Understanding Our Constitution - Part 32 - Presidential Signing Statements

A signing statement is issued by the President on the signing of a bill into law. These statements are divided into three categories:

Constitutional: The statement may declare that the legislation would be unconstitutional in certain applications. It may interpret the legislation in a manner that would “save” it from unconstitutionality. It may state flatly that the legislation is unconstitutional. These statements could include a declaration as to how - or whether - this legislation will be enforced.

Political: The statement guides and directs Executive officials in interpreting or administering a statute. The President has the constitutional authority to supervise and control the activity of subordinate officials within the Executive Branch.

Rhetorical: The statement is used to explain to the public and interested constituents what the President understands to be the likely effects of the bill and how it adheres to the Administration's view or programs.

The phrase ”signing statement” usually refers to statements that tell executive agencies to apply the law according to the president’s interpretation of the Constitution.

James Pfiffner, a political scientist wrote:

“The president is the head of the executive branch, and in general, executive branch officials are bound to follow his direction. In cases in which a subordinate is ordered to do something illegal, the person can legitimately refuse the order. But if the public administrator is ordered to refuse to execute the law...because the president has determined that the law infringes on his own interpretation of his constitutional authority, the public administrator faces an ethical dilemma.”

No Constitutional provision or federal statute explicitly permits or prohibits signing statements. Article I, Section 7 empowers the president to veto a law in its entirety or to sign it. Article II, Section 3 requires that the executive “take care that the laws be faithfully executed”.

Signing Statements do not appear to have legal force by themselves and are indicative of the way the president intends to implement a law. This may make them more significant than the text of the law itself.

Four Supreme Court Justices (Scalia, O’Connor, Kennedy,& Souter) joined in the opinion that the Constitution provides the President with the authority to decline to enforce a clearly unconstitutional law. Freytag v. C.I.R., 111 S. Ct. 2631. 2653 (1991).

During the administration of President George W. Bush, critics charged that he used signing statements extensively to modify the meanings of statutes. President Bush used signing statements in an apparent attempt to nullify legal restrictions on his actions. Some opponents have said that he was using signing statements as a line-item veto which the Supreme Court has previously ruled as unconstitutional. Clinton v. City of New York (1998).

Previous administrations have made use of signing statements to dispute the validity of a new law or its individual components. George H.W. Bush challenged 232 statutes through signing statements during four years in office and Clinton challenged 140 over eight years. George W. Bush’s signing statements contain at least 1,100 challenges.

In July of 2006, a task force of the American Bar Association stated that the use of signing statements to modify the meaning of duly enacted laws serves to “undermine the rule of law and our constitutional system of separation of powers”.

The Obama administration is continuing the practice of presidential signing statements.

Understanding Our Constitution - Part 31 - Constitutionality

The United States Constitution is a “rigid constitution” which means that it can only be modified through processes that the constitution itself specifies.

Constitutionality is the condition of acting in accordance with a constitution. Laws, procedures, and acts must adhere to what is set forth in this constitution. All laws are considered constitutional until challenged and declared otherwise.

When the proper court determines that a legislative act or law conflicts with the constitution, it finds that law unconstitutional and declares it void in whole or in part. This is called judicial review.

Some examples of unconstitutional actions can be:

A politician who abuses or acts outside of the powers of his office.

A legislature that passes a law that contradicts the constitution, without first going through the proper constitutional amendment process.

Any person acting on behalf of the government who tries to prevent an individual from exercising individual rights which the constitution protects.

In some instances, part of a statute may be unconstitutional. If the invalid part can be removed, the constitutional portion continues to stand. The portion that is declared void is said to be “struck down”. If the unconstitutional portion can not be removed, the whole statute fails. The entire statute is then struck from the statute books.

When a statute is found to be unconstitutional, all rights, contracts, or duties that depend on it are void. No one can be punished for refusing to obey the law once it is declared unconstitutional. But, while the law remains constitutional, a person disobeying it - is subject to punishment. When legislation is being judicially questioned, a stay of execution is usually given.

The legal encyclopedia American Jurisprudence says the following in regard to constitutionality:

The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed...An unconstitutional law is void. (16. Jur. 2d, Sec.178)

Understanding Our Constitution - Part 30 - Lobbying

Lobbying is the practice of influencing decisions to be made by the government - in groups or individually. All attempts to influence legislators and officials are included. Their tactics may include such high pressure techniques as bribery, threats of electoral retaliation, and mass mailings.

The term originated in the 19th Century - where individuals tried to influence officials - generally in the lobby outside a legislative chamber.

It may be a direct appeal to a decision maker or it may be indirect such as influencing public opinion. It may include oral or written efforts of persuasion, campaign contributions, public-relations campaigns, research supplied to legislative committees, and formal testimony before committees.

Lobbyists are often hired by groups or organizations with a particular interest in convincing members of Congress to pass or defeat legislation. A lobbyist may be a member of a special-interest group, a professional willing to represent any group, or a private individual.

Often former members of Congress stay in Washington as lobbyists, making use of their experience. They often find though, that over time, their influence as lobbyists diminishes.

In the US, the Federal Regulation of Lobbying Act (1946) requires that lobbyists and the groups they represent register and report contributions and expenditures.

Since 1995, under the federal Lobbying Disclosure Act (2 U.S.C. § 1601-1612), most people who are paid to make direct “lobbying contracts” with officials of the federal government - are required to register and file reports twice a year. If lobbyists neglect to register, they are susceptible to criminal charges and harsh penalties.

Many loopholes remain in these regulations. But, Congress has been reluctant to place too many limitations on lobbying as this could restrict the constitutional rights of free speech and freedom to petition.

President Bush signed into law, in September 2007, the Honest Leadership and Open Government Act of 2007 - an amendment to the 1995 legislation. Shortly afterwards, many lobbyists withdrew their Lobbyist status and went to work for companies - as “strategic advisors”, “policy advisors”, or “government relations consultants”. These “stealth lobbyists” do not have to adhere to this legislation.

Rep. Jeff Flake (R-AZ6) has submitted a number of House Resolutions concerning the possible misuse of lobbying tactics - H Res 189, 212, 228, 265, 286, 295, 312, 425, and 667. As an example, I am providing a link to the last one. It’s worth reading the full text:

http://www.govtrack.us/congress/bill.xpd?bill=hr111-667

Currently, there are over 17,000 federal lobbyists based in Washington, DC.

Understanding Our Constitution - Part 29 - Defending Our Constitution

The Framers of the Constitution created the three separate but equal branches of the government so that each branch could “check” each other.

Supreme Court justices are obligated to void unconstitutional laws.

Legislators are obligated to vote against unconstitutional bills, repeal unconstitutional laws, and approve judicial nominees for the federal bench.

The president is obligated to veto unconstitutional bills, refrain from acting on unconstitutional laws signed by previous presidents, and nominate judicial candidates who are committed to the Constitution.

Until recently, most Americans were so accustomed to our Bill of Rights and other legal limitations on political power that they did not fully appreciate how fragile our constitutional system really is.

The Constitution is incapable of defending itself. There is no constitutional “police force” that stops offenders or brings them to justice. The primary “check” of the citizenry on the unconstitutional conduct of government officials is the electoral process. Unfortunately, between elections, in a short period of time, people can lose their liberty, their businesses, and their personal possessions.

As we have witnessed, there are no assurances that the minority party will not be abused by the majority party that holds the reins of power. There are no assurances that threats, bullying tactics, or bribes are not used.

The Framers of the Constitution tried to discourage the election of corrupt officials by a series of requirements and procedural hurdles. But, once in office, the officials are essentially “on their honor” with respect to their constitutional responsibilities. Again, we have seen how power corrupts.

The Constitution required the President to take the Oath of Office in public - explicitly binding himself to the Constitution. This is supposed to provide some assurance that the executive power will stay within the framework established by the Constitution.

A.V. Dicey, a 19th century British Constitutional theorist, in “Dicey Law of the Constitution”, identified the three principles which together establish the rule of law:

(1) the absolute supremacy or predominancy of regular law as opposed to the influence of arbitrary power
(2) equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts
(3) the law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts.

Dereliction of duty, although usually referring to a specific military offense, is also used to describe an elected official failing to perform his or her elected duty, not following the rule of law, or not adhering to the Constitution. It is a failure, through negligence or deliberate action, to not perform one’s legal or moral duty to a reasonable expectation.

Under military law, a person convicted of dereliction of duty might be given a dishonorable or bad behavior discharge. An elected official accused of dereliction of duty may not be re-elected or may be impeached.

Defense of the Constitution lies with each citizen - taking responsibility and electing those officials who will best serve the Constitution. In extreme cases, if deemed necessary - it may require taking action, to find an official guilty of dereliction of duty.

Understanding Our Constitution - Part 28 - A Filibuster

A fililbuster, or “speaking or talking out a bill” is a form of obstruction in a legislative body - where an attempt is made to delay or entirely prevent a vote by extending a debate on that proposal.

The term filibuster was first used in 1851, It was derived from the Spanish “filibustero” meaning pirate or freebooter - as filibustering was seen as a tactic for pirating or hijacking debate.

The tactic is usually employed by a group that does not have enough votes to defeat a bill. Filibustering is possible in the US Senate because Senate rules allow unlimited debate on a bill. The speech does not have to be related to the bill under discussion.

Three-fifths of the Senate - 60 Senators - can bring debate to a close by invoking cloture. Holding around the clock sessions - to tire the speakers - is another tactic used to defeat filibusters. A filibuster can be defeated by the majority if they leave the debated issue on the agenda indefinitely, without adding anything else.

According to the Supreme Court ruling in US v Ballin (1892), changes to Senate rules can be achieved by a simple majority:

“The constitution empowers each house to determine its rules of proceedings...The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house...”

Currently, Senate rules state that 67 votes are required for future rule changes.

Senate Rule 22 permits filibusters in which actual continuous floor speeches are not required. The Senate Majority Leader may require an actual traditional filibuster if he/she so chooses.

Budget bills are governed under special rules called “reconciliation” which do not allow filibusters. Before 1996, it only applied to bills that would reduce the budget deficit, but is now used for all matters related to budget issues.

Usually proposals for Constitutional Amendments are not filibustered. This is because a two-thirds majority is needed to pass the proposal - which is more that the three-fifths majority needed to invoke cloture. If there are not 60 votes to stop the filibuster, it would be impossible to get the required 67 votes to pass the amendment.

Another favorite device of filibustering senators is simply to absent themselves from the chamber. If the minority party does not answer quorum calls, then the majority has to stay near the chamber at all times, day or night, to establish a quorum and keep business moving.

The Senate majority leader may order the Sergeant-at-Arms to arrest absent senators. They would then go to the senators' offices and homes and accompany them to the chamber. On some occasions, they have even physically carried senators in the door.

Even if a filibuster attempt is unsuccessful, the process takes valuable floor time. In recent years, when a filibuster is threatened and attempts to achieve cloture have failed, the majority has preferred to avoid filibusters by moving to other business.

Understanding Our Constitution - Part 27 - Mandamus

A Writ of Mandamus is a command from a superior court to some person, corporation or inferior court requiring them to do some particular thing relating to their office and duty.

Mandamus may be a command to do or to not do a particular administrative action. It is supplemented by legal rights that must be both judicially enforceable and legally protected. A person is considered “aggrieved” when he is denied a legal right by someone who legally must do something and abstains from doing it.

The applicant pleading for the writ of mandamus to be enforced should be able to show that he has a legal right to compel the respondent to do or refrain from doing the specific act. It must be a public duty that is absolutely necessary and not discretionary.

The purpose of mandamus is to correct defects of justice. It lies in cases where there is a specific right but no specific legal remedy for enforcing that right. There may be an alternative remedy but the option is less convenient, beneficial, or effectual. At the discretion of the court, the grant of mandamus is, therefore, a more reasonable remedy.

Traditionally, writs of mandamus have been rare but are being issued in a growing number of situations.

There are three kinds of mandamus:

Alternative Mandamus : A mandamus issued upon the first application for relief - commanding the defendant either to perform the act demanded or to appear before the court at a specified time to show cause for not performing it.

Peremptory Mandamus : An absolute and unqualified command to the defendant to do the act in question. It is issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandamus.

Continuing Mandamus : A Mandamus asking to prevent a miscarriage of justice - issued to a lower authority to perform its tasks expeditiously for an unspecified period of time.

Understanding Our Constitution - Part 26 - Habeas Corpus

Habeas corpus (You have the body) is a legal action, or writ, through which a person, or that of another person, can seek relief from unlawful detention. It protects individuals from harming themselves or from being harmed by the judicial system.

The US Constitution specifically included this English common law procedure in the Suspension Clause, located in Article One, Section 9:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.

Habeas corpus serves as an important check on state courts respect of federal constitutional rights. The writ is the “fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action” Harris v. Nelson. 394 US 286, 290-91 (1969).

A writ of habeas corpus mandates than an inmate be brought to court so it can be determined whether or not that person is imprisoned lawfully or should be released from custody. A petition is filed with a court objecting to a detention or imprisonment. The petition must show that a legal or factual error occurred.

The Presidential Military Order (November 13, 2001) gave the President the power to detain suspects, suspected of connection to terrorists or terrorism as an unlawful combatant. A person could be held indefinitely without charges being filed against him, without a court hearing, and without entitlement of a legal consultant.

On October 17, 2006, President Bush signed into law the Military Commission Act of 2006 (MCA). This bill removed habeas corpus for any person determined to be an “unlawful enemy combatant” engaged in or having supported hostilities against the United States.

“...no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” §1005(e)(1), 119 State. 2742.

One day after being sworn in as President, on January 21, 2009, President Obama issued an executive order regarding the Guantanamo Bay Naval Base and the individuals held there. This order asserted that “(they) have the constitutional privilege of the writ of habeas corpus”. (An executive order is a procedural order made by the President to those in the executive branch. It does not go through the legislative process.)

Understanding Our Constitution - Part 25 - Military Tribunals - Supreme Court Decisions: Ex Parte Quirin and Hamdan Vs. Rumsfeld

EX PARTE QUIRIN

Ex Parte Quirin, 317 US 1 (1942) is a Supreme Court case that upheld the jurisdiction of a United States military tribunal. It has been cited as a precedent for a trial by military commission of any unlawful combatant against the US.

President Franklin Roosevelt ordered miliary tribunals for eight German prisoners accused of planning sabotage in the United States. His decision was challenged but upheld in Quirin:

“...the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful....”

In his draft opinion, Justice Jackson grants sweeping powers to the President. He concludes that (1) the President has the inherent authority to create military tribunals, (2) this authority could not be regulated by Congress, and (3) this power was by virtue of the President’s power as Commander in Chief.

He questioned the Court’s ability to review the President’s actions as well. He felt that dealing with enemy prisoners of war was a foreign policy issue that touched upon issues of national security and political questions - wholly out of the province of the judiciary.

HAMDAN VS RUMSFELD

In July 2004, Salim Ahmed Hamdan was charged with conspiracy to commit terrorism. The Bush administration made arrangements to try him before a military commission. Hamdan filed a petition for a writ of habeas corpus, arguing that the military commission convened was illegal and lacked the protections required under the Geneva Conventions and the US Code of Military Justice.

Judge James Robertson of the US District Court OF DC ruled in Hamdan’s favor, finding that the US could not hold a military commission unless it was first shown that the detainee was not a prisoner of war.

On July 15, 2005, the three judge panel of Randolph, Roberts, and Williams, in the US Court of Appeals, reversed this ruling.

On Jun 29, 2006, the Supreme Court, in Hamdan vs Rumsfeld, reversed the ruling of the Court Of Appeals - holding that President Bush did not have the authority to set up the war crimes tribunals and finding the special military commissions illegal under both military justice law and the Geneva Conventions.

Chief Justice Roberts recused himself as he had already ruled as part of the three judge panel.

Justice Breyer wrote in his concurring opinion that the commissions are not necessarily prohibited, as long as Congress approves them:

“...Nothing prevents the President from returning to Congress to seek the authority he believes necessary...Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine - through democratic means - how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.”

Question: As the people do not want the terrorist trial to be in New York, why isn’t President Obama going to Congress to seek the necessary authority to hold it in a military tribunal?

Justices Scalia, Thomas, and Alito wrote dissenting opinions - all asserting that the courts had no jurisdiction in this case. They felt that the military commission was legal.

Thomas stated that Hamdan is an “illegal combatant and therefore not protected by the Geneva convention; that the Geneva convention doesn’t prohibit the special court council proposed; and that the President had authority to set up the special court council proposed.

This issue will probably be revisited in the Courts. The findings of Ex Parte Quirin conflict with that of Hamdan vs Rumsfeld. Arguments citing both findings will probably be used again.

Understanding Our Constitution - Part 24 - US Citizenship

US citizenship is acquired at birth or through naturalization. With few exceptions, those born on US territory or abroad to American parents automatically acquire US citizenship.

Children under 18 become citizens automatically upon the naturalization of one or both parents. As a result of the Child Citizenship Act (2000), minor children adopted abroad by American citizens now automatically become citizens. Previously, the children did not become citizens unless they were naturalized.

The Supreme Court has never explicitly ruled on whether children born in the United States to illegal immigrant parents are entitled to birthright citizenship under the Fourteenth Amendment - although it has generally been assumed that they are.

A birth certificate issued by a US state or territorial government is usually accepted as evidence and proof of citizenship.

In the case of United States vs Wong Kim Ark, 169 US 649 (1898), the Supreme Court ruled that a person, who is born in the United States, and

1) Whose parents, at the time of birth, are subjects of a foreign power
or
2) Whose parents have a permanent domicile and residence in the United States
or
3) Whose parents are there on business and not in any diplomatic or official capacity of the foreign power to which they are subject

becomes, at time of birth, a citizen of the United States - by virtue of the Fourteenth Amendment.

A child, not born in the United States, is automatically granted citizenship in the following cases:

1) Both parents were US citizens at the time of the child’s birth
or
2) At least one parent lived in the United States prior to the child’s birth.

A person’s record of birth abroad, if registered with a US consulate or embassy, is proof of citizenship. They may also apply for a passport or a Certificate of Citizenship to have their citizenship recognized.

Title 8, Chapter 12, Subchapter III, Part I § 1401 defines Nationals and Citizens of United States at birth:

A person not born in the US - born between December 24, 1952 and November 14, 1986 - is a US citizen if all of the following are true:

1) One of the person’s parent’s was a US citizen when the person in question was born
2) The citizen parent lived at least ten years in the United States before the child’s birth
3) A minimum of 5 of those 10 years in the United States were after the citizen parent’s 14th birthday.

In 1986, this was amended to read:

2) ten years changed to: five years
3) minimum of 5 changed to: minimum of 2

I tried to find information as to why this was changed, but was only able to find an indirect relationship between this change and the desire, at that time, to find a way to help non-citizens (legal aliens) qualify for Medicare. If anyone has specific information concerning this change, please let me know.

Although the term “natural born” is not used in this legislation, it is the most current legal definition of a citizen at birth.

The complete legislation can be found at
http://www.law.cornell.edu/uscode/8/1401.html

Understanding Our Constitution - Part 23 - Protocol

Because we do not have a monarchy, most Americans have very little knowledge of “proper behavior” when in contact with a high official or royalty. We are a naturally open, friendly, and informal people.

A person meeting the Queen of England, might walk over and say, “Why, Ma’am, it’s a pleasure to meet you” while holding out his hand for a handshake. The gasp from those who are aware of protocol would by audible and our innocent American would have no idea he had done anything wrong.

Our naivete is balanced by our good intentions, so the “offense” would probably be ignored or looked at with humor.

Protocol is the body of law, customs, and practices governing diplomatic conduct. One of the cardinal rules of protocol has always been: Don’t get too familiar with royalty.

Primary responsibility for protocol lies with the State Department’s Office of the Chief of Protocol. The first full-time protocol officer was appointed in 1916. The office was established in 1928. Since 1961, the Chief of Protocol has been commissioned an Ambassador, requiring the President’s nominee to be confirmed by the Senate.

The Office of the Chief of Protocol keeps files on the customs of each country. Before a presidential trip, the office sends detailed recommendations on how foreign leaders should be approached, addressed and fed (taking into account dietary taboos) and what kinds of gifts they should be given.

The State department warns diplomats that they need to heed customs on kisses, bows, and handshakes. “Failure to abide by tradition may be interpreted as rudeness or a lack of respect for colleagues”.

Pamela Eyring, of the Protocol School of Washington, says it is not protocol for heads of state to bow to each other. But, American leaders in the past have done so. President Eisenhower bowed to both Pope John XXIII and Charles De Gaulle. President Nixon bowed to Hirohito.

Experts on protocol state that President Obama increased his error by not only bowing to Japanese Emperor Akihito, but also combining it with a handshake - a breach of Japanese custom.

Although the federal government pays a staff of dozens to instruct chief executives on how to deal with foreign leaders, presidents often follow their instincts - sometimes with embarrassing results.

His bowing to the Saudi King was perceived as not only being deferential - but also submissive - and served to increase the ire of the American public.

Understanding Our Constitution - Part 22 - Treason, the Only Crime Defined in the Constitution

The crime of treason covers some of the more serious acts of disloyalty to one’s nation. A person who commits treason is known as a traitor.

Article III, Section 3 of the US Constitution defines treason in the United States:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have the power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

“Aid and comfort” refers to any act that shows a betrayal of allegiance - such as furnishing enemies with arms, troops, transportation, shelter, or classified information.

“Attainder” is a term relating to descendants not inheriting property etc. from an attainted criminal. “Corruption of Blood” is the consequences of Attainder. The Constitution states that the only one who can lose property is the convicted criminal.

As in any other criminal trial in the United States, a defendant charged with treason is presumed innocent until proved guilty beyond a reasonable doubt. Treason may be proved by a voluntary confession in open court or by evidence that the defendant committed an overt act of treason. Each overt act requires two witnesses. Treason will not stand, if this is not satisfied.

General Benedict Arnold has become a symbol of treason, when he unsuccessfully schemed to surrender the army at West Point to the British - fleeing to the British after his plot was discovered. His name is synonymous with betrayal.

Two well-known radio personalities in World War II, Tokyo Rose and Axis Sally were both convicted of treason - but Tokyo Rose was pardoned by President Gerald Ford when it was revealed she was a double agent.

The Treason Clause applies only to disloyal acts committed during times of war. Acts of disloyalty during peacetime are not considered treasonous under the Constitution.

An act of espionage committed on behalf of an ally does not constitute treason. Julius and Ethel Rosenberg were convicted of espionage for helping the Soviet Union steal atomic secrets during World War II. But, as the Soviet Union was an ally during that war, it was not considered treason.

On October 11, 2006, a federal grand jury issued the first indictment for treason against the United States since 1952. Adam Yahiye Gadahn (born Adam Pearlman) was charged for videos in which he spoke in support of Al-Qaeda. He was indicted based on the testimony of an FBI agent - for aiding an enemy of the United States.

Before this indictment, on May 26, 2004, US Attorney General John Ashrcroft and FBI Director Robert Mueller announced that reports indicated that Gadahn was one of seven Al-Qaeda members who were planning terrorist actions.

The United States Code at 18 § U.S.C. 2381 states

“whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000, and shall be incapable of holding any office under the United States.”

Understanding Our Constitution - Part 21 - The CIA

The Central Intelligence Agency (CIA), contrary to popular belief, is not part of the Executive Branch and does not fall under the jurisdiction of any of its departments. It is an independent, civil organization.

After World War II, President Truman recognized the need for a centralized intelligence organization. He signed the National Security Act in 1947 establishing the CIA. It is the successor of the Office of Strategic Services (OSS) formed during the war to coordinate espionage activities between the branches of the military.

It’s main function is to coordinate, evaluate, and disperse intelligence affecting national security. It has sole jurisdiction in the investigation of foreign entities. CIA analysts only report the information and do not make policy recommendations.

The CIA is not a law enforcement agency and has “no police or law enforcement functions, either at home or abroad”. The Director of the CIA is nominated by the President with the advice and consent of the Senate. The US Congress has had oversight responsibility since it was formed - but the 1980 Intelligence Oversight Act officially charged the Congress with authorizing the programs.

Because the CIA is not a government agency and its function is to compile information solely on foreign agents, the CIA, in its investigations, does not have to adhere to the Bill of Rights and other rights specified in the US Constitution. These designated rights are only for US Citizens. Therefore, the CIA can use any methods to obtain information - although International Law may apply.

The CIA is separated into four basic components: The National Clandestine Service, the Directorate of Intelligence, the Directorate of Science & Technology, and the Directorate of Support.

An issue of national security concern is identified and a way to collect the information is determined. After the information is collected, intelligence analysts pull together all the relevant information and assess what is happening, why it is happening, what might occur next, and what it means for US interests. This assessment is always free of any political bias and, after analysis, is provided to the appropriate Executive department.

Should, in an investigation, it is discovered that an American citizen appears to be involved in an activity against the US - such as terrorism, this information must be forwarded to the appropriate department in the Executive Branch. The rights of the US citizen immediately “kicks in”. The CIA is not authorized to investigate this individual.

Depending on the type of activity, this discovery would probably be sent to one or more of these agencies: the Department of Justice, Department of Defense, the State Department, or the Department of Homeland Security. Because it is a US citizen, all rights designated in the Constitution and procedural due process (if placed under arrest) must be adhered to.

The Mission Statement of the CIA:

We are the nation’s first line of defense. We accomplish what others cannot accomplish and go where others cannot go. We carry out our mission by:

Collecting information that reveals the plans, intentions and capabilities of our adversaries and provides the basis for decision and action.

Producing timely analysis that provides insight, warning and opportunity to the President and decision-makers charged with protecting and advancing America’s interests.

Conducting covert action at the direction of the President to preempt threats or achieve US policy objectives.

Understanding Our Constitution - Part 20 - The FBI - An Agency of the Department of Justice

While the function of the Legislative Branch is to write laws, the enforcement of these laws falls to the Executive Branch.

Officially coming into existence with an Act ratified in July 1, 1870, the Department of Justice (DOJ) was given authority to handle the legal business of the United States. The Act gave the DOJ control over all criminal prosecutions and civil suits - along with control over federal law enforcement.

The DOJ Mission Statement:

To enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.

The Federal Bureau of Investigation (FBI) is the investigative arm of the US Department of Justice. Its investigative authority can be found in Title 28, Section 533 of the US Code. There are other statutes such as the Congressional Assassination, Kidnapping, and Assault Act (Title 18, US Code Section 351) which gives the FBI responsibility to investigate specific crimes.

The Mission of the FBI:

Protect and defend the United States against terrorist and foreign intelligence threats, to uphold and enforce the criminal laws of the United States, and to provide leadership and criminal justice services to federal, state, municipal, and international agencies and partners; and to perform these responsibilities in a manner that is responsive to the needs of the public and is faithful to the Constitution of the United States.

The FBI serves as both a criminal investigative body and an internal intelligence agency. The FBI has jurisdiction over more than 200 categories of federal crime. Its motto is “Fidelity, Bravery, Integrity” corresponding to the FBI initials.

When President John F. Kennedy was shot and killed, the jurisdiction fell to the local police departments. President Lyndon B. Johnson directed the FBI to take over the investigation. To ensure there would be no more confusion as to jurisdiction, Congress passed a law that put investigations of deaths of federal officials within FBI jurisdiction.

The FBI is headed by a Director who is appointed by the President and confirmed by the Senate. In reaction to the 48-year term of J. Edgar Hoover, Congress, on October 15, 1976 passed Public Law 94-503, which limits the term of each FBI Director to ten years.

The current top investigative priorities of the FBI are:

1) Protect from terrorist attack
2) Protect against foreign intelligence operations and espionage
3) Protect against high-technology crimes and cyber-based attacks
4) Combat public corruption
5) Protect civil rights
6) Combat organized crime
7) Combat major white-collar crime
8) Combat significant violent crime
9) Upgrade technology to improve performance of the FBI’s mission

The USA Patriot Act increased the powers allotted to the FBI, especially in wiretapping and monitoring of Internet activity. The “sneak and peek” provision, granting the FBI powers to search a house while the residents are away, and not requiring them to notify the residents for several weeks afterwards, is one of the most controversial of the provisions. The FBI can also inquire into the library records of those who are suspected of terrorism.

Understanding Our Constitution - Part 19 - Checks and Balances

This article should have been one of the first written. I apologize for this oversight.

James Madison was probably the strongest proponent of the concept of checks and balances. He wrote in the Federalist Papers:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty is this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

Madison said that checks and balances were indispensable as it was necessary to check “vice with vice, interest with interest, power with power, to arrive at a balanced or 'mixed' government”.

Checks and balances on power begin with the assumption that any person might abuse power and that any good leader might turn bad. Therefore, measures are established to guarantee that people who could be effected by decisions have input in the decision, can veto the decision, and have legal protection from injury as a result of the decision.

The Constitution divided the powers and responsibilities of the federal government among three branches and also between the two houses of the Congress. Each part of the government provides a check and balance on the ambition of the others, preventing any one part from becoming too powerful or autocratic.

Checks and balances encourage cooperation between branches as well as debate on controversial policy issues. To enact a federal law, the Senate and House of Representatives must each vote to pass the law. In this way, each house can check each other.

Even if the two houses agree, the President must sign the law. If he chooses to veto the law, it can still be enacted if two-thirds of both houses vote to override the veto. Under this arrangement, both Congress and the President can check each other. The Supreme Court may declare acts of Congress unconstitutional, but new legislation can reverse Court decisions.

The President serves as commander in chief of the armed forces, but Congress appropriates the funds for the military and votes to declare war. The Senate must ratify any peace treaties.

The President nominates federal officials, but the Senate must confirm those nominations. The House votes to impeach federal officials and then the Senate sits as a court to convict or acquit them.

Checks and balances are important for all social institutions including religious institutions, corporations, and partnerships. In all, there is an opportunity for one person to use their power at the expense of another.

One of the most visible problems is the growth of corporate wealth and its impact on government policy - gradually removing power from the people and placing it in control of an oligarchy (control by a few). The other side of the coin, is where the government has too much control over these corporations - which is now occurring, with the “government takeovers”.

Understanding Our Constitution - Part 18 - Due Process of Law

The Fifth Amendment is the first of four amendments (V-VIII) that protects an accused person. Due process of law is the principle that the government must respect all of the legal rights that are owed to a person. Government must adhere to the law of the land and protect individuals from the state.

Due process restrains all branches of the government. If a person is deprived of liberty by a process that conflicts with the Constitution, then the Due Process Clause normally requires restoration of that person’s liberty.

The Fifth Amendment, ratified in 1791, only applies to the actions of the federal government. Section I of the Fourteenth Amendment, ratified in 1868, is almost the same exact phrase but is expressly applied to the states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Statutes, regulations, and enforcement actions must ensure that no one is deprived of life, liberty, or property, without a fair opportunity to have an effect on the judgment or result. He/she is entitled to adequate notice, a hearing, and a neutral judge.

Procedural due process requires that state and federal governments follow certain procedures in criminal and civil matters.

The Bill of Rights contains provisions that are central to procedural due process: freedom from unreasonable searches and seizures, freedom from double jeopardy (tried more than once for the same crime), and freedom from self-incrimination (testifying against oneself).

A person has a right to a speedy and public trial by an impartial jury, right to be told of the crime being charged, right to cross-examine witnesses, and the right to be represented by an attorney. A person has freedom from cruel and unusual punishment and has the right to demand the state prove any charges beyond a reasonable doubt.

A Miranda warning, mandated by the 1966 Supreme Court, is given by police to criminal suspects before they are interrogated. An incriminating statement will not be considered admissible evidence unless the suspect was informed of his/her “Miranda rights” and has waived those rights. The Supreme Court ruled, in 2004, that states are allowed to require information such as name, date of birth, and address without providing them with Miranda warnings.

American English developed the verb Mirandize, meaning “to read the Miranda rights” to a suspect (when the suspect is arrested):

A person has the right to remain silent, must understand that anything said may be used against that person in court, has the right to consult with an attorney and have that attorney present during questioning, and if an indigent, be provided with an attorney, at no cost.

Under the Uniform Code of Military Justice, Article 31[3] provides for the right against self-incrimination. Subjects under Army jurisdiction must first be given Form 3881 (PDF) which informs them of the charges and their rights, and sign it. The US Navy & Marine Corps require that all arrested personnel be read the “rights of the accused” and must sign a form waiving those rights if they so desire.

The Fifth Amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, EXCEPT in cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger...

In other words, a war situation - or where there is public danger - is an exclusion to this amendment. A terrorist who is conducting war against the United States and/or is placing the citizenry in danger has no protected rights. All such rights are solely for US citizens - as defined in the Fourteenth Amendment.

Beginning in 2009, some detainees captured in Afghanistan have been read their Miranda rights by the FBI. But, the Justice Department states that “There has been no policy change nor blanket instruction for FBI agents to Mirandize detainees overseas. While there have been specific cases in which FBI agents have Mirandized detainees overseas in order to preserve the quality of evidence obtained, ... there has been no overall policy change with respect to detainees.”

Understanding Our Constitution - Part 17 - Separation of Church and State

“The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe for centuries.” James Madison

Our founding fathers knew the cost that often occurred when a nation state was ruled by a religious group. The Puritans and Quakers came to the New World to break away from the Church of England. The church had strict rule over the state. Any act against it was considered treason.

They had observed what had occurred in the Spanish Inquisition, which started in 1478, where the Catholic Church tried people as heretics.

Within their own borders, there were the Salem Witch trials (Feb. 1692 - May 1693). These trials actually occurred in a number of municipalities in Massachusetts. Basically, religious fanatics took over the court systems.

The Establishment Clause of the First Amendment prohibits the establishment of a national religion by the Congress or the preference of one religion over another, non-religion over religion, or religion over non-religion.

“Congress shall make no law respecting an establishment of religion, or prohibiting the exercise thereof.”

Many people harbor the misconception that the statement, “separation of church and state” occurs in the Constitution.

The amendment places no restriction on religions except that a religious denomination can not become a state religion. No individual can be prosecuted for his religious beliefs. Church’s stay out of the state’s business and the state stays out of the church’s business.

Catholicism and Islam both hold that there should be no separation of Church and State. The Catholic Church’s 1983 Canon Law proclaims that “Christ’s faithful are to strive to secure that in the civil society the laws which regulate the formation of the young also provide a religious and moral education in the schools that is in accord with the conscience of the parents"- in other words, that their religious dictates should be taught in the schools. Islam holds that all political life must exist within Islamic law.

The Supreme Court has consistently ruled that religious beliefs should not be allowed in STATE institutions. In 1962, it banned from public schools all public prayers and religious readings done for religious purposes. The important phrase in this ruling is “done for religious purposes”.

Generally, a majority of voters in America favor prayer in schools. But the Supreme Court has interpreted the Establishment Clause as giving minority religions (or those with no religious beliefs) protection against having a majority religion forced on them by the state. Again, this only holds for official state institutions - such as schools.

Voluntary prayer meetings at the Department of Justice, voluntary prayer at meals in US armed forces, inclusion of the (optional) phrase “so help me God” in the oaths of many elected officials - have been held to not violate the First Amendment as they are not MANDATORY - an individual can choose to not participate

Expression of religious beliefs, (Christmas trees, nativity scenes, singing Christmas carols) is not banned - as this falls within the realm of free exercise of religion.

My Personal Opinion: I’m Jewish and love the Christmas holiday season. I enjoy the Christmas trees, lights, music, and decorations. I am not “offended” by a nativity scene. Christmas is celebrating the birth of Christ, so I see nothing wrong in providing a depiction of his birth.

I will digress for a minute: Religious tolerance is an inherent aspect of Judaism. We do not “solicit business” nor is evangelism allowed. Although the name belies it, “Jews for Jesus” is not a Jewish organization - as its main goal is to convert Jews over to Christianity.

Working to convert someone to a different religion - whether non-Jewish to Jewish or Jewish to non-Jewish is expressly forbidden in Judaism. Conversion to Judaism is, of course, allowed but should only be initiated through a person's "inner voice" and not through that of someone outside himself.

Christmas trees and decorations in a shopping center are allowed as it is a public, not state, building. Those who do not like this, do not have to go to this shopping center.

As atheists and agnostics do not recognize this holiday, they will have no reason to shop for gifts anyway. The shopping center may lose these customers (probably only during the holiday season) - who represent a minority of the population.

I would suggest that those who find these symbols offensive should stock up on food, supplies etc. before Thanksgiving - as that is the date that most stores choose to start decorating for this National Holiday!

Understanding Our Constitution - Part 16 - The Great Seal of the United States

The Great Seal of the United States, the national emblem, is used to authenticate certain documents issued by the United States government. It is often said to be the “coat of arms” of the United States.

The Seal can only be affixed by an officer of the Department of State, under authority of the Secretary of State. Documents which require the seal include treaty ratifications, international agreements, appointments of ambassadors and civil officers, and communications from the President to heads of foreign governments.

It is officially used on documents such as United States passports, military insignia, embassy placards, and various flags.

Since 1935, both sides of the Great Seal appear on the reverse of the one-dollar bill.

A 1782 resolution adopted the seal blazons (the formal description of a coat of arms or flag).

On the obverse (front) side, in the center, is a bald eagle with its wings outstretched. A shield covers the eagle’s breast. The shield is supported solely by the eagle as a symbol that Americans rely on their own virtue. The red and white stripes of the shield represents the states united under and supporting the blue, which represents the President and Congress.

The eagle holds a bundle of 13 arrows in its left talon (referring to the 13 original states) and an olive branch in its right talon - together symbolizing that the United States “has a strong desire for peace but will always be ready for war”. The eagle has its head turned toward the olive branch, to symbolize a preference for peace.

Over its head there appears a “glory” (like a halo) with 13 mullets (stars with straight-sided rays) on a blue field.

In its beak, the eagle clutches the motto, “E Pluribus Unum” (Out of Many, One). It has come to suggest that out of many peoples, races, religions, and ancestries, a single people and nation has emerged - illustrating the concept of a “melting pot”.

E Pluribus Unum was the de facto motto of the United States until 1956 when Congress passed an act (H.J. Resolution 396) adopting “In God We Trust” as the official motto. Two years before, on Flag Day, June 14, 1954, President Eisenhower signed a bill adding “under God” to the Pledge of Allegiance.
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The image on the reverse is described as “A pyramid unfinished. In the zenith an eye in a triangle, surrounded by a glory, proper”.

The pyramid is shown consisting of 13 layers of block to refer to the 13 original states. It is unfinished - representing that the nation will be growing. Its base is inscribed with the date MDCCLXXVI (1776) in Roman Numerals.

Where the top of the pyramid should be, the Eye of Providence (the all-seeing eye) watches over it. It is sometimes interpreted as representing the eye of God watching over humankind.

Two mottos appear, “Annuit Coeptis” signifying that Providence has “approved of our undertakings” or “He favors our undertakings”. “Novus ordo Seclorum” is Latin for “A New Order of the Ages”.

Understanding Our Constitution - Part 15 - The Preamble

The Preamble acts as an introduction - stating the intent of the Constitution. The powers and limitations of the federal government are clarified in the content of the document. Courts have used the preamble as evidence of what our Founding Founders perceived and envisioned for our republic.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish the Constitution for the United States of America .

“We the People” - the first phrase of the preamble - could be considered the most significant of all the phrases. It clarifies the point that the people were creating the Constitution - establishing Popular Sovereignty.

“Of the United States” - reaffirms what had been established in the Articles of Confederation - the name - “The United States of America”. Instead of giving our new nation a unique name, our Founding Fathers established a name that clarifies that our nation is made up of sovereign states that have chosen to unite under one federal government.

“In Order to form a more perfect Union” - is a statement that confirms the main reason for the convention - to create a “more perfect” nation.

The Articles of Confederation focused on states rights and gave little power to the federal government. No means to enforce the powers of the federal government were provided. One vote was allocated to each state in the Congress. Because each state’s priorities were in retaining their rights, there was a great deal of bickering and fighting - resulting in very little getting accomplished in their Congress.

“Establish Justice” - Each state had their own laws and judicial system. Although the Articles established freedom of movement where anyone could pass freely between states, it excluded fugitives from justice. Fugitives were to be extradited to and tried in the state in which the crime was committed.

Posses went after a fugitive and instead of bringing him back to trial would conduct a lynching. Fugitives who managed to escape into another state and avoid a lynching were not always extradited. Punishment in each state didn’t always “fit the crime”.

“Insure domestic Tranquility” - One of the reasons the convention was called was because of Shays Rebellion - where farmers revolted against the government of Massachusetts. People wanted action taken to assure the peace. State militias were allowed and encouraged but, in times of peace, were rarely called to action.

“Provide for the common defence" (actual spelling in the Constitution) - The Articles of Confederation stated that no state could have a standing army or navy. They could not engage in war without permission of the Congress. An army could be raised for common defense of the states, but no such permanent army existed. International politics & possible Indian attack were a cause for concern.

“Promote the general Welfare ” - This is an all-encompassing statement that reaffirms the benefits that a federal government can provide. A strong national government could help assure “justice, tranquility, and defense”.

“And secure the Blessings of Liberty to ourselves” - this was a priority issue for the founders. They had fought long and hard for their independence - to remove themselves from tyranny - & wanted to assure the stability of their nation.

"And our Posterity" - Future generations needed to be guaranteed that they inherited the same liberty and rights as their predecessors.

"Do ordain and establish" - By being ordained, the Constitution is established by decree or law. The term “ordained” is usually used in a religious context. Our founding fathers, recognizing a higher power, chose to use this term rather than “enacted” - that has a legal but no religious connotation.

"The Constitution for the United States of America” - this phrase officially names the document and restates the name of our republic.

Understanding Our Constitution - Part 14 - Executive Privilege

Executive privilege is the power claimed by the President and other members of the executive branch to resist subpoenas by the legislative and judicial branches. It is based on the principle that they cannot legally be forced to disclose their confidential communications - as this would adversely affect the operations or procedures of the executive branch.

The concept of executive privilege is not mentioned explicitly in the Constitution. The Supreme Court ruled it to be an element of the separation of powers doctrine. It also is derived from the supremacy of the Constitutional activity of the executive branch. The Constitution says nothing about secrecy in the executive branch. The phrase, executive privilege, does not exist in the document.

Presidents claim the privilege by arguing that it is a functional necessity: the advice they receive and deliberations will not be candid and truthful if they are subject to scrutiny. Aides won’t be willing to give advice if they know they might be called to testify, under oath.

Once invoked, a presumption of privilege is established, requiring the Prosecutor to make a “sufficient showing” that the “Presidential material” is “essential to the justice of the case”.

The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives. They must consider the question of separation of powers vs. checks and balances.

The most important use of executive privilege occurred during the Watergate crisis. President Nixon refused to turn over tapes made in the Oval Office. A federal appeals court upheld Nixon’s refusal.

In United States v. Nixon (1974), the Supreme Court ruled that President Nixon was required, despite his claim of executive privilege, to give up the tape recordings. The Supreme Court held that grand juries and juries on federal cases are entitled to all the evidence in a criminal case. No one, not even a President, may withhold evidence from the courts.

This case recognized, for the first time, the Presidential claim to executive privilege. But it left the final decision about the validity of the claim to the federal courts.

Understanding Our Constitution - Part 13 - Sovereignty

A “sovereign” is a supreme lawmaking authority while “sovereignty” is the quality of having supreme authority over a territory.

A sovereign power has “absolute sovereignty” if it has the unlimited right to control everything and every kind of activity in its territory. It is not restricted by a constitution, the laws of its predecessors, or by custom. No areas of law or behavior are considered outside its control. You are probably familiar with another name for this - a “dictatorship”.

Our founding fathers were committed to the principle that a government is legitimate only if it rests on “popular sovereignty”. A whole people, rather than a monarch or single individual, serves as the sovereign of a nation. Americans substituted the sovereignty of a person (a king) with a collective sovereign - composed of the people.

Benjamin Franklin expressed this concept when he wrote,

“In free governments, the rulers are the servants and the people their superiors and sovereigns.”

In a republic, the sovereign power is founded in each individual person, not in the collective, as in a democracy.

The key element of sovereignty is that of exclusivity of jurisdiction. When a decision is made by a sovereign entity, it cannot generally be overruled by a higher authority. In the United States, the federal government and each state are considered sovereign.

Conflicts can arise between the federal and state governments (states rights) and between citizens and either the federal or a state government.

“De jure”, or legal, sovereignty is the theoretical right to exercise exclusive control over the populace.
“De facto”, or actual, sovereignty is concerned with whether control in fact exists.

Sovereignty requires not only the legal right to exercise power, but the actual exercise of such power.

“No de jure sovereignty without de facto sovereignty”.

In other words, a government that legally claims sovereignty but is unable to enforce it, does not have sovereignty.

In a democracy, “majority rules”. In a republic, no majority can deprive a minority of their sovereign rights and powers.

One could argue that when the majority in Congress passed the Stimulus Package - ignoring the wishes of the minority party - they were depriving them of their sovereign rights and powers. A debate was not allowed on the legislation and the minority party was not able to voice their opinion or suggest revisions.

“Sovereign immunity ”, is immunity from being sued in the course of an action the government is empowered to perform. This must be waived to permit suit against the government.

In the case of the Stimulus Package, although I would like to think that the minority party could sue the majority party for depriving their sovereign rights, sovereign immunity could deny this. A Federal Court would probably have to rule on it.

Understanding Our Constitution - Part 12 - Federalism

The United States was initially organized as a confederacy, with the Articles of Confederation as the governing document. Confederations are unions of equal states, with some power being held at the national level. Generally, conflicting interests lead to the break-down of confederations.

When the system proved unsuccessful, it was transformed into a federal system by the Constitution. In a federal system, both the national government and the smaller political states hold significant power.

Initially, the American system leaned toward "Dual Federalism". It holds that the federal government and the state governments are co-equals, each sovereign. The analogy of “layer cake” federalism is often used to describe dual federalism because the powers of the layers of government are distinct (as in a layer cake).

In this theory, the Constitution is interpreted very narrowly. A large group of powers belong to the states, and the federal government is limited to only those powers explicitly listed in the Constitution.

The Great Depression ushered in a change in attitude towards the role of the national government. The United States moved from Dual Federalism to one of "Cooperative Federalism", in which the national and state governments share responsibility for public policies.

In Cooperative Federalism, the national government is supreme over the states. Using the analogy of “marble cake” federalism, cooperative federalism is portrayed as a system with mingled responsibilities and blurred distinctions between the levels of government.

The Constitution does not refer directly to federalism. Advocates of strong national powers generally emphasize the “Supremacy Clause”. In Article VI, three items are listed as the supreme law of the land: the Constitution, laws of the national government, and treaties. However, the national government cannot usurp powers of the states.

Advocates of states’ rights believe that the Tenth Amendment states that the national government has only those powers specifically assigned by the Constitution. They do not believe that our founding fathers wrote the Supremacy Clause to give more power to the federal government.

The powers of the states and federal government are divided into three categories:

Reserved powers are those that have been reserved specifically for the states or are traditionally state powers (police powers, education, licensing, etc.)

Granted powers, are those powers listed in Article 1, Section 8, specifically granted to the Federal government (coin money, raise an army and navy, make treaties, etc.)

Concurrent powers are those held by both the federal and state governments (taxation power, construction of roads, etc.)

Understanding Our Constitution - Part 11 - Eminent Domain

Eminent Domain is the right of a federal, state, or local government to seize private property for the purpose of constructing a public facility. As long as the homeowner is compensated at fair market value, they can seize this property. The most common uses of property taken by Eminent Domain are for public utilities, highways, and railroads. Other uses may be hospitals, schools, parks, or government office buildings.

Eminent domain first became law through the Fifth Amendment:

“No person shall...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The power of the government to take property has always existed in the United States, being an inherent attribute of sovereignty. The Fifth Amendment did not create the right to use the Eminent Domain power, it simply limited it to public use.

“Condemnation” is the term used to describe the formal act of transferring title from its private owner to the government. This should not be confused with the common use of the term - declaring a property unsuitable or uninhabitable. Usually, once a condemnation is filed, the only thing to determine is the amount of compensation for the property.

Eminent Domain may not be exercised unless the legislature has authorized its use by statutes that specify who may use it and for what purposes.

The private owner can challenge it on the grounds that it is not for a public use, has not been authorized by the legislature, or the proper procedures required by law have not been followed.

There are several types of takings which can occur through Eminent Domain:

Complete Taking - all property is appropriated.

Partial Taking - A part of a piece of property (e.g., a strip of land to expand a road) is appropriated. The owner should be compensated both for the value of the strip of land and for any effect that strip has on the value of the remaining property.

Temporary Taking - The property is appropriated for a limited time period. The property owner retains title and is compensated for any losses associated with the taking.

Easements and Rights Of Way - An easement is required over private land (e.g. power lines). The property owner may use the property so long as it doesn’t interfere with the easement.


On June 23, 2006, President Bush issued an Executive Order limiting the use of Eminent Domain - stating that it may not be used

” for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.” (e.g. a Shopping Center)

As Executive Orders only effect those agencies in the Executive Branch and therefore, only land that would be seized by the federal government - sovereign states and local governments are not effected by this order.

Understanding Our Constitution - Part 10 - Executive Orders and Presidential Proclamations

Executive Orders (EO) are regulations issued by the President. They have the force of law. Provided that they do not conflict with federal laws and are within the President’s constitutional powers, federal courts will enforce them just as if they had been enacted by Congress. New legislation can revoke an EO. If the Supreme Court or lower federal courts find that it is unconstitutional, the EO will be nullified or canceled.

Executive Orders are internal orders within the Executive Branch to executive agencies, department heads, and other employees. Failure to comply may result in removal from office. You can think of it as a CEO in a corporation issuing a policy order to his executives and department heads. Thirty days after it is officially published in the Federal Register, an EO becomes law.

Executive Orders are not explicitly permitted in the Constitution, but Article II, Section I provides a grant of “executive power” and in Section 3 states “take Care that the Laws be faithfully executed”.

Critics accuse presidents of using them to make laws without Congressional approval or using them to change the mandates of existing laws.

One of the worst examples of the misuse of an EO, depriving US citizens of their constitutional rights, is Executive Order 9066. Franklin Roosevelt authorized the military to remove people in a military zone (targeted against Japanese-American and German-American citizens). On the West Coast, this paved the way for Japanese-Americans to be placed in internment camps.

A Presidential Proclamation “states a condition, declares a law and requires obedience, recognizes an event or triggers the implementation of a law”.

It carries the same force of law as an EO. The difference between the two is while EO’s are internal orders, proclamations are for those outside government. They are often specifically authorized by congressional statute and are often perceived as ceremonial or symbolic in nature.

Understanding Our Constitution - Part 9 - The Federal Courts

Federal courts deal with only a few types of cases: cases that deal with the constitutionality of a law; cases involving the laws and treaties of the US; Ambassadors and Public Ministers; disputes between two or more states; Admiralty Law; and Bankruptcy.

Due to federalism, both the federal government and each of the state governments have their own court systems. Most judicial cases go through state courts.

The courts do not make the laws. That is the responsibility of Congress. Nor do the courts have the power to enforce the laws. That is the role of the President and the many executive branch departments and agencies.

Article III, Section 1 of the Constitution specifically creates the US Supreme Court and gives Congress the authority to create the lower federal courts. It states that federal judges are to be nominated by the President and confirmed by the Senate. They hold office, during good behavior, typically, for life. Through Congressional impeachment proceedings, federal judges may be removed from office.

Congress has established the 13 US Courts of Appeal, the 94 US District Courts, the US Court of Claims, the US Court of International Trade, and US Bankruptcy Courts. Magistrate Judges handle some District Court matters.

There is at least one District Court in each state, the District of Columbia, and Puerto Rico. Three territories - the Virgin Islands, Guam, and the northern Mariana Islands - also have District Courts.

There are two kinds of courts in the federal court system: the trial court and the appellate court. The trial court’s basic function is to resolve disputes by determining the facts and applying legal principles. The appellate court’s task is to determine whether the law was applied correctly in the trial court.

Within limits set by Congress and the Constitution, the District Courts have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters.

District courts are trial courts. Arguments are presented and the judge makes a ruling based on the Constitution, the Amendments, and Federal Laws related to this issue. The losing side can appeal this decision in a Court of Appeal.

An appellate court does not retry a case. The appellate judge reads the case that was presented in the district court and determines if the judge made the correct decision. The sides can present an argument. The judge has the power to reverse (overturn) the decision made by the district judge. A district judge, whose decisions are reversed often, may end up getting impeached.

If the appellate judge agrees with the decision, the losing side has one more option - to appeal to the Supreme Court. But, the Supreme Court is not obligated to hear the case.

The Supreme Court consists of the Chief Justice of the United States and eight associate justices. At its discretion, and with certain guidelines established by Congress, the Supreme Court, each year, hears a limited number of cases. Cases may begin in the federal or state courts.

Understanding Our Constitution - Part 8 - Primaries and Caucuses: Choosing Your Presidential Candidate

The primary elections are run by state governments while caucuses are run by the political parties. A state primary election usually is an indirect election. Although voting for a particular candidate, voters are actually determining how many delegates to the national convention each candidate will receive from that state.

In addition to delegates chosen, both conventions include “unpledged” delegates. For Republicans, these include top party officials. Democrats have unpledged delegates called “Superdelegates”, who are party leaders and elected officials.

Nearly all states have a binding primary, in which the results of the election legally bind some or all of the delegates to vote for a particular candidate, for a certain number of ballots, or until the candidate releases the delegates. A handful of states practice a non-binding primary.

The main types of primaries are the Caucuses, Closed Primaries, and Open Primaries.

12 states hold Caucuses: Alaska, Colorado, Hawaii, Iowa, Kansas, Louisiana, Maine, Minnesota, Nevada, North Dakota, Washington, and Wyoming.

Each political party decides how they will run their caucus. The caucus is a first step in choosing a candidate. After the caucus, delegates usually go to a state or county convention to vote.

12 states hold Closed Primaries: Connecticut, Delaware, Florida, Kentucky, Maryland, New York, Oklahoma, Oregon, Pennsylvania, South Dakota, Utah, and West Virginia.

In Closed Primaries, people may vote in a party’s primary only if they are registered members of that party. Independents (Non-Partisans) who are not associated with a political party cannot participate.

1 state holds Semi-Closed Primaries: Massachusetts

In a Semi-Closed Primary, registered party members can vote only in their own party’s primary but also allow unaffiliated voters to participate as well.

13 states hold Open Primaries: Alabama, Arkansas, Idaho, Indiana, Michigan, Mississippi, Missouri, Montana, South Carolina, Tennessee, Vermont, Virginia, and Wisconsin.

In an Open Primary, a registered voter may vote in any party primary. When voters do not register with a party before the primary, it is called a "Pick-a-Party" primary because the voter can select which party’s primary he wishes to vote in.

Raiding - where voters of one party cross over, can occur. This allows a party to help choose it’s opposition’s candidate - where they can vote for the weakest candidate.

4 states hold Semi-Open Primaries: Georgia, Illinois, New Hampshire, and Ohio.

In a Semi-Open Primary, a registered voter does not declare which political party’s primary they will vote in. A voter requests a party’s specific ballot.

6 states hold primaries that do not clearly fall into any of the above categories: California, District of Columbia, Nebraska, New Jersey, North Carolina, and Rhode Island.

3 states are unique:

Arizona - Presidential Preference Election: closed to those not registered with a state-recognized party
New Mexico: Republican primary, Democrat Closed Caucus
Texas: Semi-Open Primary and Closed Caucus - voting in the primary is a prerequisite for caucusing.

Early primaries have greater influence in the nomination process, as they can act as a signal to the nation - showing which candidates are popular. Those who perform well early have the advantage of the “bandwagon effect”. Candidates can ignore primaries after the nomination has already been secured and owe less to those states politically.

Many primaries will fall on the same day, forcing candidates to choose where to spend their time and resources. Super Tuesday was created deliberately to increase the influence of the South.

Understanding Our Constitution - Part 7 - Congressional Committees

Our Constitution clearly states the duties and power of the Legislative Branch but no mention is given as to how to accomplish it. The procedures are left to both houses to determine.

Today there are 435 members in the House & 100 in the Senate. With so many issues to consider, how do you get legislation written & come to a consensus of opinion? The solution: Break members up into smaller committees.

When a bill is introduced, the House or Senate Parliamentarian determines its jurisdiction and refers it to the appropriate committee. A subcommittee may hold hearings to collect testimony and other evidence. It then reports the bill to the full committee for further debate and amendment.

If the committee approves, it reports the bill to the House or Senate. A designated person from the committee will attempt to defend the bill and win its passage. Once a bill becomes law, the same committee exercises oversight over the law.

Legislation is shaped more in committee than on the floor of either house. Bills tend to pass in a form so close to what is sent to the floor that the committees have been called “little legislatures.” Members, therefore, have the most influence over bills considered in their own committees.

There are 21 permanent committees in the House Of Representatives and 20 in the US Senate. Four joint committees operate with members from both houses. Senate rules fix the maximum size for many of its committees, while the House determines the size and makeup of each committee every new Congress.

The members of each committee are officially approved by a full vote of its house. These decisions (including who will serve as chair of each committee) are actually made by the party leadership.

Each member's areas of expertise, the interests of their constituents (a Representative in a rural state may want to be on the Agriculture Committee), and seniority are all considered. As certain committees are considered more desirable, political favors often come into play.

There are three main types of committees:

Standing committees are permanent panels. They consider bills and issues and recommend measures for consideration.

A Select or Special committee is appointed to perform a special function. It is usually created by a resolution that outlines its duties and powers and the procedures for appointing members. These issues often don’t fit within standing committee jurisdictions, or cut across jurisdictional boundaries.

Joint committees are permanent panels that include members from both chambers. They generally conduct studies or perform housekeeping tasks rather than consider measures.


A Conference committee is a temporary joint committee formed to resolve differences between competing House and Senate versions of a bill. Conference committees draft compromises between the positions of the two chambers, which are then submitted to the full House and Senate for approval.

If the Health Care Reform bill is passed in the Senate, a conference committee will probably be formed to find a compromise between the two bills.

The website http://www.govtrack.us/congress/committee.xpd is a good site for getting information about the various committees. All committees are listed with a link showing the chairperson, its members, and legislation that is being considered in that committee.

Understanding Our Constitution - Part 6 - The President's Cabinet

The President’s Cabinet is composed of appointed officers of the Executive Branch. It includes the Vice President and the heads of 15 Executive Departments. All are called Secretaries except for the Attorney General.

Cabinet members are nominated by the President and then presented to the Senate for confirmation. Other than confirmation, there are no legal or constitutional requirements for the job. Normally they are members of the same political party, but the President is free to select anyone, including opposition party members.

There are two restrictions:

The Ineligibility Clause of Article One of the Constitution:

No person holding any office under the United States, shall be a member of either house during the continuance in office.

Therefore, a sitting member of the Congress must resign his seat to accept a Cabinet appointment.

and 5 U.S.C. § 311 :

Passed after John Kennedy appointed his brother Robert Kennedy to the post of Attorney General, it prohibits federal officials from appointing family members to certain governmental posts, including seats in the Cabinet.


The “Big Four”, the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, and the Attorney General form an inner circle and are considered the most important members of the Cabinet. Recently, the Secretary of Homeland Security has risen to a level of significance.

The Secretary of State is the head of the Department of State - concerned with foreign affairs. She is the highest ranking Cabinet Secretary both in line of succession (fourth in line to succeed to the Presidency) and order of precedence in the Cabinet.

The Secretary of the Treasury participates in the formulation of broad fiscal policies that have general significance for the economy. He manages the public debt and, along with the Treasurer, must sign Federal Reserve notes before they can become legal tender.

The Secretary of Defense is the head of the Dept. of Defense - concerned with the armed services and military matters. He is responsible for the formulation and execution of general defense policy. By Statute (10 U.S.C. § 113), the secretary must be a civilian who has not served actively in the armed forces for at least 10 years.

The Attorney General is the head of the Dept. of Justice - the main legal advisor to the government and the chief law enforcement officer of the US. In matters of extreme importance, he appears in person before the Supreme Court.

The Secretary of Homeland Security is the head of the Dept. of Homeland Security - concerned with protecting the homeland and the safety of citizens. The Department consists primarily of transferred homeland security components: Coast Guard, Border Patrol, Secret Service, FEMA etc. It does not include the FBI or CIA.

The other cabinet members are the Secretaries of Agriculture, Commerce, Education, Energy, Health and Human Services, Housing and Urban Development, Interior, Labor, Transportation, & Veterans Affairs.

Understanding Our Constitution - Part 5 - The 12th Amendment - Electing the President & Vice President

When the Constitution was written, Electors only voted for the President. Whoever got the most votes became President. The runner-up became Vice President. With the establishment of Political Parties, this caused many problems.

Ratification of the Twelfth Amendment changed this. Each Elector must cast distinct votes for President and Vice President. An Elector can vote for no more than one candidate from his home state. Therefore, the Vice Presidential candidate is always from a different state than that of the Presidential candidate.

The candidate for President nominates the Vice President sometime in late August - who is then formally endorsed by the party's convention. A Vice President in the same party as the President, assures continuity should he have to take over this office.

Running mates are often chosen to balance the ticket. Vice-Presidential candidates are often from populous states with a large number of electoral votes - in the hope this will encourage those of his state to vote for this ticket.

Ballots are set up to show both the President & his Running Mate. Although it appears that you are only voting once, you are actually casting two votes - one for each of the candidates.

Voters usually accept this ticket even if they do not like the Vice Presidential candidate. They feel they have no choice in this selection & must accept the dictates of the Presidential candidate & Political Party.

As I am not a Constitutional expert, I am not sure whether voters have a say in the choice of the candidate for Vice President. I know that since ratification of the Twelfth Amendment, Political Parties have always chosen the Running Mate.

I question this only because the Amendment clearly states that distinct votes must be made for both President & Vice President. Although Electors vote twice in the Electoral College, their Vice Presidential vote is always for whoever is the Running Mate. They are never provided with a choice.

I ask: If we don’t like the Vice Presidential candidate, where in the Constitution does it state that we, during the election, can not vote for someone else?

Where does it state that we can not choose to vote for the President & refuse to vote for the Vice President?

As the Vice President is next-in-line for the Presidency, shouldn’t we have more say in his selection?

Understanding Our Constitution - Part 4 - The Electoral College

Our Founding Fathers wanted the President to be elected by direct vote but were concerned that the electorate could be influenced by information heard right before an election - causing them to vote out of anger - or “mob rule”. If you think about how easily information can be received today - through the media & the internet, this is definitely a concern.

To keep this from happening, the Electoral College was created. Electors would be chosen to represent the electorate & would vote according to the results of the election. The number of Electors is determined by the number of US Representatives & Senators in that State.

Today the total number of Electors is equal to the number of Representatives (435) + the number of Senators (100) + 3 from the District Of Columbia = 538. To win an election, a candidate must receive 270 votes. If a candidate does not receive this amount, the decision is turned over to the House Of Representatives.

The Electors are usually chosen by the Political Parties to assure that they will vote for their Candidate. Electors are “on call” & will go to the Electoral College as soon as their State verifies the election results.

Except for the states of Maine & Nebraska - who send representatives according to the proportion of results received - all states take a “winner take all” position. Whoever wins the majority of votes gets all Electors.

Electors are not required to vote for the candidate of the Political Party. If they feel that the vote does not reflect the true desire of the electorate or feel that “mob rule” occurred because of news received right before the election, they can change their vote. As all States, except the two aforementioned, take a majority position, a State’s vote that is split will usually activate a request that a poll of the Electors be taken.

A Swing State is a state in which all candidates have a reasonable chance of winning the state’s Electoral College votes. These states are usually a major focus of the Political Parties - as winning these states may “clinch” the election. In today’s Presidential elections, campaigns focus on the states that have the most electoral votes & swing states. Political Parties will not spend time in a state where the outcome appears to be predetermined - a “safe state” for one of the parties.

The six states with the most electors are California (55), Texas (34), New York (31), Florida (27), Illinois (21), and Pennsylvania (21). The total electors in these states is 189. Winning these six states “guarantee” the election. The remaining electoral votes is 169. So, even if all other states vote differently from these six states, they can not elect the candidate. For all practical purposes, our “National” election has become a “Six State” election.

Because of the “winner take all” aspect to the Electoral College, many believe that the electorate are not being properly represented. A candidate who wins a state with 51- 49% of the vote - wins all electoral votes - even though it is really a “split decision”.

If Electors were determined proportionally, the results of the election could be different - as all voters throughout the Republic would be represented. I personally agree with this position and would like to see an amendment requiring that Electors in each state be determined by the proportion of votes. Historically, in three elections, the candidate who won the popular vote did not win the election.

Understanding Our Constitution - Part 3 - Congressional Districts & The Census

Under the Constitution, each state is entitled to at least one representative, serving a two-year term. Congress determines the size of the House of Representatives, which right now has 435 members. A state's population determines the number of congressional seats apportioned to it.

The U.S. Supreme Court decided in Baker v. Carr (1962) that unequally populated districts violated the equal protection clause of the Constitution. Since this decision, districts within a state each have approximately the same population. Right now, approximately 600,000 people are in each Congressional District.

Every ten years, a census is taken to determine the population in each state. The only information required in the census, to draw Congressional Districts, is the actual number of people in each household. But, the Census asks for more information than is required - race, religion, educational background, number of children, etc. This gives the government information about the demographics of the republic.

What the Constitution does not take into account is that not all people counted in a census are of legal age & many that are counted, who are of legal age, are not registered voters. Therefore, a Congressional District made up of a large percentage of young adults may have a lot of children - where another District may be made up predominantly of Senior Citizens. The first District, made up of young adults, may have 200,000 registered voters to 400,000 registered voters in the Senior Citizen District. The Constitution does not state that the number of registered voters in each district must be equal.

Districts are generally expected to be compact and contiguous but “gerrymandering” - the drawing of district lines to maximize political advantage, is the norm.

Political Parties recognize that the demographics of the registered voters needs to be taken into account. A neighborhood that has “changed” since the last census & has attracted a different population (ethnic, racial, religious etc.) may vote differently than the prior inhabitants. A District that was strongly in favor of a particular political party may become a possible loss - if not redrawn.

The Majority Party of the State will redraw districts taking into account this change. A neighborhood may be “removed” from a District & another put in its place to make up the “best” District for the political party. In my county of Broward, Florida, the districts are drawn in what looks like a “haphazard” manner. The district I am in has very little continuity.

The next census to be taken is in 2010. Congressional Districts will probably not be redrawn for the 2010 election, but will probably be changed in time for the 2012 election.

Understanding Our Constitution - Part 2 - Executive Power

Our founding fathers had a great deal of difficulty agreeing on the powers of the President. There was fear he could turn into a tyrant. Emphasis was on limiting this power.

The President was given these powers:

1) Sign legislation into law & enforce laws made by Congress

2) Conduct foreign affairs (Only the Congress has the power to declare War).

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur

3) Command the military

4) Appoint executive & judicial officers

He shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.

Were the Czars established by law - with the advice and consent of the Senate?

5) Reprieve or pardon persons accused of crimes

He shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment

Were all people who were pardoned by Presidents convicted for offenses against the United States?

6) Veto bills passed by Congress

7) The Constitution provides one additional power - only in extreme circumstances:

He may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper.

These powers were considered TOO EXTENSIVE by many Americans & initiated a fight against ratification of the Constitution.

To make the President accountable, the Constitution requires that he report to the Congress:

He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient.

The Constitution, for the most part, ignored the responsibilities of the Vice President. He is given only one official duty - to preside over the Senate. He is not allowed to vote in the Senate, except where there is a tie.

The Constitution initially did not state that the Vice President becomes President in the event of death, resignation, or impeachment of the President. Although it was an established custom, the right of the Vice President to assume the office was formally approved in 1967 with the 25th Amendment.


Now, I ask one question: Can you associate a power, that the Constitution provides to the President, with what he is doing now?

I will grant that he can "recommend to their (the Congresses) consideration" measures he judges to be necessary. The important word in that statement is "recommend".