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
Showing posts with label Power of the Purse. Show all posts
Showing posts with label Power of the Purse. Show all posts
Thursday, June 13, 2013
Wednesday, December 12, 2012
If the Presidents Wants to Run off the Cliff, then Let Him
If the Presidents Wants to Run off the Cliff, then Let Him
The president is playing hardball.
It is time for the House to play hardball, and to save the country. Here is the simple advice I would give Congressman Paul Ryan:
Dear Congressman Ryan:
Here is my plan to save the country by ending deficit spending.
1. Let President Obama "drive the bus" off the "fiscal cliff."
2. Then pass separate appropriation bills for only the things the House wants; e.g.:
a. A Social Security appropriation;
b. A Medicare appropriation;
c. A military appropriation;
d. An FBI appropriation.
e. Etc.
3. Make no appropriation for anything the House opposes. Agree to nothing else.
4. Force the president to accept or veto the things the country really needs.
The principle involved is simple. It can be found in the U.S. Constitution.
Article I, provides, "No money shall be drawn from the treasury but in consequence of appropriations made by law." And before any bill (appropriation or otherwise) can become law, it must be passed by both the House and Senate. "
The principle, therefore, is that the president and the Senate cannot spend one penny, unless the House agrees to appropriate the money.
If the House decides to take control of the "purse" as it did in the early days of the republic, and as it did after the Civil War, all the president's grand schemes are checkmated. There may be adverse consequences. But the deficit problem won't be one of them. Nor will deficit spending.
And until we eliminate trillion dollar deficits, all other fixes are phony.
Posted Online: : Dec. 11, 2012, 1:41 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2012
John Donald O'Shea
Wednesday, June 20, 2012
Do Government Dollars Compromise Constitutional Rights?
Recently, a liberal friend of mine wrote "the public is allowed to set
rules ... through its elected representatives and those rules apply to
all citizens." In America, that statement is only somewhat true.
Indeed, to insure that it never could be wholly true, our Founding Father adopted the Bill of Rights. But does the statement become true, if the citizen accepts money from the government?
In England, from the time of Henry VIII, often when a new monarch took the throne, the religion of the realm changed. Henry was Protestant. Mary was Catholic. Elizabeth I was Protestant. Charles I favored Catholics. Americans in 1789 wanted nothing to do with changing their religions every time the majority in Congress changed.
The First Amendment was designed to insure that religion was beyond the power of each new majority in Congress to "esRecently, a liberal friend of mine wrote "the public is allowed to set rules ... through its elected representatives and those rules apply to all citizens." In America, that statement is only somewhat true.
Our Bill of Rights (the first 10 Amendments to the Constitution) exists for the primary purpose of putting certain rights that James Madison and his contemporaries deemed essential to a free America beyond the power of the majority and their elected representatives to change. Indeed, those amendments has always denied the federal government power to do any of the following:
-- Designate a "state religion," or specify how Americans should worship. Such a law would run afoul of the "establishment" and "free exercise of religion" clauses of the First Amendment.
-- Prohibit individuals or the press from criticizing the president, Congress or the Supreme Court. This would run afoul of the First Amendment guarantees of free speech and free press.
-- Abolish the right to bear arms, as guaranteed by the 2nd Amendment.
-- Order the quartering of troops in private homes in time of peace, as prohibited by the Third Amendment;
-- Authorize the government to conduct indiscriminate searches and seizures in the absence of probable cause as required by the Fourth Amendment.
-- Take property for public use without paying just compensation as required by the Fifth Amendment;
-- Abolish the right to jury trial, and speedy and public trials in criminal prosecutions, as guaranteed by the Sixth Amendment
-- Impose cruel and unusual punishments as prohibited by the Eighth Amendment.
Were my friend to give the matter further thought, I'm confident he would concede that the Bill of Rights prevents the majority from changing our rights therein guaranteed. Still, he would probably argue that, "If the church accepts money (from the government) for its quasi-public activities, it must follow whatever rules the elected representatives of the public choose to apply to all citizens."
I think that statement is equally overly broad. By "quasi-public activity," he no doubt means universities, hospitals, and charities that provide adoption services. But hasn't the church for 1,000 years, and for centuries before our Constitution was adopted, considered these as part of its religious mission to love our fellow men and to teach all nations?
So does a church forfeit its First Amendment rights if the church accepts money? If so, how much money may it accept before it surrenders its rights? -- that is, before it must "follow whatever rules the elected representatives of the public choose to apply to all citizens?"
If the University of Notre Dame accepts a nickel from the U.S. government, must it provide to its employees and students insurance that provides coverage for contraceptives and abortifacients?
What if it accepts payments of tuition under a federal loan? What if it accepts tuition for ROTC students paid by the U.S. Navy? What if the university and the state share the cost of construction of a new road to alleviate traffic congestion on football Saturdays? What if it accepts the benefit of having its property tax exempt?
If any of these things result in forfeiture of rights, Notre Dame should have lost its First Amendment rights long ago. That First Amendment provides "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press."
Note there is nothing in the amendment, stating "except if the church accepts money for its quasi-public activities."
By accepting Social Security benefits or a state pension, have I forfeited my right to the "free exercise" of my religion? To free speech? If I don't, why would the church, absent a clear warning that that was the consequence?
There is no question that the government must have the right to legislate to protect the public. But when that power impacts upon the free exercise of religion, that power must be used delicately. That is the rule stated in the U. S. Supreme Court case of Cantwell v Connecticut (1940): "In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom."
Congress' power to protect the public from cannibalism would certainly trump a church's practice of cannibalism.
A president's desire to make contraception and abortion widely available would seemingly permit far less infringement.
Of course, when it comes to money, Congress can always offer a church a choice:
You can take our money, or refuse it. If you take it, these are the strings!
by John Donald O'Shea
Copyright 2012
John Donald O'Shea
Indeed, to insure that it never could be wholly true, our Founding Father adopted the Bill of Rights. But does the statement become true, if the citizen accepts money from the government?
In England, from the time of Henry VIII, often when a new monarch took the throne, the religion of the realm changed. Henry was Protestant. Mary was Catholic. Elizabeth I was Protestant. Charles I favored Catholics. Americans in 1789 wanted nothing to do with changing their religions every time the majority in Congress changed.
The First Amendment was designed to insure that religion was beyond the power of each new majority in Congress to "esRecently, a liberal friend of mine wrote "the public is allowed to set rules ... through its elected representatives and those rules apply to all citizens." In America, that statement is only somewhat true.
Our Bill of Rights (the first 10 Amendments to the Constitution) exists for the primary purpose of putting certain rights that James Madison and his contemporaries deemed essential to a free America beyond the power of the majority and their elected representatives to change. Indeed, those amendments has always denied the federal government power to do any of the following:
-- Designate a "state religion," or specify how Americans should worship. Such a law would run afoul of the "establishment" and "free exercise of religion" clauses of the First Amendment.
-- Prohibit individuals or the press from criticizing the president, Congress or the Supreme Court. This would run afoul of the First Amendment guarantees of free speech and free press.
-- Abolish the right to bear arms, as guaranteed by the 2nd Amendment.
-- Order the quartering of troops in private homes in time of peace, as prohibited by the Third Amendment;
-- Authorize the government to conduct indiscriminate searches and seizures in the absence of probable cause as required by the Fourth Amendment.
-- Take property for public use without paying just compensation as required by the Fifth Amendment;
-- Abolish the right to jury trial, and speedy and public trials in criminal prosecutions, as guaranteed by the Sixth Amendment
-- Impose cruel and unusual punishments as prohibited by the Eighth Amendment.
Were my friend to give the matter further thought, I'm confident he would concede that the Bill of Rights prevents the majority from changing our rights therein guaranteed. Still, he would probably argue that, "If the church accepts money (from the government) for its quasi-public activities, it must follow whatever rules the elected representatives of the public choose to apply to all citizens."
I think that statement is equally overly broad. By "quasi-public activity," he no doubt means universities, hospitals, and charities that provide adoption services. But hasn't the church for 1,000 years, and for centuries before our Constitution was adopted, considered these as part of its religious mission to love our fellow men and to teach all nations?
So does a church forfeit its First Amendment rights if the church accepts money? If so, how much money may it accept before it surrenders its rights? -- that is, before it must "follow whatever rules the elected representatives of the public choose to apply to all citizens?"
If the University of Notre Dame accepts a nickel from the U.S. government, must it provide to its employees and students insurance that provides coverage for contraceptives and abortifacients?
What if it accepts payments of tuition under a federal loan? What if it accepts tuition for ROTC students paid by the U.S. Navy? What if the university and the state share the cost of construction of a new road to alleviate traffic congestion on football Saturdays? What if it accepts the benefit of having its property tax exempt?
If any of these things result in forfeiture of rights, Notre Dame should have lost its First Amendment rights long ago. That First Amendment provides "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press."
Note there is nothing in the amendment, stating "except if the church accepts money for its quasi-public activities."
By accepting Social Security benefits or a state pension, have I forfeited my right to the "free exercise" of my religion? To free speech? If I don't, why would the church, absent a clear warning that that was the consequence?
There is no question that the government must have the right to legislate to protect the public. But when that power impacts upon the free exercise of religion, that power must be used delicately. That is the rule stated in the U. S. Supreme Court case of Cantwell v Connecticut (1940): "In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom."
Congress' power to protect the public from cannibalism would certainly trump a church's practice of cannibalism.
A president's desire to make contraception and abortion widely available would seemingly permit far less infringement.
Of course, when it comes to money, Congress can always offer a church a choice:
You can take our money, or refuse it. If you take it, these are the strings!
Posted Online: June 19, 2012, 2:31 p.m - Quad-Cities Online
by John Donald O'Shea
Copyright 2012
John Donald O'Shea
Thursday, April 12, 2012
House GOP Should Assert Constitutional Prerogative
In 1627, England was at war, and King Charles I needed money.
The House of Commons refused to provide that money. The King reacted by dissolving Parliament.
Two week later, the King opted to raise the money he needed by resorting to "forced loans" -- a euphemism for a "tax" imposed by the king without the consent of the Commons.
For the next 20 years, the King and Parliament battled over who controlled the "power of the purse." The issue was finally settled only after the English Civil War (1642-1651), during the course of which Charles I, lost his head.
When America adopted its Constitution (1788), that "power of the purse," which the House of Common fought a 10-year civil war to hold on to, was, in the first instance, vested in our House of Representatives. It is the House's preeminent power, and the guarantee that the people of our country will not be taxed without the consent of their Representatives in the House. A guarantee that they will not be taxed by a "king" or his ministers.
This is the historical backdrop in front of which President Obama rails against a "do-nothing (Republican) Congress" on an almost daily basis. So, is he being honest with the voters? Or is he playing an anti-constitutional cynical game?
How does he explain the fact that when he recently sent his own "budget" to Congress, that every member of the House of Representatives -- every Republicans and even every Democrats -- voted against it!
And how does he explain the fact that Democrat Harry Reid refuses to even call it up for a vote in the Senate the House's proposed appropriations bills?
If President Obama's budget is a "good faith submission," why doesn't Reid call it?
The Democrats control the Senate. If it has an iota of merit, the Senate could pass it without a single Republican vote! Then senators could go to conference with the House, where maybe something might get done.
So, who is really to blame? A president who cannot get a single Democratic House member or senator to vote for his "budget?" Both houses of Congress?
Or would it be "fairer" to blame only one house? And if so, which house? The House or the Senate?
I am from a generation that believes talk is cheap, and that "actions speak louder than words." So what would I do if I were running the House?
It is very simple. I would pass legislation, which if ignored by the Senate or vetoed by the president, would clearly demonstrate to the voters who is really at fault for the current mess. (Of course, the Republican leadership in the House may lack the wit to fashion such legislation.)
Section 7 [1] of the U. S. Constitution provides "All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills."
It also provides "No money shall be drawn from the treasury but in consequence of appropriations made by law ..."
Two years ago, Americans gave the Republicans control of the House.
They concluded that the Democrats had been spending ruinously. They expected the Republicans to fix things. Instead, the House and Senate have given us a series of gutless "continuing resolutions."
So here is my solution. The Republicans, rather than passing "omnibus" appropriation and spending bills, should pass a series of separate appropriation bills, and a series of separate spending bills.
If the Republicans believe that there should be an appropriation for the armed forces, they should pass a "clean" appropriations bill for funding the armed forces. (When I say "clean," I mean a bill that does nothing other than fund the armed forces -- with no earmarks, no gimmicks, no extraneous provision.)
If they want to fund Social Security (which will be necessary to make up for revenue shortages caused by President Obama's payroll tax holiday), pass a clean appropriations bill for that purpose.
If they want to fund Medicare, pass a clean appropriations bill for that purpose, etc.
On the other hand, if they are serious about wanting to defund Obamacare, or the Department of Education or any other department, they can refuse to pass an appropriations bill for that department.
If the House passes clean appropriation bills, and if the Senate refuses to consider them, or amends them in a way to dirty them up, it will then be patently clear to the American public which branch of Congress is truly the do-nothing branch.
House Republicans would then be in perfect position to say if the government is forced to shut down, "Don't blame us. We passed a clean bill to make sure that every American would get his Social Security check. And if you don't get your checks, blame Harry Reid and the Senate and/or the president for shutting down the Social Security programs of the government."
Under our Constitution, the House "controls the purse."
It's time that the House, asserts its Constitutional prerogative. Demonstrate in a way that the public can't misunderstand that the Democrats in the Senate are the true obstructionists -- if that is indeed the case.
A House that won't fight to maintain its right to control the power of the purse is a disgrace to its heritage.
Posted Online: April 11, 2012, 3:08 pm pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
The House of Commons refused to provide that money. The King reacted by dissolving Parliament.
Two week later, the King opted to raise the money he needed by resorting to "forced loans" -- a euphemism for a "tax" imposed by the king without the consent of the Commons.
For the next 20 years, the King and Parliament battled over who controlled the "power of the purse." The issue was finally settled only after the English Civil War (1642-1651), during the course of which Charles I, lost his head.
When America adopted its Constitution (1788), that "power of the purse," which the House of Common fought a 10-year civil war to hold on to, was, in the first instance, vested in our House of Representatives. It is the House's preeminent power, and the guarantee that the people of our country will not be taxed without the consent of their Representatives in the House. A guarantee that they will not be taxed by a "king" or his ministers.
This is the historical backdrop in front of which President Obama rails against a "do-nothing (Republican) Congress" on an almost daily basis. So, is he being honest with the voters? Or is he playing an anti-constitutional cynical game?
How does he explain the fact that when he recently sent his own "budget" to Congress, that every member of the House of Representatives -- every Republicans and even every Democrats -- voted against it!
And how does he explain the fact that Democrat Harry Reid refuses to even call it up for a vote in the Senate the House's proposed appropriations bills?
If President Obama's budget is a "good faith submission," why doesn't Reid call it?
The Democrats control the Senate. If it has an iota of merit, the Senate could pass it without a single Republican vote! Then senators could go to conference with the House, where maybe something might get done.
So, who is really to blame? A president who cannot get a single Democratic House member or senator to vote for his "budget?" Both houses of Congress?
Or would it be "fairer" to blame only one house? And if so, which house? The House or the Senate?
I am from a generation that believes talk is cheap, and that "actions speak louder than words." So what would I do if I were running the House?
It is very simple. I would pass legislation, which if ignored by the Senate or vetoed by the president, would clearly demonstrate to the voters who is really at fault for the current mess. (Of course, the Republican leadership in the House may lack the wit to fashion such legislation.)
Section 7 [1] of the U. S. Constitution provides "All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills."
It also provides "No money shall be drawn from the treasury but in consequence of appropriations made by law ..."
Two years ago, Americans gave the Republicans control of the House.
They concluded that the Democrats had been spending ruinously. They expected the Republicans to fix things. Instead, the House and Senate have given us a series of gutless "continuing resolutions."
So here is my solution. The Republicans, rather than passing "omnibus" appropriation and spending bills, should pass a series of separate appropriation bills, and a series of separate spending bills.
If the Republicans believe that there should be an appropriation for the armed forces, they should pass a "clean" appropriations bill for funding the armed forces. (When I say "clean," I mean a bill that does nothing other than fund the armed forces -- with no earmarks, no gimmicks, no extraneous provision.)
If they want to fund Social Security (which will be necessary to make up for revenue shortages caused by President Obama's payroll tax holiday), pass a clean appropriations bill for that purpose.
If they want to fund Medicare, pass a clean appropriations bill for that purpose, etc.
On the other hand, if they are serious about wanting to defund Obamacare, or the Department of Education or any other department, they can refuse to pass an appropriations bill for that department.
If the House passes clean appropriation bills, and if the Senate refuses to consider them, or amends them in a way to dirty them up, it will then be patently clear to the American public which branch of Congress is truly the do-nothing branch.
House Republicans would then be in perfect position to say if the government is forced to shut down, "Don't blame us. We passed a clean bill to make sure that every American would get his Social Security check. And if you don't get your checks, blame Harry Reid and the Senate and/or the president for shutting down the Social Security programs of the government."
Under our Constitution, the House "controls the purse."
It's time that the House, asserts its Constitutional prerogative. Demonstrate in a way that the public can't misunderstand that the Democrats in the Senate are the true obstructionists -- if that is indeed the case.
A House that won't fight to maintain its right to control the power of the purse is a disgrace to its heritage.
Posted Online: April 11, 2012, 3:08 pm pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
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