Did you send or post any links to this web site yet? If you did, thank you. If you didn't, remember we, the people, have to rely on EACH OTHER to promote these ideas, and to participate more directly in our own governance. If you do nothing else, when the time comes hopefully you'll at least be willing to lift a finger. Literally. In the voting booth, to vote for an Independent candidate who is not a politician. Someone who is "only" one of the people. Someone who can be expected to think for themselves, and use their common sense, and actually do in office what they promised before being elected. Someone who can be expected to resist and even oppose so-called special interests with deep pockets and their lobbyists.
The Legitimate Roles of
Congress, President, Supreme Court
The Legislative Branch
Article 1 begins by assigning the lawmaking power exclusively to congress (section 1). It goes on to set forth the operation of the house of representatives (section 2), and the senate (section 3).
Congress sets by law the number of representatives (although it hasn't changed since 1911), and every state has two seats in the senate. At present, congress consists of 435 representatives and 100 senators, so a majority of each chamber consists of 218 representatives and 51 senators, respectively. Section 5 provides “a Majority of each [chamber] shall constitute a Quorum to do Business”. That is, only a bare majority of each chamber even has to show up for them to conduct their business. Assuming there is a quorum in each chamber when congress is in session, they can accomplish their business by a simple majority of those that are present. For example, the senate has 100 members, so to form a quorum so they can do their jobs at least 51 need to be present. If only 51 members were to show up for a vote on a particular bill, then the vote would count because a quorum is present. Then, if a bare majority of those present, or 26, vote in favor of the bill, then the bill will have passed the senate. With only 26 votes! Similarly, the house of representatives can conduct its business with a quorum of only 218 representatives, and a bare majority of such a quorum is 110.
The Constitution sets forth only a single national law making process, and it is found in Article 1, Section 7. It consists of introducing in congress “bills”, or drafts of proposed laws, and passing the bills as described above by at least a bare majority of a quorum that must be present in each chamber. If a bill is passed by both the house and the senate, the passed bill is then sent to the president for his review. The president can then approve the bill and sign it, at which point it becomes law. Or, the president can disapprove and “veto” the bill by not signing it, and send the unsigned bill back to congress with a declaration of his objections, to be reconsidered by them. The veto power wasn't given to the president so he can check the power of congress. Rather, it was so the president, who is responsible for carrying into execution the laws passed by congress, can point out to congress how executing this bill could be difficult or impossible. In that case the bill does not become law, or at least not yet. Congress may choose to modify the bill in a manner they think will satisfy some or all of the president’s objections, and pass the modified bill by a majority of those present, and send it back to the president for his signature. Alternatively, even if a bill is vetoed by the president, congress can pass the bill anyway if 2/3 of the members present vote in favor of the bill (assuming a quorum of each chamber is present to vote). This is called “overriding” the veto. For example if, on the day of a vote to decide whether to override a presidential veto, only 51 members of the senate show up to vote (sufficient to form a quorum), then only 2/3 of those 51, or 34, need to vote in favor of the bill to override the veto. If instead all 100 senators show up to vote, then at least 67 of them need to vote in favor of the bill to override the veto. Similarly, if a minimal quorum of only 218 representatives is present, at least 2/3 of them, or 146, are needed to override the veto. If instead all 435 representatives are present, then a 2/3 majority is 290 representatives, and that’s the number of votes needed to override the veto in the house.
Thus congress, consisting of representatives of the people (forming the house of representatives, which are chosen by the people) and representatives of the states (forming the senate, which today are also chosen by the people, but originally were chosen by the state legislatures), has the power to make law on its own authority. The president does not. Every time a president issues an executive order purported to have the force of law over the people, he tramples on his own explicit promise, his oath of office, to “faithfully execute the Office of President”. S/he is grabbing more power than s/he is entitled to under the Constitution, the document that defines the presidential powers just as it defines all of the powers of federal government.
The Executive Branch
Article 2 of the Constitution sets forth the scope of the power of the president. It begins with the statement, “The executive Power shall be vested in a President of the United States of America”, and goes on to declare exactly what is meant by that in Section 3: “he shall take Care that the Laws be faithfully executed”. In other words, the president's job is to ensure that each law, every single one of which must be passed by congress, is “faithfully” executed. That is, to ensure that the law is applied to the matters congress wanted to be addressed by the law, and in the manner congress wanted those matters to be addressed.
In the last couple of decades or so it has become a common practice for the president, after a bill becomes law, to follow it up with a so-called “signing statement” that sets forth the president’s interpretation of the law. The signing statement is used by the administrative agencies of the executive branch to implement the law in accordance with that interpretation. The Constitution does not contemplate or provide for such signing statements. So any time a president issues a signing statement, especially one that does not comport with the language of the law and the intent of congress, he once again violates his oath of office by not taking care that the laws are faithfully executed.
In addition of course, the Constitution provides (in Section 2) that the president is the “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”. Notice that the army and the militia are two different things, the army being “of the United States”, and the militia being “of the several states”. The Constitutional plan was that the United States would never raise an army unless there was a clear and present need for one. And when the need had been met and the army no longer needed, congress can stop paying the soldiers and cause the army to be disbanded.
Other powers of the president are set forth in Article 2, mostly in Section 2. Most of these powers require the “advice and consent” of the senate. For example, the president has power, only with the advice and consent of the senate, to “make Treaties … appoint Ambassadors, [and] other public Ministers and Consuls, [and] Judges of the supreme Court”. Furthermore, the president has power to appoint, again only with the advice and consent of the senate, “all other Officers of the United States, whose Appointments … shall be established by Law”, which law, once again, can only be made by its passage in congress. But “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” This is another example of the Constitution limiting what the president is authorized to on his own authority. The Constitution severely restricts the president's powers, and provides for senate oversight in the execution of most of the powers it grants.
This particular passage is also interesting because it is an example of the Constitution specifically providing that congress can vest in another (i.e., can delegate) “by law” (that is, by passing a law as set forth previously) one of its own powers. So the founders apparently contemplated the possibility of a transfer of a particular power from the party to whom the Constitution originally assigned it to another party, without having to amend the Constitution. However in doing so, the Constitution also sets forth exactly which power may be transferred, and exactly how that power may be transferred, and exactly to whom that power may be transferred. In this case, the specific power to appoint the specific officers listed may be delegated, by passing one or more laws. And, that power may only be delegated to the president alone, or to the courts of law, or to the heads of departments. In other words, federal agencies and courts can hire their own staff. That power may not be delegated to anyone else. And NO other powers can be delegated at all, to any party either inside or outside the government, because the Constitution doesn't specify any other power that can be delegated. In other words, no government powers can legitimately be delegated to a different branch of the government, or to a non-government contractor, or to a private corporation, or to anyone else for that matter. Accordingly, congress (and the president, and the supreme court) acts contrary to the Constitution if it delegates any of its authority, in any manner, to any party, that is not specifically provided for in the Constitution.
Among the powers assigned to congress that cannot be transferred away include ALL of the powers listed in Article 1 Section 8, including the powers “To coin Money, and regulate the Value thereof”, “To declare War”, and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Those powers are vested only in congress, and can't be transferred in any manner to any other party without first amending the Constitution to permit it.
The Judicial Branch
Article 3 establishes an independent federal judicial power: “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Interestingly, the Constitution does not set forth any specifics of any federal court other than the supreme court. Instead, it provides that “Congress may from time to time ordain and establish” (that is, create and set up) federal courts with regular court jurisdiction, that are inferior to the supreme court. Similarly, Article 1, Section 8 provides that congress has the power “To constitute Tribunals inferior to the supreme Court”, that is, authorities that sit in judgment but are not part of the regular court system. But in spite of that, such authorities are still required to be “inferior to the supreme Court”, which means their judgments are not final, but can be appealed at least to the supreme court. Once again, the executive branch was deliberately and purposefully not provided with any power over any judicial determination at all. None. Further, even the supreme court itself is not permitted to establish any lower courts or tribunals of any kind. Instead, except for the supreme court itself, only congress has the power and authority to establish every inferior federal court and every other federal tribunal.
Once again, the federal government as it now operates has gone far off course with regard to the judicial functions. The overwhelming bulk of governmental operations are carried out by the departments and agencies of the executive branch. Those agencies are tasked with carrying into execution the laws passed by congress, for example to provide services, or to collect taxes. If a person is not satisfied with the result of working with an agency, for example if the agency makes an unfair and harmful determination of some kind, or confiscates a person’s property without a hearing, or freezes a person’s assets, that person is today required to take up the matter before an “administrative law judge” that is part of the agency. Such judges are not part of the court system set up in Article 3 of the Constitution, so-called “Article 3” judges. And they are not tribunals constituted by congress as set forth in Article 1, Section 8. Instead, they are appointed by the agencies themselves. But the agencies can have no greater authority than the executive branch they are all part of, so this is again in direct conflict with the plain language of the Constitution. As such, this is yet another unauthorized, unconstitutional executive branch power grab.
Interestingly, the Constitution does not establish any substantive qualifications at all for the individuals who may become judges, or even the justices of the supreme court, just like none are established for congress or the president other than age and residency. So the president may nominate essentially anyone to serve on the court, subject to senate confirmation. There is no need to nominate only persons with a certain background such as judges, or a certain education such as lawyers. The president may nominate anyone he likes, and the senate may confirm anyone so nominated.
Moreover, the Constitution does not set a fixed number of judges in the supreme court. Instead, congress sets the number of judges by law. Over the years, there have been as few as six judges and as many as ten, as set forth in the relevant law. But there is no reason to limit the supreme court to a small number of judges, and there is no reason that the entire court must sit in judgment of every case it hears. For example, some federal agencies currently have hundreds of so-called administrative law judges, in which a single judge sits in judgment of each case. That judgment may be appealable to a panel of several such judges. Other courts have a pool of judges (e.g., 12 judges) that always sit in panels (e.g., panels of 3 judges) to hear a case, whose decision may be further appealable to a “bank” of judges (e.g., a bank of all 12 judges). There is nothing in the Constitution to prevent congress from writing a law that sets the number of supreme court justices at 10, or 15, or 50, or 500. And there is nothing to prevent congress from authorizing individual supreme court justices to decide individual cases, and to make their decisions appealable to a panel of 3 or 5 judges, or further appealable to a bank of 9 or 12, for example. There is also nothing to prevent congress from adding significantly to the number of federal district courts, or the number of district court judges, thereby drastically shortening court delays and dramatically enhancing the right of the people to a speedy trial (secured in the Bill of Rights by the sixth Amendment); or the number of appellate courts and judges to speed a court’s decision on appeal. In fact, congress neglects its duty when it allows the courts to become chronically overburdened by not authorizing enough judges and other resources to provide for a speedy trial to every person accused of a crime, as the Constitution requires.
Furthermore, there is nothing to prevent the president from deliberately nominating people from a cross section of society and not just people with formal legal training. In fact, the congress could by law require the president to do exactly that, and can refuse to consent to any other choice. Such people might be deemed more likely to employ their sense of fairness to every case they consider, without any particular regard for legal precedents or special interests. They might be considered more likely to exercise moral standards and judgment consistent with those of the people at large. In other words, they might be entrusted to do the Right Thing as it is understood by the People. All in accordance with the Constitution.
We've been taught all our lives that the three branches of government are "co-equal", and that none can dominate the others. But that's not true. Congress, the directly elected representatives of the people and the states, was very clearly empowered to be in charge of virtually the entire federal government, and holds the overwhelming portion of the government's power firmly within its grip. Congress was vested with ALL of the lawmaking power, ALL of the "money power", including the money creation, budgeting, taxing, and borrowing powers, and ALL of the army-raising and war-making power. Congress is in charge of activating the state militias to handle certain domestic emergencies, which is the only legitimate way for the federal government to direct armed force against citizens. And, although the president is commander in chief of the standing armed forces of the United States, he is only authorized to be the commander in chief of the state militias when they are called into the service of the United States by congress. Nearly all of the other presidential powers cannot be performed without the "advice and consent" of the senate. And, if the president misbehaves or strays from his duty, congress can impeach him and remove him from office. In other words, we can fire him. Congress has ALL of the power to create and set up every federal court and every other federal tribunal except for the supreme court; and congress determines the number of justices and the operating parameters even of the supreme court. And if the justices make judgments that don't comport with the Constitution as it is understood by congress, congress can impeach and fire them too. And we, the People, can breathe new life into congress itself if it neglects its duty, in elections held every two years, under conditions that we define by law. We breathe new life into congress not simply by voting for party politicians, virtually none of whom are ordinary citizens like us, and most or all of whom are chosen by political parties and not by us. But far more importantly, we can transform congress directly by running for office ourselves, and doing the work ourselves that we know needs to be done. That is, by personally participating in our own government. Exactly as the founders intended.
Be aware as you read the Constitution of whether it was required reading in school, and if so, whether it was properly explained. If not, it may be worth contemplating how such a glaring educational deficiency can exist in a free republic. We, the People, are not being properly educated about the Constitution (which our federal government is required to conform to), and about our rights which it guarantees, and the strict separation of powers it sets forth, and the limitations on that power it imposes, all of which the federal government must conform to. If we don’t understand the Constitution, how can we recognize when our government’s power has been hijacked and misdirected by the decision makers who control it? How can we know if the power being applied by the federal government exceeds its permitted scope, or is applied in areas it is not permitted to address, or is used in opposition to the government’s clearly stated purposes? Even in opposition to the very freedoms it was specifically designed to secure?
Now, with this bit of background, press on and read the Constitution through. It’s almost certainly the most important document you’ll ever read. It provides a list of important rights that are guaranteed to us, the people. It defines and limits the scope and power of the federal government over the states and over us. It gives us recourse when we’re being abused by the federal government. And we can’t even begin to reap the fullness of the benefits of the Constitution if we don’t even know what it says.
Please take a moment, right now, to once again consider posting a link to this site on a social network you use, or sending a link in an email to a contact list, or even just sending one email with a link to one person you know, as you might do with a chain letter. It doesn't cost anything, and it doesn't take much time. And it's a big part of what we all can do to change our government. If you're not willing to help with even that free and easy task, then don't ever complain about politics or the government. You can begin to do something effective about it right now if you want to. Something that is easy, and free, and even convenient.