Category Archives: Constitution

Trump’s attack on Iran violated the War Powers Resolution

And, as usual, nobody cares

President Trump commenced “Operation Epic Fury” this morning, a joint military action with Israel against Iran. He did not receive authorization from Congress and was not responding to “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Therefore, he has violated the War Powers Resolution (WPR) and should be impeached.

Given that Congress has already impeached Trump twice during his previous term for far less egregious reasons, if they were valid at all, it would seem uncontroversial to suggest that for illegally and unconstitutionally taking the nation to war, impeachment would be a slam dunk. But it isn’t, and not just because Republicans control the House of Representatives.

The truth is presidents are far more likely to be impeached for trivial violations that don’t affect the lives of their constituents than for egregious flouting of Congress’ most important laws. It would be to hard argue there is a more important statue than the one defining the circumstances under which the president can initiate military action. The War Powers Resolution is very clear on this:

(c) Presidential executive power as Commander-in-Chief; limitation

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

That’s it. Simple. There is no ambiguity here. None of the three conditions the law stipulates have been met. Therefore, President Trump’s action this morning was illegal. Period. And nobody cares.

The law goes on to impose reporting requirements on the president and sets a 6-day limit on any military action the president has taken without Congressional authorization. But all that only applies after condition 3) above has been met.

No, the law does not authorize the president to undertake any military action he wishes for sixty days. Many people get confused about this because they want to be confused. The law does not allow the president to initiate military action for a day or even an hour if one of the three conditions aren’t met.

Trump’s statement regarding his reasons for the attack does not even attempt to justify them under the WPR. He cites Iran’s 1979 seizure of U.S. hostages without mentioning it being in retaliation for the U.S. overthrowing the Iranian government in 1953 and propping up a dictator over them for the next twenty-six years. He then lists a series of attacks on the U.S. military Iran is alleged to have funded on U.S. military in the Middle East, where they shouldn’t be stationed in the first place. He ends with alleged Iranian funding of the Hamas attack on Israel on October 7, 2023, which is irrelevant to any justification of U.S. military force.

One can debate the veracity of the various accusations against Iran, whether any of them rise to justification for war, and what the U.S. response should be. And that’s just what the Constitution calls for – a debate. The members of Congress certainly have the constitutional authority to consider everything Trump has cited and decide whether to declare war on Iran or authorize a military response that falls short of war.

Even the latter option for Congress is constitutionally dubious. In fact, a compelling case can be made that the declaration of war power doesn’t even give Congress the power to start a war. It gives it the power to declare one. And one can only declare something that already exists.

Read the rest on Tom’s Substack…

Tom Mullen is the author of It’s the Fed, Stupidand Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

Summarily Murdering Venezuelan “Narco-Terrorists” is Profoundly Un-American

Leave a reply

President Trump said on Tuesday that in addition to the airstrikes on Venezuelan boats suspected of trafficking drugs to the United States, the U.S. military would begin hitting targets on land. Not only are all these strikes unconstitutional by any construction, but they are also unprovoked acts of war against a country that poses no threat to the United States.

Since September, the administration has carried out at least twenty-one attacks on civilian vessels in the Caribbean, resulting in eighty-three deaths. Not one of those killed by American forces was charged with a crime in any court, much less convicted at trial. This behavior wouldn’t pass muster under Magna Carta, written by barbarians by our standards today, much less the Fifth Amendment of the U.S. Constitution.

This doesn’t require any fanciful 20^th-century reading of the Bill of Rights, like the one that produced Roe v. Wade. That this is impermissible is firmly rooted in constitutional interpretation dating to the man who wrote the Constitution and Bill of Rights himself.

There were several reasons for the War of 1812, not all of them legitimate. A certain faction among the war hawks of the day just wanted to steal Canada from the British empire. But foremost among the legitimate grievances cited by James Madison in asking Congress for a declaration of war, and frankly the only one most people remember, was the impressment of sailors on American ships into service in the British Navy.

It is important to understand the complaint was not against returning true deserters from the British Navy to Great Britain. As Madison said in his address, “And that no proof might be wanting of their conciliatory dispositions, and no pretext left for a continuance of the practice, the British Government was formally assured of the readiness of the United States to enter into arrangements, such as could not be rejected, if the recovery of British subjects were real and sole object.”

The problem the Madison administration had was that, in addition to disrespectfully boarding American ships by force, the British “so far from affecting British subjects alone, that under the pretext of searching for these, thousands of American Citizens, under the safeguard of public law, and of their national flag, have been torn from their country and from everything dear to them.”

That’s the whole point of due process. The government not only has to prove a crime was committed, but that they have indeed arrested the right person, which they frequently haven’t. This is why the mobbish retort, “narco-terrorists don’t deserve due process” is so counterintuitive. Without it, we don’t even know if the government has arrested the person they believe they have, much less whether this person committed a crime.

Read the rest on Tom’s Substack…

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and host of the Tom Mullen Talks Freedom podcast.

Democracy IS the problem

Leave a reply

A Wisconsin judge has been arrested for allegedly helping an illegal alien evade immigration authorities. The case has added gasoline to the fire blazing in the wake of several recent court rulings against the Trump administration’s use of the Alien Enemies Act of 1798 to deport illegal aliens more expeditiously than customary due process procedures would allow.

The administration argues the judiciary is deliberately obstructing its attempt to execute the clear will of the people, expressed in the last election, to reverse the trend of mass illegal immigration into the United States. Its opponents argue the administration is violating established law and basic constitutional protections of individual rights, especially the Fifth Amendment guarantee that no one shall be deprived of life, liberty, or property without due process of law.

Both sides accuse the other of being “a threat to our democracy.” This has been a mantra repeated about political opponents for many years now, by everyone from Nancy Pelosi to Tucker Carlson. Carlson railed against suppression of free speech as incompatible with “a democracy.” Democrats wailed that we must “save our democracy” from their Hitler-cartoon version of President Trump, even after he’d left office.

But to paraphrase a popular 20^th century president, democracy is not the solution to our problems. Democracy is the problem.

If Americans should have learned one thing, it is to be suspicious of anything the media repeat over and over, through every medium. And what they’ve heard night and day for the past decade, from conservative and liberal media alike, is some form of the message “democracy is in danger.” They’ve heard it so much that they’ve forgotten what it is they should be desperate to protect. And it isn’t democracy.

Before the progressive era, the American political system was generally referred to as “republican” rather than “democratic.” This may seem purely semantic and to some extent it would be if the Constitution merely described a simple republic. In that case, representatives would be elected by popular vote and would generally be expected to do what those who elected them want them to do.

But the Constitution isn’t even that democratic. Once elected, the representatives are not permitted to do anything the people who elected them want. They are limited to a short list of powers they are authorized to exercise, regardless of the supposed “will of the people.”

Read the rest on Tom’s Substack…

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

Trump’s Executive Order on the Department of Education is a Good First Step

Leave a reply

President Trump signed an executive order on Thursday to “shut down” the federal Department of Education, keeping the same campaign promise President Reagan failed to keep over forty years ago. The order goes as far in eliminating the department as the executive branch has the power to go without a successful bill in Congress, which created the department in 1979.

The purpose of the order is to transfer most of the administrative and management functions over public education back to the states while not decreasing or eliminating federal funding of education, including subsidies and guaranteed student loans. It is a good first step but does not address the massive economic distortions in the education industry created by federal financial interventions.

The order is not specific on which functions will be transferred back to the states or eliminated. It simply states, “The Secretary of Education shall, to the maximum extent appropriate and permitted by law, take all necessary steps to facilitate the closure of the Department of Education and return authority over education to the States and local communities while ensuring the effective and uninterrupted delivery of services, programs, and benefits on which Americans rely.”

Since Congress created the department in 1979 and the bill creating it was duly signed by President Carter, it cannot be formally abolished without a new bill passed in Congress and signed by Trump. Therefore, what functions, if any, the law permits eliminating or transferring to the states is unclear. The administration may decide to find out by trial and error.

Ironically, the order exercises a power it is theoretically written to eliminate: the use of federal funding as leverage to dictate to the states what they may or may not do in terms of how they manage public education:

“Consistent with the Department of Education’s authorities, the Secretary of Education shall ensure that the allocation of any Federal Department of Education funds is subject to rigorous compliance with Federal law and Administration policy, including the requirement that any program or activity receiving Federal assistance terminate illegal discrimination obscured under the label “diversity, equity, and inclusion” or similar terms and programs promoting gender ideology.”

This is based upon the conservative viewpoint that all affirmative action, including the newest branded under “diversity, equity, and inclusion” (DEI) violates the Civil Rights Act of 1964 and other federal civil rights legislation. It’s hard to dispute this since the thrust of all those laws is to prohibit the consideration of race, sex, or religion when hiring employees, granting admission to universities, etc. and the stated goal of DEI is to do precisely what the laws prohibit.

The problem with this is that a subsequent Democratic president could write an order requiring any educational institution receiving federal funding to have a DEI program and meet quotas for racial or gender categories. So, the order doesn’t really even attempt to abolish or reduce this aspect of federal interference in state and local public education.

Neither does the order affect the tremendous economic harm done by federal subsidization, especially the guarantee of student loans for college tuition. As I’ve covered in a previous podcast, this intervention has resulted in an absurd artificial rise in college tuition prices. Most of the money has not gone into hiring more teachers but rather to an explosion in the number of administrators in higher education. And, as Trump and other conservatives point out, this has not led to better educated students. Quite the contrary.

Even if the administration were successful in getting a bill through Congress to completely abolish the Department of Education and truly return public education to the states, it would not be a panacea for the ills of government schooling. While an electoral map may indicate more red states than blue states and one may be tempted to think that would translate into a more conservative perspective prevailing in public education in those states, it likely would not.

Read the rest on Tom’s Substack…

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

Trump’s Cultural Counterrevolution

Leave a reply

On Friday, President Trump posted on his social media network Truth Social a promise to rescind former President Biden’s executive order phasing out plastic straw use in the federal government.

“I will be signing an Executive Order next week ending the ridiculous Biden push for Paper Straws, which don’t work. BACK TO PLASTIC!” wrote the president.

Some might interpret Trump’s attention to this matter as frivolous, just another example of an undisciplined president who still hasn’t learned how to pick his battles. Certainly, his detractors in the media will present it this way, whether they believe it themselves or not.

But there is another way to look at Trump’s tirade, which is likely far more calculated than its presentation may appear. It is a clear message to his adversaries that no stone will be left unturned in what can only be described as the beginning of a cultural counterrevolution the Trump administration has begun during the opening weeks of his second term in office.

This counterrevolution has been launched with a “shock and awe” approach. In the space of a few weeks, Trump has pulled the United States out of the Paris Climate Accord, dismantled USAID, begun the process of abolishing the Department of Education, and ordered schools to cease allowing biological men to compete against women in sports or lose their federal funding. He has even committed to siccing DOGE on the Department of Defense, something Trump 2016-20 would never have considered.

Oh, and the straw nonsense. That’s over, too. No stone unturned.

The cultural counterrevolution’s goal, of course, is to overturn the cultural revolution which began in the 1960s, accelerated during the Obama administration, and reached its climax during the Biden administration. Its philosophical roots in the Frankfurt School, transplanted to the United States during the 1930s, it set out overthrow what was left of classical liberal America after the New Deal and WWII.

Read the rest on Tom’s Substack…

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

Why the Administrative State Must Be Abolished, Not Reformed

Leave a reply

It is not only unconstitutional, it is antithetical to our most basic principles

Among the most interesting possibilities under the incoming Trump administration is his appointment of Elon Musk and Vivek Ramaswamy to head a new “Department of Government Efficiency.” While this will not be an official department, it will advise the president on how to significantly reduce the size and inefficiency of the administrative state. Musk has claimed the effort could reduce annual federal spending by as much as $2 trillion.

As welcome and necessary as such an undertaking may be, it does not nearly go far enough. In fact, its stated mission ignores the underlying problem with the administrative state: it is both unconstitutional and antithetical to America’s most important founding principles.

“Unconstitutional” is a much lower hurdle that the administrative state nevertheless fails to clear. The Constitution provides all sorts of powers that contradict founding principles. Chief among these is the Commerce Clause, which, however libertarians might like to think is limited strictly to prohibiting the states from imposing their own tariffs, is quite expansive. And the federal government still manages to abuse that power exponentially beyond its limits.

Much of the administrative state was built upon dubious interpretations of various commercial and personal behaviors as “interstate commerce,” including in one particularly ridiculous case producing milk on one’s own farm and consuming it on the premises.

Not only does the administrative state exercise power never delegated to the federal government in the first place, it does so in a wholly unconstitutional manner. The Constitution delegates the legislative power exclusively to Congress. Congress has no authority to re-delegate this to another branch of the government, but this is just what it has done in each case where it has authorized an executive branch agency to write enforceable rules.

Calling this legislation “regulations” instead of “laws” does not magically transform it into something else. Any written code either legally requiring or prohibiting human behavior is legislation. And delegation of the legislative power in whole or in part to another branch of the government would require a constitutional amendment.

In many cases these administrative agencies also usurp judicial powers by settling disputes in their own courts, presided over by administrative law judges. They thus unite the legislative, judicial, and executive power in a single agency, nullifying virtually all the Constitution’s structural checks on tyranny.

But even if the administrative state in its present form were remotely constitutional, or altered in form to become so, it would nevertheless be antithetical to liberty. The stated goal of every one of the agencies in the administrative state infringes the most basic rights of the individual according to the “general principles of liberty and the rights of man in nature and in society” according to Jefferson.

Read the rest on Tom’s Substack…

Is Trump Against the Administrative State or For It?

Leave a reply

“Trump Ratchets Up Threats on the Media” reads a New York Times headline this morning. It refers to Trump’s suggestion that CBS should lose its broadcasting license over its editing of an answer Democratic Party nominee Kamala Harris gave to a question during her recent 60 Minutes interview.

During the interview, Harris was asked pointedly whether the U.S. government has any sway over Israeli Prime Minister Netanyahu given the massive financial support it has given him in fighting Hamas. Based upon footage 60 Minutes released to Face the Nation, Harris responded with one of her signature word salads that failed to answer the question. However, what aired on the 60 Minutes broadcast was a succinct, one sentence answer that also failed to answer the question or really mean anything at all, but which made Harris appear less like the babbling nonentity her detractors say she is.

Tom Mullen Talks Freedom is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.

Whether the edit was intended to help Harris or not is anyone’s guess. Of course, CBS denies its edit was misleading or so intended. And while Trump’s general complaint that the media treat him and his campaign with a completely different standard than they do Harris and hers, the 60 Minutes interview of Harris did not come off that way at all. Interviewer Bill Whitaker asked Harris challenging questions and pressed her with follow-up questions when her answers were unclear.

While Trump and his supporters have every reason to suspect there may be footage even more damaging to Harris than what was aired on the 60 Minutes broadcast, the interview was nevertheless a train wreck for Harris. The real question here isn’t whether CBS violated FCC regulations and should therefore lose its broadcasting license. It is, “Why is there a five-member board of bureaucrats who can make this decision at all?”

Trump and his surrogates have said things encouraging to libertarians and terrifying to the media about their supposed intention to dismantle the administrative state. In a video speech, he Trump promised to “dismantle the deep state and reclaim our democracy from Washington corruption.”

Those words in a vacuum would suggest he had a plan to undo the unconstitutional transfer of legislative power from Congress to the executive, born in the early Progressive Era and institutionalized by the New Deal, as well as reclaim executive power also usurped by federal agencies. However, what follows during the speech significantly waters down the promise of its opening statement.

Read the rest on Tom’s Substack…

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

Free speech is essential to liberty, Elon, not ‘democracy’

Leave a reply

No one has done more to secure free speech in the United States in the past several years than Elon Musk. By buying X, the social media platform formerly known as “Twitter,” Musk has provided a platform where content that would be banned or suppressed in virtually every other online space, including Twitter before Musk owned it, can be shared freely among subscribers. That alone is a great service to this country.

But both he and Tucker Carlson do Americans a disservice when they argue “free speech is essential to democracy.” It is not. Free speech is essential to individual liberty, not democracy.

The First Amendment to the U.S. Constitution protects free speech from the democratically elected Congress. Implicit in its protection is the idea that democracy is a danger to liberty in general and free speech in particular. Indeed, the entire Bill of Rights, along with all the so-called “checks and balances” (bicameral legislature, presidential veto, etc.) are there to protect us from democracy.

Musk’s own tweet of Tim Walz’s comments about free speech should make this clear to Musk. Democracy is what made Walz the Governor of Minnesota and the Democratic Vice Presidential nominee. It obviously wouldn’t protect us from Walz’s implied suppression of free speech should he achieve federal office. The anti-democratic First Amendment would.

This has nothing to do with the technical distinction between “a democracy” and “a republic,” either. Imagine a system where the people democratically elected representatives and those representatives could do anything they wished as long as they executed the will of the majority. That would be a republic, and it would be every bit as dangerous to liberty as a pure democracy.

That seems to be the system both Elon and Tucker have in mind when they refer to “democracy” and the importance to it of free speech. But it is not the system created in either the U.S. Constitution or any of the state constitutions. In all of those, the will of the majority is limited and not by their republican form but by their limits to the power of the government, regardless of the wishes of the majority.

Read the rest on Tom Mullen’s Substack…

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

No, no one needs to tone down their political rhetoric

Leave a reply

Every newsworthy event prompts a narrative from imperial media and the Trump assassination attempt was no different. Rather than do what journalists purport to do, which is subject public officials to the blinding light of scrutiny, they immediately went into narrative mode. And the narrative chosen for this event was clear: free speech is dangerous.

There are various strains of this message. Some particularly TDS-affected propagandists have tried to blame Trump himself for the attack, saying it was his “extreme” political rhetoric that “raised the temperature” and somehow resulted in a 20-year-old malcontent deciding to shoot him.

Republicans dismiss this theory, of course, saying it has been the left’s nonstop demonization of Trump for the past eight years that drove the shooter to murder and drove thousands of more “mostly peaceful protestors” to loot, pillage, and occasionally assault or kill innocent people.

While the Republican version is more superficially plausible, it still rests upon the same assumption: that people using nothing more than words are somehow responsible for the immoral actions of others. This false premise cannot be allowed to stand.

Every individual is responsible for his own actions. Once you abdicate that position and place the responsibility for one person’s actions on another’s words, you no longer have a free society. You have agreed in principle that people in general cannot be allowed to be free; that there are some words or phrases they must not be allowed to hear. Thus, there are some words and phrases others may not be permitted to speak.

For all their talk about “democracy,” this has always been the fundamental premise of the progressives. They believe most people are incapable of self-government. They were much more explicit about it during the early Progressive Era when they were openly eugenicist. Today, those same instincts are simply clouded in euphemism and doublespeak.

They are all for “free speech” if it doesn’t threaten their rule. They are all for “democracy” as long as the right leaders are elected (here as well as abroad). Consider how absurd it is to suggest “democracy” must be saved from the candidate who gets the most votes. They say it and many still nod their head in agreement.

They don’t really believe the commoners are capable of managing a single aspect of their own lives. All must be “regulated” by the elite. And there is nothing more vital to regulate than what the commoners are allowed to hear, say, and think. This is why the media come on so strong and why people are deplatformed on the internet. Compelling the right thoughts is literally the entire basis of the establishment’s rule.

Enough people thinking the wrong thoughts could end it overnight.

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

Chevron decision is just more hacking at the branches by SCOTUS

Leave a reply

“There are a thousand hacking at the branches of evil to one who is striking at the root.” – Henry David Thoreau

In LOPER BRIGHT ENTERPRISES ET AL. v. RAIMONDO, SECRETARY OF COMMERCE, ET AL. (“Raimondo”) the Supreme Court of the United States overturned the “Chevron deference,” a doctrine dating to the 1980s that said in judging whether a regulatory agency had exceeded the authority delegated to it by Congress, courts must defer to the agency’s interpretation of any ambiguous language in the law.

This is being decried by liberals as a crippling blow to the federal government’s ability to regulate and lauded by conservatives as a welcome return to stricter obedience to the Constitution.

In reality, it is just more hacking at the branches by SCOTUS rather than striking at the root.

The root of the problem is Congress delegating any authority to make rules at all to the executive branch. The Constitution is clear that the legislative power is delegated exclusively to Congress, meaning any rules either prohibiting or requiring human action must be written by legislators elected for that purpose, passed by both houses of Congress, and signed by the president. Calling the rules federal agencies write “regulations” instead of laws doesn’t change anything. It’s still legislating and any person honest with himself knows this.

Congress has no constitutional authority to delegate this power to another branch of government. There is a legal doctrine older than Chevron expressing this called the “nondelegation doctrine.” SCOTUS referred to it in its decision on President Biden’s proposed Covid vaccine mandates. But rather than striking down Congress’ ability to delegate its legislative power to the executive, rampant since the New Deal, the Court merely ruled Congress can’t delegate this power too much.

Hacking at the branches.

This has been the case with all the supposedly monumental decisions by the supposedly “hard right” Court that includes three appointments made by former President Donald Trump. Presented with opportunities to confront three spurious legal doctrines from the 20^th century that allowed power to be unconstitutionally transferred to the federal government in general and its executive branch in particular, the Court has largely affirmed these doctrines, merely massaging them differently to get results conservatives like.

The problem is that if even this Court, considered extreme by today’s standards, will not fundamentally enforce the nondelegation doctrine or strike down the Incorporation Doctrine, there will never be a chance to do so again.

This is a consent of the governed issue. It is not so much a matter of whether one or another of the particular laws or powers exercised are good or bad in a vacuum. It is a matter of who is exercising the power and how they acquired it. Our founding document preceding even the Constitution says government derives its just powers from the consent of the governed. And no one ever consented to the federal government striking down state laws or the executive branch legislating. On the contrary, the delegates at the constitutional convention emphatically denied the former power to Congress although proposed by Madison throughout the summer. The latter power wasn’t even considered as their separation was a foundation pillar of the constitution itself.

Read the rest on Tom’s Substack…

Read the rest on Tom’s Patreon…

Tom Mullen is the author of It’s the Fed, Stupidand Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?