These are America's Locust Years

                            "Washington's taken its eye off the ball."
                                                 — President Obama, July 24, 2013 Galesburg

As I look at America's last five years, I see a rudderless country, drifting ever faster into the maelstrom. I see no serious effort on the part of President Obama or Congress to deal with the great issues facing America.

Instead, we are led by a president and two parties intent only on gaining/retaining power and distributing the spoils to loyal supporters. And as long as supporters get their "bread and circuses," everybody goes on living in a fool's paradise.

By "bread and circuses," I mean pensions, Social Security and our other forms of corporate and individual welfare. With apologies to Winston Churchill, I call these our "Locust Years."

Consider just some of the problems America is facing:

-- Social Security is going broke.

-- Medicare Part A is going broke.

-- Immigrants pour across our southern border.

-- Billions of dollars are spent buying foreign oil -- often from our enemies.

-- The Muslim world -- Iran, Iraq, Afghanistan, Egypt, Libya, Sudan, Somalia, Syria, Lebanon, etc. -- is in chaos.

-- North Korea is developing longer range missiles, and threatens us and its neighbors with nuclear attack. Iran is trying to build a bomb.

-- A real unemployment rate (U-6) of 13.8 percent.

-- An overall unemployment rate among "young people" (ages 18-24) of 18 percent; among young blacks of 28.2 percent; among young Latinos at 16.6 percent.

-- Our cities and states are going bankrupt, and as they do, bondholders and public employees and pensioners face economic ruin.

What serious efforts are being undertaken to deal with these problems?
I see none; only bread and circuses.

The bankruptcy filing by the City of Detroit, is the first shoe to drop. Chicago's bond rating has just been reduced to Aa3 with a "negative outlook." A hundred other cities are close to bankruptcy.

24/7 Wall St labels California the nation's "worst run state." It's per capita debt is $4,008. It has a 20.7 percent budget deficit. Its unemployment rate is 11.7 percent, while 16.6 percent of its people live below the poverty line. Its S&P credit rating is the worst of all the states. Moody's says it is second worst.

Recently California voters passed a ballot initiative which raises sales and income taxes on people who make $250K or more. The Tax Foundation says that the state's increased taxes make it the country's third worst state to do business in.

In some respects, Illinois is in even worse shape -- though it lacks the honor of being labeled "worst." Illinois per capita debt of $4,790 is worse than California's.

It's budget deficit also is worse: 40.2 percent. Its unemployment rates is 9.8 percent and 15 percent of its people live below the poverty line. Standard and Poors gave Illinois the second worst credit rating.

And Illinois state pensions systems are $85 billion "underfunded." In January 2013, S&P downgraded Illinois' credit rating to "A- with a negative outlook." Moody's lowered it from A3 to A2 with a "negative outlook." And now Fitch has downgraded the state to "A- with a negative outlook."

Detroit's bondholders, employees and pensioners are demanding a federal bailout." Bailing out one city is possible. But what happens when Washington is called upon to bail out 99 more cities, and the states of California, Rhode Island, Illinois, Arizona and New Jersey (with it $6,944 per capita debt), not to mention Social Security and Medicare?

What if the Obamacare cost estimates, as is probable, were grossly understated? What if we can't really provide insurance for 39 million people (including 12 to 20 million illegal immigrants) without the government providing additional billions of dollars? What if there is no free lunch?

In 1948, Mr. Churchill penned "The Gathering Storm," the first volume of his history of World War II, and the events leading up to that tragedy. In the fifth chapter, "The Locust Years," Churchill described the five-year period from 1931-1935, the years when Hitler came to power, when the European Democracies still put their trust in the "collective security" promised by the League of Nations, when the United States and Europe were mired in the Great Depression and isolation, and when the British government looked with unseeing eyes on ominous events in Germany.

Mr. Churchill decried the lack of leadership of Britain's national government, in these words:

"Delight in smooth-sounding platitudes, refusal to face unpleasant facts, desire for popularity and electoral success regardless of the vital interests of the State, genuine love of peace and pathetic belief that love can be its sole foundation, obvious lack of intellectual vigor in ... leaders of the ... government, marked ignorance of Europe and aversion from its problems ... the utter devotion ... to sentiment apart from reality ... and fecklessness which, though devoid of guile, was not devoid of guilt, and though free from wickedness or evil design, played a definite part in unleashing upon the world of horrors and miseries ... beyond comparison in human experience."

Change only the word "Europe" to "the world," and Mr. Churchill could well have been speaking of America's last five years.

Unless America addresses its problems without delay, America will soon pay an awful forfeit for its lack of leadership, for its Locust Years, and for its policy of bread and circuses.

President Obama has lamented "Washington's taken its eye off the ball." But he and John Boehner are Washington -- Washington at its most feckless.

Posted Online:  Aug. 10, 2013, 11:00 pm  - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea

Federal Government Now Has Unlimited Power

On June 28, 2012, in National Federation of Business v. Sebelius, Chief Justice John Roberts, wrote, "The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits."

Then, in the remainder of that opinion upholding the Obamacare law and its"penalty" as a "tax," Justice Roberts administered the coup de grace to all pretense that the federal government was in truth one of limited powers:

"The Government does not claim that the taxing power allows Congress to issue such a command. Instead, the Government asks us to read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.

"There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.

The chief justice then upheld the Obamacare "tax" and took to its logical conclusion what Treasury Secretary Alexander Hamilton had written in his 1791 Report on Manufactures to the House of Representatives:

"The National Legislature has express authority 'to lay and collect taxes ... to ... provide for the ... general welfare,' with no other qualifications than (1) that 'all ...excises, shall be uniform throughout the United States; and (2) that no capitation or other direct tax shall be laid, unless in proportion to numbers, ascertained by a census' ... and (3) that 'no tax or duty shall be laid on articles exported from any State.'

"It is, therefore, of necessity, left to the discretion of (Congress) to pronounce upon the objects which concern the general welfare ... The only qualification of the generality of the phrase in question, which seems to be admissible, is this: That the object, to which an appropriation of money is to be made, be general, and not local; its operation extending, in fact, or by possibility, throughout the Union, and not being confined to a particular spot."

Under Hamilton's formulation, Congress is the sole judge of what concerns the general welfare. Where Roberts goes beyond Hamilton is that Roberts would say Congress has power to tax not only acts, but omissions. Under the Roberts' formulation, Congress -- once it determines that its tax concerns the general welfare -- can tax anything! It can tax buying insurance or not buying insurance. It can tax eating broccoli, or not eating broccoli. It can tax having children or not having children. It can tax engaging in a sexual act or not doing so.

In 1828, during the course of the nullification crisis, John C. Calhoun in his South Carolina Exposition and Protest, foresaw the threat to the the sovereignty of the states by vesting in any branch or department of the federal government the power to "act as judge" in controversies between the federal and the state governments, and between the federal government and the people -- that is, to "act as judge" in a case where it also was either "plaintiff" or "defendant."

"If it be conceded, as it must be by every one who is the least conversant with our institutions, that the sovereign powers delegated are divided between the General and State Governments, and that (the states) hold their portion by the same tenure as (the General), it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. 'The right of judging,'  in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself, and being reduced to a subordinate corporate condition. In fact, to divide power, and to give to one of the parties the 'exclusive right of judging' of the portion allotted to each, is, in reality, not to divide it at all; and to reserve such exclusive right to the General Government (it matters not by what department to be exercised) is to convert it, in fact,into a great consolidated government, with unlimited powers, and to divest the States, in reality, of all their rights. It is impossible to understand the force of terms, and to deny so plain a conclusion."

To say that Congress alone is the sole judge of the general welfare and that once Congress decides that an activity -- or inactivity -- concerns the general welfare and should be taxed, is to give Congress unlimited power.

When that power is coupled with the power of the federal government to define what is and what isn't religious activity, and what is or what isn't free speech all notions that the federal government is a government of "limited powers" becomes a cynical fiction.

The "power to tax," in the words of Chief Justice John Marshal, is the "power to destroy." If you doubt that assertion, simply consider what the Internal Revenue Service has been doing to
conservative groups. Tea party-type groups exist to speak in favor of limited government. The government, by labeling their free speech as "political activity" seeks to abolish their 1st Amendment rights.

By denying that the Catholic Church, in operating universities and charities, is engaged in religious activity, the government seeks to deny the church "the free exercise of religion," Roberts' holding is a logical extension of Hamilton's position. But in the words of Justice Oliver Wendell Holmes, "the law is not logic; it is experience."

The American experience is that we declared independence when a king tried to tax sugar and stamps. Would the people who ratified our Constitution have done so had they understood that it would mean what Mr. Justice Roberts now says it means? No way!

Posted Online:  Aug. 03, 2013, 11:00 pm  - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea

Special Prosecutor Right to Put Zimmerman before Jury

Gadfly reporter Geraldo River told a Fox News interviewer Sunday the special prosecutor in the George Zimmerman case should never have brought charges against Zimmerman.

I could not disagree more. In an era when the public distrusts all politicians -- including prosecutors and even the U.S. attorney general -- I think this is precisely the sort of case that should have been decided by a jury of our fellow citizens. And remember, both the prosecution and defense had the power and the right to select the jurors they wanted, and exclude those they didn't want.

I am not expressing my personal opinion as to whether Zimmerman was guilty or not guilty. Nor do I condone any misconduct by the prosecutor, such as withholding exculpatory evidence. But in her decision to have the matter tried by an impartial jury, the special prosecutor did precisely the right thing.

In my years as an assistant state's attorney, and later as a circuit court judge, I came to have very definite opinions about bringing charges or not bringing charges.

Prosecutors can decide whether to charge and, if they do, to charge the greatest offense or a lesser offense. This is called "prosecutorial discretion."

Most often, the prosecutor makes that decision himself. But he also can present the matter to a grand jury and give it the option of whether to change and what charges to bring. Either way, it is a one-sided presentation; the defense gets to say nothing.

Under our system of justice, however, one thing is clear: While a prosecutor or grand jury may charge, and while a president or a governor may demand an individual be brought to justice, it is the petit jury, the trial court jury, that is the sole finder of fact. It is the petit jury that weighs the evidence and evaluates the credibility of witnesses. And it has the great advantage in that it hears all the relevant evidence -- both prosecution evidence, as well as defense evidence.

The national press has spent a great deal of time inveighing against the "stand your ground" provision in Florida's law of self-defense. I look at the Martin-Zimmerman case rather as a traditional self-defense case. And I look at our self-defense statute and believe the Florida jury decided its case under similar principles.

The Illinois statute provides:

" A person ... is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony."

Our statute does not mention "a duty to retreat." But where retreat is a reasonable option, or where retreat would render unnecessary the need to use deadly force, I believe an Illinois jury would be justified in finding no self-defense.

That being said, when your head is being pounded against the ground, and the next blow driving your head against the concrete may produce death or great bodily harm, and where retreat appears impossible, the reasonable and necessary course may well be to shoot your assailant to save your own life.

That is why I think the Florida special prosecutor did the right thing in bringing this case before a jury. Indeed, I see many reasons for doing so:

1. This was a racially charged case.

2. An unarmed young man, who may or may not have been an aggressor, was shot to death.

3. A petit jury exists to determine the facts, to judge credibility of witnesses, to draw reasonable inferences from proven facts, and to act as the sole judge of the facts. (This excludes the judge, the police, prosecutor and even the president of the United States as appropriate judges of the facts.)

 4. The case is tried in an adversarial setting with the prosecutor doing his best to prove guilt, and the defense doing its best to establish reasonable doubt or innocence. The jury will get the fullest possible presentation of evidence, and will be assisted by arguments of counsel in understanding the evidence and showing them the inferences to be drawn from it, as well as the court's instructions as to the law.

5. The jury, with its six-person collective memory, is better able than any one individual to sort through the jumble of evidence and decide:

a. Whether Trayvon Martin's mother was telling the truth when she testified that her son was screaming for help, or whether Zimmerman's mother was telling the truth when she testified her son was screaming for help.

b. Which of the witnesses were most credible, and to compare and weigh the testimony of each witness.

c, Whether from all the facts, Zimmerman had an intent to murder, or an intent to defend himself.

d. Whether Zimmerman was in imminent danger of death or great bodily harm.

e. Whether Zimmerman's use of deadly force was reasonable.

f . Whether it was necessary.

g . Whether Martin was pounding Zimmerman's head against the concrete, and whether in doing so Martin was committing a forcible felony.

In short, in a case of this nature, the best way to find the truth is to put the matter before an impartial jury, assisted by an impartial judge and competent attorneys.

In this case, the jury was freely chosen by both the prosecution and defense. Nothing suggests that the jury harbored an iota of bias or that their verdict was anything but on the law and the facts.

Posted Online:  July 17, 2013, 11:00 pm  - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea

Why the Senate Immigration Bill Is Nuts

Imagine that a one-inch water pipe bursts in your basement. What do you do first? Do you try to shut off the water? Or do you let it continue to run, and begin cleaning up the water with sponges, towels and a Shop Vac?

Your wife, while preparing a salad, seriously cuts herself with a knife. She bleeds all over your kitchen. What do you do first? Try to stop the bleeding? Or wipe up the blood from the floor and sink?

Immigrants from Mexico and Central America are pouring across our open Southern border. What should Congress do first? Shut off the flow of illegal immigrants? Or worry about giving them a "pathway to citizenship?"

Eight U.S. Senators, inanely referred to as "The Gang of Eight," have cobbled together a 1,200-page bill which purports to solve "the immigration problem." (America's first immigration bill ran a page and a half!) Does it close the border? Not exactly.

Instead, according to Fox News,"The measure voted on (June 24, 2013) ... would double the size of the U.S. Border Patrol at a cost of around $30 billion and complete 700 miles of fencing. At the same time it sets out a pathway to citizenship for some11 million immigrants living in the United States illegally, who would be permitted to get permanent resident green cards only once all the border changes had been put in place, about a decade after enactment of the legislation. The Department of Homeland Security already has fenced off 651miles of the 1,969-mile border between the U.S. and Mexico. If 700 more miles are fenced off, 1,351 miles would be fenced off, leaving 618 unfenced.

Do fences work? Ask the Israelis.

In early 2013, Israel completed a 144-mile section of fence along its southern border with Egypt to keep out "illegal infiltrators." It is 16 feet high and is augmented with barbed wire, surveillance cameras and radar. Israeli Prime Minister Benjamin Netanyahu, according to the Wall Street Journal, states that illegal crossings have declined 99.9 percent from 2,000 per month to only two. The 144-mile section cost $416 million. (So, what would 1,318 miles of fence cost?)

The new Israeli fence is separate from the fence that runs along the West Bank, which began in 2003. According to the Jewish Virtual Library, "During the 34 months from the beginning of the violence in September 2000 until the construction of the first continuous segment of the security fence at the end of July 2003, Samaria-based terrorists carried out 73 attacks in which 293 Israelis were killed and 1950 wounded. In the 11 months between the erection of the first segment at the beginning of August 2003 and the end of June 2004, only three attacks were successful, and all three occurred in the first half of 2003."

In 2002 alone, Israel suffered 55 suicide bomber attacks that resulted in 220 deaths. As the West Bank fence was completed, both attacks and deaths declined. By 2005, there were but seven attacks which took 22 lives. In 2006, there were four attacks that killed 15. In 2007, there only was one attack that took three lives. According to the Israeli Security Agency, there were no suicide attacks in 2009 and 2010.

The U.S. would not be building a fence to stop suicide bombers. But if a fence can stop Muslim fanatics determined to plant bombs in Israel, even at the cost of their own lives, it certainly should be able to stop Mexican men, women and children trying to escape Mexican poverty and drug violence from entering the U.S.

A U.S. fence also would have a second critical use. It would make it far more difficult for Mexican drug lords to send their drugs, violence and agents into our country. If you think this isn't a major problem, consider the words of Jack Riley, special agent in charge of the federal Drug Enforcement Administration's Chicago office:"While Chicago is 1,500 miles from Mexico, the Sinaloa drug cartel is so deeply embedded in the city that local and federal law enforcement are forced to operate as if they are on the border."

Our open southern border facilitates the transport of deadly illicit drugs into our country. It allows the cartels to send in their hitmen. And it allows them be become rich and powerful enough to control governments.

If drug operatives are easily crossing our open border, why can't Muslim terrorists? Does it make any sense that we leave our border unfenced, while our National Security Agency is reading the emails and monitoring the other Internet traffic of every American in a effort to keep the country safe from Muslim terrorists? This is nuts!

It's like barring the front door, while leaving the back door and windows open!

Sadly, it appears, that in the eyes of the Senate and the President, that illegal immigrants and narco-violence "specialists" less are worthy of less government scrutiny than are law-abiding Americans using the internet!

Our immigration policy should not exist to create little "Democrats" or little"Republicans" or to provide a power base to keep politicians in office who put party over country.

We are a nation of immigrants. Our doors are not closed. Every year, America admits over a million immigrants legally. A spreadsheet prepared by Organization for Economic Cooperation and Development shows that no other nation even comes close.

Our immigration policy should have two goals: First, close the border to illegal immigration, Mexican drug violence and potential terrorists; then, once that is done, create a fair bipartisan path to citizenship for those who are here illegally but who haven't created felonies and/or do not pose a danger to this country.

Posted Online:  July 06, 2013, 11:00 pm  - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea

With NSA, Odious General Warrant Makes a Comeback

In 21st century America, every American wants to be safe from terrorists. To that end, this paper reports that the National Security Agency has embarked upon two programs: The first collects sending and receiving phone numbers and the duration of the calls. The second, if the "leakers" are correct, gathers audio,video, email, photographic and Internet search usage from anyone using Microsoft, Google, Apple and Yahoo.

The goal of security is sound. But can a government that lies and stonewalls about Benghazi and the IRS scandal, and targets AP and Fox News reporters be trusted?

The Fourth Amendment to the U.S. Constitution was passed because our Founding Fathers feared encroachment by the new federal government upon their rights.

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issued, but upon probable cause,supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The amendment was meant to outlaw general warrants and writs of assistance by the British government in the days just before our Revolutionary War. A general warrant was a search/arrest warrant which did not particularly describe the place to be searched, and the persons or things tobe seized. A writ of assistance was a general warrant used in customs cases to find smuggled goods.

Charles Paxton was a Boston customs officer. In 1755, the Superior Court in Boston gave Paxton a writ of assistance that gave Paxton power "to board any boat or other vessel ... within said port... and there to search ...and ... go into any vaults, cellars, warehouses, shops or other places to search (for any undeclared) goods ... (that) are suspected ... to be concealed...."

Six years later, Paxton (and other customs officials)sought to renew their writs which had expired upon the death of George II.In January 1761, Massachusetts merchants challenged them. James Otis, Jr., a Boston attorney, argued on behalf of the merchants, that such writs violated common law principles. "The freedom of one's house was among the most essential branches of English liberty. ... Customs officials, acting under 'Writs of Assistance' may enter our houses when they please, break our locks, bars and everything in their way," he argued.

John Adams, who sat through the attorneys' arguments, wrote "Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there, the child Independence was born." For Adams, the writs of assistance were the first causes of the Revolutionary War.

The five judges in Paxton's case upheld the use of the writs of assistance. Our Fourth Amendment was written to overrule that holding. Now in 12 years since 9/11, in the name of security, Americans seem willing to surrender those rights, perhaps forever. Suddenly, the NSA appears to be operating under what can fairly be called general warrants issued by the FISA court.

In 1967's Katz v. U. S., the U. S. Supreme Court held that the Fourth Amendment protects people, not places, and that when "One who occupies (a phone booth), shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world."

In his concurring opinion,Justice Harlan said "an enclosed telephone booth is an area where ... a person has a constitutionally protected reasonable expectation of privacy."

But if phone calls, which then passed through phone lines were protected, why shouldn't our emails sent via the Internet be entitled to similar protection? It is one thing to record the numbers from which calls are made and received, or to look at an address on an envelope. It is hard to find an expectation of privacy in those things. But until these latest revelations, most of us have believed that we have a reasonable expectation of privacy for the contents of our letters, phone calls and emails unless a judge issues a warrant consistent with the Fourth Amendment requirements.

In his concurring opinion in Katz, Justice Douglas spells out the reasons:"Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved, they are not detached, disinterested and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate and prevent breaches of national security and prosecute those who violate the pertinent federal laws.

"The president and attorney general are properly interested parties, cast in the role of
adversary, in national security cases. ... I cannot agree that, where spies and saboteurs are involved, adequate protection of Fourth Amendment rights is assured when the president and attorney general assume both the position of adversary and prosecutor and disinterested, neutral magistrate."

If we can't trust the president or attorney general to be "detached," why should we trust the FBI or NSA? Yes, I want America secure. But I also want a Fourth Amendment that is not in tatters.

Our Fourth Amendment rights against unreasonable search and seizure are not something to be given up lightly without open public discussion and amendment of our Constitution. It took 700 years for our English forbears and the founding Americans to win and be guaranteed the rights specified in the Fourth Amendment. If Americans eschew their hard-won liberties, then what? Once relinquished, can our liberties ever be regained?

Posted Online:  June 23, 2013, 11:00 pm  - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea

Sebelius' Fundraising Is Unconstitutional

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

Impeach Federal Office Holders who Take the Fifth Amendment

The new Acting-IRS Commissioner has suspended Lois Lerner, the head of the unit that considers and passes upon applications from nonprofits groups seeking to get tax-exempt status, for improperly targeting conservative groups. The suspension came one day after she invoked the Fifth Amendment and refused to answer questions before a congressional committee.

Ms. Lerner told the House Oversight committee in an unsworn opening statement that "I have not done anything wrong. I have not broken any laws, and I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee." She then invoked her Fifth Amendment right against self-incrimination.

What must be understood is this. The right against self-incrimination only can be invoked by
one who has a "good faith" belief that by testifying he may disclose something he may have done that might violate the criminal laws. If a person truly is innocent and has no fear his testimony would furnish evidence of his violation of a criminal law, he cannot invoke the 5th Amendment simply to avoid embarrassing himself, or to protect his fellow workers, or his superiors, or for any other purpose.

But what is an IRS employee? What is an IRS supervisor? What is the Commissioner of the
IRS?

They are government employees. But what that means is they really are employees of the people of the United States. They are public servants. They are not our bosses; we are their bosses.

But because they are our servants, or employees, under agency principles, they owe a duty to the American people, and to their Congressional representatives, to give full and fair accountings of their actions as public employees.

Refusing to testify because that testimony may incriminate the employee/witness runs directly contrary to the employees duty to fully and fairly account. Any public employees - including member of the IRS - who takes the 5th to avoid accounting, further abuses his power and commits a high crime or misdemeanor worthy of impeachment.

Commentators agree abuse of power is the quint-essential high crime or misdemeanor, and is the common denominator for all other impeachable offense. Indeed, it is that abuse of power which renders the official unfit to retain his office and unfit to serve.

Five Articles in the U. S. Constitution deal with Impeachment:

Art. I, Sec. 2[5]. The House of Representatives shall ... have the sole power of impeachment.

Art. I, Sec. 3[6]. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation ... no person shall be convicted without the concurrence of two-thirds of the members present.

Art. I, Sec. 3[7]. Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgement and punishment, according to law.

Art. II. Sec. 2 [1]. The President ... shall have power to grant reprieves and pardons ... except in cases of impeachment.

Art.II. 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 or other high crimes and misdemeanors.

In that regard, two things must be understood: (1) Legal scholars have suggested Congress alone decides for itself what constitutes a "high crime or misdemeanor." In 1970, the then-House Minority Leader, Gerald Ford said "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." (2) In [Walter] Nixon v. U. S., the U. S. Supreme Court held it did not have power to review whether the Senate properly "tried" Judge Nixon. The court found the Constitution confides the sole power to try impeachments to the Senate, and therefore that review of the Senate conviction was a non-justiciable matter, and it therefore lacked judicial power to review the judgment of the Senate.

There are a number of sound reasons why arrogant public officials of Lois Lerner's ilk should be impeached. An impeachment conviction by the Senate swiftly can remove an official from office who abuses his power, or who refuses to account for his conduct in office. It also can render him forever disqualified to hold and enjoy any (present or future) office of honor, trust or profit under the United States.

Additionally, it deprives him of all pension benefits. Finally, there are no endless judicial appeals from the Senate's conviction. Once convicted, the notion the officer is on administrative leave at full salary is dead. And once convicted, the President can't give him another government job.

If Ms. Lerner continues to take the 5th in the face of Impeachment, we can fairly conclude
that her taking the 5th was done in good faith, and that she would prefer to be removed from office, lose her pension and be disgraced and disqualified rather than to tell the whole truth which might lead to her criminal prosecution and imprisonment.

Posted Online:   June 01, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea