Jan. 10, 2013

 

Written by Dr. Jack Wheeler   

Thursday, 10 January 2013

Article I, Section 9, Clause 7 of the United States Constitution states:

"No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time."

This is the "Power of the Purse" clause, which Article I, Section 7, Clause 1 makes clear is exclusively held by the House of Representatives:

"All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills."

Actually, there are two "powers of the purse" - to spend money or to deny its being spent.  For the US Federal Government to spend any money, one single dime on anything, three things need to happen in this order:  1) an Appropriation must be authorized and passed by the House, 2) such Appropriation must then be passed by the Senate (any differences in the House and Senate versions must be reconciled via joint agreement and passage), and finally 3) be signed into Law by the President.

To deny the federal government the authority to spend any money, one single dime on any program or activity, only one thing needs to happen:  the House does not pass an Appropriation for it.  Period.  Neither the Senate, nor the President, nor the Supreme Court, nor any federal agency secretary or bureaucrat, has the constitutional authority to spend one single dime by themselves, without a majority of the House giving it to them.  That is the power of the purse.   

There is, however, a problem - a legal problem, not just a psychological one, such as Congressistas being spendaholics or too cowardly to refuse the begging of various constituencies for handouts.

This problem is epitomized by the Senate Republicans' inability to force Harry Reid to pass an annual budget, even though there is a law requiring the Senate to do so.  Thanks to Reid's blocking all attempts, the Senate hasn't passed a budget since April, 2009, which clearly violates federal law - the Congressional Budget Act of 1974.

So how come Reid can't be prosecuted?  Why can't the Senate Pubs take legal action against him?  As Byron York explains, "the Congressional Budget Act of 1974 doesn't have an enforcement mechanism.  Lawmakers are required by law to pass a budget each year by April 15, but there's no provision to punish them, or even slightly inconvenience them, if they don't."

So we arrive at what may well be the single most important question to ask in America today.

Given that the current President of the United States seems determined to bypass the House's appropriation authority and spend gigantic sums on whatever programs he wants or enforcing whatever Executive Orders he issues, is there an enforcement mechanism for his violating the power of the purse clauses in the Constitution?

The answer is yes.  There is a federal law that specifically codifies the power of the purse clauses, and provides specific punishment for their violation by any "officer or employee of the United States government."

This punishment is "suspension from duty without pay or removal from office," and up to two years in federal prison.

This Federal law is:  The Antideficiency Act. The original version was enacted into law in 1884.  Although revised occasionally since to make its meaning clear in terms of "modern" language, its purpose remains: to be the enforcement mechanism implementing Article I, Sections 7 & 9.  It was last revised during the Reagan presidency, and is codified as Title 31 of the United States Code (31 U.S.C. §§ 1341, 1342, 1349, and 1350).

§1341 states:

1) An officer or employee of the United States Government or of the District of Columbia government may not-

(A) make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation;

(B) involve either government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law;

§1342 specifies that the "unless authorized by law" exception in 1341 (1)(B) applies only to "emergencies involving the safety of human life or the protection of property," which does "not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property."

§1349 states:

"An officer or employee of the United States Government or of the District of Columbia government violating section 1341(a) or 1342 of this title shall be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office."

§1350 states:

"An officer or employee of the United States Government or of the District of Columbia government knowingly and willfully violating section 1341(a) or 1342 of this title shall be fined not more than $5,000, imprisoned for not more than 2 years, or both."

There is a lot of brave talk coming from Capitol Hill Republicans on forcing a government shutdown by not raising the debt ceiling until Zero agrees to major spending cuts.  Zero is riposting with threats to raise the ceiling unilaterally, invoking Section 4 of the 14th Amendment - "The validity of the public debt of the United States, authorized by law... shall not be questioned."

On Sunday (1/06), Senator Ted Cruz (R-TX) demolished this argument in a handful of words.

In addition, Zero's bureaucratic goons have issued a blizzard of new rules and regs, while he himself threatens to issue a blizzard of Executive Orders for "gun-control" in overt violation of the 2nd Amendment.

In other words, Zero plainly intends to spend whatever money he wants, debt ceiling or no, Congressional appropriation or no.  If and when he does so, he needs to be prosecuted in violation of the Antideficiency Act.

And criminally prosecuted, for he will have, per §1350, knowingly and willfully violated it.  Note, however, that §1349 only requires violation of the act (without the knowing/willful qualifier) for the perpetrator to be suspended and removed from office.

Eric Holder, as the most corrupt and dishonest Attorney General in US history, will of course not prosecute Zero - he will act as his defense attorney.  But the House as a whole, individual senators and congressfolk, conservative legal foundations et al, may initiate law suits against the president.

There are 30 Republican Governors now.  If a number of them banded together, with their States suing Zero for violation of the Antideficiency Act, then, under the Original Jurisdiction clause of the Constitution - Article III, Section 2, Clause 2: "In all Cases... in which a State shall be Party, the supreme Court shall have original Jurisdiction" - the case must go directly to the Supremes, bypassing all lower courts.

So we don't even need lily-livered Congress Pubs, just Pub Governors, a number of whom do have the moxy.

Granted, since Chief Justice Roberts has become Obama's poodle, the SCOTUS may not find the president guilty.  Nonetheless, prosecution of the president under the Antideficiency Act is a far easier way to remove him from office than impeachment.

Impeachment of Obama would be a high bar for the House, and verdict of guilty in a subsequent trial by the Dem-controlled Senate an impossibility.  So the only possible way to remove him from office is via Antideficiency Act violations.  Further, such violations can put him in jail.

In sum:

*The Constitution explicitly states that the President and the Executive Branch can only spend money first appropriated by the House.

*The enforcement mechanism for violation of this Constitutional provision is the Antideficiency Act, under which the president may be personally prosecuted as an officer of the United States government, and if found guilty, may be removed from office and imprisoned for up to two years.

*Our current president has indicated his intention to blatantly, knowingly and willfully violate the Antideficiency Act.

Therefore, it is incumbent upon Republican leaders in the House and Senate to publicly announce and repeatedly state their intention to seek the criminal prosecution of President Barack Hussein Obama should he violate the Antideficiency Act, in response to the House's refusal to 1) raise the debt ceiling, 2) pass a Continuing Resolution in lieu of a Federal Budget, or 3) provide funding for the implementation of Presidential Executive Orders, particularly those regarding gun-control.

Republican Governors and conservative legal foundations should then join in support.

We have the Constitution and the specific federal law to put an end to the Tyranny of Zero.  It's time to go on offense.  Mr. Obama must be given a choice:  obey the Antideficiency Act or be thrown out of office and go to jail. 

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Who is Dr. Wheeler?  http://www.tothepointnews.com/content/view/1117/90/