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.

The 'Know Nothings' Are Back

For those of you who didn't pay attention during history class (or were educated recently in public education), this title probably means nothing.  Don't feel bad.  It's probably because you knew nothing of the first incarnation of the 'Know Nothing' Party as it came to some prominence in the United States during the 1850's; when xenophobic Americans were concerned over the swarms of Irish and German immigrants who chose to try and start a new life in a new land rather than starve in their own.  Others whose parents had made much the same choice 200 years earlier were terrified by these newcomers and convinced that the nation was in danger of being taken over by hoards of Irish Catholics and Germans (and perhaps eventually the Pope).  Their party eventually settled as the American Nativist Party, but is far better known for the instructions that members were given in the event that they were asked about their semi-secret movement, answering "I know nothing" to their interrogators.  Though the party had mostly disappeared only a few years later, it seems that some part of it may have survived and has, without fanfare and without much bother,  taken over the the current leadership of the Federal Government.  This latest incarnation of twisted political leadership is being fully demonstrated in the troika of crises facing the current Administration.

While many believe that the this latest incarnation 'Know Nothings' may have reared its ugly head as early as October of 2009 by taking control of the DEA's and ATF's disastrous efforts more commonly known as "Fast and Furious", most believe that this peccadillo was little more than a practice run to determine if a multi-year campaign of dissimulation, obfuscation, and prorogation could succeed with the Mainstream Media (MSM), Congress, and the American people.  Having thus proven the success of their tactics, their dedicated membership now seems ready to hunker down in the trench warfare of endless Congressional hearings in which information is dribbled out in leaks slower than maple syrup in winter, while placing tourniquets on information of events viewed under a media philosophy of 'if it bleeds, it leads', and counting on a general population with the attention span of a 3 year-old that still believes that 'Reality Shows' and wrestling are unscripted.

Eight months after Benghazi, a hundred pages of emails tell us that the talking points for UN Ambassador Susan Rice were rewritten more times than the last episode of "Duck Dynasty".  While the CIA had the facts of story straight to begin with, behind the scenes movers and shakers felt the need during the run up to election to 'correct' them.  In a bizarre game of 'Telephone', these departmental power brokers throughout the Executive branch managed to edit out the truth and substitute a rather unconvincing plot that four people were murdered as a bad review on a YouTube movie.  What we still don't know however, is who initiated the plot change and who approved it.  

More importantly however, as the government and media argued over this script approval, is that we don't know who staged the scene at the Benghazi compound.  The British and the Red Cross abandoned the area as too dangerous; but after the US compound had been attacked months before, it not only remained, but reduced rather than beefed up its security force.  When the inevitable attack occurred, defense forces in the region that might have assisted were told to stand down, in spite of (or because of) their lack of information on the ground according to one story, or because of knowledge that they couldn't reach the battle in time according to another.  

When asked after the attack what the hell happened, Press Secretary Jay Carney initially told us to wait for the completion of the investigation.  Having completed it, he now tells us it's 'old news' and he can't or won't speak to it.  As for the Defense Department, the State Department, and the White House; they don't know or can't tell us who is responsible for the horrible decisions made before, during, or after the attack that caused the death of four Americans on Embassy Grounds.

Cut to the IRS targeting of Conservative and and religious groups that were seeking 501c4 tax status.  We were originally told in March of 2012 by then acting IRS Commissioner Douglas Shulman that the IRS was not in fact targeting these groups.  When an Inspector General report this month was about to reveal otherwise, the IRS's Lois Lerner (whose division was responsible for this targeting)  planted a question with Celia Roady so that she could do a soft-release of the reversal.  Soon to be ex-Acting IRS Commissioner Steven Miller now tells Congress that it did happen, that it was real wrong, and that their 'investigating' to insure that it never happens again.  (Can you hear the Benghazi script writers scribbling away?)

Apparently, we are supposed to believe that this was the effort of a couple of rogue employees in Cincinnati.  (Does Oliver North work at the IRS?)  Despite the fact that some of the documents already released on this breaking story came out of Washington and the cast of characters in this charade is becoming as long as the one in Benghazi, no one again seem to know anything about what happened, how it happened, and who sanctioned it.  In spite of the fact that an Inspector General was appointed to look into it, no one at the IRS, in the Treasury Department, or the White House knew anything either.  It seems in fact, that of all these career bureaucrats (and the nation's Chief Executive) no one anywhere knew that anything bad, illegal, or in violation of the Constitution might be going on.  They told us in fact that they had to read about it in the newspapers to discover this ongoing skulduggery. (And who says newspapers are dead?)  The fact that this began in the run up to an election and is being released only after it's over is suspicious to no one, and at the pace of White House document releases and Congressional hearings, we may manage to get partial answers about a year after everyone has lost interest.

Cut to scene three, in which the Department of Justice, without subpoena, obtained the phone records of a number of Associated Press employees.  Ostensibly this is about going after a serious national security leak (you know, like releasing the info on who killed Bin Laden), but the Keystone Kops at the DOJ decided to go after the records of reporters who might have been involved in releasing the story instead of the limited members of the government employees who had access to the information in the first place.  This was not, according to our government, an attempt to intimidate the press in any way, or to impede the rights of a free press to do its job. (Sure, I buy that.)  The fact however that AP has traditionally been a friend to this Administration and the fact that it was they who were attacked certainly sends a clear message to those in the press who might choose to oppose it however.

As for who made the decision to pursue this particularly egregious effort in this misguided way; Attorney General 'Eric the WithHolder' said "I don't know" so many times in his recent Congressional appearance that he made "Hogan's Heroes" Sergeant Schultz look like a college professor.  (Can you say plausible deniability?)  Nobody at the Congressional Hearing however seemed to know enough to ask who was in charge of the program so that they could subpoena them to testify, and nobody else in the Executive branch seems to have any knowledge (at least that they're admitting) about how and why it happened.   (The President did however, suggest that Congress pass a law to defend the Press against an abuse of power committed by his DOJ.  Really?)

I thought at first that the White House was attempting to debut a new Reality Show with its name ripped off from the 1995 Alicia Silverstone movie "Clueless" (you know how Hollywood likes bad remakes.); but I have since come to believe that this is an unexpected resurgence to power of the 'Know Nothing' Party.  (There are many who believe that both major political parties could pass for 'Know Nothings', but that's a tale for another day.)  They were after all a secret society (and you know how we like to blame those), are lost far enough in our past to have become forgotten or misunderstood in intervening years, and could merely have transferred their rabid xenophobia from Irish-Catholics to the current target du jour of Conservatives.  It may not be great theory, but at the very least has unique quality of fitting a number of the facts that we possess.  

There be no lanterns hung in the steeple of the Old North Church this day, nor will Longfellow pen an epic poem as the news is spread.  Make no mistake about it however, you heard it here first that the 'Know Nothings' are back. 

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.