Thursday, November 01, 2007

Our Dysfunctional Republic Part 6

Article 2
The Executive Branch

Article 2 of the United States Constitution outlines how we elect our president, and his authority, yet it is only1022 words long. Compare that to Article 1 at 2249 words. It seems the founding fathers gave more thought to the powers given to Congress than they did the president. The Executive office of our government was solely designed to be the person who executes the laws which were passed by the Congress. This is clearly stated in Article 2, Section 1, "The executive Power shall be vested in a President of the United States of America." Webster's Dictionary defines executive as, "1: designed for or related to carrying out plans or purposes 2: of or relating to the enforcement of laws and conduct of affairs." That is the job of the president in a nutshell, to make sure our laws are enforced. Think of the president as a manager, one who coordinates and organizes various people and agencies to make sure our nations laws are enforced.

I find it extremely interesting that so much money and effort is spent these days by candidates who wish to become president of the United States. Huge sums of money are collected and then spent to convince you to vote for a particular candidate. It is that particular aspect, the actual voting for our president, that I would like to talk about now.

I would have thought that most people are aware that the president is not elected by a popular vote of the people, yet I would have been wrong in making that assumption. In talking to people, I have found that there actually are people who are not aware of the electoral college. I don't know if this is because they have forgotten what they learned in civics class, or if that subject was never taught. Whatever the case may be, I would like to present what the Constitution says about the electoral college.

Article 2, Section 1 states the following, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."

Each state could select these electors in whatever manner they so desired, as long as the total number did not deviate from the guidelines laid out by the Constitution. What exactly is the purpose of these electors? The Constitution clearly defines what the duties of these electors were to be.

"The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not lie an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately choose by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner choose the President. But in choosing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall choose from them by Ballot the Vice-President."

Article 2, Section 1 was amended by the 12th Amendment. It was changed so that instead of the winner of the election becoming president and the runner up vice president, the electors cast two distinct votes, one for president, and one for vice president. Other than that, the process remained the same.

There has been many discussions over time to do away with the electoral college, but they have always failed to garner enough support needed to get an amendment passed by Congress for ratification by the states. So until it is changed, we are stuck with it.

So it is actually the votes of these electors who actually choose the president, and vice president for that matter. However, that does not mean that your vote does not count, or at least it didn't used to mean that.

According to the designs of the Constitution, these electors were to '... make a List of all the Persons voted for, and of the Number of Votes for each...'. It would seem that the list would therefore be representative of the popular vote. Remember, the number of electors were chosen '...equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress...'. It would be thought that the elector chosen for each Congressional district would vote according to the popular vote within their own district. This, however, is not always the case.

"There is no Constitutional provision or Federal law that requires electors to vote according to the results of the popular vote in their States. Some States, however, require electors to cast their votes according to the popular vote. These pledges fall into two categories -- electors bound by State law and those bound by pledges to political parties."

So, it is possible for a candidate to receive a majority of the popular vote in a particular district and have the elector for that district cast their vote for another candidate. This is rare, but it is not unknown.

Another thing that I find particularly disturbing is that fact that 48 out of the 50 states award electoral votes on a winner-takes-all basis. Since I live in California, I will use my state as an example. If 50.1% of the people vote for the democratic candidate, and 49.9% vote for the republican, all 55 of the electoral votes go to the democratic candidate.

I find this disturbing for two reasons. First, it is not a true representation of the popular vote. Remember, the Constitution says, '...And they shall make a List of all the Persons voted for, and of the Number of Votes for each..." When we have a winner takes all policy in place it violates the spirit of the electoral college in which all the persons voted for receive a percentage of the votes for president.

Again, since I am from California, I will refer to the California Election Code, Section 6908, “The electors shall make separate lists of all persons voted for as President and of all persons voted for as Vice President, and of the number of votes for each, which lists they shall sign, certify, seal, and transmit by mail to the seat of the Government of the United States, directed to the President of the Senate.”

If you compare that to what the U.S. Constitution says, you will find that, while it may be worded a bit differently, it is the same as the Constitution. I have written to the Governor and the Secretary of State asking what law authorizes a winner takes all approach in regards to electoral votes, but as of this writing my questions have not been answered.

Secondly, with the prevalence of computers to count ballots, and more recently, electronic voting machines, the idea of a winner takes all, leaves far too much room for fraud and election rigging.

On December 13, 2004, a Mr. Clint Curtis testified before the Judiciary Committee in Ohio regarding vote fraud. The following is a transcript of his testimony.

Curtis: I am a computer programmer, I worked for NASA, I worked for Exxon Mobile, I worked for the Dept. of Transportation.

Q: Mr. Curtis, are there programs that can be used to secretly fix elections?
A: Yes
Q: How do you know that to be the case?
A: Because in October of 2000 I wrote a prototype for present Congressman Tom Feeney in Oviedo Florida that did just that.
Q: And when you say it did just that do you mean it would rig an election?
A: It would flip the vote 51/49 to whoever you wanted it to go to and whichever race you wanted to win.
Q: And would that program be something that you designed be something that elections officials who might be on County Boards of Elections be something they could detect?
A: They would never see it.
Q: So how would such a program, a secret program that fixes elections how could it be detected?
A: You would have to view it in the source code or you would have to have a receipt and then count the hard paper against the vote total, other than that you won't see it.

A sworn affidavit outlining what Mr. Curtis said can be found at,

With the advent of touch screen voting machines, there is even more room for error and fraud. Recent news stories have shown how many such voting machines are easily hacked into. More worrisome is a ruling made in California, “This week, a federal appeals court in California threw out a lawsuit that challenged computerized voting without paper trails, finding that no voting system can eliminate all electoral fraud.”

While all of these problems with voter machine tampering and fraud exist in elections at all levels, I am discussing it now as it pertains to the electoral college and our selection of president of the United States. Josef Stalin once said, “Those who vote decide nothing. Those who count the votes decide everything.” It appears that our system of electing officials, particularly the president, has drifted drastically from what the founders envisioned in the Constitution.

Now that we have discussed how our president is supposed to be elected, I would like to cover the office of the president in a bit more detail. Before a duly elected president can begin his duties, he must first be sworn in. The President-elect places his hand on a Bible and repeats the following oath, “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

If you recall in Part 1 of this series I stated that you should think of the process of selecting an elected official like a contract. The terms of that contract are to be found in the Constitution. When the President-elect takes that oath, he is agreeing to the terms of that contract. It is absolutely imperative that, as citizens, we thoroughly understand the terms of that contract. If we don’t, how can we be aware of when those who we elect violate it?

Once that oath is taken, the president is bound to uphold the Constitution. It is only logical that we examine what the Constitution says about the duties of president. These duties can be found in Section 2 of Article 2. Briefly they state,

-The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states,

-He may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices

-He shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

-He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur

-He shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States

-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.

- He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient;

-He may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper;

-He shall receive ambassadors and other public ministers;

-He shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.

Those are the powers of the president. Nowhere in those powers does it say he can legislate, or create law. That power belongs to the Congress alone. However, presidents going back to 1789 have issued Executive Orders which come perilously close to creating law.

According to the federal register, “Executive orders are official documents, numbered consecutively, through which the President of the United States manages the operations of the Federal Government.”

Some of these Executive Orders do have the force of law, when they are issued in pursuance of an Act of Congress, when those acts give the President discretionary powers. However, all laws, including those passed by Congress, have to be in accordance with the dictates of the Constitution. If the President issues an Executive Order that violates the authority granted him in the Constitution, it is unconstitutional. One more reason why it is so important for us to be aware of the very limited powers granted to our government in the Constitution. John Adams, our third President once said, “Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people.”

Article 2 states that the president can recommend measures to Congress for their consideration, “He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient...”

As I have stated numerous times now, all laws passed by Congress must be in accordance with the dictates of the Constitution. Therefore if the president recommends a measure for their consideration, they should deliberate as to whether said recommendation violates the Constitution or not before even drafting a bill for consideration.

Our Congress, at the behest of President Bush to fight his War on Terror has passed numerous pieces of legislation that violate the Constitution in one way or another. Beginning with the Patriot Act, then followed by the John Warner Defense Authorization Act, and the Military Commissions Act, the president has put into place the laws that could shut down every individual right and freedom we the people were outlined in the Declaration of Independence and guaranteed under the Bill of Rights.

The Patriot Act authorizes illegal wire taps, allows for warrant less searches of your home, the inspection of your financial records, and even what books you check out at the library. Section 213 of the Patriot Act, otherwise known as the Sneak and Peek Provision allows any federal law enforcement agency to enter your home or business without you being present to collect evidence and they do not ever have to tell you they have been there. This violates the Fourth Amendment to the Constitution.

Sections 202 & 216 allows any federal law enforcement agency to monitor your internet traffic, read your e mails and intercept all your cell phone calls, if they suspect that you are committing a crime. No warrant is required. This violates the Fourth and Fifth Amendments to the Constitution.

The FBI or any other federal law enforcement agency can come to your business and seize your records if they claim it is part of a terrorist investigation. They can also arrest you if you tell anyone that they were there. This violates the First and Fourth Amendments to the Constitution.

So you think you are safe, you are not a terrorist. Section 802 of the Patriot Act defines domestic terrorism as, "activities that--involve acts dangerous to human life that are a violation of the criminal laws of the United States...and appear to be intended to intimidate or coerce a civilian population; or to influence the policy of a government by intimidation or coercion..." So do you still think anything you do might not classify you as a domestic terrorist?

After reviewing the Patriot Act, Congressman Ron Paul said that our forefathers would think it is time for a revolution.

The Supreme Court ruled in U.S.v Robel,
"[T]his concept of 'national defense' cannot be deemed an end in itself, justifying any exercise of...power designed to promote such a goal. Implicit in the term 'national defense' is the notion that defending those values and ideas which se this Nation apart...It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties...which makes the defense of the Nation worthwhile."

The John Warner Defense Authorization Act allows the president to station troops anywhere within the U.S. in the case of a stated emergency. This violates the Posse Comitatus Act (18 U.S.C.1385).

The Military Commissions Act allows for the president to round up suspected terrorists and hold them indefinitely without legal representation or recourse, basically suspending habeas corpus.

After the civil war, Abraham Lincoln suspended habeas corpus and the Supreme Court made the following ruling, "The Constitution of the Untied States is a laws for rulers and people equally in war and in peace, and covers with the shield of its protection all classes of mean, at all times, and under all circumstance. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government."

I believe I have given you just a few examples of how our president, and President Bush is not the only one, have exceeded their authority as defined in the Constitution. I would like to leave you with two quotes by James Madison as I conclude this segment of my continuing piece on Our Dysfunctional Republic,
“If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.”

“It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad.” be continued

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