The Constitution’s Week in Review – 14 May 2016

May 16, 2016



Article 2:  Qualifications of the President.

Now that Ted Cruz has suspended his presidential campaign, the lawsuits will probably cease, leaving us to continue to guess what the phrase “natural born citizen” means today, and what it meant in 1787.

Article 2:  Abuse of Executive Power.

On Monday 23 May, at 8pm I’ll be speaking on a webinar sponsored by Christian Financial Concepts on the topic of “Abuse of Executive Power.”  While researching that subject for the presentation, it came as no surprise to encounter new instances of such abuse by the Obama Administration. A link to registration of the webinar can be found below. 

Article 1, Section 9 states, in part, that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”  Because of this clause, which requires that every penny the government spends be authorized in an appropriations bill, annual appropriations bills are a big deal and so difficult getting passed, often Continuing Resolutions (CRs) are needed to keep the government operating.  

Now we learn that the Obama administration thinks it does not need a Congressional appropriation in order to spend money. Congress “zeroed-out” the appropriation for certain “cost-sharing” payments to Obamacare insurers.  The administration continued to make the payments anyway.

Congress learned of the payments and sued the administration and a federal judge has ordered[1] that this abuse of power must stop, although U.S. District Court Judge Rosemary Collyer immediately stayed her decision while an appeal proceeds. 

Congress has what we commonly call the “power of the purse.” The Executive may not like the way Congress appropriates money, but, in the end, it is the people’s money and the Executive branch must follow the law.  I’m predicting yet another loss for the administration when this reaches the Supreme Court.


Fifth Amendment: Remaining Silent.

The Supreme Court ruled (in Berghuis v. Thompkins, 560 U.S. 370 (2010)) that a person must positively and verbally assert their “right to remain silent,” that merely keeping silent is not evidence that you are employing your right against self-incrimination. 

There will always be 10% who never get the word, even among lawyers, and many citizens have decided to go mute when confronted by police, even when there is no accusation that a law has been broken. I do not endorse this tactic.  Still, neither the lawyer nor the police involved in this incident[2] handled the situation well.  The lawyer failed to verbally assert her right to “remain silent,” and an inadequately trained policeman charged her with obstruction for that silence.

Actually, there is no right called “remaining silent” secured by the Constitution; as most of you know it is a right to not be compelled to testify against yourself, located as one of five protections in the Fifth Amendment.  It states: “No person shall be … compelled in any criminal case to be a witness against himself.”

Notice two elements here: there must be an element of compulsion – the police must be trying to force you or coerce you into saying something that could incriminate you, and it must be a criminal matter, not a civil matter.
There is, of course, a natural right to remain silent; you can’t be compelled to physically say anything, anytime, to anyone; that is a simple matter of biology.  But will there be repercussions if you decide to do so when interacting with police? 

What we now call the “Miranda Warning” came from a 1966 case where the Court decided that anytime you are in police custody you must be apprised that anything you say, whether inculpatory or exculpatory, could be presented as evidence in a court of law.  Interestingly, Mr. Miranda was not advised of his right to counsel, which is a 6th Amendment protection, and he ended up signing a confession, thereby “testifying” against himself, which is a 5th Amendment protection.  The “Miranda Warning” thus combines elements of both 5th and 6th Amendments.

Secession.

I’ve been following the on-again, off-again talk of secession in Texas for some time.  Apparently it’s on, again.  This week, the Platform Committee of the Texas Republican Party voted[3] to put a Texas independence resolution up for a vote at this week's GOP convention.  As the linked article concludes: the independence resolution is unlikely to succeed. But that's what a lot of people said about Donald Trump.

Meanwhile, in the states: “Fight’s On!” 

For the uninitiated, “Fight’s On!” is the expression we use in the Air Force as we prepare to engage in aerial combat training. It alerts both sets of aircrew to the fact that an aerial engagement is imminent, be ready.
North Carolina passed their “Bathroom Bill” stating that the state’s residents must use public bathrooms that agree with their sex as documented on their birth certificate instead of the sex they may now “identify” with.  The Obama Administration has countered by both filing a so-called “civil rights” suit as well as threatening to withhold all federal education and public safety.  And North Carolina has countersued.  Fight’s on! 

The warning for other states is clear: toe the line on declared federal policy or risk going broke.  And now every state in the union is asking itself whether this is worth fighting over or whether they must allow confused (or not so confused!) boys use the girl’s shower room.  In common parlance this is called extortion.

Using federal funding to force the state’s compliance with some federal policy is not new, it’s been going on for a long, long time (remember the mandatory 55 mph speed limit?).  And as long as states are willing to accept federal funding, indeed become dependent on it, such extortion will continue.  Congress is equally complicit; they wrote the law and appropriated the money that the Obama Administration is now holding hostage.

Forcing the states to accommodate the transgender community’s demands over bathrooms is merely the tip of the iceberg here.  Much more is coming.  Until the states “get a spine” and reject federal funds and the policies that come with them, the states can expect to be the target of continued extortion by this lawless administration.

To register for the May 23rd webinar on Executive Power Abuse go to: https://www1.gotomeeting.com/register/104506275.

Lessons in Liberty. On May 16th join us to hear Dr. Jim Davids speak on “Choosing Godly Representatives,” from 7-9pm at the Foundation for American Christian Education.  Attend in person or online.  $10 either way.  Register at http://www.face.net/.

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Copyright ©2016



Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founder’s view of their Constitution. In addition to writing "The Constitution's Week in Review" at www.ConservativeTruth.org, he writes regularly for the Fairfax Free Citizen of Fairfax Virginia. Mr. Porter also teaches at various locations, as well as hosting a weekly radio broadcast ("The Constitution Matters"). The program can also be heard live on the Internet every Friday morning at www.1180WFYL.com. 
Visit Gary Porter's website at http://constitutionleadership.org/