There Is No Historical Precedent For Hunter Biden’s Pardon
The annals of history are rife with stories of rulers and their misbehaving sons — and there's no honor to be found in what Joe Biden has done.The annals of history are rife with stories of rulers and their misbehaving sons — and there's no honor to be found in what Joe Biden has done.The Supreme Court Shouldn’t Let The Federal Government Control 70 Percent Of A State’s Land
The case in Utah raises issues not only about land use concerns but also core principles of federalism relevant to the entire country.The 4-letter word Trump must learn to love
It’s a four-letter word. It’s so powerful that our Founders had to weaken its authority from the original design, yet it remains rarely challenged. It’s the president’s most powerful leverage tool: the veto. If Trump wants to succeed in shrinking government where he failed in his first term, he must make this pen his constant companion — and let everyone in Congress know he’s ready to use it.
While a president doesn’t pass legislation or craft the actual budget signed into law, he controls all must-pass legislation by wielding the veto. He can block any budget or program reauthorization bill that lacks spending cuts and structural reforms. Since Reagan left office, only seven presidential vetoes have been successfully overridden. It’s rare for a critical number of a president’s own party — especially if they hold the majority — to defy their leader. That’s where Trump’s leverage lies and why the veto pen matters more than any Cabinet position.
Trump can simply make it clear that any reauthorization or appropriation bill lacking sufficient spending cuts and reforms will be vetoed.
Trump’s veto pen saw little action during his first administration, contributing to runaway spending. In fact, he used his veto pen less frequently than any president in the past 100 years. None of his 10 vetoes came in his first two years, when Republicans controlled Congress. This points to the problem and offers a framework for a more effective term.
The history behind the veto
If we had asked the framers of the Constitution, they would likely have admitted that their master plan might unravel for various reasons. However, they probably didn’t foresee the presidential veto pen becoming a weak tool for achieving Madison’s goal of “ambition ... made to counteract ambition,” meant to balance Congress' strong power.
Before proposing the veto override balance, the Founders worried that giving the president an absolute veto could shift too much power to the executive branch. During the June 4, 1787, debate, James Wilson and Alexander Hamilton proposed a veto power, but Benjamin Franklin argued that governors with veto power often used it for extortion. “No good law whatever could be passed without a private bargain with him,” Franklin complained. Roger Sherman also warned against “enabling any one man to stop the will of the whole,” doubting that “any one man could be found so far above all the rest in wisdom.”
The Convention debated the need for a veto override at length. Initially, framers passed a motion to set the override threshold at three-fourths of both houses of Congress. However, after Roger Sherman, Charles Pinckney, Hugh Williamson, and Elbridge Gerry raised concerns that this high threshold could grant too much power to the president and a small number of allies, the delegates agreed on a two-thirds threshold. They also rejected Madison’s proposal for a “council of revision,” which would have placed the veto in the hands of a joint council of the president and Supreme Court justices, choosing instead to vest this power solely in the president.
The Founders clearly saw the presidential veto as a potent tool, and many feared its abuse. They never anticipated that a president might be reluctant to use it.
Trump’s mandate — and leverage
Let’s be honest: Getting Trump’s priorities through the legislative process will be tedious without leveraging must-pass bills against a veto threat. Republicans will hold a slim three-seat majority in the House, built largely on liberal Republicans from California and New York.
Transformational policies, such as reducing legal immigration, downsizing government programs, overturning the vaccine liability shield, and ending birthright citizenship, would struggle to pass the House. Each targeted program has a constituency of Republicans likely to join Democrats in opposing cuts.
And that’s before facing the Senate, which is filled with RINOs who make House Republicans look like the Founding Fathers. Even on issues that unite Republicans, they’ll fall far short of the 60 votes needed to break a Democratic filibuster.
This is where “must-pass” bills come in. There will be a budget bill in the spring to complete this year’s appropriations and another next fall for fiscal year 2025. A debt ceiling bill will likely come up in late spring. The annual budget reconciliation bill, which can bypass the filibuster for budgetary items, offers a major opportunity. Additionally, an array of reauthorization bills will expire during Trump’s term.
Trump can simply make it clear that any reauthorization or appropriation bill lacking sufficient spending cuts and reforms will be vetoed. That leverage should be wielded and communicated early in the process. During the June 4, 1787, debate over the president’s check on Congress, James Wilson predicted the veto’s power would ensure it was “seldom” used, not because of its weakness but because Congress would avoid passing laws members knew the president would veto.
Benjamin Franklin disdained the veto power, seeing it as a form of extortion. Nevertheless, that’s the power a president holds. If Trump wields the veto pen, the success or failure of his two terms may hinge on this four-letter word that the Founders, with much trepidation, vested in one man.
Trump must take action against ‘untouchable’ bureaucrats
An estimated 2.2 million civilian federal workers serve at the pleasure of the president, despite only 4,000 being designated as political appointees. Donald Trump’s first priority as he prepares to retake office must be to establish that he can fire any of them. Whether they hold political appointments, Senate-confirmed positions, or civil service roles, all federal employees are subject to the president’s authority to terminate their employment. This includes workers in any department or so-called “independent” agency. If a congressional statute conflicts with his authority to fire someone, that statute is unconstitutional and must yield to the president’s plenary firing authority.
Ironically, Trump’s biggest failure in his first term was his reluctance to say his famous line, “You’re fired!” To succeed in a second term, he must remove anyone who does not share his campaign vision. His primary promises are to reduce inflation and eliminate the deep state. Federal Reserve Chairman Jerome Powell is already challenging both promises, presenting Trump with an early test of his resolve.
'If any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.'
When a Politico reporter on Thursday asked Powell if he would comply if Trump asked for his resignation, Powell responded flatly, “No.” When pressed on whether he is legally required to resign, he tersely repeated, “No,” asserting his belief that no legal basis exists for firing him.
Legally, Powell has no foundation to stay in his post if the president fires him, which Trump must do. While the legislature dominates in setting public policy and the federal budget, the president decides who serves in executive positions. The Senate can confirm high officers and may refuse to confirm a new appointee after the president removes someone senators support. However, the Senate cannot force the president to keep any personnel he wishes to dismiss, even if it passes a law granting tenure to that individual, as in the case of Powell, whose term doesn’t expire until 2026.
The Supreme Court ruled in Ex Parte Hennen (1839) that the president’s power to appoint executive officials includes the power to remove them. This authority was upheld in Myers v. United States (1926) in a 70-page opinion by the chief justice, former President William Howard Taft. If a president can appoint anyone to head an agency within reason, Congress cannot restrict him to choosing or retaining any specific individual.
Some argue that the Federal Reserve must remain independent, but that is a political stance, not a legal one. Constitutionally, there are only three branches of government. Since the Fed is neither legislative nor judicial, its governors are subject to the president’s authority to remove them.
Congress can defund or abolish an office and refuse to confirm the president’s nominee, but it cannot impose a tenure law on the president. James Madison explained this separation of powers in a letter to Thomas Jefferson:
[Congressional tenure laws] overlook the important distinction between repealing or modifying the office and displacing the officer. The former is a legislative, the latter an Executive function; and even the former, if done with a view of re-establishing the office and letting in a new appointment, would be an indirect violation of the theory and policy of the Constitution.
For example, although Congress passed a law entitling the FBI director to a 10-year term, President Bill Clinton, at the recommendation of Attorney General Janet Reno, fired FBI Director William Sessions in 1993 during his sixth year in office.
No executive branch figure operates outside the president’s authority. If an individual is not subject to the president’s authority, that individual is, by definition, not part of the executive branch. Therefore, the president can fire any civil service worker within main agencies and terminate anyone serving in independent commissions, such as the Federal Trade Commission, the Federal Election Commission, the Federal Communications Commission, the Securities and Exchange Commission, and the Merit Systems Protection Board. Based on his campaign promises, Trump has an obligation to exercise this authority.
Although the Supreme Court once deviated from the originalist view espoused by Chief Justice Taft — in cases like Morrison v. Olson (1988) involving the independent counsel — that era has ended. The current Supreme Court is likely to support Trump’s power to fire executive officials. Just four years ago, the justices ruled 5-4 that the president has full authority to remove the director of the Consumer Financial Protection Bureau. With Amy Coney Barrett now on the court, Trump would likely have six votes in favor of a decision to fire someone like Powell.
The president may not be a king, but he is the CEO of the executive branch. As James Madison said in 1789, “If any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” It’s time to exercise that power to the fullest.
‘Schoolhouse Rock’ Forgot To Teach Kids About The Administrative State
It’s a wonderful introduction to our system of government. But for all the video gets right, there’s an anomaly at its core.The Next POTUS Should Reclaim The Constitutional Spending Power Congress Stole
Congress has usurped the president's constitutional power to curb spending through the Impoundment Control Act.No, Biden, It’s ‘Reckless, Dangerous, And Irresponsible’ Not To Challenge Unjust Verdicts
It is necessary, healthy, and responsible for people to speak out when they do not agree with the government’s exercise of prosecutorial power.What too many Republicans get wrong about the Constitution
Every Republican seems to agree that our country has been taken over by a post-constitutional junta that usurps power to achieve its insidious objectives rather than follows the rule of law. But when it comes to redressing those usurpations with the only tool James Madison gave us — federalism — our elected officials too often shirk their responsibilities. Worse, they declare that the egregious usurpations are, in fact, the law of the land.
The latest victim of this dangerous post-constitutional dogma is Tennessee Attorney General Jonathan Skrmetti.
This is by far the most dangerous myth Americans must purge from our law and body politic if we ever hope to remain a free people.
As part of a growing movement to push back against federal overreach, Tennessee lawmakers earlier this month introduced SB 2775, the Restoring State Sovereignty Through Nullification Act. The bill would empower all state and local government stakeholders to pursue a process barring the enforcement of unconstitutional federal laws within the Volunteer State.
While similar bills empower only the state attorney general or legislature to interpret the Constitution, SB 2775 would leave that power in the hands of the whole people — as it was always meant to be.
Here’s how it would work. The law would permit the governor to issue an executive order declaring a federal policy null and void. Or any member of the legislature could trigger a floor debate and vote to nullify the policy. Or any state court may find the policy unconstitutional if the question arises during a legitimate case or controversy. Or any combination of 10 local governing authorities — either through their respective executives or legislative branches — may submit a petition for nullification that would trigger a vote in the legislature. Or, last but not least, any group of 2,000 registered voters could submit a similar petition triggering an automatic legislative vote on nullification.
In other words, the bill underscores how we are all responsible for safeguarding the Constitution. When everyone understands the federal government frequently oversteps its boundaries, we have an obligation to push back.
Constitutional confusion
Enter Skrmetti, whose office last week declared SB 2775 “unconstitutional.” The attorney general’s argument isn’t new. He, like a great many of his colleagues, accepts the dual premise that the federal government is supreme to the states in constitutional interpretation and that, within the federal government, the judiciary is king.
“Legislative action that vests the legislature itself with the authority to nullify unconstitutional federal action is not permissible because it arrogates to itself the power to interpret the law that properly belongs to the judiciary,” the attorney general argued. “In short, under the Tennessee Constitution, the judicial branch alone has the power to determine the constitutionality of federal action.”
Not so!
Let’s begin with Skrmetti’s Supremacy Clause claim. True, states may not enact laws that are contrary to federal laws or the Constitution. But the Constitution only makes the federal government supreme when Congress passes and the president signs laws that accord with the charter’s enumerated powers.
For example, Congress may place tariffs on imported goods because that is a power enumerated under Article 1, Section 8 of the Constitution. Just because a tariff might be unfair to some states under certain circumstances does not make the tariff unconstitutional. A state may lobby and complain, but the Constitution is clearly on the side of Congress.
But what happens if the feds decide to force everyone in a state to wear a mask?
Alexander Hamilton, the most ardent supporter of a strong national government among our founders, told us what he thought would happen in such a circumstance. “It will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land," Hamilton wrote in Federalist 33.
Roger Sherman argued in a December 1787 letter that when the federal government would promulgate a regulation clearly beyond its jurisdiction, the states could easily push back without running to the courts. Sherman wrote:
And tho' the general government in matters within its jurisdiction is paramount to the constitutions and laws of the particular States, yet all acts of the Congress not warranted by the constitution would be void. Nor could they be enforced contrary to the sense of a majority of the States. One excellency of the constitution is that when the government of the United States acts within its proper bounds it will be the interest of the legislatures of the particular States to support it, but when it overleaps those bounds and interferes with the rights of the State governments, they will be powerful enough to check it; but distinction between their jurisdictions will be so obvious, that there will be no great danger of interference.
That sounds exactly like what SB 2775 seeks to reinforce.
The most dangerous myth
Skrmetti asserts that only the courts have the final say over constitutional arguments. He cites the Supreme Court’s 1958 decision in Cooper v. Aaron, which was ostensibly about desegregation but really a brazen assertion of judicial supremacy. “The basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution,” Chief Justice Earl Warren declared, is “a permanent and indispensable feature of our constitutional system.”
Warren was wrong. The Supreme Court is not king. It does not have the last word. This is by far the most dangerous myth Americans must purge from our law and body politic if we ever hope to remain a free people.
The very rationale undergirding the concept of the courts also having a say in constitutional interpretation (despite being unelected) — namely, that judges swear an oath to uphold the Constitution — is a repudiation of the idea of judicial supremacy.
After all, every member of the federal and state government also swears an oath to the Constitution. The same way a federal judge can’t violate his oath by giving the force of law in a case or controversy to an unconstitutional law, an elected state or federal official cannot promulgate, fund, or enforce an edict of a court that violates the Constitution.
Chief Justice John Marshall said in Marbury v. Madison that it would be “immoral” and “a crime” to issue an opinion contrary to the Constitution. “How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!” an indignant Marshall thundered in his most famous opinion.
In defense of judicial review, Marshall asked, “Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? If it is closed upon him and cannot be inspected by him?”
This same argument comes back around when, for example, a federal judge issued a shocking ruling that Knoxville, Tennessee, school children had to wear a mask for seven hours a day. Nobody alive could justify that edict as a federal power — judicial, executive, legislative, or otherwise.
State and county officials had an obligation to set that ruling aside the same way Marshall believed a court would be obliged to do if Congress passed a law forcing people to wear masks.
Madison 1, Skrmetti 0
How can one branch, particularly the life-tenured unelected branch, be the sole and final arbiters of the boundaries of its own powers as well as that of the states and other federal branches?
As Thomas Jefferson admonished in his Kentucky Resolution of 1798, “The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.”
The Congressional Research Service observed in a 2017 report that “early history of the United States is replete with examples of all three branches of the federal government playing a role in constitutional interpretation.” Members of Congress weren’t so complacent in their duties and, the CRS noted, never sat idly while allowing the courts to have “a final or even exclusive role in defining the basic powers and limits of the federal government.”
Prior to the 20th century, most federal legislators subscribed to Madison’s view in Federalist 49 that “the several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” Madison emphatically believed that “each [department] must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it.”
Skrmetti could not be more off target by citing the Tennessee State Constitution as rationale for obsequiously crowning the federal judiciary the sole expositors of the U.S. Constitution.
In fact, Article 11, Section 16 of Tennessee’s constitution makes it clear that the state’s declaration of rights “shall never be violated on any pretense whatever.”
So, what is the remedy when federal officials violate those rights? Cry to the courts and hope for the best? Nope.
“To guard against transgression of the high powers we have delegated, we declare that every thing in the bill of rights contained, is excepted out of the General powers of government, and shall forever remain inviolate.”
Perhaps Skrmetti could use a refresher course on his state’s constitution — and James Madison while he’s at it!Today's top stories
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