AGAIN with the 14th AMENDMENT!

July 31, 2011

© 2011 jbjd

Members of President Obama’s junta have again successfully fomented confusion among the masses by their invocation of the 14th Amendment as affording legal justification to Order our way out of the most current ‘crisis’ involving the debt ceiling.  As is the case when considering so much of the man’s conduct; asking whether this is ‘legal’ posits the wrong question.  Rather, here is the more accurate inquiry:  if he issues an Executive Order to raise the debt ceiling, which order is predicated on the 14th Amendment, in legal terms, is there anything those who object to his conduct, can do about it?  And, the answer is, ‘no.’

Basically, issuing an EO is a political move; even if asked to weigh in, the courts, for the most part, will not.  http://topics.law.cornell.edu/wex/executive_power All the President has to do is, declare the situation is an “emergency.”  http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001621—-000-.html

(For some interesting reading, see John Dean, former Counsel to the President (Nixon):

While our constitution contains no express provision for “emergency” or “crisis” situations, such a provision is not necessary. The U.S. Supreme Court made clear in Ex Parte Milligan, following the Civil War, that “the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence.” Or as one commentator has added, “self-preservation is the first law of any nation.”

http://writ.news.findlaw.com/dean/20020607.html)

So, given that, in general, the President can issue an EO to cover just about anything; and that, generally, there’s nothing anyone can do to stop him; I only looked into the 14th Amendment excuse so as to determine whether this might provide him with the patina of legitimacy that would placate citizens not fond of such unilateral Presidential action, who are otherwise apt to be sufficiently outraged as to register their dissent at the polls.  Because so many people, including Nancy Pelosi, Steny Hoyer, Jim Clyburn, Barbara Boxer, and Tom Coburn, purport to think, the Amendment does give the man an ‘honest’ way out.

From the outset, the most pertinent question as to what is the significance of section 4 of the 14th Amendment as it applies to the debt ceiling issue was this:

While the enactment of that section seems incontrovertibly tied to any debt that was incurred relative to the Civil War; can “debt” be defined as occurring outside of the Civil War context?

And, the answer from the Supreme Court is, yes.

The Fourteenth Amendment, in its fourth section, explicitly declares: ‘The validity of the public debt of the United States, authorized by law , … shall not be questioned.’ While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the amendment was adopted. Nor can we perceive any reason for not considering the expression ‘the validity of the public debt’ as embracing whatever concerns the integrity of the public obligations.

PERRY v. UNITED STATES, 294 U.S. 330 (1935),

Perry tried to redeem a U.S. bond for an amount of gold to which, under the original terms of the purchase, he was entitled.  In the meantime, Congress, with the power to ‘control’ the value of money; had lowered the rate of exchange.  Perry, directly impacted by Congress’ act, had standing to sue in federal court.  The SCOTUS agreed, Perry was entitled to the full value of his bargain with the U.S.

But, again, it is immaterial to the analysis that 4/14 could presently be used, when the President can issue an EO, anyway.

Interestingly, in reviewing this situation, I came across references to the ‘fact,’ President Truman had used 4/14 to issue an EO that raised the debt ceiling.  Here from Jim Clyburn:

“I believe that something like this will bring calm to the American people and will bring needed stability to our financial markets,” Clyburn added, noting that President Harry Truman did it once during his presidency after Congress was unable to pass a bill to raise the debt ceiling.

Read more: http://www.politico.com/news/stories/0711/60038.html#ixzz1TRF8RrrY

Rep. Clyburn once again proves, in relation to his daughter, Mignon, a Commissioner on the FCC; that acorn could only have fallen from this tree. If we are to believe his claims of being a college graduate; we can only wonder at the educational standards in the palmetto state.  Because President Truman never never never invoked authority under the 14th Amendment to raise the debt limit by Executive Order.  Never.  However, he did issue an EO to integrate the armed services, citing as his authority, the 14th Amendment.

Adding insult to injury, Mr. Clyburn likened issuing an EO to raise the debt ceiling, to the Emancipation Proclamation!  (azgo, thanks for this RCP link.) As usual, he only has a fraction of an idea what he is talking about.  The Emancipation Proclamation did not free the slaves; well, not all the slaves, that is.  Just those behind Confederate lines.  And then, only in those states that hadn’t surrendered to the Union by January.  (The EP was issued 4 months earlier, in September.) http://www.pbs.org/wgbh/aia/part4/4p2967.html Of course, the 13th Amendment (and subsequent amendments and Congressional action) solidified the edict of freedom for all.

And it was a comment by Kristen from VA, under this article in RCP, which for me summed up the meaning of 4/14 insofar as it could relate to present day practice viz a viz raising the debt limit by EO.

The 14th Amendment compels Obama to pay interest on EXISTING debt.  “The validity of the public debt of the United States, authorized by law,  … shall not be questioned.”

It does not permit him to issue NEW debt.   That is a power delegated by the States solely to the federal Congress under Article I, Section 8 of the U.S Constitution.   “The Congress shall have the Power … To borrow money on the credit of the United States”

Finally, why this omnibus misdirection when it comes to the otherwise rudimentary Presidential authority to issue an EO?  ‘Check’ the usual suspect topics, such as high unemployment; low growth; and who profited from the stimulus payoffs and the ‘mandatory purchase of private health insurance’ sleight of hand.


COMMUNICATING CLYBURN’S QUID PRO QUO for CAPTURING SOUTH CAROLINA’S PRESIDENTIAL PRIMARY for OBAMA

October 31, 2010

© 2010 jbjd

“Communicating Clyburn’s Quid Pro Quo for Capturing South Carolina’s Presidential Primary for Obama” does not dwell on whether House Majority Whip  Jim Clyburn arranged for the SC Democratic Party to ‘obtain permission’ from the DNC to move the date of their Presidential preferential primary to the head of the line by capitalizing on the state’s racial “diversity.” The documentary record is clear, he did.

This article does not debate whether Mr. Clyburn subsequently unleashed an orchestrated race-baiting campaign  against both Bill and Hillary Clinton to resuscitate Obama’s flailing run at stealing the D Presidential nomination.  Judging only by all of the evidence available in the public record, he did that, too.  (Read here, and here.)

Rather,this article just exposes Clyburn’s real reason why.

Background

A lot of people forget, FL and MI were not the only states that bumped up their Presidential preference primaries in 2008, ahead of the DNC’s schedule.  SC did, too.  Only, unlike FL and MI, Clinton strongholds that were punished for their infraction, SC was actually encouraged to break the rules.

Briefly, the Democratic National Committee’s Commission on Presidential Nomination Timing and Scheduling decided to add one or two early primaries (“pre-window,” or before February 5, 2008) in states with “a significant Hispanic population” (Western state) and “a significant African American population” (Southern state).  http://www.gwu.edu/~action/2008/chrnothp08/dnccommission.html The DNC Rules and Bylaws Committee (“RBC”) “developed its recommendations to the full DNC that Nevada be added as an early caucus state after the Iowa caucuses and that South Carolina be added after the New Hampshire primary as an early primary state.”  Id. On August 19, 2006 the full DNC, meeting in Chicago, approved the RBC’s recommendations. Id.

A number of leading observers were quite critical of the Democrats’ changes.  In an August 16 column in The Hill R. Lawrence Butler, an assistant professor of political science at Rowan University, wrote, “The commission’s purpose was not to create a better presidential nomination process; it was an exercise in coalition management.” Id.

David Broeder of the Washington Post does not hide his disdain for these DNC scheduling machinations:

“The Democrats Dysfunctional Calendar”

This way lies madness, and madness is what the Democrats have wrought. When they started tinkering with their rules after the 1968 election disaster, they unleashed a fierce competition among the states to be at the head of the line, where the contests have the greatest impact on weeding the field and crowning the eventual winner.

New Hampshire was already there, thanks to a state law that had given it the first primary since 1952. Iowa jumped in with its caucuses, which launched Jimmy Carter in 1976. And then came the deluge. When state after state moved up primaries from April, May and June into early March, the “front-loading” problem became acute.

What was lost in all this was any sense of public deliberation about the choice of the next president. In the general election, people have two months or more to evaluate two or maybe three candidates. In the early primaries, eight or 10 people may be vying. What is most needed is time — and a place — for them to be carefully examined.

Historically, New Hampshire has fulfilled that responsibility. Voters there — in both parties and especially among the numerous independents who also vote in the primary — take their role seriously. They turn up at town meetings and they ask probing questions. So do the interviewers at local papers and broadcast stations. So do high school students.

New Hampshire voters don’t need — or particularly want — guidance from Iowa, and frequently they ignore the Iowa results. (Emphasis added by jbjd.) But they are stuck with Iowa. Now, thanks to the Democrats, they may be stuck with Nevada as well, and crowded from behind by South Carolina.

http://www.washingtonpost.com/wp-dyn/content/article/2006/08/30/AR2006083002732.html

In short, despite widespread disapproval, the DNC gave SC the early primary, which enabled Congressman Clyburn to unleash the race-baiting campaign for Obama, without which contrived slings and arrows the nominee wannabe arguably would not have been able to steal the D Presidential nomination.

The Quid Pro Quo

Question:  Assuming Mr. Clyburn’s race-baiting campaign would launch Obama into the WH, had Obama promised Mr. Clyburn something in return?

Answer:  Yes; the appointment of his daughter, Mignon, to a coveted seat on the FCC (Federal Communications Commission).

Why the FCC?  Well, as Sen. Jay Rockefeller (D-WV), current Chair of the Senate Committee on Commerce, Science, and Transportation said during hearings to consider recommending Ms. Clyburn’s appointment to the “consent” of the full Senate, “[The FCC] is one of the 2 or 3 most important agencies in all of government…  The FCC has this enormous wide ranging authority, and the question is, will it exercise it, will it expand it, will it not exercise it…” (cite infra)

From the FCC web site:

About the FCC

The Federal Communications Commission (FCC) is an independent United States government agency. The FCC was established by the Communications Act of 1934 and is charged with regulating interstate and international communications by radio, television, wire, satellite and cable. The FCC’s jurisdiction covers the 50 states, the District of Columbia, and U.S. possessions.

http://www.fcc.gov/aboutus.html

And this:

Strategic Goals

Broadband
All Americans should have affordable access to robust and reliable broadband products and services. Regulatory policies must promote technological neutrality, competition, investment, and innovation to ensure that broadband service providers have sufficient incentive to develop and offer such products and services.

http://www.fcc.gov/omd/strategicplan/

And this.

Broadband

All Americans should have affordable access to robust and reliable broadband products and services. Regulatory policies must promote technological neutrality, competition, investment, and innovation to ensure that broadband service providers have sufficient incentive to develop and offer such products and services.

Description

The term “broadband” refers to advanced communications systems capable of providing high-speed transmission of services such as data, voice, and video over the Internet and other networks. Transmission is provided by a wide range of technologies, including digital subscriber line and fiber optic cable, coaxial cable, wireless technology, and satellite. Broadband platforms make possible the convergence of voice, video, and data services onto a single network.

Impact

Broadband technology is a key driver of economic growth. The ability to share large amounts of information at ever-greater speeds increases productivity, facilitates commerce, and drives innovation. Broadband is changing how we communicate with each other, how and where we work, how we educate our children, and how we entertain ourselves. Broadband is particularly critical in rural areas, where advanced communications can shrink the distances that isolate remote communities.

Objectives

Congress recognized the importance of broadband in Section 706 of the 1996 Telecommunications Act, which directs the FCC to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.” The Commission’s goals are to:

  • Broaden the deployment of broadband technologies
  • Define broadband to include any platform capable of transmitting high-bandwidth intensive services
  • Ensure harmonized regulatory treatment of competing broadband services
  • Encourage and facilitate an environment that stimulates investment and innovation in broadband technologies and services.

http://www.fcc.gov/broadband/

In short, the FCC carries out its statutory authority by issuing rules and regulations that determine to what extent it will permit for profit businesses like Verizon Communications, Comcast Corp., and Time Warner Cable, among the top 20 individual contributors to Bridge PAC, Mr. Clyburn’s personal slush fund, or the telecommunication companies aggregating more than $100,000 into his pocket to convert public access to the internet both directly and via mobile phone technology into a pay-for-play scheme prohibitively expensive for optimum use by  the average American.

Five FCC Commissioners direct the buying and selling of communal air space.  Again, from the FCC site:

Organization

The FCC is directed by five Commissioners appointed by the President and confirmed by the Senate for 5-year terms, except when filling an unexpired term. The President designates one of the Commissioners to serve as Chairperson. Only three Commissioners may be members of the same political party. None of them can have a financial interest in any Commission-related business.

http://www.fcc.gov/commissioners/

So, what made Obama decide that Jim Clyburn’s daughter, Mignon, was the logical best choice for one of these 5 prized positions on the Commission?  Well, let’s examine her qualifications.  She had only a BS (from one of the undergraduate schools her father lists as his alma mater); a stint as the Publisher of the Coastal Times (what one SC native describes in an email to me, was a flyer distributed to local churches all evidence of which operation ceased to exist when Mignon ceased ‘publishing’); and 11 (eleven) years on the SC Public Service Commission representing the Sixth Congressional District.  http://www.whorunsgov.com/Profiles/Mignon_L._Clyburn Of course, since she only ran for a seat on the Commission in the Sixth District, the same District created majority minority that gave its first House seat to her father, Jim; it is impossible to determine how she would have fared on her own.  Yet in 2008, immediately after the November general election, Obama publicly proposed Mignon could be not just an FCC Commissioner but the new Chair of the FCC!  http://www.free-times.com/index.php?cat=1992912064190689&ShowArticle_ID=11011211084177219 and http://www.businessweek.com/technology/content/nov2008/tc2008119_650156.htm

Well, as with any appointment from the Executive Branch, Ms. Clyburn would have to win the “consent” of the Legislative Branch.  This would require that she survive scrutiny by the Senate Commerce Committee before facing a full Senate vote.  Surely, the Committee would insist notwithstanding her pedigree she was otherwise qualified for this position, especially considering the enormous influence Commission decisions exert on the public conversation, literally, through the products and services of its regulated industries. http://www.govtrack.us/blog/2009/07/30/markup-review-senate-committee-on-commerce-science-and-transportation-july-21st/

Here is the video of the Commerce Committee hearings on Ms. Clyburn’s confirmation.   (This does not embed.  http://www.c-spanvideo.org/program/287731-1) As you will see, both the D nominee, Ms. Clyburn; and the R nominee, Meredith Atwell Baker, face confirmation together at this hearing, even seated at the table next to each other, to answer questions.

Here are the ‘credentials of Ms. Baker, then Acting Assistant Secretary for Communications and Information, National Telecommunications & Information Administration (“NTIA”), taken from the NTIA web site.

Ms. Baker earned a Bachelor of Arts degree from Washington & Lee University in 1990 and a law degree from the University of Houston in 1994.  She is a member of the Texas State Bar.

Before joining NTIA, Ms. Baker was Vice President at the firm of Williams Mullen Strategies where she focused on telecommunications, intellectual property, and international trade issues.  Earlier, she held the position as Senior Counsel to Covad Communications from 2000 to 2002, and Director of Congressional Affairs at the Cellular Telecommunications Industry Association (CTIA) from 1998 to 2000.  Ms. Baker worked at the U.S. Court of Appeals Fifth Circuit in Houston and later at the law firm of DeLange and Hudspeth, L.L.P.  From 1990 to 1992, she worked in the Legislative Affairs Office of the U.S. Department of State in Washington.

http://www.ntia.doc.gov/ntiahome/ntiageneral/bios/baker.html

In his opening statement, Chair Jay Rockefeller (D-WV) calls the FCC a “broken agency,”  which has failed to facilitate consumer access to burgeoning communication technology.

Senator Kay Baily Hutchinson (R-TX), the ranking member on the Committee, informs the Committee she met with Ms. Clyburn in her office.  (This begins at around the 9-minute mark.) She describes this nominee has “vast experience” with a “background in print media.  That provides an important perspective to understand the difficulties faced by newspapers and other media outlets in these very difficult economic times.  She also has an impressive public service background which I am hopeful will help guide her through the many important media issues at the FCC.”  She concludes her introduction by telling the Chair she looks forward to confirming Ms. Clyburn “on an expeditious basis.”  Senator Lindsey Graham (R-SC) says Ms. Clyburn’s years on the SC Public Service Commission will mean, issues facing her on the FCC will be “nothing new.”  He concludes, “This fine young lady is the right person at the right time for this most important job.  And she is well qualified and I hope she gets confirmed unanimously.” Senator Jim DeMint (R-SC) mentions Ms. Clyburn’s experience in “small business.”   (Is he referring to the ‘newsletter’?) He is also impressed with her public service, which demonstrates her “servant heart.”

(For a prototypical exchange between questioners and nominee Clyburn, see 50:56-55:36.)

Okay, both D’s and R’s on the Committee signal Clyburn’s confirmation is a fait accompli.  But is this because of her “vast experience in print media” and her “servant heart” for public service?  Or is this because Baker (R), will not get confirmed without Clyburn (D)?

Word of Ms. Clyburn’s nomination made some people on the political ‘left’ who were concerned with ‘net neutrality’ uneasy.

Is President Obama Putting Net Neutrality At Risk? by Chris Bower

The reason Mignon Clyburn is such a worrying pick is that she is the daughter of South Carolina Representative James Clyburn, who has an anti-Net Neutrality record:

In 2006, Representative Clyburn voted against H. Amdt. 987 to ensure that network neutrality clauses be added to the Title VII of the Communication Act of 1934. The amendment required all broadband service provides to “operate its broadband network in a nondiscriminatory manner so that any person can offer or provide content, applications, and services through, or over, such broadband network with equivalent or better capability than the provider extends to itself or affiliated parties, and without the imposition of a charge for such nondiscriminatory network operation.”

While Mignon might not have the same views as her father, what we do know about her ranges from unclear to unpromising:

Here’s what we do know.  Clyburn serves on the South Carolina public service commission (which is considered very pro-Bell).  She is virtually unknown by knowledgeable telecom people.  And, she seems to have focused more on energy issues than telecom, if early accounts are to be believed.  Plus, Verizon and the cable trade association are very happy.  All in all, not good.

And check out this creepy comment that appeared below the Washington Post story on Clyburn’s appointment:

At Sprint Nextel, we believe that Mignon Clyburn would bring experience, deep policy understanding and the perspective of a state utility commissioner to the FCC. We have worked with her in South Carolina where she has served on that state’s Public Service Commission and we look forward to working with her again on any number of issues including restoring competition to the failed special access markets that are stifling broadband deployment in our country.

Feel reassured about the new deciding FCC vote on net neutrality and open media yet? This is a dangerous and risky appointment by President Obama that will need extensive clarification in the coming days and weeks leading up to her confirmation hearing. It seems possible that more information will be revealed that will demand a withdrawal of the appointment.

http://www.opednews.com/articles/Is-President-Obama-Putting-by-Chris-Bowers-090504-67.html

Talking Points Memo warned back in May 2009, “Mignon Clyburn Will Kill Net Neutrality.”

http://tpmcafe.talkingpointsmemo.com/talk/blogs/rutabaga_ridgepole/2009/05/mignon-clyburn-will-kill-net-n.php

Senate Commerce Committee members unanimously recommended the full Senate should approve Obama’s pick for the FCC.

One month later, in August 2009, Obama appoints Mark Lloyd as the FCC’s Diversity Adviser.

When asked about Mr. Lloyd’s appointment to the FCC given his past pronouncements on the need to restrict certain political speech on the airwaves, Commissioner Clyburn claims she has heard no such concerns raised about the “gentlemanly” czar.

In January 2010, Commissioner Clyburn attends the Consumer Electronics Show, evidently trying to get up to speed on the technology she regulates.

On September 2, 2010, the FCC announced it would postpone any final decisions on regulating ‘net neutrality’ until after the November mid-term elections. http://www.eweek.com/c/a/Government-IT/FCC-Net-Neutrality-Decision-Is-Delayed-Possibly-Until-November-836417/ The Richmond Tea Party describes this November meeting could be “the day the government seizes control of the internet.”  http://www.richmondteaparty.com/2010/10/november-30th-could-be-the-day-the-government-seizes-control-of-the-internet/

On September 20, 2010, Commissioner Clyburn hired her father’s senior counsel, Dave Grimaldi, as her Chief of Staff and media legal adviser.   Working for Daddy Clyburn, Mr. Grimaldi specialized in technology, telecommunications, foreign affairs and financial regulation. http://thehill.com/blogs/hillicon-valley/personnel-notes/119783-fccs-clyburn-announces-new-chief-of-staff

Conclusion and Recommendations

In the FCC as with so many governmental agencies, it would appear, you are likely to get exactly what you pay for.

Constituents of the Senators on the Commerce Committee holding Ms. Clyburn’s confirmation hearings should submit FOIA requests for these written materials that are presumably part of the record, as these were the stated basis to support her bid for the seat on the FCC:  college transcripts and copies of the Coastal Times. If either of these documents does not exist then, the Senators who recommended her confirmation to their colleagues in the full Senate notwithstanding no documentary evidence exists she is competent for the job, have demonstrated their incompetence for the jobs to which they were elected, too.


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