Nat'l Journal: Republicans Close to Violating the Constitution

[kpete]

Republicans Are Awfully Close to Violating the ConstitutionWho cares if President Obama has 14th Amendment obligations? The critical sentence in that block of text should be read as instruction for lawmakers first, and last.

National Journal asks: "Have Republicans forgotten that they too must abide by the Constitution?"

The 14th amendment is explicit in its instruction to America's federally elected officials: "The validity of the public debt of the United States shall not be questioned."
http://www.law.cornell.edu/constitution/amendmentxiv

"This is not some arcane biblical reference that needs to be translated from scraps of parchment. In fact, its purpose and intent are fairly well documented. The amendment is the product of a post-Civil War Congress that wanted to be sure the country would not be saddled with Confederate debt, and that the debts of United States would be honored. Then, as now, this promise written into the Constitution offered creditors confidence that lending to America - indeed, investing in America - would be safe."

http://politicalwire.com/archives/2013/10/09/republicans_close_to_violating_the_constitution.html
http://www.nationaljournal.com/congress/republicans-are-awfully-close-to-violating-the-constitution-20131008

[brucefan]

1. Constitution?

It's just a piece of paper to these cretins.

[meadowlark5]

2. Well that is till they get to that 2nd amendment nt

[Voice for Peace]

16. well yeah.. that's where they stop.

3rd amendment? 4th amendment? 11th?

[jmowreader]

17. No, they go a little farther than that

Your Standard Teabagger respects two parts of the Constitution: the Second Amendment, and the nearly-meaningless Tenth. The rest of it is outdated, too boring or itself unconstitutional. (I was told by a teabagger at the County Fair that the Sixteenth Amendment was unconstitutional, so he didn't have to abide by it. Yeah, Idaho is the greatest state...)

[RiverNoord]

25. That is rich...

not just a tall tale? You actually had someone argue that an amendment to the Constitution was unconstitutional? It doesn't get much dumber than that...

[IllinoisBirdWatcher]

28. Yes, it can get dumber than that. Michele Bachmann. n/t

[jmowreader]

30. Well, the teabagger was about six foot...does that count?

There's a fairly popular income tax protester argument that the Sixteenth Amendment wasn't ratified properly, hence it is invalid.

The irritating part about income tax protesters, is they are almost universally in love with the military - which uses more of our income tax dollars than any other part of the government.

[RiverNoord]

46. OK then there is a theoretical logical basis

for his assertion... Except for the fact that the Supreme Court has visited that issue at least twice and found that it was entirely legit...

I agree about the inherent contradiction in anti-tax plus pro-big-military.

My father is a Midwest farmer, and he thinks it would be great to cut the budgets for every single federal program at a flat percentage rate of 2 / 3 % - except the military, of course. I was visiting a few weeks ago, and after a Middle East cable news segment he mentioned how 'they' have no respect for life, keep blowing 'each other' up, etc. I asked him if he had any idea how many people we blew up over the past 12 years, and mentioned that there had never been a recorded suicide bombing in Iraq until our second invasion, he completely shifted gears (that's different, of course - 'they' shouldn't have came after the Twin Towers). When I asserted the obvious - Iraq had nothing to do with 9/11 - he went into smirk mod - 'you're sure about that?'

When you have the world's most powerful military, by far, the best thing you can do is ensure that it is implemented in theater as little as possible...

[truebluegreen]

34. Heck, they are still arguing that the ACA is unconstitutional:

just because a handful of Justices called it constitutional doesn't make it so!

[jmowreader]

43. Have you heard the best tax protester argument?

Apparently the people who wrote the Sixteenth Amendment didn't intend that "wages and salaries" be considered as income.

See http://www.simpleliberty.org/tait/the_camels_nose_grows.htm, if you can get through it all. Take this enlightening paragraph:

The 1913 law was intended to tax wealthy business professionals, proprietors, corporations, and certain passive unearned investments. The amount of tax owed was to be measured by net income.[1] This is obvious by examining an income tax return from 1913. The tax return of 1913 functioned similarly to the modern Schedule C. Although including a graduated “progressive” surtax, the minimum tax rate was a whopping 1 percent of individual and corporate net income in excess of the exemption amount.

Okay, let's do that: Let's examine an income tax return from 1913. Happily, the Internal Revenue Service has posted the form on their website:

http://www.irs.gov/pub/irs-utl/1913.pdf

Flip to page 2 and we'll find that under "Description of Income," the first line is "total amount derived from salaries, wages, or compensation for personal service of whatever kind and in whatever form paid." And the very first Internal Revenue Code specifies that wages are income.

The most irritating part of the tax protester is their reliance on the works of the Founding Fathers and their demand that the US be operated exactly as the Founders wrote, or exactly as how they think the Founders wrote. Yes, the Founders were smart men. Yes, they gave us a good system of government. But the Founding Fathers weren't oracles. They built a government for a largely agrarian, non-technological society spread across thirteen states clustered on the Atlantic coast. They didn't foresee airplanes, automobiles, electronic communications, complex financial transactions, $9 billion warships, thirteen metropolitan areas with population higher than the entire population of the United States at the moment General Cornwallis surrendered, wheat farms the size of Delaware, a sea on our western frontier, or a state in the middle of the ocean. How, then, do we keep the spirit and intent of the Founders while facing the reality that a perfect government for three and a half million people collapses when it's asked to govern a hundred times that?

[RiverNoord]

49. Wow - that's a whopper

There is no 'legislative intent' argument to be made for a plain-text Amendment that simply states that income tax is OK (it was actually upheld as constitutional by the Supreme Court prior to the Amendment's proposal, but there were serious concerns that that could change).

The Second Amendment, on the other hand, is not at all 'plain-text', but gun nuts love to read it very selectively - that whole 'well-regulated militia' business is out of date, unclear, just surplus language that doesn't really mean anything, etc...

And - the authors of the Constitution knew that it could not possibly be perfect - that's why there's a very clear procedure for its amendment written into it.

[jmowreader]

50. Some moran once told me everything past the Tenth Amendment was invalid

Reason? Everything from the Eleventh Amendment to the back of the book was written by people who didn't write the original text (the first ten amendments were added because the antifederalists, the teabaggers of that era, wouldn't allow ratification of the constitution without them) so, therefore, they HAD to be invalid.

And yes, I know the Constitution gives explicit instructions to America on how to amend it - they even gave two different ways! But the originalists don't buy off on the idea that the Founders knew the nation would change and the Constitution had to be able to change with it.

[RiverNoord]

47. Um... that's a completely legitimate point

Think 'separate but equal,' segregation, Dred Scott, Bowers v. Hardwick (1986 - anti-'sodomy' laws are constitutional) vs Lawrence v. Texas (2003 - anti-'sodomy' laws are unconstitutional), well, the list goes on and on.

I am deeply liberal and I think the ACA will is a very, very good step in the right direction and will be very good for the country. However, I'm also a lawyer, and, frankly, I still have very serious reservations about the constitutionality of the individual mandate. It would be well within Congress's spending power to establish a national health care system. However, taxing people simply for not buying health insurance is different. It means that the federal government could directly tax its citizens for not owning a firearm, not buying houses, not getting married, not allowing the NSA to install cameras on their property, even though the NSA has no constitutional right to do so - you could still tax people for not allowing it - anything that could be sold as a legitimate government purpose - there's really no American precedent for taxing people for simply not buying something or just not doing something that is not imposed by the Constitution as an affirmative duty - and there aren't very many of those.

Anyway, the argument that the ACA individual mandate is unconstitutional isn't settled by one Supreme Court decision - our history has demonstrated many, many times that things that are flagrantly unconstitutional get upheld by the Supreme Court.

[truebluegreen]

48. In reality, if the SCOTUS says a law is constitutional, then it is...

until SCOTUS says it isn't. Or a constitutional amendment is passed.

That was my only point. I am well aware of the variable nature (Scalia et al notwithstanding) of the Constitution, driven by changes in public opinion and the make-up of the Court.

Edited to add: welcome to DU.

[valerief]

6. Nah, Constitution is ONLY about owning guns to these morons. nt

[freebrew]

12. Paper?

That's Hemp paper, iirc.

[hobbit709]

3. Close? Like in tactical nukes close?

[Coyotl]

4. Horseshoes, hand grenades, and atomic bombs. Sometimes close is all it takes.

The cost of the #GOPshutdown is already too high.

[ProSense]

5. Exactly, and the media has

been spinning the President's obligation to the Constitution to imply that, as a last resort, he should violate the 14th Amendment even though it would, as they conclude, set him up for impeachment.

A lot of people have bought into that frame. This bears repeating and need to go viral.

National Journal asks: "Have Republicans forgotten that they too must abide by the Constitution?"

The 14th amendment is explicit in its instruction to America's federally elected officials: "The validity of the public debt of the United States shall not be questioned."
http://www.law.cornell.edu/constitution/amendmentxiv

"This is not some arcane biblical reference that needs to be translated from scraps of parchment. In fact, its purpose and intent are fairly well documented. The amendment is the product of a post-Civil War Congress that wanted to be sure the country would not be saddled with Confederate debt, and that the debts of United States would be honored. Then, as now, this promise written into the Constitution offered creditors confidence that lending to America - indeed, investing in America - would be safe."

Republicans are not playing by the rules, they're abusing their power
http://www.democraticunderground.com/10023808698

[MFrohike]

23. Violate it how?

I mean the president, not the House.

[stevenleser]

40. Because while the President would be obeying the 14th amendment, he would be breaking

those parts of the Constitution that deal with who can enact a budget, appropriate funds, etc.

When parts of the Constitution conflict in the dealings of ordinary citizens and also with corporate entities, it results in very interesting appellate cases. When it's the President, there is no court to which to go, its impeachment or letting him do it.

[MFrohike]

44. I'm a bit confused

I don't quite see how this rises to the level of a constitutional question. This seems to be whether he can legally disburse already appropriated funds. I don't see an encroachment on separation of powers on the face of it. Sure, there's a question of whether it would be legal, but that's quite different from constitutional. Maybe I'm wrong, but it seems like some people are confusing illegal and unconstitutional.

The nature of the conflict is what determines whether a constitutional case involving a president goes to court. I can think of several cases involving Richard Nixon which attest to that. In this case, there is prior precedent, at least on the appropriations question. There was a case after the Civil War involving Lincoln's disbursements which were approved by Congress after the fact. The Court upheld his actions as constitutional because, as I recall, of the exigency involved and the fact that Congress had given assent, even if a bit late.

[2naSalit]

51. The issue was that

the Congress is assigned the task of allowing a debt ceiling (not historically always the case but since... I forget when but it was in my lifetime) where the borrowing authority is limited by Congress such that the president, in implementing the policies Congress has affirmed and he implements, can only spend what's in the budget. When the implementation of policy exceeds the budget approved by Congress, the president/treasury must borrow the rest. When the rest exceeds the borrowing limit assigned by Congress the debt ceiling has been reached. When that happens, the treasury can only issue funds from cash on hand and that's when it gets shaky as to whether we can pay all of the obligations set forth by Congress.

See, they not only limited the president's ability to function with the budget, they ordered up policies that cost more than what they allowed the president to spend on those policies and when it came time for them to allow for those policies to be paid for by borrowing what was needed to complete the process, they threw this hissy fit and shut it all down with the premeditated intent to stifle the president and try to show that he was incompetent because... well pick a tall tale from the TP gang.

THEY. CREATED. THE. WHOLE. F'ING. MESS. in order to discredit the president they objected to and who won election twice in spite of all their cheating.

It's the intent that matters here, not so much about the Constitution that they want to be revisionist in it's interpretation.

[MFrohike]

52. You're confused

The debt ceiling is not the budget. The budget is the money mandated to be spent by Congress. The debt ceiling is an aggregate limit that exists independent of the budget. The US sells bonds because federal law requires it and because it's tradition. It's not to raise revenue.

My question was whether this was really a constitutional problem since the president would only be spending funds already authorized by Congress. The fact that Congress has chosen to appropriate a certain amount AND set a limit on borrowings should not implicate separation of powers because there's no overstep by the executive if he ignores the debt ceiling. He's forced to choose between Congress' own inability to create a coherent financial architecture. While this would be an illegal act, it's probably one the executive would win in court because Congress has created a situation with competing priorities that could prove impossible to reconcile if Congress chooses not to act. It would be absurd to penalize the president for Congress' incompetence. It's also absurd for the president to argue, from a legal point of view, that he had no options outside of Congressional action.

[2naSalit]

53. Okay

I can accept that explanation. The idea of the bonds crossed my mind while I was typing but it didn't come out right. Thanks for the correction.

I think my brain is full and I need to open the release valve! The pressure of the last couple weeks seems to be getting all muddled in there.

[MFrohike]

54. That's half my life

I like to think confusion is a good sign. I hope it means I'm not slipping. I hope.

[Swede Atlanta]

7. That's why I say....

If they refuse to raise the debt ceiling, Federal Marshalls arrest them as domestic terrorists and they all board a plane to Gitmo. Since they think "alleged" terrorists should not have access to U.S. courts they should rot there until they expire with no access to legal counsel, their "blackberry", family or the exclusive Congressional gym.

Let's see how Bo-ner boy, Four-eyes Cantor and the like like it. Maybe Michelle Bachmann will get some real religion then.

[Iliyah]

8. DITTO

Congress, especially the House GOPers will be in violation of the "Constitution" of the Unites States, breach of contract, and secures the further debasement of the USA and yes they need to be arrested and subject for trial by the People of the United States of America.

Pres O knows what he is doing.

[SunSeeker]

9. Works for me! nt

[davidpdx]

33. As much as I'd like to see them loaded into a C-130

on a one way ticket to Gitmo, it would set off a civil war with the gun nuts on the street shooting people claiming Obama was instituting Marshall law.

I totally agree that what they are doing is wrong, but that kind of act would be dangerous.

[hue]

10. K&R!! I'm sure most Re/Teapuke have committed several crimes for which they should've been arrested.

[joeybee12]

11. Everyone knows the only REAL part about the Constitution is to have guns, guns

and more guns!

[1-Old-Man]

14. Its not much different than unrelenting reliance on the "commerce clause".

The right is not the only side who sees the Constitution as a single-issue document.

[90-percent]

13. Question

Was George W. Bush serving as President when he said; "The Constitution? That's just a goddamned piece of paper." That a President could speak so condescendingly to a document upon which our Country is based, is simply beyond my comprehension!

Which was even more appalling than "Those weapons of mass destruction have to be around here somewhere!"

They only abide by the parts of the Constitution they were told to like.

-90% Jimmy

[xfundy]

31. Hey, hey! Give him credit! He autographed an American flag.

How patriotic is that?

[ashling]

15. The Shutdown is unconstitutional

http://www.democraticunderground.com/10023808932

[mostlyconfused]

18. There is the other possibility nobody seems to want to think about

...and that is actually reducing spending (current or future). They could maybe be arrested if not raising the debt ceiling would mean an automatic and immediate default, but isn't that technically only true if we were already at a point where servicing the debt absorbs 100% of the federal budget.

[mostlyconfused]

19. actually...

first line of that post comes across a little harsh. I don't mean to suggest people on this board are not thinking of that, but just that it doesn't seem to be a big part of the conversation in the media. Call the GOP out for their tactics, sure, but we can't just keep raising the limit indefinitely, can we. If interest rates were to jump, we'd be in real trouble.

[MFrohike]

22. Tired

The US has no need to issue debt to issue money. Dollars are not tied to a fixed conversion table nor are they redeemable for a commodity. They are pure fiat currency and their creation is solely governed by federal law, not by some mystical market incantations.

[eppur_se_muova]

20. "Laws are for little people."

That includes Constitutional law.

[paulkienitz]

21. I think what they might want

...is to use that clause to force the treasury to pay bond debt at the expense of the general fund. If the US defaults instead, they can say that the president and the treasury are violating the constitution, not them.

[mostlyconfused]

29. Yes. This...

They'd view not paying the debt obligation as Obama's choice as they want instead to force a reduction in other government spending. They would argue that not raising the debt ceiling does not then require a default on the debt.

That begs the question....if we total up the debt payments, social security, and medicare...on a monthly/quarterly/annual basis how does that total compare to federal tax receipts over the same timeframe?

[paulkienitz]

39. there's one big problem with this scenario

This was discussed on All Things Considered last night: the government unfortunately gets both its revenue and its outlays in very irregular spikes and clusters. From one day to the next, the ratio of income to outgo fluctuates wildly. Without the power to borrow, it becomes very difficult to pay anything on time -- you might have the money three days later, but you don't right now. So not only would lack of borrowing eat hugely into the general fund, it would also force many payments to be delayed, which in many cases would be in violation of law.

[mostlyconfused]

41. Good point. And it made me curious.

For expenditures this was true during the government's FY2012 (ended Sep 30, 2012), where monthly expenditures ranged from $186 billion to $369 billion.

But interestingly, this was not the case at all in FY2011, where monthly expenditures were very consistent. May was an outlier at $232 billion, but the other 11 months fell between $276 and $339 billion.

Source: http://www.fms.treas.gov/mts/mts0912.pdf, Page 2

Tax receipts are seasonal, but very predictable around tax deadlines.

[paulkienitz]

42. think daily, not monthly

That was the point made on the NPR report: that it fluctuates on the scale of days, not months.

[blkmusclmachine]

24. The Constitution. In GOP circles, it's better known as "that g/ddamn piece of paper."

[lonestarnot]

27. Bushitler circles.

[Agnosticsherbet]

26. So who would have standing to take them to court, and what would be the punishment of violating

the constitution in that way?

[truebluegreen]

35. Similarly, what statute would they be in violation of?

[Agnosticsherbet]

38. Exactly....

[Hekate]

32. "Close"? After 9-11 they couldn't trash it fast enough. nt

[Cha]

36. When they were sworn into Congress.. they took an oath to uphold the Constitution of the USA..

not "Terrorists R Us"..

Tough shit if they had their fingers crossed behind their backs.

"I do solemnly swear (or affirm) that I will support the Constitution of the United States."

http://uspolitics.about.com/od/usgovernment/a/oaths_of_office_4.htm

[Katashi_itto]

37. Gosh, what was that constant drumbeat that this is not Sedition?

[ThomThom]

45. If rethugs are so concerned about the debt

they need to raise revenue. If they balance the budget by increasing revenue to match the money they have already spent on wars and past tax cuts the debt ceiling would not be a problem. I guess that would be too simple. Bush started with Clinton's surplus but couldn't stand it and here we are.
Too much to ask I guess...........