Three Tigers by the Tail -- What This Congressional Hopeful Can Do

by Mary W Maxwell, PhD, LLB

Year round, I'm filled with ideas for the US government. But as I am now privileged to be actually on the ballot for a seat in Congress (R-NH), I should outline specifically what I could do in The House.

The Framers of the Constitution clearly intended Congress -- i.e., the people -- to have power over the other two branches. This is evident from the fact that the Framers made it possible for The First Branch to impeach a president, a judge, a military officer, and many other appointees.

In Madison's notes of 1787, we see that The Framers worried that any one of the branches, even the judiciary, might get too heavy a hold over the nation. They don't seem to have attended to the matter of a branch voluntarily going on permanent coffee break.

I believe there are ways in which Congress can help us now by asserting its very broad role. Allow me to boast that I've got three tigers by the tail. Hardly anyone mention these tigers.

TIGER 1: THE EXECUTIVE. As anyone with an eyeball knows, the Executive has done horrible things for decades. Of course, Americans wouldn't relish frequent impeachments, but Congress can wield its impeachment power just by threatening impeachment. "If you don't stop the Lockdown nonsense, you'll soon be out on the street, Mr President."

Such threats don't get made. And the House's recent impeachments that did occur, were for unimportant matters -- Bill Clinton lying about the Paula Jones lawsuit, and Donald Trump schmoozing with Putin. Those did not end with a removal anyway, as 2/3rds of the Senate did not vote for conviction.

At the moment, President Joe Biden is impeachable for many sins -- to name just one, opening the southern border. There is no excuse for it. He could be told "Close it now, Sir, or you will be on the street."

An aside: I think the opportunity should be seized to impeach the VP rather than the president, over that one. Kamala Harris can be impeached for her participation in letting the borders be opened. Don't worry, nobody has to prove guilt beyond doubt: convicting an impeachee is simply political -- 67 senators saying "Out, out, damn spot" will suffice.

Then Congress (which is the People) could use its "persuasion" in urging Biden to appoint a good VP. Admittedly, I am thinking of the 1970s bumper sticker: "Get Agnew first."

TIGER 2: THE JUDICIARY. The phrase "Excuse me, Great Nine, you will be out on the street if you don't shape up," is too rude to use. We do want to keep SCOTUS up on a plinth, as it were -- honoring an institution is a gift to society. But you get the gist, as to Congress's clout. "We" legislators need only harp, harp, harp as to what the People want. (See Lou Fisher's new book on this; he pooh-poohs Judicial Finality.)

Granted, the US Constitution says, in Article III, sec 1, "The Judges, both of the supreme and inferior Courts... shall hold their Offices during good Behavior." Good behavior should never mean making a particular ruling on a case. I definitely do not want judges to be looking over their shoulder to see which politicians they need to please. (Sadly, though, I think they do look over their shoulder to see what our Hidden Rulers want.)

Anyway, Congress is properly able to correct the court where the court is wrong. For instance, Congress today should let it be known that the US Supreme Court's ruling in the Albert Florence case is unacceptable. In Florence's case, a man's up-close-and-personal strip search was held to be OK, even though he was brought in only for a traffic violation.

The Supreme Court reasoned that the jail warden is at risk since some suspects carry weapons. Congress can now rule, in proper obeisance to the Fourth Amendment, that strip searches are warranted only when they are ... "warranted."

Another whole area in which Congress should intervene is where the Courts refuse to do their job. Basically, SCOTUS ridiculously refrains from chiding the Executive Branch. It's known as judicial deference -- isn't that awful?

Here's an example: Per Article I, sec 8, Clause 11, the president must not undertake a war unless Congress has declared war. If you bring a case to court, as I have -- twice, to try to enforce this constitutional separation-of-powers, the court won't play ball.

More than twenty war-powers cases that I know of have gone wanting. The court says "It's a political question." Naturally we don't want the Third Branch to approve or disapprove a decision as to whom we should wage war against. It's not their business. But we want the judiciary to guard the Constitution, which is their business.

Think of it this way: the Framers guaranteed that war choices would be made by Congress, i.e., the People. If Congress abdicates, and SCOTUS turns away, what can the People do? Quite a dilemma for soldiers who are being lined up for a mischievous war.

TIGER 3: THE LEGISLATURE. My so-called legislature tiger is the power that "we 435 congresspersons" have over the law. We are lawmakers. It's all we do, isn't it?

The Constitution emphatically lays out in Article I, sec 8, Clause 18, that no branch except the legislature can make any federal law. Allow me to quote:

"The Congress shall have 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, or any Department or Officer thereof."

Right there you have the negation of any Executive Order that purports to tell citizens they must legally do such-and-such. If the president wants to force citizens to do such-and-such, she has to ask Congress to enact a law. And of course Congress can say, in so many words: No.

Agencies. There's a certain part of the legislature tiger that I do NOT have by the tail. I have been trying to get ahold of it for a while. I'll mention it here only to confess my ignorance, but will continue to pursue it if I get into office.

It has to do with agencies that were created by Congress via enactments, but which seem to be either under the executive branch, such as the CIA, or under no branch, such as the FCC (Federal Communications Commission that supervises the media). Who should be in charge of them?

Even such a department as "Health and Human Services" is Greek to me. Yes, it's led by a member of Cabinet, but the word "Cabinet" does not appear in the parchment. Many cabinet heads have control of agencies that Congress should never have legislated into existence, as they do not appear among Congress' exact "grants of power" (listed in plain English, in Article I, sec 8 of the US Constitution). Two deviant departments that come readily to mind are Housing and Urban Development, and Education.

If elected and given a say in which House committees I would be assigned to, I would want to be on the Oversight Committee. That would make me work to understand where the responsibility for agencies should fall.

Sherman. There is an aspect of the legislature's permanent coffee break that I do feel able to address. Way back in 1890, Congress passed the Sherman Anti-trust Act. It criminalizes "combinations" -- for example, corporations' interlocking boards of directors.

Congressmen have a busy life; they can't go around enforcing the laws that they've made. Sherman is still on the books. What is needed is for the Executive to get busy and break up the non-conforming corporations, as well as handcuff their offending officers. This is what the DoJ gets paid for, isn't it? . See Zephyr Teachout's book, Break 'em Up.

Congress, using its special persuasive powers, can make this happen.

If you live in District 2 of New Hampshire, please vote me into the House. You will know I'm there. Changes will be made. Things will happen. Our Constitution is a miracle; it just needs a little tending.