Thursday, November 12, 2015

Veterans Day Remarks 2015

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness,—that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed....” 

Those words are recited every Fourth of July.  But, on this day, let us recall the last line of the country's birth certificate.  “And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.” 

What sounds heroic to some is ho-hum to others.  The King was not impressed.  The British officer corps laughed.  Nobody was saying, “I'll take the Colonists and give you ten points.”  The smart money was not on the United States of America. 

Despite the odds, the long shot paid off.  The world was turned upside down.  But how was such a thing even remotely possible? 

The man who led his troops in the field knew his neck would be in a noose, if he failed.  Yet George Washington was totally committed to the mission.  “Discipline is the soul of an army.  It makes small numbers formidable; procures success to the weak, and esteem to all,” according to the man who moved ideals toward reality.   And he was determined that the United States would be a republic.  After the war, when Benjamin West, an American artist, informed George III that the Commander in Chief of the Continental Forces was going to resign and not take power, the King replied, “ If he does that, he will be the greatest man in the world.” 

The greatest man in the world showed us what it means to honor an oath.  With his left hand on the Bible and his right hand raised, Washington was sworn-in as President of the United States.  He added four words: “So help me God”—an acknowledgement of something beyond self.  “And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.”  Thus, the end of the country's birth certificate is wedded to the Constitution which begins:  “WE THE PEOPLE…”  For the only time “I” appears is in the oath to uphold the supreme law of the land; the “I” acts on behalf of the “WE.” 

President Washington had Secretary of War Knox send a report to Congress in support of Universal National Service.  In that message, the former artillery officer in the Continental Army stated: 

Although the substantial political maxim, which requires personal service of all the members of the community for the defense of the State, is obligatory under all forms of society, and is the main pillar of a free government, yet the degrees thereof may vary at the different periods of time, consistent with the general welfare.  The public convenience may also dictate a relaxation of the general obligation as it respects the principal magistrates, and the ministers of justice and of religion, and perhaps some religious sects.  But it ought to be remembered that measures of national importance never should be frustrated by the accommodation of individuals.... 

If wealth be admitted as a principle of exemption, the plan cannot be executed.  It is the wisdom of political establishments to make the wealth of individuals subservient to the general good, and not to suffer it to corrupt or attain undue indulgence.... 

 Every State possesses, not only the right of personal service from its members, but the right to regulate the service on principles of equality for the general defense.  All being bound, none can complain of injustice, on being obliged to perform his equal proportion.  Therefore, it ought to be a permanent rule, that those who in youth decline or refuse to subject themselves to the course of military education, established by the laws, should be considered as unworthy of public trust or public honors, and be excluded therefrom accordingly.  (Emphasis added.) 

Discipline is indeed the soul of an army.  But discipline is essential to success in all endeavors, whether civilian or military.  Every citizen does not need to be a soldier.  But every citizen needs a practical reminder that WE are all in this together.  And Secretary Knox expressed confidence in the result.    

If the United States possess the vigor of mind to establish the first institution, it may reasonably be expected to produce the most unequivocal advantages.  A glorious national spirit will be introduced, with its extensive train of political consequences.  The youth will imbibe a love of their country; reverence and obedience to its laws; courage and elevation of mind; openness and liberality of character; accompanied by a just spirit of honor….  While habit, with its silent, but efficacious operations, will durably cement the system.... 

Is it asking too much of our fellow citizens to do their fair share? 

Now, there is a tendency to take things for granted.  But then, during “the glorious cause,” nothing was guaranteed.  The inevitable is an illusion, the appearance of what had to happen, after the fact—and  from a safe distance.  But from the time of Washington to this very moment, veterans have been in the vanguard making a difference.
 
May God bless all the members of the Armed Forces, the Intelligence Community, and the Diplomatic Corps.
 
(c)2015 Marvin D. Jones.  All rights reserved.

Thursday, October 29, 2015

The Wizard of Odds

“We are not in Kansas anymore,” said Dorothy.
“Oh,” said the Scarecrow.
“But we are,” said the Cowardly Lion.
“No,” barked Toto, “this is Tombstone Territory.”
The Tin Man just wanted to avoid rust. 

Because they care so deeply about “original intent,” self-styled “conservatives” or “strict
constructionists” may want to weigh the words of one who attended the Federal Convention.

“It is agreed on all sides, that the powers properly belonging to one of the departments ought not to
 be directly and completely administered by either of the other departments.  It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers.”  (The Federalist Papers, No. 48, James Madison) 

When the Kansas High Court upheld the ruling of a lower tribunal, based on a provision of the State
Constitution requiring equitable education funding, the Governor and Legislature retaliated.  They took away its power to appoint the Chief Judges of the District Courts.  But that poses a problem because, according to Article III, Section 1 of the Kansas Constitution, “The Supreme Court shall have general administrative authority over all courts of this State.” 

The battle with the political branches has become another showdown at the OK Corral.  This time the Clanton Gang is the Governor and the Legislature, and the classic Western line has been spoken.  “This town is not big enough for the both of us.” 

If the Kansas courts stand up for themselves like Wyatt Earp, his brothers, and Doc Holliday—and win—the fight is not over, because the Clantons intend to change how jurists are appointed and removed.  At present, to reduce the influence of politics, a commission compiles a list from which Supreme Court Justices are chosen; and they are subject to “impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.”  (Kansas Constitution, Article II, Section 28)  But the Governor has proposed partisan elections or appointments originated by him alone.  Meanwhile, the Legislature considers removal—by recall, with a third of the vote sufficient for dismissal, or by impeachment for “attempting to subvert fundamental laws and introduce arbitrary power,” “attempting to usurp the power of the legislative or executive branch of government,” and “failure to adequately supervise subordinate employees.”

A policy dispute is one thing, dismemberment is another—and the danger is not confined to Kansas.
If that seems extreme, consider what is at stake. 

“The judiciary...has no influence over either the sword or the purse; no direction either of the
 strength or of the wealth of the society; and can take no active resolution whatever.  It may truly be
 said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the
 aid of the executive arm for the efficacy of its judgments.”  (The Federalist Papers, No. 78, Alexander Hamilton) 

If the past is prologue, then leaders must study history to avoid making the same or similar mistakes in the future.  But that experience has to be distilled before one can imbibe wisdom.  Here, the lesson learned by “the superintending government” should be instructive regarding the protection of the judiciary and give the States pause as the lens of history brings things into focus and their significance becomes apparent.  (The Federalist Papers, No. 48, James Madison)  Mom and dad are not abstractions, for perspectives change depending upon where one stands.  But principles endure; and problems occur if that does not hold, as happened when Senator Blount faced removal from office.

Jefferson wrote Madison sourly at the time, “I see nothing in the mode of proceeding by impeachment but the most formidable weapon for the purpose of dominant faction that was ever contrived.  It would be the most effectual one of getting rid of any man whom they consider dangerous to their views.”
     Once President, however, Jefferson, now enlightened by the executive perspective, himself turned to impeachment as a way of ridding the federal bench of judges whom he considered dangerous to his views.  (The Imperial Presidency by Arthur M. Schlesinger, Jr., 30; emphasis his)  

He failed.
 
“Since impeachment had become a ‘farce’ he now favored a constitutional amendment empowering the President to remove federal judges on the joint address of both houses of Congress.  Removal by address—that is, by a majority vote of both houses without charges or trial—had been emphatically rejected in the Constitutional Convention.  It did not seem any better as an idea two decades later.”  (The Imperial Presidency by Arthur M. Schlesinger, Jr., 33)  For, in the early days, James Madison compared what the King, unlike the President, could do.  “All the members of the judiciary department…can be removed by him on the address of the two Houses of Parliament….”  (The Federalist Papers, No. 47) 

The situation in Kansas confirms Alexander Hamilton's observation and highlights his prophecy.

              This simple view of the matter suggests several important consequences.  It proves 
              incontestably, that the judiciary is beyond comparison the weakest of the three
              departments of power; that it can never attack with success either of the other two;
              and all possible care is requisite to enable it to defend itself against their attacks.  It
              equally proves, that though individual oppression may now and then proceed from
              the courts of justice, the general liberty of the people can never be endangered from
              that quarter; I mean so long as the judiciary remains truly distinct from both the
              Legislature and the Executive....  And it proves, in the last place, that as liberty can
              have nothing to fear from the judiciary alone, but would have every thing to fear
              from its union with either of the other departments; that as all the effects of such a
              union must ensue from a dependence of the former on the latter, notwithstanding
              a nominal and apparent separation; that as, from the natural feebleness of the
              judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by
              its co-ordinate branches; and as nothing can contribute so much to its firmness and
              independence as permanency in office, this quality may therefore be justly regarded as
              an indispensable ingredient in its constitution, and, in a great measure, as the citadel
              of the public justice and the public security.  (The Federalist Papers, No. 78; emphasis
              added)

Tenure, adequate support, and the method of removal provide a measure of protection at the Federal level.  “The Judges…shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”  (Article III, Section 1)  And Alexander Hamilton contrasted joint address with the better option.  “They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other.”  (The Federalist Papers, No. 79, emphasis added; see also Article I, Section 2, Clause 5 and Section 3, Clause 7 and Article II, Section 4) 

That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.  Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence.  If the power of making them was committed either to the Executive or Legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.  (The Federalist Papers, No. 78, Alexander Hamilton) 

A whirlwind has touched down in Kansas.  And although they may be out of touch, the actors have not been removed from reality, no matter how much some wish to escape.  Hear and take heed, Wizard and Wicked Witch of the West and Winged Monkeys. 

In a time of instant gratification—me, me, me, me, me—when that is not a singer clearing his throat, duty is an old fashion or even a dirty word.  But that is what the supreme law of the land requires.

“The Senators and Representatives before mentioned, and the members of the several State
Legislatures, and all executive and judicial officers, both of the United States and of the several
States, shall be bound by oath or affirmation, to support this Constitution….”  (Article VI, Clause 3)
So all of us who have taken the oath must recognize and respect a government consisting of three
co-ordinate and co-equal branches; and, at minimum, the public should expect and demand nothing
less from the Chief Magistrate and the Legislature of Kansas.  But, if they fail to meet their responsibilities, there is an alternative to clicking our heels three times. 

The old adage—Where there is a right, there is a remedy—can be applied to an individual and a State.  William Blackstone and Chief Justice Marshall addressed the former; James Madison the latter. 

In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations.  The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained.  But a right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the Constitution?  Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature.  (The Federalist Papers, No. 43; emphasis his) 

"The United States shall guarantee to every State in this Union a republican form of government...."
Article IV, Section 4 is clarified with a brief remark by Madison.  “A republic, by which I mean a government in which the scheme of representation takes place….”  (The Federalist Papers, No. 10)  And then he goes into more detail.
 
          ...(W)e may define a republic to be, or at least may bestow that name on, a government which
          derives all its powers directly or indirectly from the great body of the people and is
          administered by persons holding their offices during pleasure, for a limited period, or during
          good behavior.  It is ESSENTIAL to such a government that it be derived from the great body of
          the society, not from an inconsiderable proportion, or favored class of it; otherwise a handful  
          of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire
          to the rank of republicans, and claim for their government the honorable title of republic.  It is
          SUFFICIENT for such a government that the persons administering it be appointed, either
          directly or indirectly, by the people; and that they hold their appointments by either of the
          tenures just specified; otherwise every government in the United States, as well as every other
          popular government that has been or can be well organized or well executed, would be
          degraded from the republican character.  (The Federalist Papers, No. 39; CAPITAL emphasis
          Madison's; italics added) 

Article IV, Section 4 refers to powers delegated to the United States by the Constitution and, therefore, objections based on the Tenth Amendment are but a pretense.  Thus, an appeal to States’ rights will not suffice. 

…(T)here ought always to be a constitutional method of giving efficacy to constitutional provisions.  What, for instance, would avail restrictions on the authority of the State Legislatures, without some constitutional mode of enforcing the observance of them?  The States…are prohibited from doing a variety of things, some of which incompatible with the interests of the Union, and others with the principles of good government….  No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them.  This power must either be a direct negative on the State laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union….  The latter appears to have been thought by the Convention preferable to the former….  (The Federalist Papers, No. 80, Alexander Hamilton) 

Checks and balances are the heart and blood of the system.  "...(T)he political apothegm... does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other.  ...(U)nless these departments be so far connected and as blended to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.”  (The Federalist Papers, No. 48, James Madison)  But a threat to slash the veins of an organ vital to existence is not an exercise of constitutional control.  For an ultimatum is intimidation by stopwatch. 

Of course, self-styled “conservatives” or “strict constructionists” would challenge such bullying by
recalling another attendee at the Federal Convention who remarked that “If there are such things as
political axioms, the propriety of the judicial power of a government being coextensive with its
legislative, may be ranked among the number.”  (The Federalist Papers, No. 80)  For of all people, self-styled “conservatives” or “strict constructionists” must acknowledge that a line has been crossed in Kansas, and the aggression must be reversed and the border restored. 

The complete independence of the courts of justice is peculiarly essential in a limited Constitution.   By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like.  Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.  Without this, all the reservations of particular rights or privileges would amount to nothing.  (The Federalist Papers, No. 78, Alexander Hamilton; emphasis added) 

An unavoidable problem remains.  “Enlightened statesmen will not always be at the helm” nor behind the curtain, and they must be exposed.  (The Federalist Papers, No. 10, James Madison)  For a mere assertion does not become true through endless repetition, and, like the Wicked Witch, theirs is “melting, melting.”  Yet it is not too late for the Governor of Kansas to hear the words of James Madison.  “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”  (The Federalist Papers, No. 10)
 
©2015 Marvin D. Jones.  All rights reserved.

 
 
 




 

Tuesday, August 18, 2015

Goodell's Last Stand


Way back in November, the Colts made a complaint to the league about New England's footballs.  In January, after losing the divisional playoff to the Patriots, the Ravens tipped off Indianapolis about the same thing.  But then a week later, at halftime in the AFC Championship Game, the Colts were down 17-7.  And when the referees switched to their balls in the second half, the Colts went up--in flames--28-0.


Before the fire was out, the rout was forgotten, and the Patriots were in trouble and severely punished for arson without air.  Now the league of extraordinary gentlemen has turned a Saturday Night Live skit into a Federal case.  They are obsessed with the law.  But he who laughs last laughs best.  And that may not be the NFL.


In the commentaries on the Constitution, Alexander Hamilton consistently refers to "the courts of justice" whose power extends "to all cases in law and equity, arising under the Constitution and the laws of the United States."  (The Federalist Papers, No. 78 regarding Article III, Section 2, Clause 1; emphasis his)


"What equitable causes can grow out of the Constitution and laws of the United States?  There is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable rather than of legal jurisdiction....  It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate."  (The Federalist Papers, No. 80; emphasis his)


Thus, the American judiciary exists to "establish justice," which depends upon truth.  And if Judge Berman falls asleep reading The Federalist Papers, the Commissioner should be alarmed.  For even if one accepts the Wells Report as gospel, the NFL allowed a violation of the rules to occur.  The Patriots then paid a $1 million fine, lost a first and a fourth round draft pick, and their quarterback faces a four game suspension.  But Brady was not in the bathroom wearing a Mission Impossible mask.  So, indeed, there may have been some undue and unconscionable advantage taken of one of the parties; and at best, given the benefit of the doubt, the NFL is technically right but totally wrong.


(c) 2015 Marvin D. Jones.  All rights reserved.



Tuesday, June 09, 2015

Forty-seven Shades of Nay


Fantasy is fine—in its time and place.  But one's private life ends with public displays.  Consenting adults who become exhibitionists cannot expect to escape notice.

I

Executive agreements are an important part of American diplomacy.  They are made pursuant to a treaty, a joint resolution, or an Act of Congress.  But sole executive agreements depend upon the power of the President alone, such as recognition, a ceasefire, or a settlement of foreign claims.  Famous examples include TR's Gentlemen's Agreement, an accommodation with Japan on immigration that modified the Treaty of 1890, an action taken long before the Exclusion Act;* FDR's Destroyers for Bases Agreement that preceded the Lend-Lease Act; Truman acknowledging the existence of Israel, which answered the question posed by the Ancient of Days: "Son of man, can these bones live?"; and JFK's moratorium on setting off H-bombs, a first step which led to a shaft of light that cut into the darkness.

II

Has the saying for the GOP become "Politics starts at the water's edge"?

The Speaker's invitation was accepted by the Prime Minister.  The man who, in previous remarks to a congressional committee, had predicted that an invasion of Iraq would check the power of Iran, was to address a joint session.  He stood in opposition to "a bad deal" before the announcement of a framework.

An Open Letter to the Leaders of the Islamic Republic of Iran provided clarification.^  And even though scholars shall study this profound message for as long as there is sand in the hourglass, a cursory examination will have to masquerade as an equal.

"It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system."

The author and co-signers may want to look in the mirror.

"...Congress plays the significant role of ratifying them.  In the case of a treaty, the Senate must ratify it by a two-thirds vote."

The term is commonly misused, but those giving lessons should be aware of definitions.  Ratification is an executive act, the granting of final approval.

"A so-called congressional-executive agreement requires a majority vote in both the House and the Senate."

The Interim Agreement on Offensive Missile Systems was akin to a ceasefire.  President Nixon asked for "concurrence" by a Democratic Senate and a Democratic House, which was never in doubt.  But Mr. Cotton confuses courtesy—or comity—with a requirement.  Nixon could have acted on his own authority, as had JFK; and in both cases, negotiations continued and a treaty was concluded.

A so-called congressional-executive agreement is the result of interaction between the branches, but the tablets are not written in stone as the imitation Moses would have us believe.  In contrast to Smoot-Hawley, which was only concerned with collecting tariffs, and which proved disastrous, the Reciprocal Trade Agreement Act of 1934 and the Trade Expansion Act of 1962 delegated authority to adjust them and combined that with the President's power to conduct negotiations.  For even though the Legislature has power "to regulate commerce with foreign nations," the Executive is involved with implementation.  (Article I, Section 8, Clause 3)  Now, in the most recent revision of the process, a proposed free trade agreement is submitted for a vote under "fast track," which is another name for a closed rule, that is, neither House can offer amendments; and the finger of God is also inactive.  Thus, Mr. Cotton is mistaken about the issue at hand.  The specific arrangement mentioned in his letter rests on the foreign commerce clause, which is irrelevant to the situation with Iran.

"Anything not approved by Congress is a mere executive agreement."

A mere executive agreement would include TR's subtle use of justice to influence and maintain           the balance of power in the Far East; FDR throwing a life vest to Britain; Truman extending a greeting to a tiny nation in the Levant; and JFK calling "a truce to terror" with the Soviet Union.  As John Jay, a diplomat and the first Chief Justice, noted, "All constitutional acts of power, whether in the Executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the Legislature...."  (The Federalist Papers, No. 64)
  
"...(W)e will consider any agreement regarding your nuclear weapons program that is not approved by the Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei.  The next President could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time."

"These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them ABSOLUTELY, but on us only so long and so far as we may think proper to be bound by it.  ...(T)hey who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them."  (John Jay, The Federalist Papers, No. 64)

Furthermore, these gentlemen would do well to reflect that the Supreme Court has recognized "the legal validity and obligation" of nothing more than an executive agreement.**  Then, in addition to the Framers and the Court, the gentleman from Arkansas and his associates may also want to weigh the words of a distinguished historian.

"The revulsion against executive agreements drew emotional support from a couple of          misconceptions: that most executive agreements were made on the claim of independent           presidential authority; and that the executive agreement had become a primary means of            American military and thus political commitment abroad.  In fact, most executive agreements—97 percent, according to the State Department—were made pursuant to treaties approved by the Senate or statutes passed, before or after the fact, by Congress as a whole."  (The Imperial Presidency by Arthur M. Schlesinger, Jr., 312)

There is nothing unusual about the current negotiations.  They are a continuation of efforts to expand international law via the United Nations Charter, the Limited Test Ban Treaty, and the Non-Proliferation Treaty.  Failure to do so would cast doubt on whether the President was serious about his duty to "take care that the laws be faithfully executed," something men who brush up against the Logan Act may want to keep in mind.  (Article II, Section 3, Clause 5)

The importance of P5+1 goes beyond Iran; and in making every effort for peace, the United States continues to restore its moral authority.  Furthermore, action by the Security Council shall be justified, as will, if there is no other alternative, unilateral action by the United States.

III

Willful or studied ignorance and duplicity are not good cards.  Facts make a winning hand.  But those who fancy themselves Brett Maverick or Brady Hawkes keep sitting at the table, confident in the nonsense up their sleeves.

That's Embarrassment!  The storyline is a blend of soap opera and Ted Mack & The Original Amateur Hour.  Here, a Batman villain, the Riddler asks, "Which came first, the invitation or the RSVP?"  And there, the Wrestle Mania tag team of Cotton and McCain wear the New Scarlet Letter.  Meanwhile, Mr. Corker, who plays Marcel Marceau, gestures to suggest what already exists.

"There's no business like show business..."  The accusations are darts tossed by Willie the Wino.  He misses the target, and the critics miss the point.  Nevertheless, the reviews are scathing.  "In vaudeville, it was said, 'Kids and dogs are a tough act to follow.'"  

The Case Act of 1972 recognizes executive agreements and requires their transmission to Congress.  In honoring its spirit, the Administration gives regular briefings to Senators and Representatives.  So why pretend the letter of the law will not be followed, or suggest a new one is needed?^^  

"The show must go on" is not the nation's motto, although some in public life have not gotten the memo.  The opposition ignores the fact that the Secretary of State has been guided by a diplomatic version of the unit rule:  "Nothing is settled until everything is settled."  But the conduct of Cotton and McCain is particularly disturbing.  One expects more from men who have been "America's Ambassadors in green."  Yet those two, who question the President, show little inclination to reflection themselves.  Instead, they bring to mind a warning not "to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle."  (John Jay, The Federalist Papers, No. 64)

IV

The Framers did not want "to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations," and all of today's tumult is a reminder as to why.

"It is true that the Senate would, in that case, have the option of employing him in this capacity, but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the former.  Besides this, the ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and, of course, would not be able to act with an equal degree of weight or efficacy."  (Alexander Hamilton, The Federalist Papers, No. 75)

Despite all the sound and fury on Capitol Hill, there are words that still matter.

"So often and so essentially have we heretofore suffered from the want of secrecy and despatch, that the Constitution would have been inexcusably defective, if no attention had been paid to those objects.  Those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation.  For these, the President will find no difficulty to provide...."  (John Jay, The Federalist Papers, No. 64; emphasis added)

©2015 Marvin D. Jones.  All rights reserved.


*Imagine—a President acting on immigration on his own authority.  Maybe those who take the oath should read the fine print.

^http://blogs.wsj.com/washwire/2015/03/09/text-of-gop-senators-letter-to-irans-leaders-on-nuclear-talks/

The legal article below, unintentionally, verifies the comment made on the misuse of the word ratification.

**http://law.justia.com/constitution/us/article-2/25-domestic-obligations-of-executive-agreements.html

Jay's remarks regarding a treaty also apply to an executive agreement, as shown by the Court's rulings in B. Altman & Co. v. United States (1912), United States v. Curtiss-Wright (1936), United States v. Belmont (1937), and United States v. Pink (1942).
                                         
^^http://www.nytimes.com/2015/04/15/opinion/a-reckless-act-in-the-senate-on-iran.html?_r=0

http://www.bbc.com/news/world-us-canada-32632318

http://www.theguardian.com/us-news/2015/may/14/house-overwhelmingly-passes-iran-nuclear-review

http://www.nytimes.com/aponline/2015/05/22/us/politics/ap-us-obama-iran.html

The President signed the Iran Nuclear Review bill—without ceremony at the White House.  For the Hokey Pokey Act of 2015 has all the significance of its namesake.  After  "you shake it all about…and you turn yourself around…" you are standing where you started.  "That’s what it's all about."

Thursday, June 04, 2015

Mano a Mano--Football and Fencing

              The hills are alive
              With the sight of pitchforks
              And torches too
              In thousands of hands

His effigy is in flames, and the fugitives from Shirley Jackson’s short story are gathering wood.  But thank God Brady has not been burned at the stake.
 
"Hut, hut."

The Colts versus the Patriots in the AFC Championship Game is like Sgt. Garcia versus Zorro. 

"On guard."
 
Garcia, who has a Z carved on the front of his field jacket, complains.

"Zorro uses a lighter blade.  If not for that, I would have won."

The next time they meet, Zorro uses a lead pipe with a sharp point and carves so Z's on Garcia that he stands naked with his clothing down around his ankles.  But the good sergeant is not undone.

"Well...well...who brings a pipe to a sword fight?  That is against the rules."

The rules--the Wells Retort.  Garcia is technically right but totally wrong.  The rules are not in question.  This is about gamesmanship.  And he was outplayed and shown to be a crybaby.  But, of course, no one mentions the fact that initially the referees did not take his complaint seriously, nor that they inspected the weapons before the match, and each time before "On guard."

Now Zorro is furious.  He sends Sgt. Garcia a note.

"Playtime is over.  Get your affairs in order."
 
Thus, the Ravens inability to recognize tackle eligible,* and the Colts inability to come up with a game plan and play with desire, inspired a diversion.  And so, the conversation is not about their bad coaching.  If only they had executed such misdirection on the field, because the Patriots fell for it.

             High in the box was the lonely Goodell
             Lay ee odl lay ee odl lay hee hoo
             Loud was the voice of the lonely Goodell
             Lay ee odl lay ee odl lay hee hoo

Brady's response was the right one upon hearing about ball pressure the next day.  He laughed.  After all, there is nothing like being lectured on virtue by a team that slinked away in the dead of night when they had an appointment with the Mayor of Baltimore the following day.  Yet those are the guys passing out WANTED posters of No. 12 to bounty hunters with the word ALIVE scratched out.