TFP Column: Contradictory Laws Equal Confused Country

(Contrary to all logic and reason, I have decided to put new material up on this blog, but only in the form of the columns that I have done for the Toledo Free Press.  This is done for the benefit of those with time to waste, who likewise do not spend their time reading the website of this award winning weekly newspaper, and I will go back and add efforts that were published earlier this year.)

This particular effort was published today on 08/11/2014.


Many will tell you that the United States is the greatest country in the world. They believe so in large part because this nation, (at least in theory) under the framework of the Constitution, lives under the “Rule of Law.”

Now for those unfamiliar with this principle, this means this nation is governed under the pre-eminence of its laws, and not under the primacy of any individual or group of individuals. Laws however, have an internal supremacy of their own.

Municipalities like Toledo, for example, have city councils with the ability to write and pass laws, which go into effect if the mayor signs and doesn’t veto them. Those rights are guaranteed under the principle of “Home Rule,” granted under Article XVIII of the Ohio Constitution. Article XVIII however, states: “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws,” — which is written vaguely enough to make it a constant subject of judicial, if not political, interpretation. Translated from “lawyer-speak,” it means that a city can write laws for itself only as long as the state and nation agree that such laws don’t conflict with state or federal law.

Confused yet? Then let’s talk about the state level, where legislators play much the same game. Like their municipal counterparts, laws can be whatever is passed by the state legislature and signed by the governor. Once completed, however, state law has the potential to make local laws obsolete or superfluous, under the conflict portion of Article XVIII. But that’s not the end.

The efforts of the states in turn are themselves subject to the same fate under the supremacy of federal laws under Article VI of the Constitution. Known in fact as the “Supremacy Clause” it states: “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.” (I know, blah, blah, blah …) Remove the legal gibberish however, and it makes clear that when under judicial review, federal law shall deemed the Supreme “Law of the Land.”

This is where it gets even more confusing. Not only does the president, like the governor at the state level, have the ability to sign or veto legislation submitted to him by the legislature, but lately he seems to feel he has the power to change or delay implementation of certain politically inconvenient provisions in spite of “shall vs. may” language within it (something we’ll have to go into in another effort). More importantly, it’s the executive branch and the president’s attorney general at the Department of Justice (DOJ) that’s ultimately responsible for enforcing federal law.

During the current administration there’s been some confusion, contradiction and what might even be seen as arbitrary behavior where such enforcement is concerned. The current DOJ sees no voting rights violation when a couple of Black Panthers with clubs stand outside a polling place in Pennsylvania, but does see it in a Wisconsin requirement for photo ID and in Ohio where providing absentee ballots and 28 days of early voting is apparently insufficient protection.

The DOJ challenged Arizona (and won) for passing a state law to allow its local and state constabulary to enforce existing federal immigration law when the federal government seemed unable or unwilling to do so. (Texas’s governor just recently deployed the Texas National Guard to assist border enforcement in his state and we have yet to see if this too will be challenged.)
And then there’s pot …

The DOJ insisted on the supremacy of federal drug laws early on when challenging “medical” marijuana use in California, but has recently seemed rather timid regarding recent state laws for recreational use in Colorado and Washington.

Inconsistent and contradictory federal enforcement of the Supremacy Clause seems the most generous way of describing the current situation. Does this erratic and unpredictable legal philosophy leave us confused as a nation, one ripe for both abuse and for legal challenge? Yes. Worse yet, it also makes it more likely that regardless of what you do (even if that’s nothing at all), you could well be guilty of something.

Much Ado?

As the continuing coverage of the Obama Administration's troika of tribulation goes on, I can't help but wonder about what any of it will mean for the nation in the long term.  Each of course, has become an amusing little bit of living hell for Press Secretary Jay Carney.  After all, it's hard enough to stand in front an appreciative audience and read your lines with a straight face when the writers have done such a horrible job with the narrative.  When the audience becomes of clique of carping critics, ready to find fault with every miscue and fumbled line; what should be a walk in the park becomes an effort to tip toe through a minefield.  But after this elite assemblage with their press credentials plays its verbal game with an equally elite assemblage of politicians and bureaucrats, is it likely that anything will actually come of it, or will all of it become much ado about nothing?

Benghazi
While in many ways this should be the most grievous of the mishandled situations, it's probably the least likely to amount to much in the long run.  There's little doubt that a political narrative intruded on real national security issues, that insult was added to injury in a poor attempt to turn 'chicken shit into chicken salad' that ended up costing American lives, and that the bureaucrats whose job it is to do CYA work for the President are slowly revealing their dirty fingerprints on the paperwork required wipe the national leader's backside.

On the other hand, those involved have largely managed to drag the inquisitional process out long enough that it's exceeded the attention span of the average American voter.  Oh sure, Congressional hearings will continue to be held by the opposition party who will take political advantage of the situation until much closer to their re-election (and maybe even find a little truth along the way).  It's unlikely though, that smoking guns will be discovered after all this time or if they are, that anyone will care much.  You see, in spite of the fact that many members of Congress are lawyers, most of those in committee meetings seem far more interested using their time in testifying than in questioning witnesses.

As a result, what's more likely is that those involved in the Defense and State Departments will have their costly mistakes written off as mere errors in judgement; while the White House will once more be seen as disconnected and 'leading from behind'.  It's likely that the largest impact of an incident which cost four men their lives will be to cause Mrs. Clinton to write an end to her political legacy with the titles of Senator and Secretary of State.

AP / James Rosen
Considering Benghazi, this is little more than a storm in a tea cup, though you would hardly know it.  Administrations have always had leaks, some of which are purposefully dropped breadcrumbs used to advance or reinforce their agendas; and others are inadvertent and the unintended consequences of bureaucrats and political sycophants trying to prove to those in the media that they are more in the know than they actually are.  Some (very few) are actually nefarious attempts to reveal vital national secrets.  Some of these leaks are politically necessary, some are little more than inconvenient nonsense, and some end up being positively perilous (though usually not for either the bureaucrats or reporters).

These nuggets of fact, fiction, and foolishness are parceled to the public by representatives of the various news agencies; who like their government sources, present a mixed assortment of talents and biases.  Since governments only want approved messages passed out, this causes them to create 'naughty and nice' lists where the media is concerned; and to use the coercive power at their disposal cater to friends and frustrate enemies.  Some Administrations are more sensitive where their friends and enemies are concerned and some far better and more subtle at coercion than others, but all of them do it.

Occasionally one or the other crosses the line, gets smacked around for it, and retreats in embarrassed or vindictive silence afterward.  These incidents are two such occasions when the government took its lumps.  Oh sure, there are some questionable Constitutional behaviors involved with the actions of the DOJ in handling them, and (like Benghazi) some poorly done cover up efforts; but fortunately for the government, citizens these days like the press only marginally more than politicians, and don't mind much if they occasionally get smacked around.  

Have no fear however, the DOJ has promised to investigate itself, and I'm sure that we can count on the AG to get to the bottom of his own and his department's misdeeds.  While the mainstream media would like this to be a far bigger deal for their own future protection (and for continued headlines), and Congress will be continuing to hold hearings of its own on this subject as well (more headlines for fund raising and re-election efforts); its unlikely that anything will happen beyond the resignation of the Attorney General Eric Holder (who should have fallen on his sword after "Fast and Furious") as being either completely incompetent or mildly crooked.

IRS Targeting
This scandal is quickly growing into the largest of the three, but mostly because hating the IRS is a truly bi-partisan practice.  Decades of heavy-handed mistreatment of citizens by it combined with an over-riding fear of this 20th century Frankenstein monster of an agency has all the townspeople looking for the nearest windmill to trap and burn it in.  The mainstream media has properly taken this scandal up, in spite of the fact that like the government, they don't much like the groups targeted because ... well it sells newspapers and commercial time and their vulture-like nature prevents them passing up a likely corpse.  Even savvy politicians on both sides of the aisle, knowing that such things have always gone on at some level, are voicing concern with this latest effort; lest the next party in power further escalate the use of this double-edged weapon in order to insure their continued right to rule.  

Some sacrificial villains (scapegoats) will at some point be discovered for this scandal during what's likely to be year-long hearings, but any perpetrators are likely to be able to resign and keep their pensions.  Menial IRS workers caught in the crossfire are protected by union contracts that will delay or prevent any punishment for their labors until such time as the whole thing is long forgotten.  Promises of reform will be suggested by both sides of the aisle (perhaps even honestly), but there's a momentum of power abuse in this bureaucracy far too great to overcome.  Additional increases in power the IRS gains under the implementation of Obamacare will not only add to its numbers and its penchant for abuse, but is likely to do little more than feed its appetite for evil.   

Fortunately or unfortunately for the party in the White House, the one controlling Congress is likely to drag out hearings through the mid-term elections on this subject as well to expose career bureaucrats who were doing no more than attempting to climb the food chain by pleasing those who controlled their promotions.  Based on past performance, Congress will over time completely inoculate us to the horror of these abuses by fumbling the opportunity given them right to a wrong in order to instead create self-serving fund raising efforts and campaign sound bites.  Far worse, legislators will overlook this uniquely bi-partisan opportunity to simplify tax law in this country, and eliminate the very power being exercised and abused by these blameworthy bureaucrats. 

  

TFP Column: Careful Contempt

The House Oversight and Government Reform Committee voted last week to hold Attorney General Holder in contempt.  Considering what appear to be the actions of the Department of Justice where the 'Fast and Furious' debacle is concerned, the DOJ's position on voter intimidation, and the rather pitiful game of politics that Holder's played with committee chairman Darrell Issa; contempt seems a rather mild criticism of the Attorney General.

Then again, it's hard not to feel equal contempt for a Congress that's done nothing to reduce debt, regulation, and encroachment on personal freedom since taking control.  One might in fact say that the only thing more contemptible than their pathetic efforts in the last eighteen months has been the level of success that they've had in achieving them.

So the question arises, how seriously can and should we take a contempt citation from such a Congress of the contemptible actions of the Attorney General and his legal Myrmidons?  Yeah, I'm not sure either; but I at least lay out the greater part of the facts surrounding the issue this week in "Careful Contempt" on the TFP website.

This early in the week, there's bound to be a number of things far less contemptible to read about as the week progresses (though the way City Council goes about its business lately, I can't be entirely sure); but the only way you're going to know that for sure is to read about them in both the mid-week 'Star' edition, and in Toledo's largest Sunday circulation and Ohio's best weekly newspaper for the last three years, the Toledo Free Press.