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Is congress AWOL? (Cover Story: Congress).

While the Bush administration has aggressively strengthened the Executive Branch -- even to the detriment of liberty -- Congress has meekly surrendered its constitutional powers.

The Roman Republic produced no greater statesman than Cicero. A distinguished legal expert, republican patriot, and orator without peer, he had risen to his nation's highest office, that of Consul. Tragically, this great pillar of Roman virtue witnessed the end of the Republic he had loved. In those long-ago days, in the first century B.C., the old Rome was in its death throes, beset by faction between political parties and plagued by Conspiracies, like that of Catiline's, aiming for the violent overthrow of the government. Surveying the turmoil of the political landscape, Cicero lamented, "When we inherited the Republic from our forbears it was like a beautiful painting whose colors were fading with age. We have failed to restore its original colors and have not taken the trouble to preserve its overall composition or even its general features."

If Cicero were an American living in the U.S. today, he would surely make a similar lament. Our own political tapestry, woven by the Founding Fathers, featured in bold color a concept of government limited in scope -- its assigned powers distributed among three branches of government with all other powers reserved to the states and to the people. The Founders purposely devised this system to prevent power from being accumulated in any one branch of government. Indeed, James Madison, rightly celebrated as the Father of the Constitution, warned in The Federalist, No. 47, that "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

The Founders, however, harbored no illusion that the Constitution they had created possessed any magical, self-enforcing power against corruption and usurpation. Mr. Madison, for instance, remarked in his Federalist essay No. 48 that it is dangerous as well as futile to put trust in mere "parchment barriers against the encroaching spirit of power." The barriers are only effective if the people vigilantly, immediately, and vigorously oppose any encroachment by those exercising power.

Like Cicero, we have inherited a republic whose essential characteristics had long ago begun to fade. During the Civil War, President Lincoln assumed "temporary" dictatorial powers, running roughshod over the Constitution and the states. After the war, Congress, controlled by the Radical Republicans, usurped vast powers and prosecuted a program of malicious "reconstruction" on the defeated South. Our Republic still suffers from the precedent-setting federal encroachments that occurred during the Civil War.

The trend toward concentrating power in Washington accelerated when the Interstate Commerce Commission was established in 1887, the first of the fedgov regulatory agencies. There are now thousands of these agencies constituting an enormous, unconstitutional fourth branch of government, combining legislative, executive, and judicial powers. The creation of a central banking institution through passage of the Federal Reserve Act, in 1913, was another major milestone of federal usurpation. Attacks on our constitutional order have also been effected through the amendment process. Amendments to the Constitution requiring direct election of senators and establishing the income tax are just two examples of amendments that have dramatically undercut our constitutional checks and balances and concentrated dangerous power in the central government.

The 9-11 Pretext

Because of the aforementioned federal encroachments (and many others too numerous to catalog here), freedom has been in retreat in America throughout most of the 20th century. That alarming trend greatly accelerated as we launched into the 21st century, especially in the aftermath of the terrorist attacks on New York and Washington, D.C. In the nearly two years since that grim day, the populace has been kept constantly on edge by one crisis after another. Not long after the initial terrorist attacks, a highly suspicious and still unsolved series of bioterror attacks by mail further deepened the climate of anxiety that held the nation in sway. Subsequently, war in the far regions of the world, economic turmoil, and terror alerts issued at regular intervals by the vaguely Orwellian-sounding Department of Homeland Security have kept America on the razor's edge.

The present is marked by crisis and, consequently, has proven fertile ground for the growth and centralization of power. Shocked by the recent terrorism and fearful of the future, the citizenry has been prepared to accept nearly any innovation promising to restore security. Consequently, the Executive Branch, eager even in the best of times to increase its power and prestige, has taken advantage of the new conditions to further empower itself. Emboldened by popular support, the Bush administration has increasingly begun to exercise powers rightly given to the Legislative Branch alone. Congress, meanwhile, has faded into the background. This, the branch of government charged by the Constitution with the greatest responsibilities and with the greatest powers, has done little more than act as a rubber stamp for the policies of the Executive. On some occasions it has even actively worked to transfer its sacred powers to the Presidency. If now the American Republic, like the Roman Republic of Cicero's day, teeters on the edge of tyranny, it is because Congress, in this our nation's most trying hour, has been infamously derelict in its duties.

Perhaps the most shocking and dangerous example of congressional negligence to date came just weeks after 9-11. Responding to the attacks, the Bush administration championed legislation granting dangerous new power and authority to Executive Branch agencies. The deceptively named USA Patriot Act has attracted criticism from nearly every point of the political spectrum for its numerous provisions threatening our constitutionally protected rights.

The legislation, which runs to some 342 pages, was signed into law on October 26, 2001 by President Bush. The law's provisions include expanding the legal use of "sneak-and-peek" searches in which law enforcement agencies are not required to notify the target of an investigation until sometime after a search has occurred. The law authorizes "roving wiretaps" that allow investigators to monitor any number of phones or computers used by a single suspect.

Both of these provisions stand on dubious constitutional ground, appearing to fall afoul of the Fourth Amendment. That amendment states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Sneak-and-peek searches, by their very secrecy, undermine the amendment's provision that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation The use of roving wire taps, which are a general grant of surveillance power, clearly violates the provision demanding specific description of "the place to be searched, and persons or things to be seized." These are only two of a whole host of other troubling provisions of the so-called USA Patriot Act.

Considering the freedom-destroying ramifications of this legislation, one might have expected Congress thoroughly to debate and weigh its provisions prior to passage. Neither the House nor the Senate, though, gave the bill the attention it deserved. In the Senate, a lonely dissenting voice pleaded for debate on the measure. With Attorney General John Ashcroft urging prompt action on the bill and with then-Senate Majority Leader Tom Dasehie (D-S.D.) working vigorously to see that the measure came quickly to a vote, Senator Russ Feingold (D-Wis.) asked his colleagues to consider the legislation more carefully. "I can't quite understand why we can't have just a few hours of debate," said Feingold.

The situation was even more incredible in the House, where members approved the bill sight unseen. "It's my understanding the bill wasn't printed before the vote -- at least I couldn't get it," Representative Ron Paul (R-Texas) told Insight magazine. "They played all kinds of games, kept the House in session all night, and it was a very complicated bill. Maybe a handful of staffers actually read it, but the bill definitely was not available to members before the vote." Congressman Paul was one of only three Republican lawmakers to vote against the measure. This is both outrageous and intolerable! Is it too much to demand that lawmakers actually be aware of what it is they are enacting into law before they cast their vote? Certainly, anything less is a gross dereliction of duty. Nevertheless, members of Congress turned a blind eye toward this legislation, dutifully passing it along to the president to be signed into law with little or no concern that by passing the bill they were essentially betraying their sw orn duty to uphold the Constitution.

Surrendering War Powers

Yet another betrayal at least as serious as passage of the Patriot Act is the Legislative Branch's insistence on transferring its power to declare war to both the Executive Branch and to the United Nations. The Constitution expressly grants to Congress the power "To declare War."

The Founders were unwavering in their conviction that Congress alone should be able to declare war. Writing in 1801, Alexander Hamilton observed that "it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received: in other words, it belongs to Congress only, to go to War." The Executive, by contrast, has no such power to initiate armed conflict, but is left, as commander in chief, with the ability to counter any sudden attack.

This critical balance of war powers between the Executive and Legislative branches has long been upset. Many U.S. military actions and operations, both large and small, have been conducted over the past 50 years in violation of the Constitution. Since World War II, there has been no congressional declaration of war. This trend accelerated during the Clinton administration as U.S. forces found themselves engaged in various and sundry actions -- from Somalia and the Balkans to Iraq -- whenever the president decided UN resolutions needed enforcement. Congress did not rein in the president then -- and now, with the "war on terror" and its associated wars in Afghanistan and Iraq; the Congress has largely relinquished its war-making responsibilities.

The war with Iraq is a pertinent example. As the May 21st Christian Science Monitor noted, "After 9/11, Congress gave the president broad discretion to determine when and if the nation took up arms in Iraq." That discretion was most specifically granted to the president on October 10th and 11th, 2002, when the House of Representatives and the Senate, respectively, passed a resolution authorizing the president to use military force against Iraq in support of United Nations Security Council resolutions. In particular, this unconstitutional measure stated that the president was authorized "to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to -- (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq." (Emphasis added.)

This measure was not a declaration of war. Instead it was a blank check authorizing the president to make war on Iraq when and if he saw fit. In essence, in matters concerning Iraq, Congress simply ignored its clear, constitutional responsibility and delegated it to the Executive Branch. But this is an illegal delegation of power since Congress is a creature of the Constitution, and that document nowhere allows for Congress to delegate its powers to the Executive or Judicial branches, or to any other entity. Every member of Congress takes an oath to uphold the Constitution, which is "the supreme law of the land."

Frivolity and Foolishness

Illegally empowered by Congress with war-making power, President Bush and his administration continued preparations to invade Iraq and oust Saddam's tyrannical regime. Meanwhile, having voted itself out of the equation, Congress was free to take up other matters it deemed important, including the nomenclature to be used in three Capitol Hill cafeterias to identify fried slices of potato.

The issue -- not exactly a political "hot potato" -- arose when France refused to participate in a coalition to attack Iraq. To punish the French, certain Republican lawmakers launched an initiative to change the name of "French fries" to "Freedom fries." According to Congressman Bob Ney (R-Ohio), who as chairman of the Committee on House Administration announced the decision at a noon press conference at the Longworth House Office Building, the decision was "a small, but symbolic effort to show the strong displeasure of many on Capitol Hill with the actions of our so-called ally, France."

If this move was not designed from the outset to diminish further the stature of Congress, it nevertheless had that effect. The French fry fiasco brought a torrent of scorn and derision down on the House of Representatives. According to the Tampa Tribune, a spokesman from the French Embassy responded that "we are at a very serious moment dealing with very serious issues, and we are not focusing on the name you give potatoes." Editorials and news reports across the nation gleefully lampooned the episode. As far away as England, London's Daily Telegraph opined: "This is exactly the sort of spoilt petulance you would expect from a badly brought-up child used to having its own way."

Close on the heels of Rep. Ney's Freedom Fry crusade, Rep. Ginny Brown-Waite (R-Fla.), venting yet more displeasure on the French, announced that she was introducing into the House of Representatives a bill seeking to have America's honored dead from WWII, now buried in France, disinterred and brought back to the U.S. for reburial. "The remains of our brave servicemen should be buried in patriotic soil," Brown-Waite wrote in a March 14th press release, "not in a country that has turned its back on the United States and on the memory of Americans who fought and died there."

More substantive, but no less misguided, are various congressional proposals supposedly aimed at remedying judicial usurpations by amending the Constitution. It is no secret that federal courts, including the U.S. Supreme Court, have angered millions of Americans with their rulings on abortion, flag burning, prayer in school, capital punishment, the Pledge of Allegiance, and many other matters. However, rather than exercising their constitutional authority to rein in mischievous federal judges, "conservative" members of Congress have pretended to address these issues by proposing constitutional amendments aimed at each judicial violation. But Congress already has the authority, under Article III, Section 2 of the Constitution, to limit the appellate jurisdiction of the Supreme Court -- and, by extension, all federal courts.

If the Congress were serious about reversing judicial approval for abortion, flag desecration, etc., and wished to do so in the most efficient and constitutionally sound manner, the best solution would be to remove the Supreme Court's appellate jurisdiction in these cases. This could be done by a simple majority vote by both houses, rather than the long, drawn-out, multi-year process involved in a constitutional amendment. Not only would this remedy be quicker and more efficient, it would pose less hazard to the Constitution. But again, by instead introducing high-profile amendments, Congress has diverted the public mind from inquiring into and demanding the exercise of actual and effective powers possessed by the Legislative Branch.

Saving the Nation

Despite the all-too-real marginalization of Congress and the alarming trend toward omnipotent government, we must not succumb to the fatal fear that all is lost. Even in the feverish wake of 9-11, various opinion polls have shown that the American public is leery of the many proposals for more federal police powers advocated by the political elite.

Dangerous programs cherished by the Executive Branch have been scuttled (or at least driven underground) due to exposure by grassroots public awareness campaigns. That's what happened to Operation TIPS, a Bush administration scheme to turn ordinary Americans, including truck drivers and postal workers, into a vast army of domestic security spies, similar to the apparatuses employed by totalitarian regimes such as Nazi Germany and Soviet Russia. The proposal, originally part of the Homeland Security bill, was rightly attacked by many organizations on the right and the left as a frighteningly draconian and un-American proposition. Because of the vocal public opposition, this provision was struck from the version of the bill passed by the House. The House version was subsequently passed by the Senate as well, spelling the end to Operation TIPS.

Similarly, when the Orwellian nature of the so-called Total Information Awareness (TIA) program was exposed, the Bush administration beat a hasty retreat and pulled many of the TIA pages from the Department of Defense website. The TIA program would establish vast new police-state snooping capabilities, with frightening potential for massive abuse. It envisions technologies and applications to provide the government with "total information awareness" on all Americans by creating a "virtual, centralized, grand database" that would store, monitor, and analyze financial transactions, medical records, telecommunication records, travel records, criminal records, educational records, etc. House and Senate members did not oppose this statist scheme until they were deluged with calls, letters, faxes, and e-mail from alarmed constituents. As an Associated Press report noted, the TIA "has been a public-relations disaster for the Bush administration." Congress has not completely scotched the program, however, so continu ed pressure from constituents will be necessary, or you can be sure the program will be revived as soon as its champions determine that public concern has sufficiently subsided.

In these and other similar cases, it is important to note, Congress responded to the outcry of an informed, aroused citizenry. They did so not out of a firm allegiance to constitutional principle, obviously, but out of fear of popular backlash against these despotic designs.

Unfortunately, the battle to secure the blessings of liberty is far -- very far -- from over. Many are the enemies of freedom and many indeed are the threats that remain. Yet proposals and plans that threaten the freedoms of the American people can be defeated. Indeed, freedoms already lost can be recovered, if only Congress can be motivated to perform as it was intended by the Founding Fathers.

It is in this vital work that the American people must play the crucial part. It is through Congress that the American people must exercise their will to return to constitutional order and limited government. So it is imperative, in this time of acute danger to liberty, that the American people demand of their elected senators and representatives an end to any further inroads on the liberties of the people and a reversal of the unconstitutional centralization of power.

* For a survey of the Constitution's checks and balances, including the rationale for giving states a voice in the federal government in the form of direct representation in the U.S. Senate, see "Fire Walls for Freedom" in the November 20, 2000 issue of THE NEW AMERICAN. This article is available at

+ Only the Supreme Court was created by the Constitution; all other federal courts were created by Congress.
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Author:Behreandt, Dennis
Publication:The New American
Article Type:Cover Story
Geographic Code:7IRAQ
Date:Jul 14, 2003
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