I recently testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. This week, President Obama went even further with the announcement of a new sweeping exemption that not only has no foundation in the federal law but directly contradicts the law. It also happens (again) to be a change debated but not accepted by Congress. The exemption appears an effort to blunt growing criticism of Obama for a false assurance given to citizens before the enactment of the ACA. It is also coming at a time of new polls indicating that Obama is not only hitting a record low in popularity but Republicans appear poised to gain seats in both houses (and potentially could retake the Senate as well as add seats in the House). [Update: The White House is now denying that it will implement the hardship exemption despite the article in the Wall Street Journal and other media]
The individual mandate has long been the most controversial part of the ACA. That controversy magnified after millions of people lost their insurance plans despite assurances from Obama that no one would be forced to give up plans that they like. Even the Washington Post declared the statement to be false and a case of consistent and repeated misrepresentation.
The political damage over the ACA is clearly growing. That damage was greatly magnified by the mismanagement of the rollout by Health and Human Services Secretary Kathleen Sebelius and her staff. Such political costs of federal law however are not a basis for regulatory changes, even when such changes are allowed under the federal law. In this case, the President has far exceeded any plausible claim of statutory or regulatory authority. The individual mandate is the heart of the ACA and was the subject of heated and careful drafting. There is no provision for an exemption, but Obama has now rewritten much of the act with a series of extra-legislative changes — no fewer than 13 such executive changes to the law.
This last change will allow virtually anyone to avoid the individual mandate requirement — precisely the option that the White House successfully blocked when proposed in Congress.
The new change would allow individual to claim a “hardship exemption” to avoid paying a penalty for not buying insurance. That would fundamentally change the operation of the law. Not only does this contradict the law but the Administration fails to clear define what a “hardship” would be. It only says that such an exemption can be claimed if citizens “experienced another hardship in obtaining health insurance.” It seems designed to allow the maximum number of people claim the exemption, particularly given the rather forgiving standard that the person should “submit documentation if possible.”
The President continues to operate well off the Madisonian map — inventing exemptions and granting suspensions where no provision is made under the law. Most importantly, he is ordering changes proposed and rejected in Congress.
These changes are unlikely to receive serious judicial review if past cases are any measure. The Administration has repeatedly relied standing challenges to block review. Since the Rehnquist Court, standing has steadily shrunk to the point that constitutional violations are now being left unreviewed for lack of standing. The courts have long been, in my view, absent without constitutional lead as discussed in prior testimony (here and here and here).
Democrats continue to enable this shift of power to the Executive Branch with no concern for the changes that they are making to our balance of power. They continue to yield power to the Executive Branch even as evidence mounts that they are headed to a possible electoral disaster. It is the ultimate example of personality overwhelming principle. It is not just incredibly short sighted but self-destructive. A future president can easily claim the same inherent authority to suspend or grant exemptions to environmental or anti-discrimination law or suspend tax burdens for the top one percent. It would also mean that a president is virtually unlimited in being able to amend or suspend laws. It makes the legislative process merely a discretionary stage for presidents.
The animus toward the Republicans is blinding Democrats to the implications of what President Obama is creating in this new uber presidency. The President is appealing to that animus in taking these steps and aggrandizing power in his branch. It is part of “all is fair and love and politics” approach to constitutional law. It would take offline the stabilizing elements of the system and reduce the system to little more than raw muscle plays by politicians. Under our current system, there is only so much harm that any branch can do if it remains within the constitutional lines. It is designed to be idiot-proof and we have truly tested that design. However, once one branch goes outside of the lines, the system is left as little more than politics at any means.
While there will be many who applaud the latest insular change either for its political or practical benefits, it will join a troubling mosaic of unilateral and unchecked executive power. There will come a day when people step back and see the entire mosaic for what it truly represents: a new system with a dominant president with both legislative and executive powers.
The Founders definitively were not into CHANGE! I gotcha. Maybe we should ask the British.
And they knew nothing of Vattel and his “parents” criterion – I gotcha:
“…it was unrivaled among such treatises in its influence on the American founders.” Charles G. Fenwich, “The Authority of Vattel.”
And Vattel (attributed by multiple current sources) wrote only of international law and nothing of national issues (“in the country”):
“The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”
Without a doubt the Founders had no concern with foreign allegiances or requiring the highest standard for the highest office. They had much more compelling cogitations than simple logic; to hell with that.
Let’s not forget the ubiquitous “they would have told us and they didn’t.” Oh yeah, except they did:
“Age and Citizenship requirements – US Constitution, Article II, Section 1
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.”
You conveniently ignore all the facts and infer to suit your political agenda. I can’t say that I blame you. What is a person supposed to do when he has no facts on his side?
Re: “When the Founders used the phrase “natural born citizen” as a requirement for the highest office, they used the highest semantic reference…”
NO question about it. Members of the US House of Representatives can have been born in a foreign country. Members of the US Senate can have been born on a foreign country. But the US president must have been born on US soil—that is what Natural Born Citizen means in the common law. And, if they had switched from the common law—which was, duh, common—-to some other way of determining Natural Born status, THEY WOULD HAVE TOLD US, and they didn’t.
smstrauss, sorry, the site reformatted the columns of my chart. Trust me, it was beautiful. You would have been impressed.
The Founders, Blackstone, English Law, Vattel, etc., et. al., must have had an innate understanding of numerical values, apropos to grades or levels of citizenship, ancillary to a semantic description. The Founders required different levels or values of citizenship for different elected offices which demonstrated their understanding. When the Founders used the phrase “natural born citizen” as a requirement for the highest office, they used the highest semantic reference which only equates to the highest numeric value of TWO parents. This, clearly, must have been understood at the time of the writing and has been argumentatively tortured and manipulated ever since for the purpose of achieving a political agenda, not comprehending the written words of the Founders. There are no two ways about this semantic/numeric value relationship.
Natural born citizen Highest Two (parents)
Citizen Middle One
Naturalized citizen Lowest Zero
Subject (?)
None of these levels is the same and they are all different. All of these levels have distinct definitions.
smstrauss
“…it was unrivaled among such treatises in its influence on the American founders.” Charles G. Fenwich, “The Authority of Vattel.”
The Constitution itself assigns greater and lesser criteria for the office of President and Senator. Any exercise in logic will lead all human beings to the conclusion that the highest requirement must be applied to the highest office. The Constitutional requirement for President is “natural born citizen” and for Senator it is “citizen.” The highest, two parents and the lower, one. The criteria are ultimately zero, one or two parents. The Founders had to arrive at the same mathematical conclusion and they were exposed to Vattel’s “unrivaled…influence” which included his position on the requirements for the office of President which were “parents.”
The Founders WOULD HAVE TOLD US THEY DISAGREED WITH THE REQUIREMENT FOR “PARENTS” (PLURAL) – and they didn’t. We infer, infer and infer. Is it possible that some things are understood and simply go unspoken. Did the Founders not KNOW and UNDERSTAND, at the time, that Americans had and would continue to “keep and bear arms?” And yet that went understood and unspoken, requiring a later amendment.
As a previous poster broached the subject of the current officeholder, his mother was of an age that required a formula for citizenship of the child. Why did you evade that discussion?
Re: “Vattel was one of a number of 18th century European scholars who wrote on international law and were “well known in America” at the time, including Jean-Jacques Burlamaqui, Cornelius van Bynkershoek, Hugo Grotius, Samuel von Pufendorf, Thomas Rutherforth, and Wolff. The Law of Nations has been described as “unrivaled among such treatises in its influence on the American founders”.
Answer: Vattel’s work was on INTERNATIONAL LAW. The selection of a leader of a country is a matter of domestic law, not international law. His influence was unrivaled in INTERNATIONAL LAW, but he was not mentioned in the Federalist Papers AT ALL—so his influence on the Constitution was probably limited to his advice on INTERNATIONAL LAW, which is contained in the section on piracy and maritime law.
IF the writers of the US Constitution had used Vattel’s definition of Natural Born Citizen and not the far more common definition that came from the term Natural Born in the common law, THEY WOULD HAVE TOLD US—and they didn’t.
Re: ““As you can see from the intent of the Founding Fathers to the Supreme Court decision that “a natural born” is the child of citizens. A natural born citizen is not the child of an alien. In this there is no doubt….”
Answer—why didn’t you say who said it? Whomever did is entitled to her or his OPINION, but it is certainly not as good an OPINION as the US Supreme Court’s opinion in the Wong Kim Ark case, or that of the ten appeals courts, or the Heritage Foundation book. Birthers and two-fers tried to get the members of the US Electoral College to change their states’ votes after the 2008 and 2012 election claiming that Obama was either not born in Hawaii (He was, and the evidence is overwhelming) or that two citizen parents are required in order to be a Natural Born Citizen. Not one single vote was changed. No rational person believes that the writers of the US Constitution switched the meaning of Natural Born from jus soli to jus sanguinus WITHOUT TELLING US THAT THEY DID—and they didn’t.
john
you are absolutely right. you go right on to washington and you run them all right outa town. don’t wait until tomorrow, do it now, tonight.
run john run.
Charlton S. Stanley, PhD, ABPP, I hope you don’t mind if I describe you as bizarre for a degreed professional. My only concern is the correct understanding of the words of the American Founders and the direction and mode of this country. In my old age, I’m astounded that the Preamble and Constitution could represent self-reliant individualism and freedom and the fact would be complete collectivism, blatantly employing the principles of the Communist Manifesto. How did you communists get Americans to buy into your ideology? You patiently boiled the frog after starting him in cold water, right? What did de Tocqueville, say that democracy would lead to its own demise by voting itself largess? Now we have the yoke of the dictatorship of the proletariat. What would the Founders say to that?
All your precedential citations above cause me to burst out laughing – huge guffaws. What a preposterous joke, to think that a political party can nullify the Preamble and Constitution by perverting and corrupting them through a centuries long effort to pack the courts. The Judicial Branch was intended to be HONEST, TRUTHFULL and OBJECTIVE above all, and succeed in its effortless, elementary duty to apply the simple and clear English language of the Preamble and Constitution, “interpret’ it and nullify those sacred documents. You can win through deceit, but you will never be correct or right.
Seriously, that is hilarious.
John,
I don’t know how to break this to you, but Barack H. Obama is the President of the United States, and has been for the past six years. He will continue to be the President for another two years. I am sure you are familiar with the term, fait accompli. Regardless of how many theoretical gymnastics are performed by the birthers out there, or how many historical documents are pored over, nothing changes. Does the term stare decisis ring a bell?
As far as trying to get him removed from office by impeachment, I refer you to an excellent reference book, “The Ingenious Gentleman Don Quixote of La Mancha” by Miguel de Cervantes Saavedra.
As far as removing him from office by force, I have two words: Secret Service..
Ah the minigun
A following quote: “unrivaled among such treatises in its influence on the American founders. How about you. I’m very concerned with your accuracy and honesty. Your bona fides seem in question. You might peruse this bit of history:
Influence[edit]
Vattel was one of a number of 18th century European scholars who wrote on international law and were “well known in America” at the time, including Jean-Jacques Burlamaqui, Cornelius van Bynkershoek, Hugo Grotius, Samuel von Pufendorf, Thomas Rutherforth, and Wolff. The Law of Nations has been described as “unrivaled among such treatises in its influence on the American founders”.[7][8]
Obviously the highest office demanded the highest prerequisites and the highest prerequisite is “parents.” Represented numerically, that would be two.
And your last presentation is exacly the point. The entire judicial system from the SCOTUS to the Night Shift Traffic Court is totally corrupt.
Read CITIZENS (not natural born citizens) below:
14th Amendment
“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.”
“As you can see from the intent of the Founding Fathers to the Supreme Court decision that “a natural born” is the child of citizens. A natural born citizen is not the child of an alien. In this there is no doubt. The question now that we seek answered is that Barack Hussein Obama, II is both the child of an alien who never had any intention on becoming a naturalized citizen and the child of a citizen minor. If Barack Hussein Obama, II was in fact born in Hawaii, he is a citizen under Jus soli and afforded all rights any citizen has. But he is not a citizen under Jus sanguinis, because we have laws that dictate how Jus sanguinis citizenship can be transferred.”
“If Barack Hussein Obama, II cannot claim citizenship under Jus sanguinis then he is not a natural born citizen.”
Did you read that: “the child of a citizen minor?”
A citizen has one citizen parent (not a minor).
A natural born citizen has two citizen parents.
Because you can infinitely present frivolous pseudo legal verbalizations does not mean you can rewrite the Constitution to suit your political agenda.
Farrar (et al.) v. Obama (Georgia 2012) ruling: “In 2009, the Indiana Court of Appeals (“Indiana Court”) addressed facts and issues similar to those before this court. [Ankeny] v. Governor, 916 N.E.2d (Ind. Ct. App. 2009). … The Indiana Court rejected the argument that Mr. Obama was ineligible, stating that children born within the United States are natural born citizens, regardless of the citizenship of their parents. … This Court finds the decision and analysis of [Ankeny] persuasive.”
And on October 1, 2012, the US Supreme Court turned down an appeal of the last of the rulings shown above, the Farrar case, which had ruled that “children born within the United States are natural born citizens, regardless of the citizenship of their parents.” By rejecting the appeal, the US Supreme Court allowed the ruling of the lower court to STAND.
Purpura v. Obama (New Jersey 2012) ruling: “No court, federal, state or administrative, has accepted the challengers’ position that Mr. Obama is not a “natural born Citizen” due to the acknowledged fact that his father was born in Kenya and was a British citizen by virtue of the then applicable British Nationality Act. Nor has the fact that Obama had, or may have had, dual citizenship at the time of his birth and thereafter been held to deny him the status of natural born. It is unnecessary to reinvent the wheel here. … The petitioners’ legal position on this issue, however well intentioned, has no merit in law. Thus, accepting for the point of this issue that Mr. Obama was born in Hawaii, he is a ‘natural born Citizen’ regardless of the status of his father.”
Voeltz v. Obama (Florida 2012) ruling: “However, the United States Supreme Court has concluded that ‘[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States. ‘Other courts that have considered the issue in the context of challenges to the qualifications of candidates for the office of President of the United States have come to the same conclusion.”
Ankeny v. Governor of Indiana (Indiana 2008 – Appellate Court) ruling: “Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents.”
Tisdale v. Obama (Virginia federal court 2012) ruling: “It is well settled that those born in the United States are considered natural born citizens.”
Hollander v. McCain (New Hampshire 2008) ruling: “Those born “in the United States, and subject to the jurisdiction thereof,” U.S. Const., amend. XIV, have been considered American citizens under American law in effect since the time of the founding, United States v. Wong Kim Ark, 169 U.S. 649, 674-75 (1898), and thus eligible for the presidency…”
Re: “Both Blackstone and Vattel used and were full of knowledge of the value of the a requirement for some various number of citizen parents. Blackstone in “Commentaries on the Laws of England, Volume II” and Vattel in the “Law of Nations, 212.”
Blackstone said that every child born in the country except for the children of foreign diplomats and enemy invaders is Natural Born.
Re: “Simply being born within a nation’s borders would equate with zero citizen parents. ”
Answer: Yes, zero is correct. Rubio and Jindal both had zero US parents at the time of their births, yet because they were born on US soil, they are Natural Born Citizens. Why so? Because EVERY child born on US soil is a Natural Born Citizen except for the children of foreign diplomats and enemy invaders. The word “parents” is not mentioned in the Constitution nor does ANY of the writings of ANY of the members of the Constitutional Convention ever say that two (or even one) citizen parents are required in order to be a Natural Born Citizen, and if they had thought so, they would have told us—but they didn’t.
Both Blackstone and Vattel used and were full of knowledge of the value of the a requirement for some various number of citizen parents. Blackstone in “Commentaries on the Laws of England, Volume II” and Vattel in the “Law of Nations, 212.” Simply being born within a nation’s borders would equate with zero citizen parents. Unless the Founders were severely cognitively limited, they would have been eminently capable of traversing this concept over their synapses and determining that it was not necessary to communicate every atom of that process to colleagues and countrymen. Logic would provide an understanding by all that the number of parents was the lowest common denominator in the equation. Thus:
-Two parents.
-One
-Zero
The HIGHEST requirement applies to the HIGHEST office.
The requirement for President is “natural born citizen.” That requirement was
reduced to the lesser “citizen” “at the “time of the adoption.” At the “time of the
adoption,” the highest requirement was “parents.” The only lesser requirement
would have been parent. The highest requirement would apply to the highest
office, President.
Ergo, the requirement for President was parents (plural).
Is this not self-evident?
Re: “At the “time of the adoption,” the highest requirement was “parents.”
Answer: If a parent or parents were involved in Natural Born Citizen status, they would have told us—and they didn’t. IF they were switching the meaning of Natural Born from the PLACE of birth to parents (or even a parent), they would have told us—and they didn’t.
Re: “This clearly differentiates “subjects” and “citizens.” They are different. They are not the same.”
Answer: In terms of Natural Born status they are the same. Citizens and subjects are different, but not in all things. Most citizens and most subjects have two legs, put their pants on one leg at a time, etc. So, where citizens and subjects differ, the writers of the Constitution would tell us, and they never told us that citizens had to have citizen parents to be Natural Born where subjects only had to be born in the country. IF there had been a switch in the Natural Born requirements from place of birth for subjects to two (or even one) citizen parents for citizens, THEY WOULD HAVE TOLD US—and they didn’t.
In Commentaries on the Laws of England, Volume II, Blackstone refers to parents (plural) and natural born “subjects.” He demonstrates a grasp of Vattel’s “parents” requirement as if it is unspoken and understood. Also, he appears to say that those born of something other than “parents” are “subjects” not citizens.
“The children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such.”
Here again, parents (plural) “are, GENERALLY SPEAKING (exceptions?), natural born subjects, and entitled to all the privileges of such (i.e. subjects).” This clearly differentiates “subjects” and “citizens.” They are different. They are not the same.
The requirement for President is “natural born citizen.” That requirement was reduced to the lesser “citizen” “at the “time of the adoption.” At the “time of the adoption,” the highest requirement was “parents.” The only lesser requirement would have been parent. The highest requirement would apply to the highest office, President.
Ergo, the requirement for President was parents (plural).