Winks and Blinks: How Constitutional Republics Expire

What provoked this post?

Living in a dying Republic.

Not a murdered one, stabbed through its Senate by a rising Empire, as in Rome. Not one ravaged by the depredations of wars, external or internal. Just one that stopped caring passionately about its continuation. One that simply concluded that frames, forms, boundaries and limits on governmental reach were meaningless, often unhelpful to personal interests, and able to be ignored without cost.

How bizarrely we think!

We look long back at Jefferson, Madison, Washington, and see their slaves. We look long back at Franklin, Adams, Gerry, and see their toleration of slavery.

We entirely miss their genius exhibited by framing a system in which those who held slaves, even ones who saw their own acts as immoral, and those who found slavery reprehensible, could toil together toward their common LIBERATION FROM TYRANNY.

Now we only see the undeniable injustice of the slavery. Now we only see the true complicity of the agreement.

We do not see the risk they took. We do not see the sacrifices they made. We do not see the labor of their lifetimes.

We simply deny the existence of giants on whose shoulders this Nation has stood. Worse, we have undertaken an assault and battery on them, hammering and chiseling away at the very shoulders on which we stand.

What we deny seeing is that these injustices and that complicity were, not are. They are in the past. While wrongs assuredly echo into the generations, our Nation has paid, is paying, the piper for the tune those gentlemen danced.

But, we should also see this:

Every descendant of slaves born today in this Nation lives, by comparison with his cousins, both those distant in time and those distant in geography, in a most kingly fashion. Yes, even when such descendants live in government housing, eating government cheese, attending government schools, getting health care through a government plan, they are living like kings compared to children that walk an hour each way to collect filthy water, that would relish the moments on the bus, in the classroom, and in the Section 8 housing provided to them.

That is not to say that we should be contented that we have achieved a national level of affluence sufficient to afford charitable care for millions. Instead, we should be in the business of getting out of the way of liberty, out of the way of private economic arrangements that grow opportunity for all.

But, this posting is not so much about that, as it is about the sometimes terrible fear I have that those to whom we entrust the instruments of government, and we who repose those trust, alike, no longer see harm in liberties lost, in mounding up the powers of government.

Winks and blinks, I fear, will be the death of our Republic.

Winks, of course, signify an agreement.

You've seen this time and again, perhaps beginning with your parents' shared winks when one of them confirmed that the tooth fairy left you the quarter under your pillow, or that Santa had eaten the cookies you left for him.

In the enterprise of liberty, one of the important, but not original, features of the frameworks of both our State and federal governments is the division of power between branches. We have Legislative, Executive and Judicial branches. Each has powers and responsibilities, and these are different in character and relevant to their sphere of responsibility.

We know that the Legislature -- in your State and in Washington, DC -- make laws, the Governor and the President enforce laws, and the Judiciary judges the enforcement of criminal laws and hear civil cases between parties. That is the design as crafted in State Constitutions and in the federal one.

Yet, the winks never end.

For example, Congress enacts laws to regulate the safety of foods. Yet, because an exhaustive statute law to cover the topic would consume many thousands of pages, Congress creates an agency, the Food and Drug Administration. It grants discretionary power to the agency, by rules and regulations to fill out the blanks if the Food law. It winks, if you will, at an Executive agency engaged in making law.

Here's a good example of the results of ignoring that boundary line.

The photo to the left shows a printed copy of the Patient Protection and Affordable Care Act (Obamacare). It passed Congress at a substantial girth of just over 2000 pages. It seems like a substantial law, doesn't it? And given its length, who can blame Nancy Pelosi for not reading the law, and who can blame Barack Obama for making promises without reading the law.

Yet.

As huge as that law is, it is an infant, a mere bagatelle, by comparison with the body of regulations that have been generated by the several agencies involved with implementing the Obamacare law. Agencies including the

Department of Health and Human Services, the Internal Revenue Service of the Treasury Department, the Food and Drug Administration, and others all have RULE-MAKING ROLES under Obamacare.

When the rules and regulations adopted to implement Obamacare are stacked together, the stunning multiplication threatens the record when Jesus fed the five thousand with just a few loaves and fishes. The picture on the right shows the regulations enacted by the agencies.

But, wait, there is more.

An agency like the FDA, it is charged with enforcing the law. Typically, law enforcement consists of a government actor examining private conduct to determine whether that conduct comports with requirements of law. If the conduct does not comport with law, the law enforcement agent or agency brings the individual or organization into a court, either by suing them, or by filing a criminal charge. The application of the law to the facts -- determining if the government actor correctly concluded that the conduct was unlawful -- is done by the judiciary. Yet, with winks from both the judiciary and the legislature, federal agencies (and many State ones) conduct quasi-judicial proceedings.

The incessant winking of the branches has produced, particularly at the federal level, but also in many States, a bricolage of powers and responsibilities shared among branches, rather than particular, even peculiar, to each. That circumstance leave a beleaguered populace confused, disoriented and uncertain whether the collapse of their liberties results from real wrongs, trespassory actions of judges acting like legislatures, executive agencies acting like judges and legislatures, and legislatures not wanting to bear full faith and allegiance to the Constitution by performing their jobs and stopping overreaches by the remaining branches.

And that brings us to the blinking.

Blinking, on the other hand, signals surrender. 

That notion is captured in an Ad Age article about the cola wars.

In the constitutional framework, there are balancing mechanisms that are essential to keep the powers of the federal government divided. In The Federalist No. 78, Alexander Hamilton explains it this way:

The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

So, the President "holds the sword." Do not confuse that as a reference to the President's role as Commander in Chief. It is a direct reference to the Letter of Paul to the Romans, where Paul remarked that "magistrate beareth not the sword in vain." The sword that the President bears is the sword of enforcement, of punishment.

And the Congress both makes the laws by which we live, but prescribes the structure of taxes and expenditures by the government. Elsewhere the authors of the Federalists explain (and the secret notes of the Constitutional Convention reflect this thinking) that the power to tax and the power to make laws were placed in the local electorate because it maintains that intimacy of connection between those that legislate and those upon whom the burden of legislation is laid.

The Judiciary lacks the force of the Executive, with its powers of arrest and prosecution, and it lacks the will of the Legislative, with its power to make laws, assess taxes, and order expenditures. The Judiciary has only judgment.

Take all three of these powers. Consolidate them in a man. You will call that man, Majesty, Highness, Chairman, Fuhrer. What you call him, no matter what it is, will mean, in fact, tyrant. That conjoined triplet of tyranny is the fearful monster the Framers of the Constitution sought to avert every arising in this new Nation. That is the reason for the Separation of Powers.

But, there is more than separated functions for these separated branches to the security of our liberty.

Particularly in the Congress, there is an insurmountable power that makes the Legislature more powerful than either of the remaining branches: the power to impeach and remove constitutional officers, including Presidents, cabinet officials, Supreme Court justices and federal judges.

Hold on, Jim, did you just say that the Congress is MORE POWERFUL than either the President or the Judiciary?

Yes, in fact, I did.

Because of the power to impeach and remove officers of the government, Congress holds the winning card in EVERY HAND. The Constitution simply does not admit of an equally effective weapon for the use of either the President or the Courts. True, we read about individual Congressmen being arrested on corruption charges. Also true, we read about judges from time to time that issue injunctions against government programs (Judge Andrew Hanen in Texas, who enjoined the DAPA deferral program of the Obama administration comes to mind). But, in the main, these powers of the Executive and the Judiciary do not arch over, or overmatch, the Congress.

So, in a system in which the power of the Congress PREDOMINATES over the Presidency and the Judiciary, how do we come to the point where now we are?

By the blinking surrender.

Here's an example. In 2013, the Congress and President Obama could not come to agreement on funding legislation for the federal government. Republicans controlled the House of Representatives, Democrats controlled the Senate. House Republicans came to power in 2010, in a nationwide revulsion to various aspects of Obamacare, including its provisions and the process that led to its enactment.

Throughout 2013, TEA Party activists, fiscal conservative Republicans, and others had engaged the public in an effort to build support for a Congressional solution to the problematic and controversial legislation. Ultimately, House Republicans prepared spending measures that left Obamacare functions unfunded; Senate Democrats had their own proposal that funded the law's enforcement and implementation. Unable to reach agreement, the end of September, 2013, spending authorization for discretionary government functions expired.

On the Republican side, however, commitment to a shut down of the government -- previously accepted as a reasonable action to prevail on the issue of Obamacare -- wavered. Moderate Republican Senator Lamar Alexander worked out a funding solution with Senator Chuck Schumer. Then-Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell agreed to the legislation. That proposal did not defund Obamacare (the original proposal from the House). That proposal did not delay implementation of Obamacare for a year (a second proposal from the House). The Republicans, in a word, blinked.

The blinking goes beyond budget battles related to Obamacare. And it is not limited to Congressional blinking.

Recall President Obama's plan to conduct a bombing campaign against Assad in Syria, back in the late summer of 2013? Although that campaign appears to be a possible resurrection now, broad-based opposition, both domestic and internationally, resulted in Obama's threat being all teeth and no bite. Obama blinked.

Now, in the end of things, the blinking on discrete policy issues is just part of politics, the give and take of compromise in a heterogeneous population.

Blinking on the boundaries of constitutional power and duty, however, presents grave risk of harm. The balance of powers depends not only on each department of the government restraining itself to its granted powers, but on each department, to the extent it lies within its granted powers to do so, to check excesses in the others. Impeaching the justices of the Supreme Court would check an excess in which they began to usurp, for example, the presidential power to command the military forces of the United States. Prosecuting a Senator because her votes were corrupted by benefits offered to her by an interested party -- for taking a bribe -- would check that Senator.

But when none of the departments of the government asserts and employs its power to check excesses of the other branches, a disrespect for the entire framework becomes unavoidable.

President Obama says that he will conclude an international agreement with Iran regarding sanctions that have been in place for twenty-five years, sanctions targeting the world's leading sponsor of international terrorism. Moreover, Obama says he will do so without agreement thereto by the Senate. Now, Obama's position has been defended, by Secretary of State Kerry, for example, on the ground that the agreement to be reached is not a "treaty" as that term is used in the Constitution. The Constitution, of course, requires that treaties negotiated by the President depend the advice and consent of two-thirds of the Senate.

By recasting the arrangement with Iran and other international powers as an "agreement," Obama clearly intends to avoid submission to the Senate's advice and consent the questions of ending sanctions against Iran's regime and turning a blind eye to the long-sought Iranian goal of becoming a nuclear power. This abuse of the Constitution ought to provoke a constitutional response. I have previously described three constitutional checks on power granted to the Congress alone: oversight, budget, and impeachment.

In response to Obama's disregard of the Senate's constitutional role, will we see yet another blinking Congress? Will Congress fail to restrict the budget of the Executive Branch as a discipline for Obama's defiance? Will Congress fail to call the Secretary of State to account in hearings on all aspects of the "agreement?" Will Congress fail to show the resolve embodied in the decision to impeach the President, the Secretary of State, and other complicit officers of the United States?

We already know the answers to these questions are yes, yes, yes, and yes.

And that, my friends, is how a Republic dies.

Is the Iranian Deal a Good One? Ask a Marine!

Ask yourself what product or service you have been craving, but unable to obtain, for the last thirty years, due to ongoing sanctions against Iran. For the life of me, there is not a thing that I am missing. Not a dish, not an object, not a book, not a thing that I have any sense of having lost, or having suffered the deprivation of, because of sanctions against Iran. Can you name one thing?

Given that virtually every American's answer is the same as mine, I am at a constant loss to understand any reason based in our needs as a People to reach an agreement with Iran, which has been and remains a State sponsor of terror. Yet, for months and months, the Obama Administration has stood on the European street corner in cheap makeup, stiletto heels, and an ultra-miniskirt, trying to catch the eye of the Ayatollahs of Iran, and dropping the price on the toss in the hay it offers, minute by minute.

I guess I just need someone to explain it to me. Someone who understands the realities of the world today, who sees the potential for Iran to be transformed through our kiss-kiss and make-nice diplomacy.

As I thought about the sources to which I could turn, who could answer my questions, particularly the troubling ones about the three decades long history of Iran as an international sponsor of terrorism, I suddenly realized to whom I could turn.

Vincent Smith.

When I was a very wee lad, and my dad a Marine JAG officer, our family was stationed at Marine Corps Air Station Cherry Point, near Havelock, North Carolina. Among families our befriended aboard the Air Station, one was the Smith family. They had children in our age range. One of my brothers, David, became good friends then with Vincent.

Of course, as can happen, we all grew up and moved to distant locations, we took up careers, and raised families. Still, I thought I would see if Vincent Smith could give me the insight I needed to make an appropriate judgment about Obama's deal with Iran.

Vincent, like his dad, became a Marine, serving in the Air Wing of the Corps.

Here's a photograph of him, taken when he was a young Marine officer:

Of course, not every person that serves in the US Military is an expert on issues of international relations, or international terrorism, or the question of whether Iran is a State sponsor of terrorism. Honestly. Some serve their enlistment buried deep in the bowels of computing centers, processing payroll. Some spend their time processing deliveries of materiel. Even those whose tours of duty take them overseas do not necessarily acquire intimate knowledge of such questions.

Vincent, however, isn't one of those.

Vincent could answer my questions about the role of Iran as a State sponsor of terror. In particular, he could talk with me about how Iran uses puppets, like Hamas in the Gaza Strip, or Hezbollah in Lebanon, to inflict substantial harm on civilian populations, induce social unrest, and to kill.

So, I have decided to speak with Vincent about these things.

I thought you might find some value in reading a transcript of our conversation, it appears in its entirety below.

I began by asking him whether he considered the proposed deal with Iran a good deal for America. I also asked him whether he was convinced that Iran has abandoned its over thirty year history of being a State supporter of terror. Finally, I asked Vince if he would give those that read my blog an explanation of how it was that he was familiar with the impact of Iranian sponsorship of terror groups like Hamas in Gaza, and Hezbollah in Lebanon.

Here are his answers:

You see, Captain Vincent Smith, USMC, died serving his Nation. At the time of his murder at the hands of Hezbollah terrorists, he was serving as a peacekeeper with the Marines in Beirut, Lebanon. Yes, Vincent was one of those Marines, one of those peacekeepers. The ones -- 241 Marines and Naval medical personnel -- killed in their sleep when their barracks was destroyed by a Hezbollah truck bomb.

So, in a sense, of course, we will never know what sixty-two year old Vincent Lee Smith would say in response to my questions. We won't know because Iran's paid stooges, Hezbollah, murdered Captain Smith, his men, and those serving with him, in a direct act of terror.

Seriously, Jim. Are you so sure that Hezbollah is the paid stooge of Iran?

If you don't believe me, then you don't read or don't care.  But, to clarify, here's a photograph to consider:

The distinguished gentleman on the right, with white beard and hair?

That's the Iranian Foreign Minister, Mohammed Zarif. This photo catches the live action as Zarif lays a wreath at the tomb of Imad Mugniyah.

And just who was Imad Mugniyah?

According to the revolutionaries in Iran, Mugniyah was a senior member of Hezbollah in Lebanon.

Or, you could ask the Washington Post to introduce you to Imad. If you do, you will meet the mastermind

• of the Beirut Bombing that killed Vincent Smith, along with 240 other American servicemen, along with members of the French military stationed with them
• of the kidnapping and murder of the CIA Station Chief in Lebanon, William F. Buckley, in 1984 
• of the 1985 hijacking of TWA Flight 847, resulting in the murder of Robert Stethem, a US Navy diver
• of the 1992 bombing of Israel's Embassy in Argentina, which killed 29, including 4 Israelis and 25 Argentines
• of the 1994 bombing of an Jewish community center in Argentina, which killed nearly 100, mostly Jews
• of the 1996 bombing of the Khobar Towers in Saudi Arabia, with the resulting death of, among others, 19 US Air Force pilots and service members, and
• of the training in 2006 and 2007 of Shiite militias headed to battle US troops in Iraq, resulting in the killing or wounding of additional hundreds of US troops.

Yet, as shown above, while the Obama administration was falling over itself in a school girl swoon to get an agreement with Iran on nuclear technology, Iran's foreign minister laid a wreath to honor the murdering puppet Iran used to kill hundreds of Americans.

Still, there are voices that can speak in place of Vince's. For example, Vince's sister, Lynn Smith Derbyshire. Derbyshire testified in an action seeking damages against the Islamic Republic of Iran that was tried before Judge Royce Lamberth, a federal judge in Washington, DC. Judge Lamberth included salient portions of her testimony in his final judgment against Iran:

I'm not sure it's true that time heals wounds, but even so, a wound which has healed over time is not the same thing as not having a wound. Even a healing wound gets reopened from time to time.

[A]s I have talked to so many of the Beirut families, I believe that many of them would concur with me when I say that the pain does not stop when you bury the dead; it is only the very beginning. We feel this loss over and over  and over again. It does not go away and it does not lessen with time; that is a myth. It is more like teaching someone who has a chronic pain disorder how to manage and embrace their pain than it is a lessening of pain. 

I have spoken to quite a number of the family member and I think we're all--I think they would all agree with me when I tell you that what Vince would have wanted was justice. Vince was a fair-minded man. Vince was a man of integrity, as I know so many of the men who were lost that day were. It's the kind of men Marines are. 

That's what the Marine Corps produces. And Vince would have wanted us to fight. Vince would have said ... we must hold these men accountable. Vince would have said that it is time for justice, that it is time for compensation, that it is time to make it--to make them pay enough to make them stop, because Vince was a man who believed in what was right, and if he had lived, he would be sitting here in my place and he would be saying, "Come on, sis, let's go get them." 

But he can't be here, and in his name, and in his honor, and with the permission of some of the other family members here ... in their names and in their honor, I salute them, and we stand together to do what they cannot do for themselves. 

So, I sit here, staring at the screen.

I've also spent some time looking at a family photo taken when Vince was a teen. He and his five brothers and three sisters in a group setting. And I wonder how it must wound them again, to see America's president negotiating with the world's leading State sponsor of terror. How it must tear at them to know that the nation that spent hundreds of millions of dollars to inflict death and destruction, and that deputized the Mugniyahs who visited murder on so many has found such an easy lay in our President.

Vince's voice cannot speak out against Obama's outrage and insult of the memories of those "who came in peace."

Vince's voice cannot speak out for William Buckley, who served in the Nation's clandestine service.

Vince's voice cannot speak out for the Airmen killed in the Khobar Towers.

Vince's voice cannot speak out for the Israelis and Argentinians killed in bombing there.

Vince's voice cannot speak for the American servicemen killed in Iraq by Iran's puppet's trainees.

But I can. And I will. I hope you will speak too.