When Congress refuses to appropriate funds, does the President have the power to fund Obamacare asking for gifts and loans?
Most Americans probably never have heard of the Petition of Right of June 7, 1628. In England, the Petition of Right is considered one of England's seminal constitutional documents, on a par with Magna Carta and English Bill of Rights of 1689. It held a similar status in Colonial America.
Indeed, the rights granted by King Charles I in that 385 year-old document are all embodied in sundry provisions of our U.S. Constitution. And now, at its 385 anniversary, the Obama Administration -- in the person of Health and Human Services Secretary Kathleen Sebelius -- has chosen to proceed along the path blazed by the King Charles I -- the king who literally lost his head.
Senator Lamar Alexander (R-Tenn.) has charged that, "Secretary Sebelius's fundraising from and coordinating with private entities helping to implement the new health care law may be illegal, should cease immediately and should be fully investigated by Congress."
The abuse of which Alexander now complains was know in the days of Charles I as a "forced loan." According to a report in the Washington Post, for the last three months, HHS Secretary Sebelius has "made multiple phone calls to health industry executives, community organizations and church groups" asking them to support ObamaCare "in any way they can."
According to Sen. Alexander, this fundraising scheme is similar to the Reagan-era Iran-Contra scandal in that money has been funneled from private entities after Congress had intentionally withheld appropriations, [thereby] circumventing the constitutional requirement that only Congress has the power to appropriate funds.
When Charles I came to the English throne, he needed money to prosecute an inherited war. When Charles asked for money, Parliament refused to use its taxing power. The King then, acting in his "Divine Right" as king, decided to by-pass Parliament and called upon his loyal subjects to make him "voluntary loans." The fact the loans were less than voluntary, was demonstrated by the fact anyone who refused to make the King a loan, was imprisoned.
At first, the judges refused to approve of these "forced loans." They fell in line, however, when the king removed his recalcitrant chief justice of his criminal court.
For refusing to "loan" Charles their money, 70 "gentlemen" were jailed without charge, bond or trial. Five of them, in what is known as the "Five Knights Case," sought their release on bond by habeas corpus. They lost. Bail was denied. His unnerved judges reasoned that if no charges had been brought, "the [prisoners] could not be freed as the offense was probably too dangerous for public discussion!"
But while the judges had been cowed, the House of Commons wasn't and after a lengthy battle with both the lords and the king, the commons [led by Edward Coke, a former chief justice "fired" for his "independence" by Charles' predecessor) ultimately responded with the Petition of Rights.
To get money to fight his wars, Charles grudgingly gave approval to the petition and even more grudgingly -- at Parliament's insistence -- used the traditional language that kings used to make an act of Parliament the law of the land.
The Petition of Right guaranteed the king no longer would seek to raise money without the consent of Parliament. The king promised "no man [would be] compelled to make [the king] any gift, loan, benevolence or tax, or such like charge, without the common consent of parliament."
In so doing, Charles acknowledged that Parliament controlled the purse and that there would be no more end runs around the taxing power of Parliament.
To guarantee Englishmen no longer would be imprisoned for failing to make "voluntary" loans, the king further promised as a matter of law that no Englishman would be imprisoned or detained for failing to make a loan and that no subject of the king should be "destroyed or put to death contrary to the laws and franchise of the land" to end the king's uses of courts martial to exact his loans.
Under our Constitution only Congress has power (a) to lay and collect taxes, and (b) to borrow money on the credit of the United States. And (c) no money can be drawn from the treasury, but in consequence of an appropriation made by Congress.
When Congress intentionally withholds appropriations and decides not to fund a program the President wants funded, the President has no power to seek alternative funding by way of loans, donations, gifts, benevolences or any other device.
31 USC § 1341 provides that no "officer or employee of the United States" may "make or authorize an expenditure ... exceeding an amount available in an appropriation or fund for the expenditure or obligation." When the President or any of his subordinates seek to fund any program, by seeking loans or gifts for that purpose, they are engaging in one of the very abuses of power that ultimately cost King Charles his head.
The business of a President ignoring the will of Congress, as Oliver North and President Reagan did in the Iran-Contra Affair" and as Secretary Sebelius now is doing, smacks of "divine right of kings" -- one-man rule and dictatorship.
I do not mean to imply that the President or Ms. Sebelius would try to imprison any health industry executives, community organizations and church groups who refuse to donate to or support ObamaCare "in any way they can." But at a time when the power of the IRS is running amuck and being used to crush conservative groups, imprisonment is unnecessary. A phone call to a friendly IRS employee, followed by an audit, will work just as well.
Posted Online: June 12, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2013
John Donald O'Shea
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