The First Day: The Plan of Action of the Henderson Presidency UPDATE

There are just so many days, and no more, in a presidential term of office. Were I elected President, I'd want to hit the ground running. 

Consequently, I would plan to take a series of actions immediately on completion of being sworn into office. There are executive orders to issues, nominations to be referred to the Senate, legislative proposals to be transmitted to the Congress, and certain important matters of international relations to be addressed.

So, take a look, tell me what you think.

Appointments

For immediate nomination to cabinet positions, this is my current list:

• Secretary of State Newt Gingrich
• Attorney General Ted Cruz
• Secretary of Treasury Carly Fiorina  UPDATED
• Secretary of Defense Dick Cheney
• Secretary of Commerce Walter E. Williams UPDATED
• Secretary of Labor Thomas Sowell
• Secretary of Homeland Security Rudy Giuliani UPDATED
• Solicitor General Paul Clement

Executive Orders

For immediate publication in the Federal Register:

1. Restore Conscience Rules in Full
2. Repeal DACA 
3. Restore Mexico City Policy
4. Repeal Obama Administration actions targeting the Second Amendment right to keep and bear arms, including these actions and these actions UPDATED
5. Immediate repeal of  EPA rules proposed by President Obama on August 3, 2015 UPDATED
6. Require RFRA Impact Statement for Every Regulation|
7. Require RFRA Impact Analysis in every administrative action in which a claim of religious privilege is asserted
8. Restore Family Impact Statement for Every Regulation
9. Approve Keystone XL Pipeline
10. Abrogate designation of national monuments by Bill Clinton that interfere with coal exploration and mining
11. Organize Presidential Advisory Conference on Openness in Government
12. Organize Presidential Advisory Conference on the Inspectors General of the United States
13. Accelerate deportation of convicted illegal aliens
14. Terminate Placement of Detained Illegal Aliens with Sanctuary Cities for resolution of Pending Criminal Charges
15. Presidential Advisory Conference of US Governors
16. Saturday Mornings at the White House: Conversations and Breakfast with Americans

Legislative Initiatives

Statutory Proposals

1. Repeal Obamacare
2. Propose Enactment of The Patient Choice, Affordability, Responsibility, and Empowerment Act
3. Propose Border Security Implementation Act
4. Propose Abolition of Department of Education
5. Propose Sunset of the Federal Tax Code, Enactment of the Fair Tax,
6. Propose funding limitation for Sanctuary Cities
7. Waste, Fraud and Abuse Bounty Act

Constitutional Amendments

1. Proposed amendment repealing Sixteenth Amendment
2. Proposed amendment repealing Seventeenth Amendment
3. Proposed amendment defining "person" as used in the Constitution to mean the living offspring of human parents, whether or not born. UPDATED
4. Proposed amendment limiting consecutive terms in office
5. Proposed amendment authorizing the line item veto

International Relations

• Abrogate agreements with Iran and restore sanctions regime pending proper agreement including compliance with Nuclear NonProliferation Treaty, release of American hostages, and recognition of right of Israel to exist UPDATED
• Invite Prime Ministers of the United Kingdom, Australia, Canada, New Zealand, Israel, Germany, France, Italy to White House to discuss opening a new forward-going amity and alliance in commerce and security

******

UPDATE

In light of the possibility that the Obama Department of Defense, or the Obama Department of Justice may have decided to charge Lt. Commander Timothy White with a criminal offense for using his personal firearm to try to stop Muhammad Abdulazeez during his July 2015 murderous attack on a recruiting station, I would issue a full and complete pardon to White, and direct the Secretary of the Department of Defense, the Secretary of the Navy, and the Chief of Naval Operations to jointly sign and place in the Lt. Commander's official service record a Commendation for Bravery under Fire, and I would invite Lt. Commander White to serve as a special attache to the White House for the duration of my presidency, or of his interest therein.

ACTION ITEMS: A Tear Sheet of Congressional Responses to Obergefell v. Hodges

The Supreme Court says the Fourteenth Amendment requires States to license same sex marriages. Senate Majority Leader McConnell says its the law of the land. House Speaker Boehner wishes the Court had respected the People. From the failing voices of Republican Leadership in Washington to the celebratory hoopla at Rainbow House (formerly the White House), one gets the definite impression that NOTHING will be done to respond to the unlawful decision of the Supreme Court on the question of same sex marriage.

I have noted the problem here, and provided a full explanation of Congressional power here.

Today, I'm just offering you a checklist of Congressional actions, think of it as a "To Do List" for your representatives. Use this list to challenge your Representative and Senators. Use it to demand action from them.

The list is broken out in four parts. Those parts correspond with the mnemonic: B.O.I.L. Those four letters stand for four different kinds of action CONGRESS should take in response to the Supreme Court. Those actions are BUDGETING, OVERSIGHT, IMPEACHMENT, and LEGISLATION. Tell your elected representatives you are BOILing mad at the Supreme Court's usurpation, and that you will be BOILing mad if they do not take seriously their power to act:

BUDGET ACTIONS:

1. Strip Supreme Court Justices of paid law clerkships.

2. Impose building temperature controls to save heating costs in winter and cooling costs in summer.

3. Eliminate any subscription payments on behalf of the Court, its justices, or its library, to any publication not directly related to the work of the Supreme Court (newspapers, weekly or monthly magazines, etc.)

4. Freeze judicial salaries exactly where they are, eliminate any COLA provision in law that would increase judicial pay.

OVERSIGHT ACTIONS:

1. Conduct hearings on the constitution and demographics of the Supreme Court

2. Conduct hearings on Obergefell v. Hodges
     a.  Examine the Court's treatment of the Fourteenth Amendment
     b.  Examine the standards used by the justices to determine whether they should recuse themselves from particular matters and examine whether Justices Ginsberg and Kagan should have recused themselves for officiating at same sex marriages while Obergefell was pending.
     c.  Examine the Court's treatment of the Defense of Marriage Act, and its treatment of the Article IV power of the Congress respecting Full Faith and Credit.

3. Conduct hearings on the response of the Internal Revenue Service to the decision in Obergefell to determine whether the IRS takes a position regarding the status of Obergefell as deciding a question of public policy for the Nation, from which the IRS could then take negative action against the tax exemptions of religious organizations, churches, and their affiliates, based on a determination by the IRS that policies of such religious organizations, churches and their affiliates that do not recognize or provide equal treatment to same sex marriages are contrary to public policy (Bob Jones University v. United States).

4. Conduct hearings on any change proposed by the Obama administration to federal contracting programs that seek to coerce federal contractors to comply with Obergefell in their HR services to qualify as contractors, including the availability of the Religious Freedom Restoration Act to protect contractors from negative actions by the administration.

5.  Conduct hearings to assess the state of accommodations law in the United States, the interplay of such accommodations law and the religious and economic liberties of individuals, businesses, religious organizations, churches and their affiliates.

IMPEACHMENT ACTIONS:

1. Impeach Justices Ginsburg and Kagan based on the participation in, and decision of, Obergefell v. Hodges despite obvious personal interest in the determination and outcome of the case, based on their having officiated at same sex weddings while the case was pending at the Court.

2. Impeach Justices Kennedy, Breyer, Ginsburg, Sotomayor and Kagan based on their lawless invasion of the Tenth Amendment reserved rights of the States to define marriage, along with their lawless disregard for the singular role of Congress under Article IV to define how States comply with the requirement of Full Faith and Credit.

LEGISLATION ACTIONS:

1. Propose a constitutional amendment to the States
    a. defining marriage as between one man and one woman; or,
    b. reserving expressly to each State the power to define marriage according to its State laws and constitution, and determining for itself whether to afford Full faith and credit to same sex marriages recognized under the law of a sister State.

2. Enact restrictions on the appellate jurisdiction of the Supreme Court and the jurisdiction of federal trial and appeals courts to restore the determination of issues related to the creation and dissolution of marriages solely to the courts of the States.

3. Enact a provision of the Internal Revenue Code expressly stating that the decision of the Supreme Court in Obergefell v. Hodges does not state a public policy of the United States and expressly stating that the IRS is not authorized to deny or revoke 501(c)(3) exemption based on its determination that a policy or practice of a 501(c)(3) exempt organization is inconsistent with Obergefell or its conclusion that the Fourteenth Amendment guarantees a right to same sex marriage.

4. Enact a provision amending RFRA expressly to provide that the Act protects religious persons and organizations from federal governmental actions that interfere with, or deny, their religious freedom rights to teach and practice their faith, with respect to the nature of marriage.

* * * *

Share this action list with your social media contacts. Tweet a link to this post to your Senators and Representative. Tell them you expect action and will remember theirs at election time.

Congress Has the Power to B.O.I.L. the Supreme Court

[This is Part Two of my answer to the question: Is there anything that Congress can do to address the recent Supreme Court decision in Obergefell v. Hodges? 

In this second segment, I provide a list of possible actions of various kinds available for Congress to undertake. I am not providing likely, practical, or certain to succeed tactics. I’m providing here a list of available options. I’ll allow Majority Leader McConnell and Speaker Boehner explain why none of these is worth exploring.]

As I closed part one of this blog, we watched Sheriff Buford Pusser (played by Joe Don Baker) use his recently discovered legal authority to punish an uncooperative trial judge. Of course, the scene shows what happens when the judge interfered with his efforts to clean up the county in that fictionalized account, Walking Tall, based on Sheriff Pusser’s true life story. The film, of course, employed staff writers who created the humorous device of revenge depicted. In real life, our limits, however, are no different.

First, we have to know what power Congress might have to bring to bear in this circumstance. Second, we have to know whether Congress might exercise that power. Remember, this discussion is focused particularly on whether Congress is stymied by the Supreme Court’s same sex marriage decision, Obergefell v. Hodges.

Pusser made the task look easy. One minute, he’s being verbally rebuked by a judge over his lack of knowledge of the law. The next minute, he’s relocated the judge to his new basement bathroom chambers, after having reviewed at least one full volume of the law. I’d like to tell you that our task -- discovering whether Congress is stymied -- is so simple, so easily accomplished.

I’d like to tell you that . . . so I will.

Even if you are beginning this post with virtually NO KNOWLEDGE on the topic, in a short period of time, you will understand the extent of power the Congress holds over the Court. I will warn you: such knowledge can be maddening. You may not be happy to discover what you will learn today.

Both Congress and the Courts Answer to the Constitution

The US Constitution sets the parameters of power and authority for each of the branches of the federal government. Article III of the Constitution creates the Judicial Branch, endows that branch with all the judicial power of the federal government, and provides a basic framework for the branch.

Article III, section 1 provides that there will be one Supreme Court, and then delegates to Congress the question of whether and how many inferior courts to establish. That section also provides lifetime tenure for judges and bars the government from ever reducing the compensation paid to a judge while they are in service.

Section 2 establishes the extent of the judicial power and sets out the parties and matters in controversy reached by the judicial power of the United States. This section also sets out a limited category of cases in which the Supreme Court has original jurisdiction, as though it was the original trial court in such matters, and those in which it hears appeals from decisions of lower courts. Section 2 also subjects the Supreme Court’s appellate jurisdiction to “such regulations” as Congress shall make. Section 2 also sets out a limited set of principles regarding the trial of federal crimes, particularly the requirement that crimes committed within a State must be tried in that State.

Articles I and II of the Constitution contain provisions relevant to our subject.

Article I, Section 2, grants to the House of Representatives “the sole power of impeachment.” Article I, Section 3, grants to the Senate “the sole power to try all impeachments,” requires the vote of two-thirds of the Senate to convict on impeachment, and limits the effect of impeachment to “removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.” Article I, Section 8, Clause 9 grants to Congress exclusive power “[t]o constitute tribunals inferior to the Supreme Court[.]” Article II, Section 4 subjects all civil officers of the United States to impeachment and removal from office based on treason, bribery, or other high crimes and misdemeanors. Article I, Section 2 bars the President from granting pardons or reprieves to persons convicted of impeachment.

What Congress Can Do: B.O.I.L. The Supreme Court

B.O.I.L.: BUDGET, OVERSIGHT, IMPEACHMENT, and LEGISLATION Offer Four Distinct Categories of Responses by Which Congress Can Answer the Obergefell Decision

If a Representative’s or Senator’s sole defense against legislative action is that there is little likelihood of success in any of these efforts, and if you are content to leave your Representative and Senators in peace when they let slip the “wolf” cry of “futility,” then read no further. Simply accept that there is nothing that Congress will do in response to what many perceive to be a lawless decision of the Court.

On the other hand, if you recognize that the Constitution has equipped the Congress with important tools for the maintenance of the separation of powers, and for the maintenance of federalism, then read on. I will offer you a framework of available kinds of Congressional actions, and several specific proposals to be pursued. To make the tools easy to recall, I’ve even devised a mnemonic to summarize them. The mnemonic is B.O.I.L. Those letters stand for four distinct powers of Congress relevant to the maintenance of the separation of powers and the accomplishment of the duties assigned to Congress.

“B” stands for Budget.

With only one exception, the power to allocate funds for spending by the federal government is entirely and completely in the hands of the Congress. The scope of that power is extensive, and includes the ability to adjust virtually every penny spent in the Supreme Court and the inferior federal courts, except the salaries of current judges.

“O” stands for Oversight.

The Congress has extensive powers to conduct hearings and investigations. The scope of oversight power includes everything that could be the subject of Congressional action, as well as the actions of the Executive Branch as it fulfills legislative policy.

“I” stands for Impeachment.

The power to impeach is exclusive to the House of Representatives, and the power to try an officer of the United States that has been impeached is exclusive to the Senate. The Executive Branch and the Judicial Branch have no authority to interfere with this power of the Congress.

“L” stands for Legislate.

Congress has the power to enact legislation relevance to this issue.

In fact, Congress had already done so when it enacted the Defense of Marriage Act, and when it enacted the Religious Freedom Restoration Act. Congress also has power to enact legislation affecting the jurisdiction of the Supreme Court and of the inferior federal courts.

These powers of Congress – budgeting, oversight, impeachment and legislation – are considerable. These powers, too, are effective when actually employed. In fact, knowing how considerable they are, how effective they can be, might make you BOIL with anger at the failure of Congress to begin immediately deploying these powers in answer to the Court’s decision.

Budget Actions

Congress has the power of the purse.

If Congress clamps the federal purse shut, monies cannot be spent by the Executive Branch. Few limits at all exist on that Congressional power, so long as the spending to which Congress commits us falls within constitutional categories, such a promotion of the general welfare. Congress has the ability to establish policies across a broad expanse of human activity simply in the decisions it makes about how to spend funds. South Dakota v. Dole, which I discussed in another post, shows how Congress can reach into areas of even severe constitutional limitations on its powers (the 21st Amendment grants plenary authority over issues related to the sale, distribution, and use of alcohol to the States; yet, South Dakota affirmed the Spending Clause power of Congress to induce the States to choose to raise their legal drinking ages in order to maximize receipt of federal highway funding).

There are limits on the power of Congress with respect to budgeting. One is directly relevant. The Judicial Article, Article III, provides that judges of the Supreme Court and lower federal courts have life tenure, on their good behavior, and that their compensation may not be decreased during their service:

The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Thus, while Congress has a broad power over the budget, the Congress is bound by the Constitution to provide for the compensation of appointed federal judges. That limitation, however, only directly bars Congress from reducing pay. Neither taking away a future increase in judicial salary nor applying generally applicable tax provisions to federal judicial salaries violate the Compensation Clause.

Congressional control over the budget of the Judiciary is a substantial power. One of the curiously satisfactory moments on Capitol Hill each year is the annual visit by Supreme Court justices presenting to Congress their justification for the Court’s proposed budget:

 

The budget for the federal judiciary includes program costs, payroll costs, and capital costs. While, constitutionally, payroll for Justices and Judges may not be diminished, the same is not true for other employees within the Judicial Branch. While such picking of nits may seem petty, the problem that Congress faces with a resolute Judiciary may require it to make important, and to the Judiciary, painful decisions.

For example, while the Congress cannot diminish the salaries of the Justices (approximate annual salary totals 2.27 million dollars), it could ELIMINATE paid law clerk positions at the Court, reducing federal expenditures there by 2.6 million dollars. Supreme Court law clerks are NOT part of the constitutional framework of the United States. They are an asset for federal judges for whom they serve as research assistants, ghost writers, and sounding boards.

The Constitution, however, knows no such position as a Supreme Court law clerk. In fact, the Court’s justices went without clerks for the first century, nearly, and when they got their first clerks, the clerks were, purely, stenographic clerks. Clerks were not the seeming “junior justices” whose influence over various justices today is occasionally hotly debated. There is a significant lifetime value to a Supreme Court law clerk resulting from having held that position and the connections it provides. Consequently, I have no doubt that the Justices of the Supreme Court (and of the inferior courts) could fill their needs through programs of voluntary clerkships.

Other elements of the budget of the Courts could be taken in hand by the Congress.

When Jimmy Carter faced the twin evils of inflation and energy shortages, he imposed rules adjusting temperatures in all federal buildings. The rules demanded lower thermostat settings in the winter to reduce heating costs, and higher thermostat settings in summer to lower cooling costs. Carter’s rule was not a well-loved program. It did, however, help the federal government in pursuit of desired cost-savings.

Back then, a federal judge unsuccessfully sought to resist the rule. Essentially, he claimed that the changes were a reduction in judicial compensation and that the rule violated his separation of powers. His argument failed.

Congress – properly incensed by a lawless judiciary – could induce savings in the budget by requiring that the ambient temperatures in the Supreme Court be raised by a few degrees in the summer months and lowered by a few degrees in the winter months. Perhaps you consider such action petty? No, it is not petty. Just as the Court seems to conclude that Congress should simply recognize that, the Court has only done what the Constitution empowers it, and requires it, to do, the Court would and should recognize that the Constitution empowers the Congress to make decisions regarding budgeting.

In addition, the Supreme Court has a library. When I used that library while working on cases we had pending at the Court, I noticed a variety of subscription publications in the library. The Court’s magazine and newspaper subscriptions can be, and should be, closely reviewed.

In the 1980s, the House passed a budget amendment that stripped funding from a Braille services program of the Library of Congress. That budget reduction matched the costs incurred by the Library of Congress’ creation in its creation of Braille versions of Playboy magazine. A federal trial court found that particular decision to be a form of viewpoint discrimination against speech related to sex, and unconstitutional. That decision, however, would not implicate a viewpoint neutral evaluation by Congress of such expenditures.

Based on its power of the purse, the Congress could review the subscription expenses of the Supreme Court and make appropriate cost cutting there. The New York Times or the Washington Post might wince, but there is nothing wrong with, and a lot to be commended in, bringing a close eye to determining precisely the publications necessary to the completion of judicial tasks. No others should be funded by Congress.

Now, against the idea of using the power of the budget, and in particular making reductions in the budget for the Supreme Court or the inferior federal courts, I suspect that the key argument is that such a reaction constitutes a kind of petty recrimination. I suppose it could be viewed that way. But then, these kinds of tit-for-tat if an American citizen with reasonable income declines to subscribe to a health insurance policy, she is required to pay into the federal government an annual, ever increasing, “Shared responsibility fee,” for the privilege of doing so. Nor is such pettiness limited to individual taxpayers. In South Dakota v. Dole, the Supreme Court sustained a federal funding program requirement that a State refusing to raise its legal drinking age to 21 would forgo a petty 5% of federal highway funding.

As it turns out, Congress, through its enactment under Democrats of Obamacare and its enactment under Democrats of the inducement to the States to raise the legal drinking age to 21, has demonstrated a perfect willingness to engage in what some might consider rather petty power plays. So, here, where the cause is just, and the means exist, Congress has EVERY RIGHT and EVERY REASON to use the Spending Power to express its displeasure with the Court for it decision.

The principal drawback to BUDGETARY recriminations is that Congress must demonstrate political will. To prevail, the Republican Leadership must possess resolve, they must have real commitment to the purpose. While Congress may want to bring the Court to heel, the current President celebrated the Obergefell decision by illuminating the White House with a rainbow of colors. It is altogether unlikely that Barack Obama will accede to such Congressional acts. So if Congress were to pass spending legislation with limitations on the budget for the Judiciary, it would need to have the political will to stand by their enactment, even if the President threatens to, or actually does, veto such legislation.

Oversight Actions

Justice must not only be done, it must be seen to be done.

Congress can use its power of investigation and review -- its oversight power -- to illuminate whether Obergefell is an instance in which justice has been done.

Justice Scalia, dissenting in Obergefell, noted something quite disturbing about the Obergefell Court:

Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.

In the past week, I have seen recriminations on line against Twitter due to the under-representation in its labor force of African Americans. And, within the current year, there have been voices calling for a change to Army Ranger School training standards after EVERY FEMALE RANGER CANDIDATE FAILED.

These stories show that the racial composition of the workforce of private employer such as Twitter can be made a matter of public concern, and that the gender composition of a government unit like the Army Rangers, too, can be made a matter of public concern.

Can it fairly be claimed that the religious affiliations, schooling, geographic origins, and schooling of members of the Judiciary, in particular, of the Supreme Court, are not of concern to the American people? In fact, how can it be unreasonable to suppose that the very real difference between the demographic composition of the Court, when compared with the composition of this Nation’s People, is significant?

It would be perfectly within the power of Congress to conduct oversight hearings on the “railroad track” that leads from one or two Ivy League law schools to a select federal trial and federal appellate clerkships, thence to which Supreme Court clerkships and to which law firms and/or government agencies and then to which administrative appointments and then judicial appointments, and, in a select set of cases to which Supreme Court appointments. Why shouldn’t the American people learn that the seeming disinterest of the Judiciary in the topics upon which it is called to rule is actually, or may be, the product of a careful career of grooming by institutions not necessarily in sync with the views of the American people on various matters of policy?

Beyond inquiring into how a law student becomes a clerk becomes a federal employee becomes a federal appointee becomes a judge, there are some real, important, and helpful matters of oversight that could be made the business of the Judiciary Committees of the House and the Senate.

For example, the Obergefell decision itself could be examined by the Constitution Subcommittees of Judiciary Committees of the House and the Senate.

Justice Kennedy’s opinion for the Court lays the foundation for same sex marriage within both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Congress could certainly examine the body of law and logic, both historical and current, to evaluate the quality of the decision. Indeed, as each Branch of the government must judge for itself the meaning of the Constitution, it is appropriate and necessary that they do so.

Oversight could also bring before the Judiciary Committees questions about the Defense of Marriage Act, and the power of the Congress exercised adopting DOMA. When Congress enacted DOMA, it employed its authority under Article IV of the Constitution to confirm that each State would have the right to decide for itself how, and whether, it would recognize same sex marriages created under the law of sister States. It also employed its Legislative power to define marriage as being between one man and one woman for purposes of federal law.

The Obergefell decision finished off DOMA by concluding that States were required to give “full faith and credit” to the acts and judgments of other States with respect to the creation of, maintenance of, and dissolution of, same sex marriages. Two Terms ago, the United States v. Windsor decision from the same Court struck down that portion of DOMA by which Congress limited the definition of marriage for federal law purposes to opposite sex marriage.

Both Windsor and Obergefell implicate powers of Congress. Both are worthy of particular evaluation and consideration by the appropriate Committees of Congress. Oversight hearing would afford the Congress with important opportunities to review the impact of decisions of the Supreme Court on the powers of Congress.

Finally, there are post-Obergefell ramifications that must be taken into consideration, and it would be appropriate for Congress to begin the process of assessing those ramifications. Here I have particularly in mind the impact of the decision on individuals who, by reason of religion or conscience cannot provide services or support for the formation of, and celebration of, same sex marriages.

First, because there is a real risk that the Internal Revenue Service might treat Obergefell as determining a national question of policy, not merely on same sex marriage, but on discrimination based on sexual orientation, Congress should conduct oversight hearings of the Internal Revenue Service. Congress should inquire of the IRS how it interprets Obergefell in relation to a determination of national public policy. [For those who may not know why this point is important, the IRS revoked income tax exemptions from a private college and a private school based on racially discriminatory policies. I have explained the implications of the Bob Jones University case previously.]

Second, Congress should conduct investigative hearings to assess the state of the law regarding public accommodations requirements around the Nation, and how non-discrimination requirements in the States interplay with conscientious objection. Such hearings can inform how Congress decides to proceed with respect to strengthening the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act, the Defense of Marriage Act, proposed constitutional amendments regarding marriage (either defining marriage as between one man and one woman or confirming that the States alone have the power to determine for themselves the definition that governs marriage in their borders).

Impeachment Actions

For those who’ve watched over six years of criminality and incompetence of the present administration without Congress ever taking any step toward consideration of impeachment, it will be, perhaps, frustrating and pointless to be reminded of that the sobering tonic of impeachment belongs to the House of Representatives. The House has the power to draw up Articles of Impeachment against the Justices of the Supreme Court and judges of the inferior federal courts. If the House were to do so, and were to approve Articles of Impeachment by a sufficient margin, the Senate would have the power to conduct trials of justices or judges so impeached.

This power has been exercised by Congress before. More importantly, in the only instance in which the House ever actually impeached a sitting Justice of the Supreme Court, Justice Samuel Chase, the impeachment resulted entirely from political disagreement between Chase, a staunch Federalist and supporter of the Alien and Sedition Acts, and supporters of Thomas Jefferson, who bested the Federalists in the 1800 Presidential election and ardently opposed the same Alien and Sedition Acts. While Chase was acquitted in the Senate, he has that curious asterisk by his name in the annals of history, indicating his status as the only justice of the Supreme Court to be impeached by the House.

There are good reasons to look at impeachment.

Before the Supreme Court decided Obergefell v. Hodges, while the case was pending there, two justices of the Supreme Court, Ruth Bader Ginsburg and Elana Kagan, officiated at same sex marriages. Their “dispassionate participation” of Obergefell can be reasonably doubted. Indeed, only a cynic could conclude that it was proper for these two justices both to officiate weddings that the Court might well find were not constitutionally required and to decide whether, in fact, the weddings they officiated were constitutionally protected. Ginsburg and Kagan ought to have recused themselves from deciding Obergefell. Their decision to participate may well constitute misbehavior in office. A reasonable observer would find the task of distinguishing their involvement in that case from another justice deciding cases involving corporations in which that justice holds investments.

Nor should Congress ignore that the Obergefell majority trespassed boundaries on the judicial power set out in the Constitution. The States created the federal government by ratifying the Constitution. They bounded the power of that federal government by limiting its powers to those donated by the States expressly to it. Nothing in the Constitution empowers the Supreme Court to make policy regarding marriage for any State or, as it did in Obergefell, for the entire Nation.

Such trespassory invasions of State powers – reserved to the States the Tenth Amendment – constitute misconduct in office. To be sure, we could simply categorize such matters as disputes over outcomes. Doing so, however, explains in substantial part how we have arrived at a place in time and policy where politicians and citizens are unsurprised at the notion that the final word on the power of States to define marriage belongs to the Supreme Court. Congress can curb the aggrandizement of power at the Supreme Court by examining the institutional abuse that Obergefell constitutes.

Impeachment is not just for “crimes” like murder or theft. Political wrongs can be answered by impeachment. Impeachments of that sort have been done before, and they should be considered here again.

Legislative Actions

Congress has significant power to curb the Supreme Court by legislation.

The Constitution states:

In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

While we are accustomed to viewing the United States Supreme Court as the nation’s court of last resort for a panoply of issues, that is so only because the Congress has expanded the reach of the Court through legislation. Truth be told, Congress has the power to strip the Supreme Court of jurisdiction over questions related to marriage, or other matters.

The Supreme Court typically exercises its power of judicial review to review decisions of the inferior federal appeals courts, and  to review certain decisions of State courts. The Supreme Court exercises that power because Congress has granted it to the Court in accord with Article III.

The idea of limiting the jurisdiction of the Supreme Court is neither new nor untested. In fact, Congress has limited the jurisdiction of the Supreme Court in the past. In fact, in the era of Reconstruction, after the Civil War, while the Court was actively considering a case, Congress stripped the Court of its jurisdiction in the matter. The Court acknowledged that they could not decide a case then currently pending before it:

We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.... It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.

Nearly a century later, Justice Owen Roberts, writing in the ABA Journal, Volume 35, at 1, proposed an amendment to the Constitution to strip Congress of this power to limit the jurisdiction of the Supreme Court. Roberts explained the need for such an amendment by describing the existing power of Congress:

I do not see any reason why Congress cannot, if it elects to do so, take away entirely the appellate jurisdiction of the Supreme Court of the United States over state supreme court decisions.

As Justice Roberts understood (and feared) Congress can reconsider the scope of review on appeal and on certiorari available in the Supreme Court.

[If you want to get down into the fascinating weeds of the stripping of jurisdiction by Congress of the Supreme Court’s appellate review, here is a dated, but relevant consortium worth the time taken to read.]

In addition, Congress can limit the availability of the inferior federal courts for litigation of the kind that led to the Obergefell decision. In fact, current federal statutes include restrictions on the jurisdiction of lower federal courts in a variety of matters. When the design, placement, and building of the now-complete World War II Memorial was underway, Congress enacted a statute stripping the federal courts of jurisdiction to entertain challenges to the site selection process.

Congress also used its jurisdiction-stripping power when it enacted three federal laws related to crime, to illegal immigration and to terrorism. In those cases, Congress restricted the power of federal courts to review various questions that were previously within their jurisdictional reach. Those three laws are the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the Prison Litigation Reform Act of 1996, and the Antiterrorism and Effective Death Penalty Act of 1996.

Congress can, and should, examine the role of the inferior federal courts in the judicial sweep that preceded the Supreme Court’s decision in Obergefell. In light of how the federal courts became embroiled in questions properly ones for the political branches of State government, or to the People of the States, Congress should strip the inferior federal courts of jurisdiction to entertain such cases.

In addition, Congress should address topics indicated in previous sections of this blog:

Congress should expressly state that tax exempt 501(c)(3) status may not be stripped from an organization based on policies that may be considered by the IRS (or complainers) as inconsistent with “national policy” regarding same sex marriage expressed in Obergefell.

Congress should expressly state that the Religious Freedom Restoration Act protects religious bodies and individuals in the maintenance of their practices related to marriage, even if viewed as inconsistent with, or contrary to, Obergefell.

Congress should expressly state that the RFRA protects those in private enterprises who contract with, or provide services to, the federal government (that latter point anticipates that the Obama administration is likely soon to embody a nondiscrimination provision in federal contracting) against violation of their religious conscience with respect to same sex marriage.

* * * *

Indeed, Congress is not powerless in the face of the Supreme Court. To permit it to claim powerlessness requires that the People ignore the Constitution. The tonic for a Court that ignores the Constitution will not be found in a People that do so, or that tolerate a Congress that does so.

Ultimately, we must ask, not does Congress have power, but is Congress willing to act? Will they use their power over the budget, their right to conduct oversight, their power to impeach, and their legislative power to reprove the Supreme Court in answer to the Obergefell decision? Let that question stew in your mind. Then insist that Congress BOIL the Supreme Court.

Senate Prefers Pandering Over Responsibilities of Office

Today's Jacksonville Daily News carried the story on legislative activities in Washington, DC.  Through the unjaundiced eye of the author, Charles Babington, we had the chance to see through the hubbub of votes and speeches to the realpolitik at play in these humid days of a Washington summer:  Democrats, who control the Senate, are floating legislative proposals that will not become law, that they know will not become law, because the proposals cannot pass muster in the Republican Party controlled House of Representatives.  Babington puts a tidy bow on what actually is occurring as statist Democrats in the Senate conduct their theater of the bizarre.In Babington's words, the bills being brought to the floor are only being brought to the floor to force Republicans "to vote on sensitive matters that might rile women this fall."  

One wishes it were otherwise, that Democrats in the Senate and Republicans in the House would attend to the actual business of the Congress.  The actual responsibilities of the Congress pertain to the legislative aspects of the responsibilities of the central, federal government.  

James Madison, writing in The Federalist No. 41, neatly summarized the responsibilities assigned by the States to the federal government under the Constitution proposed by the 1787 Philadelphia Convention.  Explaining his view that the States did not grant too much power to the federal government, he wrote, to 

"form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects: 1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers."  

A complete review of The Federalist No. 41 (and Nos. 42 and 43 that complete his thoughts on the topic) is not possible here.  It suffices that he has identified in a single power the essence of the responsibilities of the federal government as securing the Nation from external dangers, regulating relations with foreign nations, insuring harmony and intercourse among the States, and preventing the States from undertaking certain acts injurious to the People.

The Senate has all the time in the world, apparently, to conduct "show" votes on issues designed to inflame the passions of various interest groups.  What the Senate does not have time to bring to the floor for a vote are appropriations bills, program authorizations bills and agency authorization bills.  Not much of a surprise for students of the Senate's behavior under the leadership of Harry Reid.  The Senate has failed, consistently and continuously, to bring appropriations bills to the Senate floor throughout his tenure.  The pinch of sequestration, the pinch of forced shut-downs, these all flow from the battle that follows after the failure to timely prepare, consider, and approve appropriations legislation.  The House of Representatives has done this job consistently and timely year after year.  The Senate brings to this essential task the speed of the slow loris, the wisdom of a clown, and the earnest sincerity of a used car salesman.

And, though one may wonder how appropriations legislation fits within the essential responsibilities of the federal government described by Madison in The Federalist No. 41, the answer, it turns out, is direct and clear.  The actions of the federal government are accomplished through human intermediaries.  Federal troops, federal bureaucrats, federal law enforcement agents, these are paid employees; they work in offices, buildings and campuses that require heat, light and power.  They are employed to accomplish the objectives (constitutionally legitimate or otherwise) designated in federal legislation and regulations as their responsibility.  The failure to develop, consider and approve an appropriations bill to fund the activities of the Department of Defense is, in its essence, a decision to risk or cause the discontinuation of the activities of that Department.  The dread, or silly, Environmental Protection Agency may run on scientific fumes but requires real cash to do its work.  So the Senate's consistent failure to conduct appropriations and authorizations legislative activity is gross negligence of duty.

Worse, it is this naked pandering.  Pandering that assumes that women do not know that they can obtain birth control of any kind authorized by the FDA simply by spending their own funds for them, and that they will prefer that the Senate force these kinds of show votes rather than do its duty.  

Listen in to the Democratic Caucus as it ponders how to proceed with its legislative agenda in the Senate:  "We need to distract voters from Barry's catastrophic Obamacare rollout," Senator So and So opines.  "Heck, folks," the hen's tooth rare Southern Democratic Senator drawls, "we need to distract voters from Barry's catastrophic Obamacare legislation."  "The problem, my learned colleagues," Harry Reid trumpets, "is that if we actually do what we were sent here to do, we won't have gotten the special interest groups we need on November 4th worked up to a frothy frenzy."  The clopping sounds of the tennis-shoed Patty Murray approach, "This isn't about November!  This is about the injustice of a Supreme Court decision that leaves women exactly where they were before Obamacare:  paying for their own contraceptives, rather than being able to shift those expenses onto others."  Reid, interrupting, "Senator Murray is correct.  We can, we should, we must bring to the floor for an immediate vote legislation overturning the Hobby Lobby decisions."

Not heard in the background of that noise are the soft crunching of gravel under boots as American service members walk into, through and beyond dangers on virtually every continent.  Ignored in the press to do this entirely sophistric act of legislative Kabuke theater are the pleas of communities along the southern border to act to reduce the tidal wave of illegal entries into the United States, along with the warnings of those with reason to know that the flood is not just of those seeking a better life here, but also includes, or is at risk of including, those who meld into the flood, so that, on entry into the best and brightest hope of mankind on earth, they can bring terror to the people whose interests have been sacrificed in the Senate in the interest of partisan politics.

Will women respond as hoped by the Democratic Party cabal in the Senate?  I do not have a crystal ball.  I do have a grasp of history.  How this fall's election goes depends greatly on the love of liberty or the preference for personal interest.  If women who love liberty vote accordingly, then the Senate will pass out of the hands of those who have fecklessly and recklessly ignored their actual duties.  If women who prefer personal interests fattened by the largess of government, then our long struggle to make a way forward out of continuing economic malaise and social agitation needs must will continue.