The so called "debt limit" law is unconstitutional because it is a legislative entrenchment. And such entrenchment has been found to be unconstitutional in several cases. The problem of entrenchment recently reared its head in the discussions of Senate Rules. As you may recall, the position of those who were against the rule of 2/3rds majority to change the rules was that each new congressional body (both House and Senate) constitutes a NEW legislature which has the authority to alter any and all prior legislation just as the previous body had that same power. The only "law" that survives a change in the congressional membership due to the constitutionally mandated elections held every two years are the laws specified in the Constitution as properly amended. Only those laws are sacrosanct from legislative fiat. Every new legislature has the authority to alter, extend, repeal, or modify the laws of the previous legislatures. Indeed, every legislature has the authority to alter even its OWN legislation by virtue of new legislation.
I am of the opinion that the budget passed by congress and signed into law in April of this year (2011) implicitly repealed the debt limit law created by the previous congress and signed into law last year. That opinion is based on the constitutional mandate that says the president must "see that the laws are faithfully executed" and the mandate against entrenchment.
However,
The other way to save the United States government while following _ALL_ the laws is through Treasury seignorage. Unfortunately, there is only one way to legally pursue Treasury seignorage, and that is in the minting of very high face value platinum coins. In 1996 the congress gave the Treasury full authority to mint platinum coins in any denomination (face value) the secretary might deem advisable (see section (k)). Whereas, the debt limit law prohibits the sale of Treasury notes, and the 2011 budget forces the spending that will exceed the debt limit as no new taxes are legislated, then the only means by which the laws can be faithfully executed is to mint the coins and deposit them to the Treasury accounts in the Federal Reserve banks. These coins and the clearing balances created by their deposit will be legal tender for all debts public and private and most certainly accepted in discharging a tax obligation. The Treasury will have created its own money without borrowing it into existence and it is perfectly constitutional and legal.
But before we all get carried away with the "inflation monster" and the "end of the world" we need to understand that this seignorage can only be employed in pursuit of congressional appropriations. In specifications for the "United States Mint Public Enterprise Fund" we find:
"There shall be established in the Treasury of the United States, a United States Mint Public Enterprise Fund (the “Fund”) for fiscal year 1996 and hereafter: Provided, That all receipts from Mint operations and programs, including the production and sale of numismatic items, the production and sale of circulating coinage, the protection of Government assets, and gifts and bequests of property, real or personal shall be deposited into the Fund and shall be available without fiscal year limitations: Provided further, That all expenses incurred by the Secretary of the Treasury for operations and programs of the United States Mint that the Secretary of the Treasury determines, in the Secretary’s sole discretion, to be ordinary and reasonable incidents of Mint operations and programs, and any expense incurred pursuant to any obligation or other commitment of Mint operations and programs that was entered into before the establishment of the Fund, shall be paid out of the Fund: Provided further, That not to exceed 6.2415 percent of the nominal value of the coins minted, shall be paid out of the Fund for the circulating coin operations and programs in fiscal year 1996 for those operations and programs previously provided for by appropriation"
...
"at such times as the Secretary of the Treasury determines appropriate, but not less than annually, any amount in the Fund that is determined to be in excess of the amount required by the Fund shall be transferred to the Treasury for deposit as miscellaneous receipts"
------------------------------------------
And that simply says that ONLY congressional appropriations can be financed using coin seignorage. The secretary cannot use the money otherwise.
The congress created all these laws and the congress can change them. But until congress gets its laws straightened up, the executive is constitutionally forced to create the money needed to "faithfully execute" the 2011 budget using platinum coin seignorage.
Tuesday, July 5, 2011
Monday, January 14, 2008
Assignment and Separation of Powers
This is the first in a series of posts about losing control of our government and suggested goals and actions for reclaiming it. America was not actually designed to operate in the way that it currently does. And, conservative that I probably am, I believe that the people who created the nation (those that created the Constitution and those who ratified it) actually produced a very good design in our "republican form of government". The only real flaw was unsuccessfully addressed immediately and still needs to be addressed, but more on that later.
Those who have actually studied the history of the American Constitution and the proclamations of those involved with its creation and ratification cannot help but conclude that the seat of power in America is defined as the Congress as opposed to the Executive or the Supreme Court. Within the confines of the Constitution the Congress makes the laws. And considering the 'power of the purse', and the 'power of impeachment' held in our House of Representatives, it is clear that the people through their representatives in the House were to be in charge of this nation. The Constitution is America. And it is quite possible to argue that the only real purpose of the Senate and the Supreme Court is to arrest runaway heated populist rule.
The executive is to "take Care that the Laws be faithfully executed" and is indeed to serve as "Commander in Chief" in time of war and crises; to protect and defend the United States and its Constitution from all threats foreign and domestic. The "unitary executive" (a single individual as opposed to a council) is necessary to the expedient use of force whenever required. But somehow there are many who miscomprehend this need for immediate and decisive action and to confuse it with the prerogatives of long range planning and management. Unlike quick and decisive use of force in the interests of preserving the nation and its laws, extended engagements of the military or police powers of the nation must meet with the approval of the Congress just as the laws of the nation are designed and created by that body. And this is why our Constitution specifies that the Congress has "The power to declare war", and not the executive. And this is why our House of Representatives is granted "the power of the purse".
The United States Constitution does not give the executive any positive legislative powers whatsoever; not even the power of declaring or funding war. Most certainly the tax code and the budget are the responsibility of the Congress and primarily the House of Representatives. It is very disturbing to a Constitutionalist to see people attempting to be elected to the presidency based on their supposed power to enact health care reform or to create tax cuts or to continue or terminate the police actions in the middle east. The proper Constitutional operation of our government would have us voicing our support or lack thereof for such things through our representatives in the Congress, and primarily the House. The executive was not to have positive control over the actions of the true representatives of the people, nor was the (s)election of the president to be a national referendum on policy. And while the veto pen may negative the proposed laws of the Congress, the positive actions of the Congress (declaration and funding of war and the creation of laws) were not to be directed by the executive. The continuance of military or police actions were not to be at issue in a presidential election. Simply stated, the president was not to have control over such broad decisions. Regarding domestic issues, when the president says "I call on the Congress to yadda yadda yadda", the answer should be "Here's a quarter. That ain't on the agenda". Constitutionally speaking, any long term use of the military and whether or not the nation is on a "war footing" is the prerogative of the legislative as opposed to the executive branch of government. And this same statement applies to any declaration of "national emergency". The president will fail in his role as the executive if he fails to initiate action as and when reqired, but the Congress must sustain it.
I think it important to add something at this point concerning the very definition of a "republican form of government". It is important to understand that until the 17th Amendment the only directly elected body of our national government was the House of Representatives.
And this brings us to the real substantive issue of this blog which is the loss of proper representation for the people of America in their government. Any, so called, "power overreach" on the part of the executive branch of government is to be prevented by the legislative branch. The problem of executive overreach is not to be addressed by the sense of fair play or the kindness of the executive. It is to be addressed by the constitutional actions of the Congress and, if necessary, the judiciary. In the current case in point this applies to the current president and his attempts to subvert the laws of the Congress, the will of the people, and indeed the Constitution itself through signing statements and executive orders and his refusal to accept the will of congress and the people concerning activities in the middle east. The current president is not the first to have usurped power. The archangel of the left (FDR) was the first major offender. And Bill Clinton was also quite free with executive orders and signing statements. The real problem is not the executive or any particular party or president; it is the Congress and in turn the people. It is our own failures that have allow the unconstitutional acts to continue. It is our acceptance of creeping fascism and oligarchy that lies at the root our Constitutional problem. This blog is not an "Impeach George Bush" blog. The canvas is much broader than that.
Those who have actually studied the history of the American Constitution and the proclamations of those involved with its creation and ratification cannot help but conclude that the seat of power in America is defined as the Congress as opposed to the Executive or the Supreme Court. Within the confines of the Constitution the Congress makes the laws. And considering the 'power of the purse', and the 'power of impeachment' held in our House of Representatives, it is clear that the people through their representatives in the House were to be in charge of this nation. The Constitution is America. And it is quite possible to argue that the only real purpose of the Senate and the Supreme Court is to arrest runaway heated populist rule.
The executive is to "take Care that the Laws be faithfully executed" and is indeed to serve as "Commander in Chief" in time of war and crises; to protect and defend the United States and its Constitution from all threats foreign and domestic. The "unitary executive" (a single individual as opposed to a council) is necessary to the expedient use of force whenever required. But somehow there are many who miscomprehend this need for immediate and decisive action and to confuse it with the prerogatives of long range planning and management. Unlike quick and decisive use of force in the interests of preserving the nation and its laws, extended engagements of the military or police powers of the nation must meet with the approval of the Congress just as the laws of the nation are designed and created by that body. And this is why our Constitution specifies that the Congress has "The power to declare war", and not the executive. And this is why our House of Representatives is granted "the power of the purse".
The United States Constitution does not give the executive any positive legislative powers whatsoever; not even the power of declaring or funding war. Most certainly the tax code and the budget are the responsibility of the Congress and primarily the House of Representatives. It is very disturbing to a Constitutionalist to see people attempting to be elected to the presidency based on their supposed power to enact health care reform or to create tax cuts or to continue or terminate the police actions in the middle east. The proper Constitutional operation of our government would have us voicing our support or lack thereof for such things through our representatives in the Congress, and primarily the House. The executive was not to have positive control over the actions of the true representatives of the people, nor was the (s)election of the president to be a national referendum on policy. And while the veto pen may negative the proposed laws of the Congress, the positive actions of the Congress (declaration and funding of war and the creation of laws) were not to be directed by the executive. The continuance of military or police actions were not to be at issue in a presidential election. Simply stated, the president was not to have control over such broad decisions. Regarding domestic issues, when the president says "I call on the Congress to yadda yadda yadda", the answer should be "Here's a quarter. That ain't on the agenda". Constitutionally speaking, any long term use of the military and whether or not the nation is on a "war footing" is the prerogative of the legislative as opposed to the executive branch of government. And this same statement applies to any declaration of "national emergency". The president will fail in his role as the executive if he fails to initiate action as and when reqired, but the Congress must sustain it.
I think it important to add something at this point concerning the very definition of a "republican form of government". It is important to understand that until the 17th Amendment the only directly elected body of our national government was the House of Representatives.
And this brings us to the real substantive issue of this blog which is the loss of proper representation for the people of America in their government. Any, so called, "power overreach" on the part of the executive branch of government is to be prevented by the legislative branch. The problem of executive overreach is not to be addressed by the sense of fair play or the kindness of the executive. It is to be addressed by the constitutional actions of the Congress and, if necessary, the judiciary. In the current case in point this applies to the current president and his attempts to subvert the laws of the Congress, the will of the people, and indeed the Constitution itself through signing statements and executive orders and his refusal to accept the will of congress and the people concerning activities in the middle east. The current president is not the first to have usurped power. The archangel of the left (FDR) was the first major offender. And Bill Clinton was also quite free with executive orders and signing statements. The real problem is not the executive or any particular party or president; it is the Congress and in turn the people. It is our own failures that have allow the unconstitutional acts to continue. It is our acceptance of creeping fascism and oligarchy that lies at the root our Constitutional problem. This blog is not an "Impeach George Bush" blog. The canvas is much broader than that.
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