Public Works Bills are STILL Unconstitutional
Mandeville, LA – Exclusive Transcript – “When I say that the president has as much authority to present a budget as you do or as I do to the Congress, I draw upon the letter of the ratified law. The letter of the ratified law gives no such appropriation authority to the president. His authority is limited to either signing or affirming an act of Congress that comes in the form of an appropriation, or vetoing it. That’s the extent of his authority.” Check out today’s transcript for the rest….
Begin Mike Church Show Transcript
Mike: When I say that the president has as much authority to present a budget as you do or as I do to the Congress, I draw upon the letter of the ratified law. The letter of the ratified law gives no such appropriation authority to the president. His authority is limited to either signing or affirming an act of Congress that comes in the form of an appropriation, or vetoing it. That’s the extent of his authority.
Bear in mind, we take all these things for granted. We talked about this when I was reading Wythe Holt to you the other day about the Whiskey Rebellion and the Washington administration. You may be able to argue other than the Treasury secretary and the affairs of state being managed, thus a secretary of state, there’s no constitutional authorization either for the president to even have a cabinet. We take it for granted that he has to have one and using the Necessary and Proper Clause he brings one into existence. As a matter of fact, this was debated in the federal convention that produced the Constitution. It was rejected.
Basically what they called it in Virginia — the Virginia Constitution of 1829, I think, got rid of this, but until 1829 they had what was called the governor’s Privy Council. This would be a little council where the governor of the State of Virginia would meet with and say: I want to do this. What do you think? Can you guys sign off on this? They would tell him whether or not they thought something A, was constitutional according to the Virginia Constitution, or B, how he should suggest to the legislature that they enact it. That’s the way it worked.
When they were debating the federal constitution in July of 1787, the Privy Council was brought up. It was suggested by Edmund Randolph, among others, that the president or the chief executive or chief magistrate, whatever they were calling him in the convention at that time, that he ought to have, in the new constitution — which they hadn’t called a constitution yet — but in the new plan of government that they were devising, that the president ought to have a council, he ought to have a board of advisors. Thus, a cabinet, if you will. That idea was rejected. They said no, that the president could advise and consent with the Senate — treaties that he would submit — and with members of Congress and that’s all he needed. He didn’t need the council. Of course, we don’t think about these things in these terms today because we don’t have to. Everything, it seems, is a foregone conclusion.
For those of you that have suggested to me: Mike, Obama has to submit a budget because of some budget act in the 1920s. I haven’t had a chance to actually look into this. You have to think about this correctly. When it has been desired that the president’s powers be altered, say, for example, if he were to expire in office or if he were to become incapacitated because he’s mentally insane — as most of them are — how did Congress deal with this? Did they write an act and say: If you lose your mind, according to the President Lost His Marbles Act of 1921, you do this? If they wanted to alter his powers, what did they have to do? They have to amend. They’ve altered his powers a couple times.
It came up in an episode of the television show 24. It was actually invoked against President Palmer. It’s Amendment 25, “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. . . . Whenever the Vice President and a majority of either the principal officers of the executive departments . . .,” whenever they determine that the president has lost his marbles, they can remove him from office. Then there’s the term limits. The president can only serve two terms. He’s the only term limit of an official in the federal government. My point is, when Congress wished to alter the powers of the executive branch, they had to get an amendment, requiring the president to do budgetary things and act as a quasi-legislator is altering his powers. Thus, if they want him to submit budgets in 1921 or whatever the year was, they should have amended the Constitution and required it of him. They did not. So I’m going to go with the no, he doesn’t have to.
Let’s just pretend for a moment that Obama or Bush or Clinton, let’s just pretend for a moment that they humbled themselves and said: I sign the laws, you guys make them. I’m not sending you a budget this year. I even have an idea. I’d rather save the money that we were going to spend on printing the budget and all the falderal that was going to go along with it and just let you guys operate in peace. Why don’t you guys send me something over here and I’ll take a look at it. If I like it, I’ll sign it. What are they going to do, impeach him if he doesn’t do it?
Here’s another one. Some of you have remarked to me, [mocking] “Mitter Church, Mitter Church, the Congress can do roads because of the post road section in Article I, Section 8.” This came up during President Madison’s veto of the Bonus Bill. Here’s the power, “To establish Post Offices and Post Roads.” The establishment of a post road is not the construction of a post road. It’s not the maintenance of a post road. It is the designation of a road that already exists that could lead to a post office. They had the power to build a post office and then you would assume they would ask — a needful building or improvement would be a post office — and they would ask the state in which the post office was going to be located: Hey, where do you guys think we ought to have a post office? We’re going to establish one here. We’re going to put it on this road. We have established this road now as a post road. That just means the mail can travel over that road. That’s all that it means. President Madison, when he vetoed the Bonus Bill, that’s exactly what he said. I almost quoted him just now.
By the way, don’t forget, we started this exercise this morning with the president’s submission of $478 billion in highway improvements. We’ve already established that this is not a constitutional power. It doesn’t seem to matter to anyone anymore, but that doesn’t mean that you have to go along with it. I’m giving you the ammo that you need, if you’d like to, to start water cooler feuds over the power to build roads and bridges. I digress for just a moment. President Madison, in his last act as president, this veto:
The power to regulate commerce among the several States cannot include a power to construct roads and canals, and to improve the navigation of water-courses, in order to facilitate, promote, and secure such commerce without a latitude of construction departing from the ordinary import of the terms, strengthened by the known inconvenience which doubtless led to the grant of this remedial power of Congress.
To refer the power in question to the clause “to provide for common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follows the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared “that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land . . .” [Mike: In other words, if they started building roads and bridges under the General Welfare Clause, then they’d have to build all the roads and bridges. That’s what he’s saying there. Obviously this was a power that was reserved to the states.] Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments . . .
If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power.
Mike: I think everyone should have to read the Bonus Bill veto, I really do. This is just exposition here. This is as good as it gets when little Jimmy Madison is saying: Okay, before I leave out of here, I’m going to try to explain to you knuckleheads one last time, while I’m still breathing and have a little bit of power here, I’m going to try to explain to you knuckleheads why you can’t do this and why anyone that comes after me can’t do it.
I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity.
Mike: By the bye, folks, if Congress did not then have the power to build roads and bridges and canals in 1817, they most certainly did not have the power to subsidize and then help construct the railroads, which the Lincoln administration did. Just thought I’d throw that one in for good measure.
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But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.
Mike: In other words, he’s saying: If you want to do this, write an amendment. Add to your powers. Write an amendment, send it to the states, and see if they’ll ratify it. Of course, they never did. They probably would have, although, a very significant case can be made that no federal power over roads should ever be granted and the states should maintain this for what should be obvious reasons.
End Mike Church Show Transcript