Editor’s Note – The author of the following article is James A. Lyons, a U.S. Navy retired admiral, was commander in chief of the U.S. Pacific Fleet and senior U.S. military representative to the United Nations. Admiral Lyons is also a Kitchen Cabinet member of Stand Up America US.
The fallout from foreign-policy malfeasance and nonfeasance
The U.S. abandons ‘peace through strength’ and the globe spins in turmoil
With the weakest national security team since World War II, it is no wonder that both our foreign- and national-security policies lack coherence and direction. The administration’s faculty-lounge logic that in the 21st century, “diplomacy” will substitute for military solutions to international crisis, overlooks or chooses to ignore a key factor: recognized military power that provides the essential underpinnings to successful diplomacy. It is called “peace through strength.”
How did we get to the rudderless position we are in today? Clearly, a series of policy mistakes have been made. It should be remembered that it was President Carter’s misguided policies that gave rise to Islamic resurgence by undercutting our key ally, the Shah of Iran, by fostering the return of the Islamic zealot Ayatollah Ruhollah Khomeini with his 7th-century mentality. Furthermore, much like President Obama today, he oversaw a deliberate drawdown of our military forces and capabilities.
Regrettably, each successive administration, be it Democrat or Republican, has also contributed to the chaotic situation we now face in the Middle East by essentially ignoring the 34 years of acts of war by Iran against the United States. These have included the takeover of our embassy in Iran; the bombing of our embassy and U.S. Marine barracks in Beirut without responding; and the material and training support to the Sept. 11 hijackers, as well as a host of other acts of war that have caused the loss of life of thousands of American military personnel and civilians.
Recently, we have witnessed the Obama administration’s embrace of the Muslim Brotherhood, which has clearly facilitated the advance of the Islamic global agenda. Mr. Obama’s June 2009 Cairo speech was the catalyst for the Arab Spring movement, which evolved under the political direction of the Muslim Brotherhood.
We all know how that has turned out. In the current Israeli-Hamas conflict, it should not be forgotten that Hamas is the Palestinian branch of the Muslim Brotherhood, whose creed is to eliminate Israel’s very existence. Clearly, no peace can be achieved as long Hamas remains in control, and the Palestinians continue letting themselves be used to further the agenda of these merchants of hate.
There are some indications that Hamas maybe losing some of its luster. Many hold Hamas responsible for the current Gaza humanitarian crisis. It must be made clear that the only way the Israeli and Egyptian blockade will be lifted and border crossings opened is with the removal of Hamas. There can be no reward for terrorism.
It appears no matter where you look, we have serious global instability. The Middle East essentially is in a total meltdown. Russia continues its aggressive move into Ukraine’s eastern provinces. With China continuing to press its illegal claims in both the South China Sea and East China Sea, the impotence of American leadership is clearly evident. As a result, our allies don’t trust us, and worse, our enemies don’t fear us.
Russia has embarked on an accelerated modernization of both its strategic and conventional forces, while China continues with an unprecedented military expansion of both its strategic and conventional forces. The Obama administration’s response has been to continue with the unilateral disarmament of our military forces This will leave us with the smallest Army since prior to World War II, and the smallest Navy since prior to World War I. Furthermore, our strategic forces have been allowed to atrophy over the past two decades. Our national leadership is deliberately jeopardizing our national security.
The draconian budget cuts to our military under the Obama administration’s sequestration mandate must not only cease immediately, but be reversed to meet these new and dangerous challenges. Such an announcement by the administration would provide a much-needed morale boost to our allies, as well as sending an unmistakable message to our enemies.
Aside from Ukraine, which should be provided the necessary requested military equipment to protect its sovereignty, the most pressing problem facing the Obama administration is the Islamic State’s threat to Kurdistan and what remains of Iraq. This threat must be destroyed before it expands into surrounding countries of Jordan, Lebanon and Saudi Arabia. The half measures we have taken so far are clearly inadequate.
To protect and support Kurdistan, the only viable ally we have in the region (besides Israel), will require a sustained comprehensive air campaign. To complement the current naval airstrikes and sustain such a campaign, we should establish a forward operating base alert element of F-16 fighters and A-10 close air-support aircraft in Kurdistan, which has one of the longest runways in the world at Irbil International Airport. Further, we should fly in the heavy military equipment that the Kurds have requested, as well as additional anti-tank weapons and ammunition.
The Obama administration’s position that they would only provide support through an all-inclusive Iraqi government was nonsense. Even with widespread support for his former lieutenant, Haider al-Abadi, current Iraqi Prime Minister Nouri al-Maliki has refused to accept him as a successor. However, this should be short-lived. While they have endorsed the new prime minister, Iran’s leadership most likely wants to see an inclusive Baghdad government so that Iraqi and U.S. forces will prevent the Islamic State from threatening Iran.
The Islamic State is a barbaric, murderous, evil terrorist group, which must be crushed. However, our involvement should not be as a protector for Iran. Will the Obama administration change its strategy? Whatever plan the administration implements, it must remember that the objectives of the Islamic State, al Qaeda, the Muslim Brotherhood, and the Iranian regime are all the same — destroy Israel and the United States. The administration must decide which side it is on.
Editor’s Note – With all the hand wringing and accusations that Israel was committing war crimes in Gaza, who really is the war criminal? Palestinian supporters who act as if Hamas is a legitimate governmental entity need to learn a lot about the laws of war and what it means to provide support for a terrorist entity.
The only war crimes committed come from perpetrators in Gaza, not from beyond. Every argument the Palestinians/Hamas and their supporters use is actually proof of their own crimes. Collateral damage and death is solely the responsibility of Hamas because they caused the circumstances – with full knowledge and by design. Law is based in intent – Hamas intends to commit war crimes, Israelis intend the opposite, but cannot stand idly by just because they are far stronger.
Of course, according to Hamas/Palestinians and their supporters, the actions of Hamas are somehow justified, yet Israel’s responses with force are not. Why? Because Israel is blockading Gaza. Of course, even that accusation has little basis in reality, but since when did reality matter to the romanticism of all things Palestinian?
They forget that Egypt is also participating in the blockade, and aid has been provided by the Israelis and others since Hamas took over and it is the source of all the supplies to create the terror tunnels.
The other question to ask is why UNWRA has failed so miserably, despite billions in aid and 65 years of effort. The answer is that UNWRA is complicit and the UN itself is propagating the problems through dubious accusations to keep the money flowing. What has UNWRA really done since 1949?
UNRWA actually employs many from Hamas in its cottage industry, and it is in their best interests to keep the poor Palestinians stuck in a cycle of misery, much by their own hands. People have spent their entire professional careers working for UNRWA – quite a stable job isn’t it?
Irrational support for Hamas/Palestine (Including other terror organizations in Gaza) is as irrational as accusing Israel of war crimes when no nation on Earth has ever practiced such caution in war. In the article below, we see exactly how the laws of nations in war have been transgressed, repeatedly, for years and years, by the Palestinians and their enablers at UNWRA.
For 90 Minutes, Jewish Leaders Tell UN’s Ban Ki-moon About Hamas Abuses, List 19 War Crimes
For a full 90 minutes on Wednesday, Jewish leaders told United Nations Secretary-General Ban-Ki Moon about the litany of abuses of international rules of warfare – 19 in total – by Hamas in Gaza.
The group included Rabbis Marvin Hier and Abraham Cooper, directors of The Simon Wiesenthal Center, the Anti-Defamation League’s Abraham Foxman, Malcolm Hoenlein of the Conference of Presidents of Major American Jewish Organizations and representatives from B’nai Brith and Hadassah.
Rabbi Cooper told The Algemeiner on Thursday, “Bottom line, the Jewish world will have to be more proactive on the international stage, not only to defend Israel, but ourselves as well. We will continue to interact with Ban Ki Moon to insure that this important leader will be more responsive.”
In a follow-up note to Ban after their meeting, the SWC rabbis summed up the argument they presented. They said that “we must frankly ask you how many times will the world allow itself to be held hostage by Hamas? This is the third time since 2005 when Israel unilaterally withdrew from Gaza that Hamas has brought death and destruction to the people of Gaza. Once again they are using the people of Gaza, the civilian infrastructure and UN facilities in its non-stop campaign to terrorize the Jewish state.”
During the 90 minute meeting, according to Rabbi Cooper, the SWC urged the UN to announce an official inquiry into the use of various UNRWA schools by Hamas to store and launch rockets for the benefit of the UN’s own reputation. They also called on the UN not to permit the UNRWA to supervise the billions in reconstruction funds expected for Gaza.
“The systematic hijacking of previous aid, cement, and building materials by Hamas to build an underground superhighway of terror is scandalous and a violation of the wishes of the donors who did not contribute funds for rockets or tunnels,” they said. “Those who failed to stop such theft and serial abuse of humanitarian aid, must be held accountable and should not have any involvement in supervising or dispersing of future funds.”
They also said that work shouldn’t begin until “the total disarming of Hamas and the destruction of all of the thousands of rockets and missiles Hamas still harbors.”
The Jewish human rights group that works to protect Jews against anti-Semitism also raised that core issue with Ban. “There has been an explosion of anti-Semitism and genocidal hatred against Israel from Europe to Australia,” they said. “Rather than denouncing this toxic situation Navi Pillay, the UN High Commissioner for Human Rights, contributed to it by being so rabidly one-sided in her criticisms of Israel.”
“During her tenure there was no effort to investigate previous crimes against humanity by Hamas, including its own admission that 160 Palestinian children died building their terrorism tunnels. Her behavior demands a public censure from the Secretary General.”
They asked that “with a human rights disaster of epic proportions in Syria, with ethnic cleansing in Iraq, with a difficult situation in Ukraine and with continuing human rights outrages in North Korea,” the upcoming UN General Assembly “not be allowed to degenerate into an anti-Israel hate fest,” and noted that the UNGA will coincide with the Jewish High Holy Days.
“Anymore demonization of Israel emanating from the halls of the United Nations will only contribute to anti-Semitism globally,” they said.
To hammer home their point about Hamas violating human rights, although Israel is accused of doing so by the UN Human Rights Commission, the SWC rabbis left Ban with a detailed list they compiled of the 19 violations made by Hamas, with full notes and citations for Ban to reflect upon.
In further comments to The Algemeiner, Rabbi Cooper said Ban “refused to get involved with the travesty at UN Human Rights Council.”
Read the SWC’s list of Hamas’s 19 violations of the rules of war:
1) Hamas’ rocket attacks directed at Israel’s civilian population centers deliberately violates the basic principles of distinction (Additional Protocol I, arts. 48, 51(2), 52(1).) Any doubt about this is resolved by the fact that Hamas itself has boasted of its intention to hit population centres. It is well accepted in customary international law that intentionally directing attacks against the civilian population as such or against individual civilians not taking part in hostilities constitutes a war crime. (Rome Statute, art. 8(2)(b)(i))
2) Staging of Attacks From Residential Areas and Protected Sites: The Law of Armed Conflict not only prohibits targeting an enemy’s civilians; it also requires parties to an armed conflict to distinguish their combatant forces from their own civilians, and not to base operations in or near civilian structures, especially protected sites such as schools, medical facilities and places of worship. As the customary law principle is reflected in Article 51(7) of Additional Protocol I: The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular attempts to shield military objectives from attacks or shield, favor or impede military operations.
3) Use of Civilian Homes and Public Institutions as Bases of Operation – see (2) for citations.
4) Misuse of Medical Facilities and Ambulances – Any time Hamas uses an ambulance to transport its fighters it is violating the Law of Armed Conflict: Under Article 23(f) of the 1907 Regulations annexed to the Hague Convention IV Respecting the Laws and Customs of War on Land, which reflects customary international law, it is especially forbidden … [t]o make improper use of a flag of truce, … as well as the distinctive badges of the Geneva Convention. Article 44 of the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949)also provides that: … the emblem of the Red Cross on a white ground … may not be employed, either in time of peace or in time of war, except to indicate or to protect the medical units and establishments…
5) Booby-trapping of Civilian Areas – see (2) for citations.
6) Blending in with Civilians and Use of Human Shields – As the ICRC rule states, lilt can be concluded that the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.
7) Exploitation of Children – Hamas has paramilitary summer camps for kids. There are reports, from this war and previous ones, of children fighting and being used for tunnel digging. violates the Law of Armed Conflict, including prohibitions against allowing children to take part in hostilities. As customary international law is reflected in this regard in Additional Protocol I, the parties to a conflict must take “all feasible measures” to ensure that children lido not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. (Additional Protocol I, art. 77(2))
8 ) Interference with Humanitarian Relief Efforts – While Israel kept its end of humanitarian truces. Hamas used them to shoot rockets into Israel, including the Kerem Shalom crossing where humanitarian goods are brought into Gaza. All of these actions violate the Law of Armed Conflict, which requires parties to allow the entry of humanitarian supplies and to guarantee their safety. Article 59 of the Fourth Geneva Convention requires parties in an armed conflict to permit the free passage of [humanitarian] consignments and shall guarantee their protection. Article 60 of the same Convention protects the shipments from being diverted from their intended purpose, something Hamas has certainly done in the past and is reported to have done in this conflict as well.
9) Hostage-taking – The Fourth Geneva Conventions, article 34, says flatly “The taking of hostages is prohibited.” This is not an “arrest” as Israel-haters claim, and this is not a prisoner of war situation as Hamas has made clear – the purpose of Hamas’ hostage-taking falls under the definition on the International Convention Against the Taking of Hostages: “Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the “hostage “) in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages (“hostage-taking ‘) within the meaning of this Convention.
10) Using the uniform of the enemy – Additional Protocol I prohibits the use of enemy flags, military emblems, insignia or uniforms “while engaging in attacks or in order to shield, favour, protect or impede military operations”.  Under the Statute of the International Criminal Court, “making improper use … of the flag or of the military insignia and uniform of the enemy” constitutes a war crime in international armed conflicts when it results in death or serious personal injury.  According to some, this is considered perfidy, a war crime. (h/t Joshua)
11) Violence aimed at spreading terror among the civilian population – Rule 2 of ICRC’s Customary IHL is Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. II It quotes Article 51(2) of Additional Protocol I prohibits “acts or threats of violence the primary purpose of which is to spread terror among the civilian population”. Hamas rockets are aimed not only at killing civilians, but also at spreading terror among Israelis.
12)Targeting civilian objects, such as airports or nuclear power plants – Rule 7 of the Customary IHL says “Attacks must not be directed against civilian objects, quoting Articles 48 and 52(2)of Additional Protocol I.
13. Indiscriminate attacks – Besides targeting civilians and civilian objects, Rule 11 of the ICRC CIHL states flatly that “Indiscriminate attacks are prohibited. II By definition, every Qassam rocket attack and most of the other rocket and mortar attacks are by their very nature indiscriminate. See also Rule 71, “The use of weapons which are by nature indiscriminate is prohibited.
14) Proportionality in attack – ICRC’s Rule 14 states “Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited. Rocket attacks against civilians have zero military advantage, so by definition they are disproportionate to their military advantage. See also Rule 18: “Each party to the conflict must do everything feasible to assess whether the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
15)Advance Warning – Rule 20 of the ICRC CIHL states “Each party to the conflict must give effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit. Given that Hamas has used the media and SMS calls to threaten Israelis, it is clear that they have the ability to warn before every rocket attack. Their failure to do so is a violation of IHL.
16) Protecting civilians – Rule 22 of the ICRC Customary IHL states, “The parties to the conflict must take all feasible precautions to protect the civilian population and civilian objects under their control against the effects of attacks. Hamas not only has failed to protect civilians in Gaza by building bomb shelters, they have deliberately put civilians in harm’s way.
17) Attacking medical units – Rule 28 states, Medical units exclusively assigned to medical purposes must be respected and protected in all circumstances. Hamas has shot mortars at the Israeli field hospital, set up for Gazans, near the Erez crossing.
18) Protection of Journalists – Hamas has threatened journalists, implicitly and explicitly, accusing some of being spies and sometimes not allowing them to leave Gaza, making them effectively hostages. Rule 34 states “Civilian journalists engaged in professional missions in areas of armed conflict must be respected and protected as long as they are not taking a direct part in hostilities.
19) Mistreating the dead. Rule 113 says, Each party to the conflict must take all possible measures to prevent the dead from being despoiled. Mutilation of dead bodies is prohibited. Hamas has shown off an alleged chip cut out from the (presumably) dead body of Shaul Orono.
Editor’s Note – Many think that the Council on American-Islamic Relations, and its local unit in California (CA-CAIR), uses our nation’s legal system against itself in a practice called ‘lawfare‘ in many ways.
Usually it uses the court to silence its critics, but in this recent instance, it appears to be using it to identify a secret informant in a terrorism trial in Riverside, California. However, the identity is being closely held so even ‘lawfare’ is not working.
Therefore, they have made a plea to the public to help reveal the informant through their own contacts and acquaintances. In fact, if they find out who the informant is, they will not commit not to release the identity.
Their claim that the identity of the informant is crucial in achieving a fair trial fails on its face. If it is so important to their defense, why will they not commit to keep it secret? Don’t answer that, it was a rhetorical question of course.
It gets better though, the defendant identified by the DA as the leader of the conspiracy has a federal public defender who is not working in cooperation with CAIR. But that does not stop CAIR from injecting itself.
Three of the men — Ralph Deleon, Arifeen Gojail and Miguel Santana Vidriales — previously pleaded not guilty, but they had to re-enter their pleas when prosecutors added a Southern California man suspected of being the ringleader of the plot to the indictment.
The government accused Sohiel Omar Kabir of Pomona of inviting his co-defendants to visit his native Afghanistan and meet with terrorists. Gojali, Deleon and Santana were arrested the day they were suspected of leaving to meet Kabir in Afghanistan.
What is clear to critical thinkers and those who watch CAIR closely, this is merely a ploy to send a message – they want to silence their critics, and obviously silence those in their community that may reveal their allegiances, practices, secrets, and nefarious goals.
… a letter circulating on Capitol Hill affirming federal law enforcement’s belief that the Council on American-Islamic Relations (CAIR) is the product of a Hamas-support network in the United States.
Assistant Attorney General Ronald Weich sent the letter last month to four members of Congress who asked for details last fall on how CAIR was named an unindicted co-conspirator in the terror-finance trial against the Holy Land Foundation and its former officials.
CAIR tries so hard to manipulate our system, and produces prodigious amounts of propaganda across the country. They know how to manipulate the low-information populace but every time they are confronted, the fail miserably, ask Allen West.
See Video at the end of the following article for a good look at how facts ruin CAIR arguments at every juncture:
COURT: New twist in terror case
As trial gets underway, Islamic rights group seeks information on the FBI informant who sparked the case to ensure defendants get a fair trial
An Islamic rights organization has asked for the public’s help in gathering information about a secret FBI informant whose claims led to a homegrown terrorism conspiracy indictment, with trial set to start Tuesday, Aug. 12, in Riverside for two Inland men charged with plotting to meet with the Taliban and al-Qaida and murder Americans overseas.
An attorney for the Greater Los Angeles area office of the Council on American-Islamic Relations said Monday the organization “can’t say we won’t” expose the identity of the informant, if it comes across verifiable information.
“It will come down to what is in the best interest of our community,” said Fatima Dadabhoy, senior civil rights attorney for the Los Angeles office of CAIR.
The organization asked for those with information to call its Anaheim office’s civil rights hotline, or call the federal public defender investigator’s office in Riverside.
The federal public defender investigator’s office is not working in cooperation with CAIR, said Jeffrey A. Aaron, the deputy federal public defender who is one of the attorneys representing Sohiel Omar Kabir of Pomona, whom prosecutors have identified as the leader of the conspiracy.
Dadabhoy said her organization believes the FBI has used confidential informants to entrap people, and that a majority of terrorist plots are fabricated or provoked by the FBI.
“We want to make sure that our community is aware,” she said. “When the FBI sends in people with this criminal background into our community, we want to know how they are acting and who is vulnerable to them. Our best way is to identify this and the tactics that are being used.”
U.S. Attorney spokesman Thom Mrozek declined to comment Monday. The FBI also declined to comment Monday, citing the pending case.
In court papers, defense attorneys have described the FBI informant as a “convicted drug trafficker” who has been paid “‘over’ a quarter million dollars” and was being allowed to stay in the United States, although he should be deported for his felony conviction.
The CAIR-Los Angeles news release issued Sunday said the amount paid to the informant is now $356,645 and that the informant’s conviction was for trafficking pseudoephedrine, a decongestant used to make methamphetamine.
Whether the informant – referred to as a “confidential human resource” in court papers – will testify during the anticipated 20-day trial is unknown; like many documents in the case that started in late 2012, the government’s witness list is sealed.
Dadabhoy said she knew of no existing positive identification of the informant. “There is no picture of him. If there is information, then maybe we will put together an advisory for the community about who this person may be,” she said.
The case broke in November 2012 with the arrests of Kabir in Afghanistan and three others – Ralph Deleon of Ontario, Arifeen David Gojali of Riverside and Miguel Santana of Upland, who authorities said were about to leave for the first leg of their trip from the United States to Afghanistan.
The government’s case brief says the defendants’ alleged conspiracy was underway before they met with the informant in February 2012, when one of them told him of a plan to travel overseas “to engage in violent jihad.”
“We are concerned about this case,” Dadabhoy said. “If there was entrapment in this case, we want to make sure these guys are ensured a fair trial.
Editor’s Note – Of late, the ‘I-word’ has been thrown about liberally in relation to not only Obama, but also in relation to some of his cabinet, including AG Eric Holder. Great legal and political minds correctly determined that today, impeachment is a political solution to a legal problem. They are thinkers, not emotional, ideological reactionaries.
Additionally, it is likely impossible to proceed through to a successful conviction in the Senate due to politics anyway. But that does not leave much room left to alleviate a certain problem, an epic problem, – over-reach by the Executive Branch, usurping the power of the Legislative Branch.
There is a grave legal issue before us, a constitutional issue at crisis level and it is therefore up to the third branch to decide the issue between the other two branches, the Judiciary. Thomas Sowell asks, “has thinking become obsolete?” It has when politicians rely on people being ill-informed. It is time for thinkers, time to become informed.
The House therefore decided to bring suit, and passed a resolution to do so along party lines. This invites political grand-standing, but the question is why the left cheered when Obama spoke about his ‘pen and phone’ in his last State of the Union speech.
Therefore a ploy has been launched by the President’s supporters, the Democrat Party, and the White House itself to muddy the waters with talk of impeachment, to confuse America and diminish the real problem. “Sue me,” is the other childish retort to gin up his base, but there are very real reasons to sue, in a focused and detailed adult fashion.
It is time to think, not time to make more “Kool-Aid.” Time to think, just ask Rep. Sheila Jackson Lee R-TX, about impeachment and thinking. Some think and beat the drum that this is a frivolous lawsuit, we counter that it is time think, not run smear campaigns.
The left also loves to trot out the volume of Executive Orders each previous President has signed, but it has nothing to do with quantity. Rather, it is what the individual order covered, and what action each entailed. With this President, it is all about the details, which he always strives to keep hidden. Effectively, Obama has created a fourth branch – the “Pen and Phone” branch.
In order to help you understand what Speaker Bohner and the House are actually doing, we are posting two articles that we recommend you read thoroughly. The first is a question and answer session on the suit the House is bringing, and the second is a ten-point lesson on the details of the over reach:
Q&A: Ten Things You Need to Know About Boehner Suing Obama
Last week, the House of Representatives voted to authorize Speaker John Boehner to file a lawsuit challenging President Obama’s failure to fully implement Obamacare. Specifically, the lawsuit will challenge the administration’s delay of the employer mandate—requiring many employers to provide health insurance or pay a fine—that was supposed to go into effect Jan. 1. It’s clear President Obama repeatedly has abused executive power to circumvent Congress and essentially rewrite the law, but this lawsuit still raises a host of questions.
Q1: Can you sue the president?
Yes. Presidents enjoy immunity from lawsuits for civil damages resulting from their official acts, but they are not immune from all lawsuits. For example, the Supreme Court allowed Paula Jones’ suit for sexual harassment against President Clinton to proceed while he was in office. Further, members of Congress have filed dozens of lawsuits against presidents over the years. Most have been unsuccessful, usually because members fail to allege a sufficient injury. Since Boehner’s lawsuit will deal with implementing Obamacare, the suit likely will be brought against Secretary of Health and Human Services Sylvia Burwell and other executive branch officials charged with carrying out the law. It’s possible Obama won’t actually be named in the lawsuit.
Q2: Who will represent the House in court?
The House’s Office of General Counsel routinely represents the House in legal disputes, such as suits to enforce congressional subpoenas or the Speech and Debate Clause. In the past, the House also has hired outside counsel, such as when the House Bipartisan Legal Advisory Committee hired former Solicitor General Paul Clement to handle the Defense of Marriage Act litigation.
Q3: How will this lawsuit be funded?
As with past lawsuits, the House will appropriate funds to pay for the litigation. The Committee on House Administration will make public quarterly statements in the Congressional Record detailing expenses.
Q4: Does the Senate have a role?
The Senate probably is not required to join in the lawsuit. Under the Supreme Court’s precedents, members of Congress have standing to assert personal injuries or direct and concrete institutional injuries. In Coleman v. Miller (1939), the Supreme Court found a group of state senators demonstrated a sufficient institutional injury even though the suit was brought by 26 members of one chamber.
Q5: Why would the House sue when it has other remedies?
Boehner has determined filing a lawsuit will be the most effective way to rein in the executive branch. Other remedies do exist—mainly appropriations and impeachment—but they require the Senate’s involvement. The House could try to leverage appropriations to encourage the president to faithfully execute the law, but as Boehner has pointed out, the Democratic Senate could refuse to pass such an appropriations bill. Similarly, impeachment requires conviction by two-thirds of the Senate. Although Boehner’s lawsuit may face obstacles, it would not require Senate concurrence.
Q6: What happens if Obama loses?
Courts routinely enforce statutory mandates, such as the express deadlines in Obamacare that the executive branch has “relaxed.” Concerns the president would ignore the courts likely are unfounded. Even though Obama has complained about his losses, “There is no case in which he completely refused to follow a Supreme Court ruling he lost,” said Todd Gaziano, executive director of the Pacific Legal Foundation’s Washington, D.C., center.
Q7: What happens if Boehner loses?
Before a court considers the merits of Boehner’s lawsuit, it first must decide whether the House has standing to bring this suit. If a court determines Boehner failed to establish Article III standing (a constitutional requirement for all lawsuits), it would result in dismissal of the case, but it would not mean the court agrees the president acted properly. If the suit is dismissed, it’s possible a private party may file suit, although the lack of private parties is one reason Boehner says his lawsuit is necessary. After members of Congress failed in their challenge to the Line Item Veto Act in Raines v. Byrd in 1997, the Supreme Court struck down the law when the City of New York and a group of private parties challenged it the next year.
Q8: Didn’t Bush issue more executive orders than Obama?
Yes, but that is irrelevant to Boehner’s lawsuit. Executive orders are directives issued by the president to run the various parts of the executive branch—ranging from George Washington’s proclamation calling on the militia to put down the Whiskey Rebellion to Harry Truman’s order desegregating the armed forces. Most executive orders throughout our nation’s history are perfectly appropriate and non-controversial. Boehner’s lawsuit does not address Obama’s use of executive orders per se. Instead, the suit will challenge his failure to faithfully execute the law. The American Presidency Project, which has cataloged every executive order, says Bush issued 291 executive orders, Obama has issued 183 to date, and Franklin D. Roosevelt issued the most with more than 3,500.
Q9: Will this open the floodgates for Congress and the Executive Branch to turn to the courts to resolve their disputes?
No. There have been plenty of lawsuits brought by members of Congress against presidents and other executive branch officials in the past. The Supreme Court has been pretty clear that courts should not entertain “sore loser” suits where members of Congress sue over a vote they lost. This suit will not change the judiciary’s reluctance to get involved in political disputes between the other branches of government.
Q10: Now that the House has authorized the suit, what happens next?
The Wall Street Journal reports the House “isn’t expected to bring the suit for at least another month.” The House Office of General Counsel and any outside lawyers that will be involved in the case likely are deciding which court would be most advantageous and drafting the complaint which will lay out specific allegations as well as the relief the House will seek in its lawsuit.
Peter Bigelow contributed to preparing this Q&A.
President Obama’s Top 10 Constitutional Violations Of 2013
One of Barack Obama’s chief accomplishments has been to return the Constitution to a central place in our public discourse.
Unfortunately, the president fomented this upswing in civic interest not by talking up the constitutional aspects of his policy agenda, but by blatantly violating the strictures of our founding document. And he’s been most frustrated with the separation of powers, which doesn’t allow him to “fundamentally transform” the country without congressional acquiescence.
But that hasn’t stopped him. In its first term, the Administration launched a “We Can’t Wait” initiative, with senior aide Dan Pfeiffer explaining that “when Congress won’t act, this president will.” And earlier this year, President Obama said in announcing his new economic plans that “I will not allow gridlock, or inaction, or willful indifference to get in our way.”
And so, as we reach the end of another year of political strife that’s fundamentally based on clashing views on the role of government in society, I thought I’d update a list I made two years ago and hereby present President Obama’s top 10 constitutional violations of 2013.
1. Delay of Obamacare’s out-of-pocket caps. The Labor Department announced in February that it was delaying for a year the part of the healthcare law that limits how much people have to spend on their own insurance. This may have been sensible—insurers and employers need time to comply with rapidly changing regulations—but changing the law requires actual legislation.
2. Delay of Obamacare’s employer mandate. The administration announced via blogpost on the eve of the July 4 holiday that it was delaying the requirement that employers of at least 50 people provide complying insurance or pay a fine. This time it did cite statutory authority, but the cited provisions allow the delay of certain reporting requirements, not of the mandate itself.
3. Delay of Obamacare’s insurance requirements. The famous pledge that “if you like your plan, you can keep it” backfired when insurance companies started cancelling millions of plans that didn’t comply with Obamacare’s requirements. President Obama called a press conference last month to proclaim that people could continue buying non-complying plans in 2014—despite Obamacare’s explicit language to the contrary. He then refused to consider a House-passed bill that would’ve made this action legal.
4. Exemption of Congress from Obamacare. A little-known part of Obamacare requires Congressmen and their staff to get insurance through the new healthcare exchanges, rather than a taxpayer-funded program. In the quiet of August, President Obama directed the Office of Personnel Management to interpret the law to maintain the generous congressional benefits.
5. Expansion of the employer mandate penalty through IRS regulation.Obamacare grants tax credits to people whose employers don’t provide coverage if they buy a plan “through an Exchange established by the State”—and then fines employers for each employee receiving such a subsidy. No tax credits are authorized for residents of states where the exchanges are established by the federal government, as an incentive for states to create exchanges themselves. Because so few (16) states did, however, the IRS issued a rule ignoring that plain text and allowed subsidies (and commensurate fines) for plans coming from “a State Exchange, regional Exchange, subsidiary Exchange, and federally-facilitated Exchange.”
6. Political profiling by the IRS. After seeing a rise in the number of applications for tax-exempt status, the IRS in 2010 compiled a “be on the lookout” (“BOLO”) list to identify organizations engaged in political activities. The list included words such as “Tea Party,” “Patriots,” and “Israel”; subjects such as government spending, debt, or taxes; and activities such as criticizing the government, educating about the Constitution, or challenging Obamacare. The targeting continued through May of this year.
7. Outlandish Supreme Court arguments. Between January 2012 and June 2013, the Supreme Court unanimously rejected the Justice Department’s extreme positions 9 times. The cases ranged from criminal procedure to property rights, religious liberty to immigration, securities regulation to tax law. They had nothing in common other than the government’s view that federal power is virtually unlimited. As a comparison, in the entire Bush and Clinton presidencies, the government suffered 15 and 23 unanimous rulings, respectively.
8. Recess appointments. Last year, President Obama appointed three members of the National Labor Relations Board, as well as the head of the Consumer Financial Protection Bureau, during what he considered to be a Senate recess. But the Senate was still holding “pro forma” sessions every three days—a technique developed by Sen. Harry Reid to thwart Bush recess appointments. (Meanwhile, the Dodd-Frank Act, which created the CFPB, provides that authority remains with the Treasury Secretary until a director is “confirmed by the Senate.”) In January, the D.C. Circuit held the NLRB appointments to be unconstitutional, which ruling White House spokesman Jay Carney said only applied to “one court, one case, one company.”
9. Assault on free speech and due process on college campuses. Responding to complaints about the University of Montana’s handling of sexual assault claims, the Department ofEducation’s Office of Civil Rights, in conjunction with the Justice Department, sent the university a letter intended as a national “blueprint” for tackling sexual harassment. The letter urges a crackdown on “unwelcome” speech and requires complaints to be heard in quasi-judicial procedures that deny legal representation, encourage punishment before trial, and convict based on a mere “more likely than not” standard.
10. Mini-DREAM Act. Congress has shamelessly failed to pass any sort of immigration reform, including for the most sympathetic victims of the current non-system, young people who were brought into the country illegally as children. Nonetheless, President Obama, contradicting his own previous statements claiming to lack authority, directed the Department of Homeland Security to issue work and residence permits to the so-called Dreamers. The executive branch undoubtedly has discretion regarding enforcement priorities, but granting de facto green cards goes beyond a decision to defer deportation in certain cases.
It was hard to limit myself to 10 items, of course—Obamacare alone could’ve filled many such lists—but these, in my judgment, represent the chief executive’s biggest dereliction this year of his duty to “preserve, protect, and defend” the Constitution, and to “take care that the law be faithfully executed.”
Alas, things may get worse before they get better. New presidential “counselor” John Podesta’s belief in governance by fiat is no secret; in a 2010 report, he wrote that focusing on executive power “presents a real opportunity for the Obama administration to turn its focus away from a divided Congress and the unappetizing process of making legislative sausage.”
Happy New Year!
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.
Editor’s Note – Nancy Pelosi has been attributed with many off-the-wall comments, statements, speeches, and more. Now, she one-upped herself in a major breach of protocol and decorum. She has simply proven who the “insignificant person” is, and it is not Rep. Tom Marino R-PA, the Congressman she assailed as such!
Can anyone justify her actions, her methods, her mere presence? San Francisco must be proud that she would chase her opponent down and cross the aisle because he “hit the right nerve” in his passionate floor speech. She made it personal, yet Rep. Tom Marino was expected to apologize, though Pelosi’s people said he did – he did not, nor will he!
Now that she has indicated that a duly elected representative from Pennsylvania is ‘insignificant’, that means you have always been insignificant her. “WE have to pass the bill to see what is in it,” remember that when you see what happens next with health insurance and ObamaCare, the now infamous PPACA that is none of the above!
Pelosi Chases Republican Tom Marino Across House Chamber
In an unusual breach of decorum, even for the divided Congress, House Minority Leader Nancy Pelosi chased Rep. Tom Marino across the House floor, taking offense at comments by the Pennsylvania Republican during debate on the border funding bill Friday night.
“We don’t have law and order,” Marino began as he wrapped up his comments on the border supplemental. “My colleagues on the other side don’t want to do anything about it.”
“You know something that I find quite interesting about the other side? Under the leadership of the former Speaker [Pelosi], and under the leadership of their former leader [Rep. Steny Hoyer], when in 2009 and 2010, they had the House, the Senate and the White House, and they knew this problem existed,” he continued. “They didn’t have the strength to go after it back then. But now are trying to make a political issue out of it now.”
Off-mic, Pelosi then approached Marino, crossing the aisle in view of cameras, and apparently challenged Marino’s assertion that Democrats did not do anything about the issue when they had majority control.
“Yes it is true,” Marino replied directly to Pelosi, who was House speaker in those years. “I did the research on it. You might want to try it. You might want to try it, Madam Leader. Do the research on it. Do the research. I did it. That’s one thing that you don’t do.”
Marino then urged lawmakers to support the border supplemental “because apparently I hit the right nerve.”
After Marino concluded his remarks and as many Republicans applauded their colleague, Pelosi crossed the chamber again in view of cameras, enraged, pointing and sticking her finger at Marino.
She then followed Marino up a Republican aisle, gesturing and arguing with him. Lawmakers on the GOP side gathered in dismay as one spoke out to tell the chair that the House was not in order, in an effort to halt the bickering.
Pelosi finally relented after Republicans tried to get between Pelosi and Marino, and she returned to the Democratic side of the chamber. The House then promptly voted to approve the $694 million border supplemental, 223-189.
*UPDATE: According to Pelosi spokeswoman Evangeline George, “Leader Pelosi just wanted to remind the Congressman that House Democrats had the courage to pass the DREAM Act – and have the courage to stand up for what the American people want: bipartisan, comprehensive immigration reform.”
George added that “Pelosi accepted the Congressman’s apology.”
But Marino’s chief of staff, Bill Tighe, stressed that Marino did not apologize to Pelosi, and will not apologize.
“[Rep. Marino] did not apologize to Leader Pelosi and does not intend to do so as he has nothing to apologize for. She was entirely out of line in approaching him while he was recognized and delivering remarks on the Floor,” Tighe wrote in an email. “Her staff’s comment in your story about her accepting his apology in simply not true.”
Later, Marino took to Twitter to explain his side of the story.
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