The President of the United States has two roles to fulfill. One of those roles is being the Chief Executive of the United States and operating the day to day business of the country either directly or through his surrogates. Basically nothing happens within the mechanisms of government without the hand of the Chief Executive. The other role is to be the "bad guy," that is, the one who stands up to Congress when they are clearly in the wrong.
Ultimately everyone that works for the government answers to the President, from the janitor who on a daily basis sweeps up the manure spewed from the mouths of those in the halls of Congress to the person that ultimately signs every check the government writes. And that latter point is something that I want to address this week.
Congress has a great power and they often abuse it. Some would say they abuse it every few minutes and as long as they are in session. One of those often abused powers is the ability to, with a declaration written on a piece of paper, proclaim and demand the expenditure of funds from the treasury. Their ability to make law is awesome indeed. Based on current trends, Congress appears to believe that they have the ability to issue a piece of paper demanding funds for anything their little hearts desire.
Whether or not these funds are allowed under the strict and limited functions outlined under our Constitution is another matter entirely. Even though our Constitution is what gives the different branches of government their powers, and even severely restricts said powers, few people really care much about such limitations. All they truly care about is that they are elected to public office and that they get a nice, cushy, tax-payer funded job where they can sit around all day and sound important.
Congress believes that because they scribble their pens across some paper and then have that piece of paper in their grubby little hands that it means the Chief Executive must obey. If he vetoes their piece of paper and they then override that veto they become even bolder. But if the words on that piece of paper violate the limited powers entrusted to our federal government, the Chief Executive still has the upper hand - he or she can simply refuse to issue funds.
Why you ask? How can the president just ignore Congress? Because the Constitution trumps Congress by proclaiming itself the "Supreme Law of the Land." This means that no piece of paper passed by Congress can command the president to undertake an unconstitutional activity. I can cite a myriad of case law that supports this fact too. For example, Norton vs. Shelby County comes to mind right off the top of my head. In that decision the Supreme Court ruled, "An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed."
Even Alexander Hamilton, who during his own political career sought to violate the Constitution at times and rewrite the intent of his fellow founders, admitted to the same thing in Federalist 78 writing, "No legislative act contrary to the Constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above the master; that the representatives of the people are superior to the people; that men, acting by virtue of powers may do not only what their powers do not authorize, but what they forbid. It is not to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. A Constitution is, in fact, and must be regarded by judges as fundamental law. If there should happen to be an irreconcilable variance between the two, the Constitution is to be preferred to the statute."
Congress can pass a law all they want, but if it violates their powers assigned under the Constitution the President is not required to obey it. In fact he is required by his oath of office to not obey it.
The problem is that we do not have someone in the White House that will be the "bad guy" this country so desperately needs and who will tell Congress no at every turn that such a proclamation is necessary. We do not have that "bad guy" who will tell Congress the proper place to shove their unconstitutional requests for him or her to spend the tax payer's money. And come November, sad to say, we will most likely still not have the "bad guy" in the White House that this country desperately needs. What we have today, and have had for many years and will continue to have, is just the latest in a long line of people in the White House who have either been willing accomplices of a renegade Congress or who have been too scared of what will happen when said renegade Congress goes out and whips up their constituency into a frenzy over some unconstitutional spending or another.
We are not talking about a President standing in the way of legitimate government expenditures, mind you. If Congress wants to build a post road (the authority for which is found under Article I, Section 8), constructs legislation to build that post road, passes said legislation, then the President vetoes the legislation only to have Congress override that veto, ultimately the President has no leg to stand on should he or she not fund it. What we are talking about here is when Congress steps outside of its powers assigned to it in the Constitution.
Say that Congress wants to force workers to pay into a fund out of which money will then be dispersed to other people over a certain age for what we will call "retirement". There is no authority for this under the Constitution. Squint all you like. You will not find it.
The President has every right to refuse to fund this program regardless of what Congress says. I would go even further and say the President has a duty to not fund this program. Congress can kick. Congress can scream. They can even go running to the Supreme Court and demand the President be forced to fund the program. But they can do nothing of real importance.
The Supreme Court, perhaps because there are is a majority of justices on it who are not qualified to be there, may even side with Congress, finding some wording in the Constitution that does not exist to justify the program or they might just simply claim without evidence that such a program actually is constitutional. But they cannot do anything. And under our Constitution they cannot force the president to fund it.
The Chief Executive controls the purse because he controls the person who writes the checks.
Now, I understand that some of you believe, probably because you are benefiting from one program or another created by Congress to put money from the tax payers into your own pockets, that all that I have said is all wrong. You might believe that just because Congress passes a law that it must automatically be accepted as valid and funded regardless of whether there is anything at all in our Constitution that allows for such an act.
So let's get a little crazy and look at an extreme example of where this could lead.
Congress decides tomorrow that the Jews are evil and the reason why America is not in as good of shape as Congress believes it should be. Maybe a lot of Americans agree with them too. So they craft legislation that calls for all Jews to be rounded up, placed onto trains and shipped to "resorts" where they will be "processed". By "resorts" I mean concentration camps. And by "processed" I mean killed for their crimes against the people.
Would you say that just because Congress passed such a law that it should be followed? Would you even think about saying that the president should execute (in more ways than one) this law that Congress passed but has no authority to have passed? I sincerely hope that the answer from you on this topic is no.
You laugh? You claim that this is far too outrageous? Oh ye of little faith in power hungry bureaucrats! This sort of thing has already happened in the past and you know it.
So I have a question to those of you with enough brain cells that are still functional and who understand that the answer to the previous question is "no". Why, if this unconstitutional act should not be followed, should others be? Just because you benefit from them?
The Nazis benefited from killing the Jews too. Just remember that.
Copyright ©2008 J.J. Jackson