Today marks the anniversary of one of the most propitious days in the history of this country. On this day in 1787, the representatives at the Constitutional Convention in Philadelphia signed the Constitution. It was ratified by the states and went into effect on March 4, 1789.
You remember the Constitution don’t you?
That’s the document that says the president “shall take Care that the Laws be faithfully executed …” Not waive, delay or ignore parts of laws the president doesn’t like, such as immigration laws, which the Constitution says: “The Congress shall have Power To … establish an uniform Rule of Naturalization …”
The Constitution also says, “All Bills for raising Revenue shall originate in the House of Representatives …”
But when it came to ObamaCare, which is replete with a panoply of revenue generating taxes to offset its expenses, the Senate grabbed an unrelated bill that had passed the House, cut the existing language and substituted the ObamaCare verbiage. The bill number was the only thing that originated in the House.
Yes, it’s those four-handwritten pages that give Congress the power “To regulate Commerce with foreign Nations, and among the several States …” Not to force people to engage in commerce by buying health insurance or pay a fine or a tax for not doing so.
Arguably, Congress cannot abrogate that power by handing the president the power to impose tariffs and declare emergencies.
But when Congress passed the Trade Expansion Act it allowed the president to restrict imports in the name of national security. That was the excuse President Trump used when he imposed a 25 percent tariff on steel, even the military requirements for steel represent only 3 percent of the commodity’s domestic production.
That Commerce Clause also has been stretched to prohibit a farmer from growing grain to feed his own cattle because that affected demand for grain on the interstate market. The same rationale allows Congress to set minimum wages for jobs that have nothing to do with interstate commerce.
It also gave Congress the power to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Some wars get declared, while others are just military exercises.
But Trump bombed Syria without even informing Congress.
The instrument also says the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Not decide for himself when the Senate is in session. At least the judiciary slapped Obama’s wrist on that one.
During ratification the Founders added the Bill of Rights, including the First Amendment that says Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” That probably means Congress can’t order a religion to pay for contraceptions, abortifacients and sterilization against its beliefs. Nor could President Biden unilaterally bar discrimination based on a student’s sexual orientation or gender identity.
We’re pretty sure the document did not envision a president’s administration creating by regulation laws the Congress refused to pass — think immigration enforcement and rules promulgated by the EPA, FEC, HHS, HUD or USDA without the consent of Congress.
The Constitution did not envision a president having the authority to require private business employees to be vaccinated against or tested for a virus or unilaterally extend an eviction moratorium without congressional authorization.
Another clause gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States …” though the foregoing powers and powers vested by the Constitution part is largely ignored.
The Constitution also gave Congress the power “To exercise exclusive Legislation in all Cases whatsoever … to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings …” And just when did Congress purchase and the state Legislature consent to turning over 85 percent of Nevada’s land mass to the federal government?
As James Madison said, “I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations …”
Happy Constitution Day, while it lasts.
A version of this first appeared in 2014.