The Eleventh Amendment

As discussed yesterday at The US Report, President Obama is peddling a jobs bill that contains elements that may actually be unconstitutional. But there appears to be more to the story.

The American Jobs Act states on page 133 (Section 176) that “A State’s receipt or use of Federal financial assistance for any program or activity of a State shall constitute a waiver of sovereign immunity, under the 11th Amendment to the Constitution…”

This strips state sovereignty and increases dependence upon the Federal government. And if it were to pass, this legislation would open the door for trial lawyers to sue the states in Federal court. Just follow the money.

Here’s what the Eleventh Amendment says:

 The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Basically, this amendment prevents the Federal government from hearing cases brought against a state by a citizen of another state or country. But Congress – and the states themselves if they so choose – can abrogate this Eleventh Amendment protection according to the Heritage Guide to the Constitution (pg. 376):

Congress can, for example, require the states to waive their immunities as a condition for receipt of federal grants under the Spending Clause (Article I, Section 8, Clause 1).

Why would the Federal government need to suspend the Constitution in order to save jobs? And when did the United States become so dependent on the government for jobs in the first place?

President Obama’s proposed abrogation of the Constitution may not actually violate the Constitution, since…

[Except - read more at The US Report]

This campaign against the American people – against traditional American culture and values – is systematic psychological warfare. It is orchestrated by a vast array of interests comprising not only the Eastern establishment but also the radical left. Among this group, we find the Department of State, the Department of Commerce, the money center banks and multinational corporations, the media, the educational establishment, the entertainment industry and the large tax-exempt foundations.

Mr. President, a careful examination of what is happening behind the scenes reveals that all of these interests are working to create what some refer to as a New World Order. Private organizations such as the Council on Foreign Relations, the Royal Institute of International Affairs, the Trilateral Commission, the Dartmouth Conference, the Aspen Institute for Humanistic Studies, the Atlantic Institute, and the Bilderberger Group serve to disseminate and to coordinate the plans for this so-called New World Order in powerful business, financial, academic and official circles….

The influence of establishment insiders over our foreign policy has become a fact of life in our time. This pervasive influence runs contrary to the real long-term national security of our Nation. It is an influence which, if unchecked, could ultimately subvert our constitutional order.

- Senator Jesse Helms, speaking on the Senate floor, Dec. 15, 1987

(Hat tip to Victory Institute analyst Judy Maxcy)

Unto the Breach Image

President Obama recently invited several NASCAR drivers to the White House to honor their accomplishments on the racetrack, but nearly half declined the invitation.

The invitees are the top finishers from NASCAR’s 2010 Sprint Cup. According to sbnation.com, which is sponsored by Sprint, drivers Greg Biffle, Carl Edwards, Kevin Harvick and Tony Stewart are not attending due to “schedule conflicts.”

Last year’s champion Jimmy Johnson will be attending however, along with Denny Hamlin, Jeff Gordon, Kyle Busch (who was originally among those not attending), Clint Bowyer, Jeff Burton and Matt Kenseth.

It is entirely likely that this is being over-politicized as NASCAR drivers do have an incredibly busy schedule: meeting with sponsors, fans, photo shoots (which is what Busch had to reschedule), and so on. There is really no off-season in this sport. The federal government has become an unwelcome part in all of our lives over the last few years, but (as of this writing) Uncle Sam is not the largest sponsor in auto racing (they are the largest landowner, healthcare provider, employer, broadband internet provider, etc.).

But that all could change if the Obama administration deems the racing industry “too big to fail.” Then we would no doubt see something like a $500 billion sponsorship of a race team claiming to run on solar power panels – only to go bankrupt in a matter of months. And by then we could hear Carl Edwards thank the ACORN/SEIU team for putting together a great car after winning the Daytona 500.

My advise to the four holdouts is remember “Joe the Plumber” – embarrass the President and dirty political goons will go through your past with a fine-tooth comb, looking for anything that can destroy you. Call your accountants and have them cross the t’s and dot the i’s. Maybe leave your calendar out in a highly visible location with “Meeting with George Soros” or “key Rush Limbaugh’s car” circled on the day of the White House event. Make a point to be seen in a Che Guevara shirt. Get a “Had enough? Vote Democrat” bumper sticker for your NASCAR.

Just in case.

The individuals above were all found guilty of committing crimes. But these men weren’t:

You could paint one of these overcrowded prisons grey and call it a submarine and the Navy would find a way to fit at least ten times as many people in them. The difference would be that, instead of convicted criminals, the occupants would all be volunteers, willingly risking their lives to preserve our way of life.

Our World War II veterans spent months rocking around in these tin cans in bunks so tight that a sardine would be uncomfortable. Then got to fight the Germans or Japanese.

These inmates do not have my sympathies.

“The President has no authority to unilaterally attack Iran and … if he does, as chairman of the foreign relations committee and former chairman of judiciary, I will move to impeach him.”

Apparently Biden considered a Republican occupying the White House as the impeachable offense.

What would be the difference between Bush bombing Iran and Obama bombing Libya? Iran’s leadership was developing a nuclear weapons program, calls us the “Great Satan,” seeks our destruction, and even wants to bring about the apocalypse. Although a bombing campaign may not have been our best strategic option, Iran clearly threatened our national security.

Libya, meanwhile, is supposedly a humanitarian mission. At least as humanitarian as dropping bombs on people can be.

Coupled with then-Senator Obama saying (also in 2007) that a bombing campaign in Iran would be unconstitutional, this just shows that the Democrat Party’s leadership is only concerned with power. The Constitution is whatever they need it to be: bombing a country that wants to destroy the U.S. is unconstitutional while bombing one that doesn’t is constitutional. They will attack, undermine, and even impeach anyone who gets in their way.

It is futile to expect consistency from Biden and Obama in their foreign policy, so we are just stuck with this White House until 2013. Perhaps then we can chose leaders who are more interested in upholding and defending the Constitution and protecting the American people than they are with gaining power at any cost.

Section 1544(b) of the War Powers Resolution states that “the President shall terminate any use of United States Armed Forces” at the end of the 60-day period unless Congress:

1. declares war or authorizes the use of force
2. extends the deadline
3. is unable to meet as a result of armed attack

I am not a lawyer, but 1,2, or 3 have not happened.

If the will of the people was to fight in Libya, either due to threatened interests or some internationalist Responsibility to Protect doctrine, Congress would have authorized force or declared war. Since they didn’t, the campaign should be over. Just as you or I can’t pick and chose which laws we will obey, the president can’t either.

However, the Obama administration has been working on loopholes to get around the 60-day deadline – and they will most likely succeed. So what Congress needs to do now is to craft clear and concise laws instead of the problematic War Powers Resolution. What is a “war?” What does it mean to “declare” war? What constitutes an “enemy?” These should be black-and-white answers and not subject to debate. Therefore, future adventurist presidents will be constrained from sending troops in instances where U.S. security and interests are not threatened.

Consider what then-Senator Obama said in an interview in 2007 on the War Powers Resolution (h/t Constitutional Insurgent at Blackfive):

“The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

“History has shown us time and again … that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.”

Since Obama considered such action unconstitutional when George W. Bush was President, what exactly has changed in order to make his action constitutional?

Well… at least it they didn’t pick the Hugo Chavez.

The Cesar Chavez will join the Lewis and Clark class of supply ships. Ships of this class are named after American explorers and pioneers:

• Lewis and Clark, famous explorers
• Sacagawea, interpreter and guide for Lewis and Clark
• Richard E. Byrd, naval officer and polar explorer
• Alan Shepard, naval aviator and first American in space
• Robert E. Peary, naval officer and first person to reach the North Pole
• Amelia Earhart, aviation pioneer
• Carl Brashear, the Navy’s first black master diver (portrayed by Cuba Gooding, Jr. in the film Men of Honor)
• Wally Shirra, naval aviator and one of the Mercury astronauts
• Matthew Perry, naval commodore that achieved the opening of Japan
• Charles Drew, developed large-scale blood banks during World War II
• Washington Chambers, pioneer of naval aviation
• William McLean, developed the Sidewinder air-to-air missile
• Medgar Evers, World War II veteran and assassinated civil rights activist

The namesakes of both Lewis and Clark-class ships named during the Obama administration (Medgar Evers and Cesar Chavez) may meet the dictionary definition of “pioneer,” but their pioneering field was civil and labor rights – a departure from those of military-related fields. Naming ships after activists seems about as odd as naming a civil rights department after Chesty Puller.

There are many ways of recognizing the contributions of “pioneers” in non-military fields other than naming ships after them. Were there not any new government buildings they could have dedicated?

This administration seems to take full advantage of every opportunity to score political points while weakening their opponents. By naming the vessel after Chavez, they can appeal to their hispanic and labor constituency while giving critics an opportunity to marginalize themselves as xenophobic extremists. Or at least that is how I see it.

Rep. Duncan Hunter of California suggested that Marine Sgt. Rafael Peralta would be a better choice for the ship. Peralta was an immigrant from Mexico that earned his citizenship while in the Marine Corps, and was killed in Iraq in 2004 when he covered a grenade with his body in order to shield his comrades nearby.

A better solution would be to award Peralta the Medal of Honor as is typical of those who sacrifice themselves by absorbing a grenade blast, then the Navy could name a destroyer after him. After all, who lays on a grenade and thinks they will survive?

There are other ways of recognizing the efforts of civil and labor rights activists than naming ships after them, but what can we do? This is democracy in action – America elected a community organizer as commander-in-chief.

The South Carolina Senate is currently debating legislation that would ban the enforcement of foreign and religious laws – including Islamic sharia law – but opponents claim the bill would violate the constitutional rights of Muslims. Nothing could be further from the truth.

In April, a Judiciary subcommittee conducted two hearings (on two separate days) on Senate Bill 444, which would prevent foreign and religious law from violating an individual’s constitutional rights. A third subcommittee hearing is in the offing.

S.C.’s bill does not mention sharia law, and appears to avoid religious infringement altogether, unless the religious law would violate the rights of another: “A court, arbitrator, … or enforcement authority may not enforce a foreign law if it would violate a constitutionally guaranteed right of this State or of the United States. The provisions of this section apply only to actual or foreseeable violations of the constitutional rights of a person caused by the application of the foreign law.”

Howard Stravitz, a professor at the University of South Carolina School of Law, testified at the South Carolina subcommittee hearing that the bill would violate Muslims’ freedom of religion. Stravitz did not respond to The US Report’s request for clarification.

“The backers of these discriminatory proposals realize if they put specific references to Sharia or Muslims, it won’t pass constitutional muster,” said Ibrahim Hooper, Director of Communications at the Council on American-Islamic Relations (CAIR).

When The US Report contacted Hooper to clarify which elements of S. 444 he considered unconstitutional, Hooper instead sent material related to Oklahoma’s attempt at banning sharia rather than South Carolina’s legislation. Senate Question 755 was approved by 70 percent of voters before being blocked by a federal judge.

It bears noting that CAIR recently made headlines when the Department of Justice scuttled pending terror-financing prosecutions against the organization and one of its co-founders. Both were listed as un-indicted co-conspirators in the trial against the Islamic charity group, Holy Land Foundation, which sent over $12 million in donations from the U.S. to the Palestinian terrorist group, Hamas. CAIR is linked to both Hamas and the Muslim Brotherhood, which seeks to establish sharia law not only in the U.S., but worldwide.

David Yerushalmi, a lawyer and expert on Islamic law, called Oklahoma’s Senate Question 755 “poorly drafted” as sharia was left open for vague interpretation. Yerushalmi wrote that “There are patently constitutional ways to legislatively preclude sharia from raising its ugly head in our legal system and to do so in clearer, more legally precise ways than was achieved by Question 755.”

It appears that the stumbling block is to what degree each state defines foreign laws: a federal judge blocked Oklahoma’s ban when a plaintiff from CAIR contended that by blocking sharia in state courtrooms, Muslims’ were essentially denied their freedom of religion as the plaintiff defined sharia as a religious practice rather than an authoritative legal-political-military system.

Both Louisiana and Tennessee passed anti-foreign law bills in 2010 – albeit without specific reference to sharia – that have not been overturned.

The underlying problem is that many Muslims consider Islamic religious laws to be divine commandments which trump man-made laws such as the Constitution.

In 2007, the Assembly of Muslim Jurists of America (AMJA) issued a fatwa, or Islamic legal ruling stating that “Islamic law does not recognize [man-made law], either fully or in part.” While not all U.S. Muslims may agree with the supremacy of sharia, the fact remains that a Muslim legal organization within the United States commanding Muslims to follow sharia and not federal and state laws.

The AMJA has issued other rulings which call for the execution for apostasy and blasphemy, as well as condone marital rape, female genital mutilation, and the stoning of adulterers.

How could a law preventing an individual from violating the rights of another be unconstitutional? No one seems to have a substantive answer. Instead of answering the question, the bill’s opponents continue to put forth strawmen like “the bill would adversely impact international trade,” which it would not in any way shape or form.

Moreover, according to our sources, when questions by the opponents were fully and adequately answered by the bill’s proponents during the hearings, the answers were ignored and the same questions were repeated by the bill’s opponents later in the hearings.

Perhaps the focus should be shifted from legislation that aims to protect constitutional rights to the imported legal system that undermines constitutional rights.

In a sane world, advocating for the undermining of our Constitution would be called sedition.

[Originally published at The US Report]

In 2007, the federal government brought charges against the Holy Land Foundation for Relief and Development (HLF), formerly the largest Muslim charity group in the United States, and several of its leaders for engaging in a criminal conspiracy to support the Palestinian terrorist group Hamas. The organization had sent over 12 million dollars to the terrorist group, and in 2008, a federal jury convicted HLF and the defendants on all 108 counts of financing terrorism.

However, HLF was not acting alone. “Although the indictment in this case charges the [HLF and defendants],” reads an opinion from the Fifth Circuit Court of Appeals, “it will be obvious that the defendants were not acting alone. As noted in the case summary, the defendants were operating in concert with a host of individuals and organizations dedicated to sustaining and furthering the Hamas movement. Several of the individuals who hold leading roles in the operation of Hamas are referenced by name in the indictment.”

The “host of individuals and organizations” the opinion refers to is a list of unindicted co-conspirators that is eleven pages long and contains hundreds of people and organizations associated with Hamas. Investigators had been building a case on the U.S. terrorism finance network for over ten years, and prosecutors planned on charging many of the organizations and individuals listed in the document. But last year, the Department of Justice (DOJ) announced that it would not prosecute any of the unindicted co-conspirators.

Patrick Poole writes at Pajamas Media that the prosecutions “were scuttled last year at the direction of top-level political appointees within the Department of Justice (DOJ) – and possibly even the White House.”

Poole’s DOJ source states that “There’s a mountain of evidence against all of these groups that was never introduced during the Holy Land trial and it is damning. We’ve got them on wiretaps. That’s exactly why many of these leaders and groups were named unindicted co-conspirators in the first round of prosecutions.”

Apparently there are political reasons behind the decision. Numerous co-conspirators, such as the Council on American-Islamic Relations are “interfaith partners” with the Obama administration. Exposing them as conspiring with Islamic terrorists could have a disastrous effect on the administration and its Muslim engagement efforts.

Frank Gaffney goes so far as to say that the DOJ’s decision could in fact be an act of treason. “It is a felony offense,” Gaffney writes, “to know or have reason to know that seditious activity is underway and do nothing about it.”

Title 18, Part I, Chapter 115, § 2381 of the U.S. Code defines treason as levying war against the United States or adhering “to their enemies, giving them aid and comfort within the United States or elsewhere.” Sending a terrorist organization falls under “giving them aid.”

Section 2382 of the U.S. Code states that anyone “having knowledge of the commission of any treason” and conceals or does not disclose said treason “is guilty of misprision of treason.” Simply put, if you know of a treasonous act and didn’t inform the authorities, you are guilty as well.

Although the United States is not at war with Hamas, the State Department has designated Hamas as a foreign terrorist organization. One of the requirements for designation is that the organization’s terrorist activity “must threaten the security of U.S. nationals or the national security (national defense, foreign relations, or the economic interests) of the United States.” A terrorist organization that threatens U.S. national security clearly puts Hamas in the “enemy” ballpark, otherwise, we wouldn’t prosecute individuals for sending them money.

Legal definitions aside, how can a government agency whose mission statement purports to “ensure fair and impartial administration of justice for all Americans” simply dismiss prosecutions of high crimes for political reasons?

- Woodrow Wilson, during his tenure as president of Princeton University