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Mandeville, LA – Exclusive Transcript – Let’s go to the Dude Maker Hotline and talk to our friend, Professor Dr. Kevin Gutzman, author of James Madison and the Making of America, The Politically Incorrect Guide to the Constitution, Who Killed the Constitution, and Virginia’s American Revolution, and lately an article at NomocracyInPolitics.com.  Check out today’s transcript for the rest…

Begin Mike Church Show Transcript

Mike:  Let’s go to the Dude Maker Hotline and talk to our friend, Professor Dr. Kevin Gutzman, author of James Madison and the Making of America, The Politically Incorrect Guide to the Constitution, Who Killed the Constitution, and Virginia’s American Revolution, and lately an article at NomocracyInPolitics.com.  Professor Gutzman, good morning, my friend, how are you?

Kevin Gutzman:  Very well, Mike.  How are you?

Mike:  I am well.  So what spurred you to write this “Sue the Executive Branch, Congressman? The Constitution Check is Impeachment”?  What Professor Gutzman has written about is Representative Trey Gowdy (R-SC) who basically wants to sue the executive branch for a variety of reasons.  As you point out, that’s not the actual constitutional check, is it?

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Gutzman:  Well, no.  Actually, his legislation is called the Enforce the Law Act, which if anything to be ridiculous, it’s a law requiring the president to enforce the law.  The idea he has here is to facilitate the houses of Congress suing the president in case he doesn’t enforce the law.  I have, of course, for years said that there ought to be a constitutional amendment facilitating individuals suing to stop the federal government from spending.  So in case Congress appropriated money not in pursuance of one of the powers expressly delegated by the Constitution, then an individual citizen ought to be able to go to court and say: I want an injunction, your honor.  I want the federal executive branch told not to spend money on this particular program because the Constitution doesn’t grant Congress the power to appropriate money for this purpose.  But that is not what Gowdy is doing.  What he’s said is there should be legislation saying that either the House or Senate can sue the president in case he doesn’t enforce a particular law.

Of course, this may sound good.  It may sound as if it’s a way to get the judiciary to enforce the executive, to enforce a particular law, but as I point out in the piece at NomocracyInPolitics.com, there are a couple problems here.  Number one, we don’t want the president enforcing every law.  We elect presidents because we have in mind they will exercise some discretion in deciding which laws they’re going to enforce.  So, for example, the Reagan administration had an assistant attorney general who was in charge of the Antitrust Division.  Essentially the Reagan administration didn’t bring antitrust cases.  They didn’t relieve in antitrust, so they didn’t pursue the matter.

This is perfectly valid, I thought, at the time, laudable exercise, executive discretion by President Reagan.  I don’t think we have a newfound desire in the Republican Party that every Republican president should enforce every law.  We know right now that the Obama administration, through the Justice Department, has said it will not enforce bans on medicinal marijuana, although the federal government, of course, has some unconstitutional statutes dealing with that matter.  The Obama administration has said: We’re not going to pursue it.  That’s why Colorado and Washington, for example, have been able to declare: We’re going to legalize marijuana altogether.  There are several states, a couple dozen, I think, that have said it’s going to be legal in their territory for physicians to prescribe medicinal use of marijuana.

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Of course, the main thing here is that in cases a federal executive misbehaves in a way that’s unconstitutional, the Constitution does provide a remedy that’s not for members of Congress to go to court, but it’s for Congress itself to act as court, which is to say that the House of Representatives draws up articles of impeachment.  Once they do that, the Senate sets a date and the members of the House go to the Senate and they act as prosecutors before the Senate, which serves as, unless it’s the president being impeached and tried, it’s the judge and jury that the Senate are.  In case the president is the fellow being impeached, then it’s the jury that the Senate serves as with the chief justice in the chair.

This should be the mechanism that the Congress is using, for example, to eject Director Clapper, who went into a Senate committee hearing, took the oath to tell the truth, and then lied to direct questions from Senator Ron Wyden.  He ought to be bounced immediately.  That’s exactly what the impeachment power is for.  Some people think that impeachment is only about the president or judges.  We have, in our history, had numerous other people that presidents impeached and I think it would be a salutary development if some of these people were impeached right now.  Impeach Lois Lerner.  Get her out of there.  Get Clapper out.  We could start with generals who go in and lie about their advice in regard to war-making and so on.  Really, so long as the Congress doesn’t use this power, what it’s effectively saying is that it’s acceptable for the executive branch to be flouting Congress’s authority.  Whoever was responsible at the CIA for bugging the computers of the Senate Intelligence Committee ought to be impeached immediately.  If they can’t say exactly which officials are responsible, start with the assistant director of Central Intelligence.  If that doesn’t get them an answer, go for the director of Central Intelligence.

This is the way the impeachment power worked in England before the Constitution was written.  It was used by the parliament to ensure that the king was not grabbing at power that was supposed to lie in parliament.  In a situation such as we have now in which both the judiciary and the executive has usurped all kinds of authority that’s supposed to be in Congress, Congress really does need to use this mechanism to strike back and to redraw the lines to say: You know what, guys?  In our system ultimately it’s Congress that decides how the Constitution is going to work.  That means no lying to us under oath, no spying on us, no conducting unconstitutional, illegal programs and then refusing to tell us about what you’ve done, and so on.

Mike:  One of the ways the impeachment power — as you were talking I could think of a couple other examples.  Mrs. Clinton could have been impeached.  She lied.  She was complicit with the Secretary of Defense at the time in assassinating the then-legitimate leader of the country of Libya, and there was no congressional declared war in that instance.  I’m also thinking of, for people who are still adamantly opposed to the implementation of the Affordable Care Act, it’s undeniable that things have been done in the Health and Inhuman Disservices Department that could land Ms. Sebelius in front of an impeachment panel.  Because Congress has refused to use the power they have to try to restrain the Health and Human Services Department from doing what it’s doing, the impeachment power is really the only power they have left.

End Mike Church Show Transcript

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