”

The injustice of Sir Walter’s case was recalled by Justice Antonin Scalia in Crawford v Washington, a case decided by Supreme Court in 2004, which reversed a conviction because the accused had been denied his right to confront and cross-examine the witnesses against him.  It is the leading case on the Right to Confront and Cross-Examine the Witnesses against you.

As impeachment fever has spread through our body politic, proceedings in Washington remind one of Sir Raleigh’s case.  Secret proceedings and testimony, the use of anonymous informants posing as whistleblowers, denial of the right of cross-examination, documentary evidence hidden from the accused, threats by members of Congress to arrest and hold members of the rival political parties in Cages.  The head spins with the implications.  The procedures employed resemble nothing so much as the Star Chamber, used in Merry Ole’ England to eliminate political opposition.  

As I have written in the past, it is indisputable that our most precious rights, from Freedom of Speech to Freedom of Religion to Due Process are not granted by the Constitution nor given to us by the Bill of Rights. Instead our rights exist apart from those documents, though they are protected by them. To the Framers our rights were given us, not by men, but rather by our Maker.  They are human rights to which everyone is entitled.  Nevertheless, the great men who gave birth to our nation, thought it wise to specify rights requiring special protection.  And that, in turn, enshrines them as universal values in our society.

The Sixth Amendment provides, inter-alia, that “the accused shall enjoy the right to a speedy and public trial, . . . ,and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense.”

While legislative actions of Congress are not judicial proceedings once they step outside the legislative role, such as in impeachment proceedings, they are, as Hamilton said in the Federalist Papers, engaging in the nature of a judicial proceeding. There is an indictment procedure, a trial and conviction or acquittal.  And as such questions of Due Process, Right to Counsel, Right to Examine evidence and the Right of Confrontation are very much at issue.  

What we don’t have from past cases or practice is a clear picture of the scope of these rights in impeachment proceedings. I will most likely comment on issues as they arise in the coming weeks and months, but it will be helpful to just address one issue at a time. What is clear is that our values are reflected in respect for concepts such as the Right to Confront the Witnesses.  And if we are to honor or discount them in the coming such values in future proceedings will be meaningful in what we are saying to the public, our fellow citizens, indeed our children who ready or not are going to inherit and be responsible for our way of governing ourselves.

The right to confront one’s accusers is a concept that dates back to Roman times.

A few decades after Sir Walter Raleigh lost his head, the Courts of England accepted the justice of the concept to a civilized society. In 1696, The question was debated at length during infamous proceedings against Sir John Fenwick on a bill of attainder. Fenwick’s counsel objected to admitting the examination of a witness who had been spirited away, on the ground that Fenwick had had no opportunity to cross-examine.  He said, “[N]o deposition of a person can be read, though beyond sea, unless in cases where the party it is to be read against was privy to the examination, and might have cross-examined him …[O]ur constitution is, that the person shall see his accuser”.

By 1791 (the year the Sixth Amendment was ratified), courts were applying the cross-examination rule even to examinations by justices of the peace in felony cases.

During the debates over the drafting of the Constitution, A prominent writer criticized the use of untested evidence.  “Nothing can be more essential than the cross examining [of] witnesses, and generally before the triers of the facts in question. [W]ritten evidence … [is] almost useless. . . . and very seldom leads to the proper discovery of truth.”

The First Congress responded by including the Confrontation Clause in the proposal that became the Sixth Amendment.

As Scalia proclaimed in the Crawford case, “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” The constitutional text, like the history underlying the common-law right of confrontation, “thus reflects an especially acute concern” with an out-of-court statement.

The historical record also supports a second proposition: that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.

“Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of “reliability.” 

As we edge ourselves along a dangerous precipice for our nation and our way of governing ourselves, it is well that we be open to how our actions are reflecting our values.  The use of secret proceedings and untested witnesses is dishonorable and has no place in as important a judicial proceeding as Impeachment of a President.  

Executive Privilege

Executive Privilege

This week’s edition of Cline on the Constitution

Executive Privilege

It seems every year we have at least one descriptive term that evolves into a sacrosanct badge of being politically correct.  We’ve had “diversity”, we’ve had “homeless”, and a number of others it wouldn’t take long to conjure. The terms are over-used, frequently misused and so ill-defined they end up obfuscating reality. Their introduction into a conversation demand thoughtfulness be suspended. After a while, one develops a sense of nausea whenever the terms are uttered; truly they become an insult to the ear of anyone who chooses to not define society in accordance with numerical niceties.      

And now we have “transparency.” 

What exactly is transparency?  To some it means disclosure of all information all the time to every living soul regardless of who is hurt, what is diminished, and whether the information is accurate or complete.  Private conversations, the frank exploration of ideas, is considered anathema to the God of “Transparency”.

For anyone in leadership, especially in an executive position, whether it is government or business, there is a basic need to have private conversations with trusted staff. The ability to try out new concepts, to explore radical solutions, whether the ideas are adopted or not, is part of the creativity we should expect of leaders.  However, in these times of instantaneous opinion, the quickest death to good ideas can be “transparency.” Some conversations, some orders, some plans need to kept private, indeed they need to be kept, yes, let’s use that other much maligned term, (gasp!)“Secret.” (Gasp again!)    

This is what Executive Privilege is all about and it is recognized in the realm of constitutional law.

The President has asserted Executive Privilege regarding certain portions of the Mueller Report as well as the underlying evidence for the Muller Report.  Breathlessly certain members of Congress who demanded the information are crying out that we are, as a result, in a Constitutional Crisis.  

Well, not really.  

Let’s explore Executive Privilege and its Constitutional basis.

Article II of the Constitution vests in the President of the United States the “Executive Power.” Contrary to some loose commentary, Congress does not have “oversight” of this function.  There is no constitutional basis for an assertion that one branch of government has “oversight” over a co-equal branch of government regarding their core powers. They may investigate.  They may hold hearings. Within limits.  But they do not have “oversight” of the exercise by the President of the “Executive Power.”  

And in the exercise of the Executive Power, the Supreme Court recognizes the existence of an “Executive Privilege” over confidential material and an unwarranted intrusion upon Executive Privilege violates the Separation of Powers.

As will be shown later, however, the Privilege is not absolute, no more than any power vested in a branch of government is absolute.   However, the Privilege is entitled to “great deference” as Chief Justice Burger stated in U.S. v. Nixon.

Burger went on in the U.S. v Nixoncase to describe the basis for the Privilege:

“The valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.”

One has to pause and contemplate the damage to such processes done to the President by leaks of confidential conversations even with heads of state by unscrupulous government employees virtually from the President’s first day in office.  One of Attorney General’s Barr’s comments during the hearings before the Senate and his description of the motives of leakers is apropos.  It is one way, he said, for subordinates to control their superiors on matters of policy. Consider the impact on the ability of any Executive, much less a President, to carry out his policies if every word uttered in private finds its way to the headlines the next morning.

Chief Justice Burger went on to say, “The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity of protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision making.  A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”  

And those considerations, Justice Burger says, provide the basis for a “presumptive privilege” for Presidential communications.

United States v. Nixon, decided in 1974, grew out of the infamous “Saturday Night Massacre.”  A special prosecutor sought tapes of conversations that occurred in the oval office.  President Nixon ordered him fired.  The Attorney general refused, and he and his assistants resigned rather than comply.  Robert Bork was third in line at the Department of Justice and he carried out the orders to fire the Special Prosecutor. A new one was appointed, but then he too demanded the material and took the matter to the Supreme Court.

The primary issue for the Supreme Court was whether the courts could decide the case at all without violating Separation of Powers. Harkening all the way back to Marbury v. Madison, decided at the beginning of the Jefferson administration, the Supreme Court ruled they could, indeed, decide the issue as a question of law without infringing on the Separation of Powers. But in reaching this conclusion they spent considerable time assessing the basis and scope of Executive Privilege. While there have been other cases which addressed the issue, U.S. v Nixon is still the leading case on the principle.  

The court used a balancing test assessing the need of the criminal justice system against the assertion of an “absolute” privilege. 

However, their ruling was qualified.  They repeatedly pointed out that the assertion of Executive Privilege by the Nixon administration was a general one and that the President had not claimed confidentiality based upon a need to protect “military, diplomatic or sensitive national security secrets.”  (There’s that word again!)

There is a clear implication that if such an assertion had been made, the court may have upheld the declaration of Privilege.  

There are two more interesting aspects to this:  First, the Court appended a proviso that a federal court would take care that the information was reviewed and assessed in camera, out of the public eye, where the confidentiality of the material could be protected.  And second, in that case the interests of a criminally accused was in play and that brought about considerations of Due Process and the other Constitutional rights of someone charged with a crime. 

As it relates to the Mueller report, there are a few distinctions:

First Congress is pursuing a civil subpoena process which takes the balancing test for criminal matters off the table.

Second, the information is actually from a Special Prosecutor.  It is not being withheld from him like in the Nixon case.  Second, a Court, not the Congress, may have the right to inspect the confidential material, assuming the President doesn’t provide justification, such as national security. In the later instance, since it is a core Presidential function, even the Court could be excluded from examining the information under the Separation of Powers doctrine.  

Lastly, regarding the Mueller report, at the very least, the Court may find that while confidential Grand Jury information may be assessed by the Court, that does not mean that a leaky Congressional Committee, where confidentiality goes to die, has any right to pierce the Privilege. 

For more articles on the Constitution and other writings by Phil Cline, visit philcline.com     

Impeachment

Impeachment

The Impeachment of a President

Calls for the impeachment of President Trump have been circulated since before he assumed office. Any pretext seems to suffice.  If one is shown to be groundless, another is quickly adopted.  

With the Democrat party now in control of the House of Representatives, and a lineup of committee chairpersons right out of the Star Wars Bar Scene, reckless talk of impeachment in the halls of Congress and on the cable opinion shows have reached a fevered pitch. While much of the talk is silly and petty, the subject is serious business.

What does the Constitution say about impeachment?

Impeachment was debated on and off through the four months of the constitutional convention in Philadelphia where the framers of our constitution were creating a government of Checks and Balances.  Not only did these wise men insist on the Separation Powers to obviate the concentration of power in too few hands, but they also wanted a means for one branch of government to be able to Check the power of another branch. 

The impeachment process was a means to Check the power of the Presidency.  The drafters wanted a strong president but not a king and authorizing the impeachment of the President, even if limited to the rarest of circumstances, insured we would never have a king. 

For historical reasons the framers adopted a specific structure for the use of the impeachment procedure. For impeachment to occur the House of Representatives must vote articles of Impeachment.  The members of the House then present the articles to the Senate. The Senators serve as jurors in the Trial of the President presided over by The Chief Justice of the United States. If convicted of any article there is one and only one punishment. The President is removed from office.

The Federalist Papers inform us Alexander Hamilton and James Madison had two main concerns about the impeachment procedures. 

First they worried about the political process.  Having the matter tried in the Senate they were concerned about the character of a jury made up totally of elected officials.  In other words, politicians.  If the impeachment of the President devolved to a political exercise it would make the President permanently subservient to the Senate. And the need for a strong executive was one reason the original Articles of Confederation were abandoned in favor of the Constitution. 

Their solution was the requirement that articles of impeachment could only originate in the House and fully two thirds of the Senators had to vote for conviction.  In the 1990s Bill Clinton had 54 votes cast in the Senate for his impeachment on one count and 50 on another.  Were it not for the two thirds requirement he would have been removed from the Presidency.  Similarly, Andrew Johnson was acquitted by one vote in 1868.

Second.  The Framers also sought to circumscribe the process by proscribing very narrow grounds for impeachment. The grounds are limited to “Treason, Bribery, or Other High Crimes and Misdemeanors.” The phrase “Other High Crimes and Misdemeanors” confuses even some members of Congress.  What is clear is that the framers abhorred the idea of impeachment being used as a political tool, a process by which the dominant party in Congress removes Presidents because they have the votes and they perceive it is in their political interests to do so.  Establishing a political revolving door of Chief Executives would defeat the very purpose for which the office was created.

The debate concerning the article about impeachment over those hot summer months in 1787 saw the framers consider and reject a number of proposals concerning grounds for impeachment including misfeasance and malfeasance as well as corruption. Each revision served to narrow the definition. And finally they settled on “Other High Crimes and Misdemeanors.”  

“High Crimes and Misdemeanors” does not refer to routine crimes.  For example, a common Drunk Driving charge is a misdemeanor.  That is not the kind of crime the framers were talking about. The term High Crimes and Misdemeanors was taken from old English law.  It was used to describe political offenses against the Crown. 

High Crimes and Misdemeanors contemplate a crime against the State.  The original clause actually said High Crimes and Misdemeanors “against the United States.”  The phrase “Against the United States” was dropped for stylistic reasons by a special subcommittee because it was thought to be a redundancy. 

The road to impeachment is narrow and straight up hill.  It is meant to be difficult and it is.  

As was seen in the impeachment of Bill Clinton, petty politics by petty venal politicians (that time by the other party) won’t result in the removal of the President.  

In pursuing Bill Clinton and after spending 50 million dollars on a special prosecutor, after interrupting the lives of countless people, shaming and vulgarizing society by discussing a stained blue dress in a trial on the Senate floor presided over by the Chief Justice, not one count resulted in a conviction.  It was an ill-advised and unsuccessful attempt to remove a President. And it was an embarrassment for the nation in front of the entire world.

No doubt there are those who wish to see it all happen again.  For the nation’s sake let’s hope not.  Probing every member of the President’s family, including his minor children, all his past business dealings, and, yes, his sexual peccadillos seem to be an obsession of some members of Congress.  Senator Dale Bumpers, during his arguments on the Senate floor defending President Clinton, paraphrased H.L. Mencken.  He pointed out that H. L. Mencken said, “When someone says it’s not about the money, it’s about the money.”  As related to Clinton’s trial in the Senate, Bumpers, said, “When somebody says, it’s not about the sex, It’s about the sex.”  And I, in turn, will paraphrase Dale Bumpers: “When someone says, it’s not about the politics, it’s about the politics.”

There are more pressing matters, at home and abroad, that demand the attention of our nation’s leaders. They need to wake the hell up, quit torturing definitions, and get to it.

For other articles and writings by Phil Cline, visit philcline.com

War and Emergency Powers

War and Emergency Powers

The prospect of war abroad and insurrection at home are not thoughts we welcome. However, I’m not sure they can much longer be avoided.

 

Abroad North Korea, ruled by a fat little despot with a bad haircut, has nuclear bombs, is developing missiles to deliver them and threatens to use the weapons against the United States and its allies.

 

In the Mid-East, Iran is also developing nuclear weapons and missiles and also repeatedly engages in provocations against United States forces in the region.

 

A miscalculation in either theatre could lead to a wider war.

 

At home, scenes from City streets like Saint Louis, Baltimore and Berkeley are cause for concern.   Police authorities, public institutions and even private homes of public officials are subjected to pre-planned violent attacks. The burning, looting and lawlessness resemble riots and insurrections more than protests.

 

It is worthwhile to pause a few moments and consider whether under the Constitution the powers of the Federal Government expand and individual rights shrink in time of war and insurrection?

 

It’s an important question because if there is a time when Constitutional restraints on the exercise of power by the Government are stretched to the outer limits it is in times of war. It is in times of national emergencies. Abraham Lincoln, like many of our leaders, had to ponder the ultimate question: “Is it possible to lose the nation,” he asked, “yet preserve the Constitution?”

 

The Framers of our Constitution were not fools. While they took pains to limit the powers of the federal government in order to avoid tyranny, they also knew there could be wars, rebellions, even insurrections and that if the government didn’t have the power to deal with such challenges, the country could be lost.

 

What are some of those powers?

 

Congress, as we know, has power to declare war by a simple majority vote of both houses. But what they also have the power to do is prepare the nation for war. They may pass Conscription laws, drafting private citizens to serve in the armed services. Congress may authorize the seizure of private property to aid in a war effort. And they may impose price controls as well as rationing of food, fuel and other materials.

 

Additionally, the Constitution guarantees the individual States a republican form of government and “protection against invasion.” And the Constitution empowers Congress to federalize militias and units of the National Guards to suppress insurrections that threaten republican forms of government and repel such invasions.

 

Congress also has the power under the Constitution to suspend the writ of Habeas Corpus in times of rebellion or invasion “or when the public safety requires it.” That has obvious implications for individual citizens detained by the government who wish to challenge the legality of their detention.

 

And While the Constitution has no express provision for the imposition of Marital Law, in fact it has been used numerous times in our history.

 

Additionally, by Executive order, the President may order the killing of American Citizens who wage war against the United States, both on foreign soil and actually within the jurisdictional borders of the United States. He may establish military tribunals to try and punish enemies of the United States. By Executive order and with the support of Congress, the President may establish internment camps for entire classes of citizens if it is deemed in the interest of National Security in times of war.

 

And lest there be any doubt about these powers, each of them has been used at some point in our history, and the Supreme Court has upheld the actions as Constitutional.

 

It is unknown if all those rulings would be the same to day, but if history teaches us anything it teaches us war is different, emergencies are different and what in peace time one believes would never happen can happen. And does happen.

 

 

 

 

 

 

Religious Tests Under the Constitution

Religious Tests Under the Constitution

Religious Tests Under the Constitution

 

California Senator, Dianne Feinstein, abetted by Senate Colleagues recently demeaned the Catholic faith of a nominee to the Seventh Circuit Court of Appeal.

 

The nominee, Amy Barrett, is a professor of law from Norte Dame. She has impeccable legal, intellectual and educational credentials and once clerked for Supreme Court Justice Antonin Scalia. At her confirmation hearing, she was subjected to an aggressive line of questioning concerning her religious beliefs as a practicing Catholic. In one particularly offensive exchange, Senator Feinstein scolded her and said, “When you read your speeches the conclusion one draws is that the dogma lives loudly within you.”

 

U.S. Bishops condemned the comments as “anti-Catholic bigotry” that reveal “a thinly veiled anti-Christian bias.” The President of Norte Dame, John Jenkins, said it was “chilling” to hear from a United States Senator that one’s religion might disqualify them from service as a federal judge.

 

Senator Feinstein’s motivation in examining a nominee’s religious views is no secret. She wants to know if the nominee agrees with the religious teachings of her church regarding the morality of abortion or homosexual activity. She wants to know if the candidate would uphold or overturn Roe v Wade (abortion) or Lawrence v. Texas (gay sexual activity) because of her religious beliefs. And if the nominee does not answer by expressly rejecting such religious teaching she risks having her nomination voted down and being denied the public office she seeks.

 

This is not the first instance in our modern history that the faith of individuals wishing to serve in public office has been attacked by Senators.

 

At one time not so long ago the questioning of judicial nominees by Chuck Schumer, Dick Durbin and others, became so egregious that a public information campaign was launched under the title “Catholics need not apply!” In reaction a coterie of Catholic Senators, led by Pat Leahy, proposed a Senate rule prohibiting inquiry into a person’s religious beliefs. The rule failed to come to a vote. Even, John Roberts, our current Chief Justice, at his confirmation hearing, was aggressively examined under oath about his Catholic faith. And only recently, Socialist Senator Bernie Sanders attacked Russell Vought, a nominee to the post of budget deputy director over his Christian faith.

 

Does such questioning of a nominee’s religious beliefs violate the Constitution?

 

Article VI, Clause 3 states, inter-alia, “. . . . all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to Support this Constitution, but no religious Test shall be required as a Qualification to any Office, or public Trust under the United States.”

 

While Senators may question any nominee on any subject outside the committee room, it is different when the person is placed under oath before being questioned. Placing them under oath moves the examination of their religious beliefs into the realm of a religious test which the Constitution forbids.

 

The founders were very familiar with religious oaths and tests. Oaths confirming or rejecting selected religious views were required of anyone seeking public office in merry old England as well as in many of the states at the time the Constitution was written. Those tests were used to protect state favored churches. For example in England an act of Parliament passed in 1672 required all persons who wished to hold public office to take an oath concerning the sacrament that effectively precluded Catholics from serving. Many of the States in pre-revolutionary America had similar provisions. For example the state of New York required an oath disavowing allegiance to a foreign prince, to wit, the Pope.

 

And Oaths meant something to the founders. To be bound by an oath was a solemn undertaking. The promise to keep one’s word had real meaning. To break a covenant either with God or the State was a serious breach of morality.

 

The inclusion of the “no religious test” phrase in the same sentence in Article VI as the requirement of an oath or affirmation to support or defend the constitution is significant. Because the phrases are separated by the conjunction “but” means that the “no religious test” clause is an exception to the oath to defend and support the constitution. It means government may not require an oath concerning religious beliefs as a condition of taking a public office or judgeship. And placing someone under oath and attempting to force them into making a choice of rejecting the teachings of their church or forfeiting the opportunity to take a public office or judgeship is a religious test and violates Article VI of the U.S. Constitution.

 

 

 

 

 

 

The Commerce Clause

The Commerce Clause

Before President Trump took office, I addressed the possibility of him abrogating treaties and agreements signed by President Obama.

Since President Obama often eschewed the formal process outlined in the Constitution and acted on his own, the accords he signed can also be unilaterally nullified by a subsequent President without offending the Constitution.

Since President Trump announced withdrawal from the Paris Climate accords; threatened actions of local state officials raise interesting constitutional issues.

Even though the President’s cancelation is not effective for three years, Governor Jerry Brown and a handful of other governors and Mayors with great bluster and fanfare have rushed to the nearest microphone to announce they are stepping into the fold and are going to defy the federal government and take action to comply with the Paris accords themselves.

Regardless of what one thinks of such opportunistic posturing, or the fact that they undermine the ability of the administration to negotiate an agreement more favorable to this nation’s economic well being, what does the Constitution say about their ability of States to promulgate rules and regulations that affect climate change contrary to the Federal Government? Can a handful of states impose their own climate control provisions?

Since modernly it is hard to imagine a scenario in which a State regulatory action would not affect businesses or transportation in other states we are dealing with the most boring sounding provision of the Constitution, but one of the most important: The Commerce Clause.

The provision is seemingly a simple one: it states that Congress shall have the authority to “regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes.”

Originally the clause applied only to commerce between states (interstate). Through constitutional interpretation, however, it has been made applicable to activities that occur wholly within the borders of a state (intrastate) IF they AFFECT interstate commerce.

To truly appreciate the expansive scope of the Commerce Clause one only has to consider the famous case of Wickard v. Filburn. (Listen closely and you will hear the extremely perceptive and straight talking Senator Rand Paul regularly railing against the reach of this case.)

In Wickard, a wheat farmer growing wheat for his own family was fined for exceeding production regulations designed to stabilize the price of wheat during the Depression. The court upheld the sanction finding that his actions in growing wheat for his own family affected the price of wheat nationally and could, therefore, be regulated by Congress under the Commerce Clause power of the Constitution.

The court has further held under what they call the “Dormant” Commerce Clause doctrine, States are prohibited from passing regulations of activities that MAY affect interstate commerce even though Congress has not acted in the area.

So if Governor Brown and others of his ilk actually attempt to pass laws and regulations severely impacting certain industries, like fossil fuel production and those rules are found to affect interstate commerce they will be declared constitutionally invalid.

Its one thing to bluster in front of cameras but states can’t have fifty different sets of laws and regulations regarding industry and commerce. Much less individual cities. That is why the power over Interstate Commerce was placed in the Federal Government in the first place. And that is why the bluster of Brown and his acolytes is just that, bluster.