Executive Orders

 

There's a lot of chatter on social media about how many EOs Biden is producing, so I thought this might be an opportune time to talk about Executive Orders and their effect.

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
      — U.S.Constitution, Article I, Section 1

Pretty plainly, laws come from Congress.  How to explain, then, the off-handed remark by Paul Begala, an aide to President Clinton:

"Stroke of the pen.  Law of the land.  Kinda cool."

on how Clinton was going to use EOs to make happen what he wanted to happen.  The explanation is that Begala got it wrong, although most Americans, being not-too-well-versed in their own Constitution, probably didn't realize it.

Executive Orders cannot be law, because they don't come from Congress.  Okay, so what are they?  They are instructions to employees of the Executive Branch from the Chief Executive, their ultimate boss.  They tell those employees in the Department of Justice, the FBI, the Treasury, the State Department, and all the other less-well-known departments and bureaus how they are to operate.

They can't tell you what to do or not do, because then they would have the force of law, and the President can't make law.  Only Congress can make law.  That's what it says in Article 1, Section 1.

The fly in this ointment is that the way employees of the Executive Branch operate on a day-to-day basis often affects citizens who are not themselves employees of the Executive Branch in ways that are indistinguishable from laws that Congress passes.  When the guards at the Capitol are told to "admit no one who is not wearing a mask", the effect is that you must wear a mask in order to get in to see your Congressman — without Congress having acted.  That's why EOs sometimes feel like "the law of the land" even though they're not.

Occasionally, a President will issue an EO that a President clearly has no authority to issue.  This happened when, for instance, President Obama (who was, let us recall, a 'Constitutional scholar') committed us to the Paris Climate Accord.

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.
      — U.S.Constitution, Article II, Section 2

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
      — U.S.Constitution, Article VI

but the Senate did not concur.  The 'treaty' was never presented to the Senate for their consent.  So, when President Trump issued an EO taking us out of the Paris Climate Accord, he was undoing something his predecessor had no authority to do in the first place.  President Biden just (illegally) put us back in, reversing Trump's (legal) EO.

It will be interesting to see if anyone objects to any of Biden's EOs on the grounds that some of them do attempt to make law without involving Congress.  I'll actually be surprised if that happens.

 

 

Cleaning house in the Senate

 

The House of Representatives has impeached former President Trump for a second time.  With much fanfare, the (Democrat) House Impeachment Managers then solemnly marched across to the Senate and delivered the Articles of Impeachment to their (Democrat) majority leader.  Yesterday, Sen Rand Paul of Kentucky introduced a resolution declaring the proceeding moot because Trump has already left office.  The vote failed 55-45 with five Republican Senators voting to continue to trial:  Susan M. Collins (Maine), Lisa Murkowski (Alaska), Mitt Romney (Utah), Ben Sasse (Neb.) and Patrick J. Toomey (Pa.).

It's true that someone who has already left office may be impeached, and if convicted, can be barred from holding public office in the future.  This is the purpose of impeaching Trump again: to prevent him challenging President Kamala Harris in 2024 when she runs for re-election.

I'm not a fan of Trump.  I think he's boorish and (quite frankly) stupid.  People hold that he's a 'street fighter from Queens', but the last four years haven't shown that.  Boorishness, yes; street savvy, no.  If he were as smart as people think he is, his first official act should have been to fire anyone in DOJ, FBI, CIA, or NSA who was even suspected of being less than 100% on his side.  That's what 'draining the swamp' looks like.  He didn't do that, and there can be only two reasons:  one, he really wasn't serious about draining the swamp, or two, he really isn't that smart.

Never attribute to malice that which is adequately explained by stupidity.

But there's something else going on here.  In case after case, Republicans drop the ball on this hot-button issue or that one.  They seem always one step behind their Democrat foes.  That's why issues like gun control seem to always get worse: the Democrats make it worse, but the Republicans never make it better.  If the GOP is to survive this, it has to change its thinking in a radical, fundamental way.  They have to adopt 'no prisoners' as their modus operandi, and they have the perfect opportunity to do that right now.  I mean 'today'.

The RNC must pull those five Senators aside and tell them in no uncertain terms that their defection on this issue has consequences, specifically, that they are ejected from the party, that they may no longer present themselves to their state party officials as 'Republicans'.  The RNC should start with Romney, Collins, and Murkowski who typically vote with the Democrats anyway.  If they're going to vote like Democrats, let them run like Democrats.

Now, I am not a member of the Republican Party, and I don't expect them to pay attention to my opinions, but there are plenty of Republicans out there who see the GOP's record of failure and wonder why those wily Dems seem always to be ahead of the game.  Their party will listen to them and, if their voice is heard, it may not be necessary to burn the GOP to the ground, My-Lai-fashion, in order to save it.  Better to lose a few incumbents now than the whole shebang in 2022.

 

 

On Abortion

 

Received in email today from The Babylon Bee an appeal from Senator Rand Paul (R-KY) to sign a petition in favor of the "Life at Conception Act" (LACA) that would define 'personhood' as beginning at conception.  Should such an act ever be passed, abortion would be summarily reclassified as 'murder'.  A number of typical and ordinary medical procedures would likewise be summarily recategorized as 'murder'.

How odd that the pro-life movement waited until both houses of Congress and the Executive Mansion are all in the hands of Democrats to bring this issue forward.  They should have done this in 2017 when both houses of Congress and the Executive Mansion were in the hands of Republicans.  Perhaps they were anxious that, were such legislation to fail under perfect laboratory conditions, their entire movement might collapse.

It's not even theoretically possible that LACA might pass now, but this appeal does have the potential to raise money.  Beyond that, LACA would suddenly and, in the manner of unintended consequences, affirm the legitimacy of rape.  How so, you ask?

From a strictly non-denominational perspective, a strictly non-religious perspective, we Americans have a few axioms by which we maintain our society:

1. we assert as a foundational principle that all political power originates in the people.  What powers the government has it has because we the people granted those powers to the government.  There are powers we have not granted, and powers that we have previously granted that we may at some future time un-grant.

2. we have thus far as a society declined to define when life begins, although it seems quite certain that 'birth' is the latest point at which anyone may claim that life has not yet begun.  Conception, likewise, is the earliest point that life can be claimed to have started.

Let us assert, for the sake of argument to be refuted later if necessary, that when two persons (instances of 'we the people') behave in such a manner that it is fair to assume their intent was to create life (as by engaging in unprotected sex), then if pregnancy occurs they have created life.  It would be fair in such a case to assert that life exists from conception because of the ability of those persons — from whom all power originates — to create life.

We are forced to address a second scenario, one in which two persons engage in unprotected sex but do not intend to create life.  This is the situation in a rape, whether statutory or otherwise.  In statutory rape, society has already determined that one party cannot, by operation of law, have intended to create life and, therefore, life has not been created.  The fact that Nature disagrees with the legislature by enabling both parties to conceive is a side issue I am unable to address, but suffice it to say that LACA would severely warp the doctrine of 'statutory rape' by forcing a victim to carry the proceeds of a crime to term.

Relieving the victim of the burden of carrying an unwanted fetus to term is, by this act (LACA), unlawful.  It must therefore be true that rape has been elevated to, if not a completely lawful act, at least to the status of 'not entirely criminal'.

Now, if a person requests an abortion for an unintended pregnancy, the question only need to be asked: "Has life been created?"  For cases where one party was an unwilling participant (rape) there ought to be a criminal charge against the other party, thereby proving that both parties did not intend to create life.  If there is no criminal charge, this should be taken as prima facie evidence that both parties intended to create life, that life was therefore created, and an abortion cannot therefore be legally allowed.

Perhaps one or both parties used a contraceptive and one or both failed and a pregnancy ensued.  Given the nature of consensual sex, proving that contraception was used is problematic, and that's also an issue I can't adequately address.  If one can prove via a civil action that there was not consent to create life, the fact that consent was absent should be enough to disprove life and thus an abortion would be permitted.

Any abortion should be accompanied by a criminal charge or a civil action for damages.

 

Strange Times

If you burn down Minneapolis, Democratic Congressfolk will excuse your behavior as protected by the First Amendment and CNN talking heads will describe the event as "a mostly-peaceful demonstration".  Police will herd you as well as they can in the desired direction, but you can expect to go home tonight if you don't go to jail.  If you assault the Capitol and do little more than break glass and upend furniture, Congressfolk from both sides of the aisle will berate you and call you an insurrectionist, and the police will pepper-spray you and shoot you dead.

And why are the people assaulting the Capitol?  Well, they're protesting what they see as an entirely illegitimate election.

"But," you say, "there's no proof that the election was illegitimate!" and, in fact, there seems to be no 'proof' (in the accepted sense of that word) of improprieties.  There is, however, a column of smoke smelling distinctly like 'election fraud', and where there's smoke, there's fire.

This is what's causing that awful smell:  Joe Biden ran almost no campaign — the result of Covid-19 restrictions, obviously — and was lashed to the mast of his ship-of-state with Kamala Harris who was so unpopular among Democrats that she terminated her Presidential campaign early for lack of funds.  When Trump held a campaign rally, 25,000 supporters showed up;  When Biden held a rally, he was lucky to see 400 attendees — including the camera crew.  Despite this, he managed to garner more votes than Hillary Clinton did in a hard-fought campaign four years ago, and more votes than a wildly-popular Barack Obama did eight years ago.  Let's not even touch on the mysterious appearance late election night of several thousands of ballots all, by some accounts, for Biden, and many of which contained no votes for down-ballot races.  If you can't smell that, you may be positive for Covid-19.

There's an old adage in medicine:  "Absence of evidence is not evidence of absence."  Once a mail-in ballot is separated from its enclosing envelope, the ability to identify any ballot as either legitimate or illegitimate is gone irretrievably and forever, so, yes, there's no evidence this election was stolen.

That doesn't mean it wasn't stolen.

74 million American voters no longer believe voting is a good way to express the will of the people.  That's a problem.  Democrats don't care because they 'won'.  That's a much bigger problem.  It means there will be no change to the way elections are run from here on out.  If you're a Republican, you can resign yourself to never winning another federal election.  Your best hope is that the Democrats who now hold both Congress and the White House will screw things up so badly over the next few years that there will be no way to pull off another magical midnight ballot-dump in 2022 or 2024.

Don't hold your breath.