FALSE ADVERTISING

©2011 jbjd

Based on the dozens of story lines featured on the subject on the site, DRUDGE REPORT clearly knows, for years now, citizens convinced Barack Obama is not a NBC crave his impeachment.  (Actually, most have called for ‘something’ other than impeachment that will get him out of office, mistakenly believing, assuming he is Constitutionally ineligible to be President, he was unlawfully elected, anyway and, therefore, cannot be removed as the CiC through the only process prescribed in the Constitution.)  So, one could naturally assume, Mr. Drudge printed for their benefit these banner headlines, in red, replete with dome light, announcing, “‘ Gingrich gives Obama ‘impeachment’ warning’.”  Indeed, the link to the Newsmax article died through overuse.  Even I, chuckling as I clicked, knowing, had Gingrich mentioned “impeachment” in the context of “ineligibility” Drudge would have said so on his site; nonetheless joined the presumably millions of others, like lemmings to the sea, to confirm I had been intentionally misdirected.

I had confirmed on other sites, Gingrich’s use of the word ‘impeachment’ was in no way related to Obama’s Constitutional eligibility for office – no surprise there – but to instructions to the DoJ to decline to actively defend against challenges to the DoMA. Then, I got through to Newsmax.  Here was their headline:

Gingrich: If Palin

Took Obama Actions,

There Would Be Calls

for Impeachment

Gingrich: If Palin Took Obama Actions, There Would Be Calls for Impeachment
Disingenuously clarifying, he wasn’t suggesting Obama should be impeached, anyway, Gingrich complained that when it comes to the conduct of the left versus the right, there is a lot of hypocrisy.  Okay; but then, he went ‘a bridge too far.’

Gingrich slammed Obama for his decision, telling Newsmax that he is not a “one-person Supreme Court” and his decision sets a “very dangerous precedent” that must not be allowed to stand…. Gingrich adds: “I don’t think these guys set out to create a constitutional crisis. I think they set out to pay off their allies in the gay community and to do something that they thought was clever. (Emphasis added.) I think they didn’t understand the implication that having a president personally suspend a law is clearly unconstitutional.”

See, here’s the problem with hyperbole.  It is so easily verifiable as untrue.  “Very dangerous precedent” (as in, happening for the first time)?  And, heaping insult onto injury, characterizing the decision not to spend more money defending against a law some federal courts have already ruled is unconstitutional (Gill et al v. Office of Personnel Management et al) as deciding to”personally suspend a law”?

Gingrich again exposes his ethical vacuity by aiming this garbage to gullible receivers.  Of course, I only characterize him as the scoundrel he is in this instance, because I can prove it.

For example, I find absolutely no evidence in the public record that U.S. Representative Gingrich mentioned the word impeachment in relation to the decision of President George H. W. Bush, in 1992 to refrain from defending an FCC policy “to give minorities an edge when it came to the awarding of radio and television broadcast licenses.” http://www.washingtonpost.com/wp-dyn/content/article/2005/09/07/AR2005090702394.html (The FCC’s policy was adopted at the urging of Congress, and the solicitor general’s office usually defends agencies such as the FCC against legal challenges.” Id.)

Ha, when the case finally reached the SCOTUS – Metro Broadcasting v. FCC –  the U.S., on the legal advice of (Acting) Solicitor General John Roberts, actually argued against the government policy, claiming it violated the Equal Protection clause of the 14th Amendment. Id. The SCOTUS disagreed.  (Mr. Roberts was later nominated to the SCOTUS by President George W. Bush.)

But neither refraining from prosecuting a challenge to an existing law nor arguing against an existing law is illegal.

Presidential Authority to Decline to Execute Unconstitutional Statutes,” drafted in 1994, isa memorandum to the Honorable Abner J. Mikva, Counsel to the President (George H. W. Bush), written by Assistant Attorney General Walter Dellinger,  discussing the President’s constitutional authority to decline to execute unconstitutional statutes.  Here are just a few findings and conclusions:

The President should presume that enactments are constitutional. There will be some occasions, however, when a statute appears to conflict with the Constitution. In such cases, the President can and should exercise his independent judgment to determine whether the statute is constitutional. In reaching a conclusion, the President should give great deference to the fact that Congress passed the statute and that Congress believed it was upholding its obligation to enact constitutional legislation. Where possible, the President should construe provisions to avoid constitutional problems.The Supreme Court plays a special role in resolving disputes about the constitutionality of enactments. As a general matter, if the President believes that the Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue. If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute.

“…we do not believe that a President is limited to choosing between vetoing, for example, the Defense Appropriations Act and executing an unconstitutional provision in it. In our view, the President has the authority to sign legislation containing desirable elements while refusing to execute a constitutionally defective provision.”

Summing up, Gingrich did not propose impeaching President George H. W. Bush either for refusing to defend against a race-based preference policy in awarding broadcast licenses or for opposing the existing policy in the U.S. arguments to the high court.  And based on his assumption Obama’s conduct is wedded in support for equal rights for gays and lesbians; he suggests the left would call for impeachment if President Palin ‘unilaterally’ ordered the DoJ to refrain from enforcing a law to which she was philosophically opposed. 

But as history shows, Presidents do this all the time. And Dr. Gingrich (Ph.D., History) knows this.

P.S.

The DRUDGE REPORT proudly boasts its daily hits are in the millions – “VISITS TO DRUDGE 02/25/11, 031,840,693 IN PAST 24 HOURS" - presumably netting significant commercial revenues.  Imagine how much smarter Mr. Drudge (and his colleagues) could leave the body politic if only he would spend some of that money educating his readers instead of just titillating us.  

I haven’t reached 1,000,000 hits since I started this blog in August 2008!  Yet I spent hours putting together this post, all by myself, for free.

Enjoy.

3 Responses to FALSE ADVERTISING

  1. markcon says:

    so your argument is, Gingrich’s failure makes it right? typical liberal lawyer talk- sorry- Gingrich may be republican but he is big gov r. a true conservative would agree with you he should of demanded bush to act-some of us know his ‘contract with America” was a complete failure and barely 10% fulfilled- oh and he did not call for obama to be impeached – did he? he said palin would be.(Disingenuously clarifying)that is the probable result and also why bush didnt act in your example, not to mention that all the examples you could bring up would all be far left agenda– but please do not respond to my poor arguments , to only that personal opinion not based in fact of previous sentence.
    Your explanation is what is wrong with this country. dems/ libs relying on precedent instead of the law and the original intent.

    “But neither refraining from prosecuting a challenge to an existing law nor arguing against an existing law is illegal.”
    Now I dont know the rules- but action should be taken against Attorney General Eric Holder for dereliction of duty, not obama.
    a memorandum does not give a president that right. sounds like your advocating that the president has a line item veto.

    “some federal courts have already ruled is unconstitutional (Gill et al v. Office of Personnel Management et al) as deciding to”personally suspend a law”?” a few? hasn’t this law been defended for 16 years?
    also he is contradicting his stance from before. sounds like he is trying to ”personally suspend a law” to me with a big P.
    The law is the law. presidential opinion and judicial activist should not be able to trump congress.in this way
    plus im not so sure scotus would overturn it–His belief that they would -giving him the right is ridiculous and is “dangerous”- never mind that it was done before- never mind that it would disregard the will of the people and enacted by congress in this case- your examples dont have the weight of this case-an also ,tho wrong, is upholding something. Its dangerous cuz this populist , self appointed moral judge and egotist is overstepping the limitations of the executive- he is no king or mullah, this is a republic!!!
    I know you will tare me a new one in response, I’m not good at ordering my thoughts in debate format and where i despise emotional argument (and Gingrich) its sad to say my logic is rusty from little use , and to give you a proper response to your post it would take me 2 weeks to gather my facts and order my thoughts– but I think you will understand and I dont think it is too weak.

    this seems to be the reason you posted this today.
    {Gingrich slammed Obama for his decision, telling Newsmax that he is not a “one-person Supreme Court” and his decision sets a “very dangerous precedent” that must not be allowed to stand…. Gingrich adds:
    “I don’t think they set out to pay off their allies in the gay community and to do something that they thought was clever. (Emphasis added.) I think they didn’t understand the implication that having a president personally suspend a law is clearly unconstitutional.”}

    first-

    I don’t think these guys set out to create a constitutional crisis. I think they set out to pay off their allies in the gay community and to do something that they thought was clever.”

    This part you never commented on. I think this was direction the force of his argument was intended: “ a political opinion based on a lot of peoples subjective reality and understanding. and setting up the ego of obama and his disregard of the constitution.

    “very dangerous precedent” It is! citing other precedents does not negate this one.
    so it comes down to –
    personally suspend a law is clearly unconstitutional. –
    That is in fact what he is doing-Holder tied him to his decision in his statement. Now my argument that obama is wrong in this may not be concise and may fail but I contend that yours did too! so shall other of authority throw out the rule of law cuz they have power to command the ag? that leads to chaos.

    markcon: Oh, no, I had no intention of creating a moral relativism! Instead, the limited purpose of these remarks about the statements related to impeachment based on a decision to refrain from actively defending against court challenges to a particular law or portions thereof; was to present opposing facts which would expose the disingenuousness of the speakers’ rants against Obama’s conduct concerning his stance on DoMA. (Gingrich has been joined by several other notables, including Orly Taitz, for example.) And, like most efforts I undertake, I do this with a goal to educate the general public to become more informed and thereby more powerful in the political arena.

    Reading the legal memorandum I linked might be too demanding but, I thought, the passages I excerpted nicely summed up the sentiments therein. Specifically, though, where you say things like, “personally suspend a law is clearly unconstitutional,” I can find no reference in the article that supports such a finding! Quite simply, where portions of a law have been deemed unConstitutional (by a federal appellate court); then, the courts have found that, the oath of office (‘support and defend the Constitution’) can be construed so as to require a President in good faith to suspend defense of that same law. This is explained in the memo, with case citations.

    This does not mean, however, for example, with regard to DoMA, that same sex unions will be recognized by the federal government. Because the law currently defines marriage as between people of the opposite sex. Do you get this distinction?

    You clearly spent much time composing this Comment and so, I want to reply to several of your statements. Here goes, in no particular order of import.

    Your explanation is what is wrong with this country. dems/ libs relying on precedent instead of the law and the original intent.

    Several ‘things’ may be wrong with our country but I would hardly cite our legal system as near the top of the list. Ignorance of that system, however, is. Our legal system is based on precedent (stare decisis). And the term “original intent” is a misnomer, anyway. Whatever was opined in the 1700s necessarily excluded concepts foreign to the mind of 18th century ‘man.’

    Now I dont know the rules- but action should be taken against Attorney General Eric Holder for dereliction of duty, not obama.
    a memorandum does not give a president that right. sounds like your advocating that the president has a line item veto.

    The law is the law.

    But at least acknowledge, there are rules. And, according to these rules, Obama is operating within both the letter and the spirit of the law. AG Holder is a member of the Executive branch of government, which is headed by the President. (That term “dereliction of duty” is another one of those chimeras too often tossed to the masses by the likes of… well, you know the cast of characters by now. Indeed, by following the President, Holder is doing exactly what the Constitution envisions he will do.)

    But here is where you expose, you have been taken in by the ceaseless vacuity displayed by so many factions throughout the blogosphere in relation to anything Obama.

    presidential opinion and judicial activist should not be able to trump congress.in this way

    markcon, you (and millions of others like you) are being played. In acknowledgment that, from time to time, the Executive decides to refrain from defending (or enforcing or administering) what it considers are unConstitutional laws, Congress passed this law requiring the Executive to report its decision(s).

    TITLE 28; PART II; CHAPTER 31; § 530D
    § 530D. Report on enforcement of laws
    (a) Report.—
    (1) In general.— The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice—
    (A) establishes or implements a formal or informal policy to refrain—
    (i) from enforcing, applying, or administering any provision of any Federal statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer on the grounds that such provision is unconstitutional; or
    (ii) within any judicial jurisdiction of or within the United States, from adhering to, enforcing, applying, or complying with, any standing rule of decision (binding upon courts of, or inferior to those of, that jurisdiction) established by a final decision of any court of, or superior to those of, that jurisdiction, respecting the interpretation, construction, or application of the Constitution, any statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer;
    (B) determines—
    (i) to contest affirmatively, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law; or
    (ii) to refrain (on the grounds that the provision is unconstitutional) from defending or asserting, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law, or not to appeal or request review of any judicial, administrative, or other determination adversely affecting the constitutionality of any such provision; or
    (C) approves (other than in circumstances in which a report is submitted to the Joint Committee on Taxation, pursuant to section 6405 of the Internal Revenue Code of 1986) the settlement or compromise (other than in bankruptcy) of any claim, suit, or other action—
    (i) against the United States (including any agency or instrumentality thereof) for a sum that exceeds, or is likely to exceed, $2,000,000, excluding prejudgment interest; or
    (ii) by the United States (including any agency or instrumentality thereof) pursuant to an agreement, consent decree, or order (or pursuant to any modification of an agreement, consent decree, or order) that provides injunctive or other nonmonetary relief that exceeds, or is likely to exceed, 3 years in duration: Provided, That for purposes of this clause, the term “injunctive or other nonmonetary relief” shall not be understood to include the following, where the same are a matter of public record—
    (I) debarments, suspensions, or other exclusions from Government contracts or grants;
    (II) mere reporting requirements or agreements (including sanctions for failure to report);
    (III) requirements or agreements merely to comply with statutes or regulations;
    (IV) requirements or agreements to surrender professional licenses or to cease the practice of professions, occupations, or industries;
    (V) any criminal sentence or any requirements or agreements to perform community service, to serve probation, or to participate in supervised release from detention, confinement, or prison; or
    (VI) agreements to cooperate with the government in investigations or prosecutions (whether or not the agreement is a matter of public record).
    (2) Submission of report to the congress.— For the purposes of paragraph (1), a report shall be considered to be submitted to the Congress if the report is submitted to—
    (A) the majority leader and minority leader of the Senate;
    (B) the Speaker, majority leader, and minority leader of the House of Representatives;
    (C) the chairman and ranking minority member of the Committee on the Judiciary of the House of Representatives and the chairman and ranking minority member of the Committee on the Judiciary of the Senate; and
    (D) the Senate Legal Counsel and the General Counsel of the House of Representatives.
    (b) Deadline.— A report shall be submitted—
    (1) under subsection (a)(1)(A), not later than 30 days after the establishment or implementation of each policy;
    (2) under subsection (a)(1)(B), within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding, but in no event later than 30 days after the making of each determination; and
    (3) under subsection (a)(1)(C), not later than 30 days after the conclusion of each fiscal-year quarter, with respect to all approvals occurring in such quarter.
    (c) Contents.— A report required by subsection (a) shall—
    (1) specify the date of the establishment or implementation of the policy described in subsection (a)(1)(A), of the making of the determination described in subsection (a)(1)(B), or of each approval described in subsection (a)(1)(C);
    (2) include a complete and detailed statement of the relevant issues and background (including a complete and detailed statement of the reasons for the policy or determination, and the identity of the officer responsible for establishing or implementing such policy, making such determination, or approving such settlement or compromise), except that—
    (A) such details may be omitted as may be absolutely necessary to prevent improper disclosure of national-security- or classified information, of any information subject to the deliberative-process-, executive-, attorney-work-product-, or attorney-client privileges, or of any information the disclosure of which is prohibited by section 6103 of the Internal Revenue Code of 1986, or other law or any court order if the fact of each such omission (and the precise ground or grounds therefor) is clearly noted in the statement: Provided, That this subparagraph shall not be construed to deny to the Congress (including any House, Committee, or agency thereof) any such omitted details (or related information) that it lawfully may seek, subsequent to the submission of the report; and
    (B) the requirements of this paragraph shall be deemed satisfied—
    (i) in the case of an approval described in subsection (a)(1)(C)(i), if an unredacted copy of the entire settlement agreement and consent decree or order (if any) is provided, along with a statement indicating the legal and factual basis or bases for the settlement or compromise (if not apparent on the face of documents provided); and
    (ii) in the case of an approval described in subsection (a)(1)(C)(ii), if an unredacted copy of the entire settlement agreement and consent decree or order (if any) is provided, along with a statement indicating the injunctive or other nonmonetary relief (if not apparent on the face of documents provided); and
    (3) in the case of a determination described in subsection (a)(1)(B) or an approval described in subsection (a)(1)(C), indicate the nature, tribunal, identifying information, and status of the proceeding, suit, or action.
    (d) Declaration.— In the case of a determination described in subsection (a)(1)(B), the representative of the United States participating in the proceeding shall make a clear declaration in the proceeding that any position expressed as to the constitutionality of the provision involved is the position of the executive branch of the Federal Government (or, as applicable, of the President or of any executive agency or military department).
    (e) Applicability to the President and to Executive Agencies and Military Departments.— The reporting, declaration, and other provisions of this section relating to the Attorney General and other officers of the Department of Justice shall apply to the President (but only with respect to the promulgation of any unclassified Executive order or similar memorandum or order), to the head of each executive agency or military department (as defined, respectively, in sections 105 and 102 of title 5, United States Code) that establishes or implements a policy described in subsection (a)(1)(A) or is authorized to conduct litigation, and to the officers of such executive agency.
    http://www.law.cornell.edu/uscode/uscode28/usc_sec_28_00000530—D000-.html

    (FYI, Congress passed this ‘reporting’ law back in 2002. http://www.copyright.gov/legislation/pl107-273.html) (Following this link and its successor, above; you can see, first the text appears in the numbered “public law” and then, the law is codified into the appropriate spot in the U.S. Code.)

    ADMINISTRATOR

  2. markcon says:

    Its obvious that I have a lot to learn and I should of known you wouldn’t of posted a link with out purpose, I didn’t read it.

    few questions?

    “where portions of a law have been deemed unConstitutional (by a federal appellate court); then, the courts have found that, the oath of office (‘support and defend the Constitution’) can be construed so as to require a President in good faith to suspend defense of that same law. This is explained in the memo, with case citations. ”

    does that mean you agree that Obama should suspend Obamacare?

    aslo, was there similar reporting laws before 2002? if so, how far back does similar laws go as to defending the constitutionality of a law? Not sure i phrased that right but i want to know the origins of the need for such rules and what if any arguments for and against advocating such policy. sorry, I don’t know how to read the tables.

    “markcon, you (and millions of others like you) are being played. ”
    I see that this subject has been addressed by congress. My problem is -that it has been. I cant get my mind around the whole of it but in simple terms scotus ruling seems to me should be the only ruling that the president should be able to act on.the differences in federal appellate courts turns it into a sham- from law to politics.

    I knew better than to respond to your post haha but at least i learned something that wasn’t readily apparent without your response to me and my laziness. I will refrain from now on.

    but, maybe in the future i will respond to this statement:
    “Ignorance of that system, however, is. Our legal system is based on precedent (stare decisis). And the term “original intent” is a misnomer, anyway. Whatever was opined in the 1700s necessarily excluded concepts foreign to the mind of 18th century ‘man.’

    markcon: Please, respond at will! As you so accurately pointed out, if you hadn’t asked your question then, I would not have clarified the post with my Reply! And, be assured, if you have a question then, several other readers do, too.

    You ask about the ‘Mandatory Purchase of Private Health Insurance Bill,’ commonly referred to as Obamacare. Well, you might have read, unlike several other well crafted bills, that one has no severability clause. In other words, if the courts find unConstitutional a material provision of that bill, that is, if this unConstitutional provision cannot be severed from the remaining portions without gutting the Congressional purpose of the bill then, the whole bill is tossed.

    Here is an article from TPM explaining the concept of severability, and charging the D’s did a lousy job of drafting this bill.

    Conservative foes of the Affordable Care Act want the federal courts to smother the new health care law in its crib. They’ve argued that Democrats failed to erect the proper safeguards to protect the legislation from being stricken down entirely by the courts. And when a Virginia district court judge rules in the coming days on the Constitutionality of the law’s insurance mandate, he’ll also have to decide whether none, some, or all of the law must go with it.

    http://tpmdc.talkingpointsmemo.com/2010/11/conservative-suit-against-the-mandate.php

    As for Obama suspending this health insurance bill based on federal court rulings, well, so far, the jurisdictions are split.

    I think I need to make our correspondence into a separate post. People could learn so much just from these few lengthy exchanges. (I also trust you are referring people to this blog to learn what you now know…) ADMINISTRATOR

  3. […] in federal court, claiming it violated the Equal Protection clause of the 14th Amendment.  See FALSE ADVERTISING.  And he had every right to do so.  Id. Not only that, in 2002, President Bush signed into law […]

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