Constitution R.I.P.

Admittedly, blatantly unconstitutional acts by our government are not a new phenomenon.  Examples from the earlier days of our Republic include John Adams's Sedition Acts of 1798 (a direct violation of the First Amendment, although duly approved by Congress), and Abraham Lincoln's Emancipation Proclamation of 1863 (where did the President get the unilateral power to abolish slavery?).  But there were notable differences between these acts and today's versions.  In those days, such acts ignited powerful debates about abiding by the Constitution, and became significant factors in elections.  The Sedition Acts played no small part in the defeat of the Federalists and the election of Jefferson in 1800, and the Acts were then allowed to expire by their own terms shortly thereafter.  Lincoln himself recognized the need for promptly replacing the Emancipation Proclamation with a constitutional amendment, campaigned on that issue in 1864, and the Thirteenth Amendment (abolishing slavery) was well on its way to ratification at the time of his death.

Today?  The constitutional violations come fast and furious, and it's like almost nobody even notices that it's happening.  In the midst of a presidential campaign, the candidates studiously avoid the issue.  Also studiously avoiding the issue is the progressive press.  This Constitution thing is so tiresome!  How is the government supposed to implement perfect fairness and justice in the world, let alone "save the planet," if it can't do whatever the hell it wants?  So it falls to a few cranks, such as yours truly, to point out the obvious.  For today, let's take a few recent examples.

Clean Power Plan

Suppose you are the President, and you think that the greatest crisis facing the world is the crisis of global warming caused by mankind's sinful use of fossil fuels.  In your heart, you know that the government can solve the crisis, but only by (for starters) taking over the electricity-producing sector of the economy and shutting down all coal-fired power plants as well as the entire coal mining industry. You also know that the majority in Congress thinks this is nuts and won't pass any new legislation to help you out.  And then there's the Constitution.  It gives you no legislative powers whatsoever (Article I, Section 1: "All legislative Powers herein granted shall be vested in a Congress of the United States"), and prescribes that you must execute the laws as written (Article II, Section 3: "[The President] shall take Care that the Laws be faithfully executed . . . .")  How to proceed?

Easy!  You just have to find something -- anything! -- in the existing U.S. Code to claim to support you.  That gives you hundreds of volumes of impenetrable text to select from.  Who cares if nobody remotely thought any of this would give you the authority to force the closure of all coal-fired power plants and the entire coal mining industry?  And thus we light upon Section 111(d) of the Clean Air Act (most recent major amendments in 1990 -- before we knew that carbon dioxide was a "pollutant"):

The Administrator shall prescribe regulations . . . under which each State shall submit to the Administrator a plan which (A) establishes standards of performance for any existing source . . .  which is not . . . regulated under section [1]12 of this title . . . .  

But wait!  Power plants are already regulated under Section 112.  How can you possibly use this section to regulate power plants?  I won't try to give you the government's incomprehensible and convoluted response.  You can read it for yourself here.  

This case is currently before the D.C. Circuit on a challenge to the government's authority to proceed brought by some 27 states plus various utilities and coal companies.  Oral argument before the en banc circuit is scheduled for September 27.  This is one of those cases where it seems that how a judge views the case entirely depends on the party of the President who appointed him.  The Democrats have a majority of the judges on the D.C. Circuit.  Does it matter to any of them that the statute on which the government claims to rely forbids this action by its clear terms, and the Constitution gives the executive no authority to legislate?


Well, if there's one thing that's clear in the Constitution, it's that the Congress has the "power of the purse."  (Article I, Section 9: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .")  And then, for good measure, there's 31 U.S.C. § 1301(d) (“A law may be construed to make an appropriation out of the Treasury . . . only if the law specifically states that an appropriation is made”)  But of course, that's unless the government claims it really, really "needs" to spend the money to make some statute "work."  

And thus it seems that under the Obamacare statute the government has been spending some tens upon tens of billions of dollars without Congressional appropriation.  The details are laid out in the May 2016 opinion by Judge Rosemary Collyer of the D.C. District Court.  The issue relates to Section 1402 of the Affordable Care Act, dealing with something called "cost sharing reductions," under which insurers provide reduced deductibles and co-pays to qualifying enrollees in return for subsidies from the government.  The problem is that the statute contains no language permanently appropriating the money for the subsidies.  As you would expect, the Obama administration submitted budget requests asking Congress for appropriation of the money.  But Congress did not include any money for this purpose in its appropriations.  So the government just went ahead and spent the money.  They did not seek any kind of permission from anyone.  They just went ahead and spent it.  Tens upon tens of billions of taxpayer dollars.

Judge Collyer describes the government's position as follows:

The Secretaries rely on 31 U.S.C. § 1324, which expressly appropriates money for Section 1401 premium tax credits. In order to explain their paying Section 1402 reimbursements out of a permanent appropriation for IRS refunds, the Secretaries posit that Sections 1401 and 1402 are economically and programmatically integrated. A contrary reading of the amended appropriations statute, they contend, would yield absurd economic, fiscal, and healthcare-policy results. 

So that's it:  Forget this obsolete "appropriations" thing.  We can spend whatever money we want, just as long as we have determined that not to do so would produce "absurd results."  But aren't ninety percent of the statutes passed by Congress "absurd"?  Anyway, this one also is headed to the D.C. Circuit, and then likely on to the Supremes.  Will it be as politically pre-determined as the Clean Power Plan case? 

Paris Climate Accord

You will be happy to learn that over the Labor Day weekend, President Obama went to China, and while he was there the United States "ratified" the Paris Climate Accord.  Or maybe it was "formally ratified."  Or at least you would think that was true if you read most of the media reports of the event.  For example, there was Reuters ("The United States has joined China to formally ratify the Paris agreement to curb climate-warming emissions. . . ."); or Scientific American ("U.S. and China  formally commit to Paris Climate Accord"); or The Guardian ( "U.S. and China agree to ratify Paris climate deal").

But wait!  Under the Constitution, doesn't "ratification" of an international commitment require a two-thirds vote in the Senate?  (Article II, Section 2:  "[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.")  Well, it seems that Obama just skipped this step.  It was completely obvious that the Senate wasn't going to have any part of this thing, and a two-thirds vote was completely out of the question.  The "ratification" they are talking about consisted of nothing more than Obama himself putting his John Hancock on the document.  

Granted, there are such things as "executive agreements" between nations.  But don't they cover only routine, administrative, and short-term matters?  This one purports to commit the United States to achieve a 25 to 28% reduction in "greenhouse gas emissions" by 2025, and then to continue to make further reductions after that -- commitments that could cost the U.S. economy easily hundreds of billions of dollars.  In the range of international agreements entered into by the United States, this one is at the highest end in terms of scope and burdens of the commitments undertaken and time period covered (essentially, forever).  Here is an analysis by the Heritage Foundation of whether this agreement meets the usual criteria for determining what is a treaty.  Conclusion: it's not even close.

Meanwhile, what did China commit to?  Are they going to reduce their "greenhouse gas" emissions 25 to 28% by 2025?  You won't believe this, but what China is supposedly "committing" to is not a reduction at all, but rather only to have their emission "peak" by 2030.  Between now and then they are planning to increase their emissions by somewhere around 50%, by which time theirs will be well over double ours.  They will be building literally hundreds of new coal power plants, even as we shut all of ours and close down our coal industry.  And when 2030 comes, are they really going to do anything -- or will this whole "climate change" fad be past and forgotten?  Really, this couldn't be funnier -- if you are President Xi of China.  Watch your main geo-political rival commit economic suicide without your having to do anything.

At least the good news here is that the next President (not Hillary, but some hypothetical sane one at some time in the future) will likely just walk away from this absurdity.  (Or, if he/she is more nuanced, submit the document to the Senate and have it voted down.)

But meanwhile, the extent to which our government just pays no attention whatsoever any more to the Constitution is just breathtaking.  I'm half expecting that the next move will be to award a few more Senators to California and New York.