Tag: history

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“Require the Opinion” : On a divided, limited, checked, and balanced executive- NOT a unitary executive

jollymonsails

Limited Executive NOT a King:

If only there was some way to determine what the founders intended and the social contract we started with the Magna Carta through the Constitution and Amendments have established. Perhaps we can infer from the fact, firstly (1): that Congress was defined BEFORE the president in Article I. A King, of supreme importance would be established first, no? (Article II contra Article I).

(2) Secondly, if the President is to be a King, a unitary executive, why did the framers not allow him to even choose his own Vice President? Instead, the framers explicitly established an adversarial Vice President in the Executive branch with no provisions for the President to unilaterally fire or replace the Vice President? (See Article II, section I original text before Amendment 12 circa 1804, et seq.)

(3) Thirdly, if the President is to be a unitary executive, a king, why is his oath to “preserve, protect, and defend the Constitution” – and not the Presidency? (Article II, Section 1) – moreover, why must he “faithfully execute the laws” which are established by Congress? (Article II, Section 3).

(4) How can anyone suggest the president has plenary power over all the other Officers of the executive (whose oaths are also to the Constitution and NOT the president) if the president cannot even appoint his own “executive” Officers without Congressional “advice and consent” / confirmation?

(5) Even with senate confirmation of his Officers, the president’s only expressly defined Constitutional power with respect to those officers is that he may “require the Opinion, in writing,” of exclusively the “principal Officer” of the executive departments and only on subjects relevant to their duties. He has no power to require the written opinion of subordinates; his power only extends to the Congressionally-confirmed principal Officer. The president isn’t empowered to define the Opinion, modify the Opinion, apply pressure to the principal officer, demand his presence and verbal report, etc. (Article II, Section 2).

Considering longstanding cannons of statutory and constitutional construction, such as: expressio unius est exclusio alterius (by stating something you exclude the alternatives not mentioned) – AND the Constitution expressly: (1) providing for impeachment (not executive whim or pleasure) as the sole mechanism to remove Officers of the executive; (2) providing for Congressional supervision of executive Officer commissioning; (3) providing for democratic election of the Vice President with no input from the President or ability to remove/replace; and (4) establishing all officers to have loyalty solely to the Constitution and not the President – where does this unilateral power to fire any and all executive officers (without the Constitutionally prescribed impeachment) come from?

Still further, considering the Avoidance of Absurdities and No Surplusage or No Superfluous words cannons (that every word in the Constitution should be given effect and absurd results avoided): why would the Constitution expressly grant the president only the right to “require the opinion” of the heads of departments when he, arguendo, already has been granted plenary power over all executive officers? Wouldn’t this power to require reports then be surplusage and absurd? The entire universe of plenary, absolute power over all executive officers AND he can require a report? Silliness.

It wasn’t until 1926 in the Meyers case that the Supreme Court established this unilateral removal power of the president – couched on the mandate and duty that the president “take care that the laws be faithfully executed.” Quite a stretch in my opinion – that a clause limiting the president and subordinating him to the laws of the Congress has been distorted to grant the president unitary executive powers.

Make your mind up yourself – below is the text of the original Constitution (including the text before the 12th Amendment with salient portions in bold). The Constitution ONLY gives the president the power to “require the opinion” of those executive officers not to terrorize them into compliance with his whims.

Article II

Section. 1.

…

In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

…

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section. 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

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Proposed Constitutional Amendment to Avoid Corruption and Appearance of Impropriety – and To Restore Trust

jollymonsails

NOTE: MARKUP BOLD TEXT ADDED and DOUBLE BRACKET [[…]] REMOVES:

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

ARTICLE I.

Section 9

…

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them (*to be crystal clear, this is to be construed broadly to include the President (official presidential library staff, campaign staff, corporations, trusts, advisors, employees, family members, strawmen, etc., mutatis mutandis) and ALL other Officers (including those temporarily or permanently assigned with or without Senate confirmation) of/by/for the United States, the Congress, administrative agencies, and of the Courts including the Supreme Court Justices), no Officer shall, without the explicit Consent of the Congress, accept of any present, bribe, tip, reward, contribution, non-bona fide court settlement, etc., (broadly construed to include anything of nontrivial value such as, e.g., luxury airplanes, bags of money, recreational vehicles, gold, diamonds, real estate, intellectual property, contracts, etc. – but not sentimental, artistic, symbols having no significant monetary value from nonprofits, children, or other leaders or peacemakers symbolizing teamwork, unity, friendship, etc.,), Emolument, Office, or Title, of any kind whatever, from any King, Prince, corporation, artificial, constructive, or real person, or foreign State, group of states, nongovernmental entity etc.(to be construed broadly). Any such present, bribe, tip, reward, emolument, of any kind whatsoever shall be immediately held by the Supreme Court strictly in trust (with full transparency and accounting – and receiving no benefit or interest therefrom) solely for the public welfare- and shall revert to the Congress to be used for social security programs, healthcare, or public works to benefit children, seniors, homeless, etc. if not ratified by a unanimous vote from both houses of Congress within 2 days.

Article. II.

Section. 1

…

The President shall, at stated Times, receive for his Services, a just and fair Compensation, irrevocable security, travel, reasonable home, and vacations which shall neither be encreased [[nor diminished ]] during the Period for which he shall have been elected nor diminished during his life, and to maintain independence, avoid corruption and the loss of public trust in the government by manifest appearance of impropriety, he shall not receive within that Period any other tip, reward, contract, donation, contribution such as, e.g., a luxury airplane, recreational vehicle, gold, diamond ‘art’, bag of money, fishing, island, or golfing holidays, travel, real estate, bribe, bad faith court settlement, or Emolument (construed broadly to include anything of value to the president and/or any strawman such as, e.g., the President’s Official Library, campaign, family, attorney, trust, corporation, … or other such strawman, mutatis mutandis) from the United States, or any of them.

Before he enter on the Execution of his Office and each year at his state of the union address, he shall take the following Oath or Affirmation:—”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States – and not willfully, recklessly, or negligently take any actions or inactions which would conflict with the Constitution and the spirit thereof of limited executive, divided powers, federalism, checks, and balances and respect for the rule of law – including that no man shall serve as his own judge.”

Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States as laid out under Article I above – and such service shall be solely and exclusively abroad and outside the United States – however, the President may never, himself, call into such actual Service within the United States, itself, for domestic law enforcement against citizens of the United States, any of them, the Congress, administrative agencies, or the Courts under a broad Posse Comitatus, separation of powers, checks and balances, and federalism approach; he may require the Opinion, in writing, of the principal Officer in each of the solely and exclusively executive Departments except for the Department of Justice, itself, to thereby maintain political independence of the Attorney General and the director of the FBI – and any independent administrative agencies established by Congress and ratified by a President, upon any Subject relating to the Duties of their respective Offices – but, to establish independence, avoid corruption, or appearance of impropriety and maintain separation of powers, limited executive, and checks and balances, he shall not have the power to command or unduly influence an outcome, decision, access or modify underlying data, studies, legal opinions, or attorney work-product, remove or reassign said officer, diminish or increase such officer’s pay or imprison or deport said officer or his family or any other such action meant to unduly influence the independence of such officer, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment – or of cases where: (1) he himself incited or gave aid and comfort to domestic political violence, coup, riot, or insurrection; (2) where the president attempts to pardon himself or his family, attorney, accountant, subordinate, trustee, or insurrector; or (3) child rapists and their conspirators.

…

Section. 4.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery (this is to be construed broadly to include e.g., rewards, tips, travel, luxury airplanes, money in a paper bags, gold, recreational vehicles, real estate, contracts, bogus sham non-bonafide court settlements, etc.) or other high Crimes and Misdemeanors.  We the People, directly reserve a non-exclusive right to impeach and convict a president, vice president, and all civil Officers of the United States upon petition of 30% of registered voters and conviction by 60% thereof.

…

Article. III.

Section. 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour but not more than 20 years – and NO rewards, tips, gratis, honorariums, bribes, donations, paid fishing, island, or golf getaways, luxury travel, recreational vehicles, school fees for children or grandchildren (to be construed broadly) shall be allowed – as corruption of the Court and the mere appearance of impropriety should be avoided at all costs to restore the public faith in the Judiciary, the Rule of Law, fair, equitable, and blind administration of Justice, and shall, at stated Times, receive for their Services, a just and fair Compensation including irrevocable security detail, security clearance, a home, travel, and reasonable vacations, which shall not be diminished during their [[Continuance in Office]] life unless impeached.

The supreme Court Judges, having reached 20 years of service – shall form an independent Justice and Ethics committee with binding authority to order Judges to show cause as to why they should not be recused or removed for bad behavior including unethical conduct or conflict of interest to avoid appearance of impropriety.  Until such time as a quorum of 3 Judges shall have retired from active service – having reached their 20 year term, the committee may be composed of retired federal judges nominated by the Chief Justice and confirmed by a majority of the supreme Court Judges – such appointees shall receive all protections and benefits of Judges of the Supreme Court and the responsibilities therewith.  The Chief Justice and such Justice and Ethics committee shall act in good faith and with all due haste to effect the spirit of this section and to eliminate corruption from (and remedy distrust of) the Court.  Said Justice and Ethics committee shall strive to be transparent and prompt in publishing ethics opinions – and dissents shall they arise.

…

Article. VI.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, [[and]] the Members of the several State Legislatures, any legal or constructive entities formed or established, and all executive and judicial Officers (including e.g., the President and supreme Court Judges respectively), both of the United States and of the several States (mutatis mutandis), shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

…

First Amendment

We The People, uniquely, having a sense of morality, conscience, duty, affinity, justice, liberty, and ethics and also fear, pain, hunger, mortality – whereas, in opposition, merely legal or constructive entities such as, e.g., for-profit corporations do not and instead merely maximize shareholder value or some other aligned goal – thus, to protect people and promote those people being able to positively affect government and to preserve their rights: 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech for real people, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.  Care must be taken to protect bona fide free speech – (even that which may be unpleasant) but distinguishing between speech towards forming a more perfect union or good society on one hand – and disruptive foreign or artificial speech for the speaker’s own profit towards sowing disunity, war, and hatred (especially of the little guy) on the other as an end into itself.  Hate speech and trolling may be profitable – but we cannot build a society where hate-speech is incentivized and profits flow to false prophets.

…

14th Amendment

Section 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. The United States, nor any of them, no State, no Court, no Judge, Justice, Court, nor any Officer such as the President shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws nor remove any person to avoid or loophole around this Section and avoid jurisdiction of the Courts.

Section 2

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any (any, any) office (ALL OFFICES), civil or military, under the United States (TO BE CRYSTAL CLEAR- THIS INCLUDES THE OFFICE OF PRESIDENT), or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States (ANY OFFICER, INCLUDING THE PRESIDENT), or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection, promoted public unlawful violence, terrorism, coup, treason, conspiracy, or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.  In the absence thereof, the Courts, Justices, Judges, Officers, and We the People, all having taken the oath and pledge of allegiance to this Constitution, in accordance with Article VI, shall enforce the provisions of this Constitution as the agreed upon Supreme Law of the Land.