CONSTITUTIONAL CONVERSATIONS
By
M.E. Boyd, Esq., “Miss Constitution”
#twill #tcot #sbalich #leadright #maga
Last week Miss Constitution explained that our system maintains its stability, in part, by having ongoing tension for power between the federal government and state and local governments, called DIVISION OF POWER and ongoing tension for power between the three branches of the federal government itself called SEPARATION OF POWER. This is normal and natural, and each side makes its case to the public about the legitimacy of its claims. Ultimately, power is retained in the People of the United States through Amendment X of the United States Constitution as part of our Bill of Rights.
The powers not delegated to the United States Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Examples of appropriate Tugs of War relative to DIVISION OF POWER might be between local school districts and federal mandates in education. How much money can a private school receive from the federal government and still retain its status as “private?” Or, what is the appropriate regulatory power over navigable waterways in a state relative to local permits for dock construction in conjunction with the federal Environmental Protection Agency and state laws? These overlaps of power go on every day and maintain a check on abuse of power by either the federal or state and local governments.
The three branches of the federal government, executive, legislative, and judicial, each have specific powers conferred to them as well as shared power and routinely butt heads over whose authority prevails relative to SEPARATION OF POWER. So, the President can take a military action he or she feels is in the national interest but must brief Congress, within a certain time, regarding any decisions that might inadvertently lead to war – a Congressional prerogative. Congress may pass a statute, have it signed by the President into law, but the Supreme Court may rule all or part of it unconstitutional. And, so on and so on. All this is quite legitimate although each side tugging at power voices outrage at the other side and tries, many times, to de-legitimize what amounts to shared power. That is called politics; it can be very ugly and rude.
So, what would be inappropriateTugs of War? Here are two examples:
- DIVISION OF POWER
Under Article I, section 8 of the United States Constitution, Congress has complete (plenary) power over naturalization, immigration, customs enforcement, border protection, etc. State and local law that conflicts with federal law is invalid as there is no Tug of War here. The federal government has complete control on behalf of the nation. The power of states to create sanctuary cities, sanctuary states, resistance to federal law enforcement and so on simply does not exist and violates the Preemption Doctrine under Article VI of the United States Constitution. The Preemption Doctrine makes federal law the supreme law of the land over state and local law where federal law retains complete power over a subject. So, how is the resistance movement relative to immigration going on? Miss Constitution has no idea.
- SEPARATION OF POWER
Under Article I, section 2 of the United States Constitution, the House of Representatives has the sole power of Impeachment. Sometimes this power is used to remove un-elected judges suffering from substance abuse or dementia who have not resigned or retired. Applied to an elected President of the United States certain rules apply. The inquiry must begin with a bipartisan vote of the whole House; Due Process must be afforded all; and the inquiry should not open if a Presidential election is close at hand. The voters themselves would be able to “impeach” by not returning that person to power. If there are disputes in the Tug of War, they are decided by the Supreme Court prior to the House submitting Articles of Impeachment.
The current House of Representatives has failed on all the rules regarding Impeachment and has delivered for that reason a flawed set of Articles to the Senate for trial. It does not matter that the Articles are ceremoniously walked down the hall to the Senate; it does not matter that the Articles are signed by the Speaker of the House with special pens; it does not matter if those who voted to Impeach the President make patriotic speeches about how no one is above the law. None of this false ceremony and masking of motive matters whatsoever if the process is flawed. A flawed Tug of War is automatically an inappropriate Tug of War. The House would be obliged to start over and follow the rules and deliver to the Senate a legitimate set of Articles of Impeachment if the House can muster a bipartisan vote. Miss Constitution called for the Speaker, in another column, to simply stop the process until it could be conducted legitimately. Now what should be done?
Any accommodation of what is flawed is a waiver and legitimizes the illegitimate. For the sake of comity and respect and collegiality the Senate should hear the case the House has presented within the four-corners of the documents it created and a vote should be taken on the merits immediately. Senator questions should, of course, be addressed but there should be no expansion of the case through additional evidence and witnesses not in the original Articles. An inappropriate Tug of War between one part of the legislative branch of the federal government and the President representing the executive branch should not be tolerated. Fairness and Due Process are the responsibility of the House before such monumental actions are taken. They are not the responsibility of the Senate triers who are required to receive the “hot mess.” Miss Constitution would recommend the House of Representatives wait until after the public has had a chance to weigh arguments about a second term and then, if the President is re-elected, wait until he commits a high crime or treason, then follow the long-standing rules for Impeachment of a President, and submit valid Articles should that be appropriate.
Copyright©2020 M. E. Boyd, Esq., “Miss Constitution”
APPLES OF GOLD – Voices from the Past That Speak to Us Now by M. E. Boyd is available at www.amazon.com
