Supreme Court Imperiled

by
MaatRaAh
4/2/2019

Confirmation of Supreme Court Justices has become so partisan and contentious as to put the Court itself in peril of becoming bitterly divided between Republican and Democrat Justices instead of the current Conservative and Liberal interpretations of the Justices on the Supreme Court

President Trump can prevent that by exercising the Power of the Presidency and forcing Congress to adhere to the Constitution. He can, at any time, require that the Senate be convened, for a Extraordinary Presidential session, even when Congress is not in recess. That, however, would deprive him of the Power to adjourn Congress, as presented below:

Taking Power I

"Power is not a material possession that can be given, it is the ability to act. Power must be taken, it is never given." William Powell, The Anarchist Cookbook (1971)

The Constitution gives the President the Power over the Senate that can assure an orderly and dignified confirmation of all future Supreme Court Justices, and every presidential nominees.

If taken, that Power will allow President Trump to fill all presidential appointed vacancies, and allow all future presidents to fill the approximately 1,300 President-appointed positions requiring Senate Advise and Consent, shortly after a president takes office. The President will also be able to remove presidential appointees and quickly replace them.

That, however, is just the beginning of the Power of The President bestowed by the Constitution. But President Trump must take that Power, and with that Power he can:

  • Adjourn the anti-Trump Congress;
  • Force Congress to pass immigration reform, including the Wall;
  • Pass a budget that would eliminate most government waste;
  • Stop the endless House investigations;
  • All without compromise; and,
  • Force self imposed term limitations on Congress;
  • To do this, the President will require at least one loyal Senator and a few loyal House Members who are willing to uphold the Authority of the Constitution.

    AUTHORITY OF THE CONSTITUTION

    The "words" of the Constitution are just words, and the Supreme Court alone decides what those words mean. President Trump is in the position to use the words of the Constitution, take Power, and let the Supreme Court decide if he has that Power.

    As it is, Congress has taken Power from the presidency by changing what the Words of he Constitution mean, and because many members of Congress have served for decades they known the nuances of politics, and have convinced each new President to blindly follows wherever Congress leads.

    This has allowed Congress to strip the President of his greatest Power by changing a single word, "assemble," in the Constitution: Aticle XX Section 2 (Ratified January 23, 1933)

    "The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day."

    This was taken from the 1788 Constitution Article I Section 4 Clause 2:

    "The Congress shall assemble at least once in every Year and such Meeting shall be on the first Monday in December,5 unless they shall by Law appoint a different Day."

    The word, "assemble" is unchanged in the Constitution, and its meaning has not changed.. But the Senate has changed this, and now asserts that the Senate "convenes " on January 4 of each year.

    This would appear to be an irrelevant change because assemble and convene are often used interchangeably. But the words have very different meanings, and the framers of the Constitution used them differently.

    In politics, "Assemblies" are those required by the Constitution and laws. Many of the framers of the Constitution served in their State Assemblies, which were, also, the places where the elected officials assembled..

    "Convene" has a completely different meaning, as in &conven-tion." and a Convention in English Law, was an "extraordinary assembly" of the houses of loards and commons, without the assent or summons of the sovereign.

    Congress is an Assembles. It is not a "Convention."

    "Extraordinary," as used in the Constitution, was, to the framers, beyond or out of the common order or method.

    "Extraordinary Occasions" and "convene" were well chosen words of the deputies to the Constitutional Convention. The Framers understood "ex necessitate rei" (from the necessity of the thing) to convene the Convention Parliament in England on April 25 1660, which on May 8 proclaimed that King Charles II was and had been the lawful monarch since January 30, 1648, thereby abolishing the existence of the Commonwealth of England, and that the Convention Parliament was dissolved by Charles II in January 1661.

    The Continental Congress was convened in 1774 as a convention of delegates from the Thirteen Colonies, because of the Intolerable Acts of the British Parliament. The Second Continental Congress convened a convention on May 10, 1775, and on July 2, 1776 passed a Resolution of Independence, which was published with the Declaration of Independence on July 4, 1776. It governed during the Revolutionary War and after ratifying the Articles of Confederation on March 1, 1781 it became the Congress of the Confederation. It convened the Annapolis Convention (September 11 to 14, 1786) to make proposals for amendments to the Articles of Confederation. The Congress then convened the, Philadelphia Convention from May 14 to September 17, 1787 (which later became known as the Constitutional Convention). The Constitution was ratified June 21, 1788 and Congress of the Confederation was adjourned sine die, by a single member, Philip Pell, (unanimous vote) March 2 1789.

    Many of the delegates served in their state assemblies, or other government bodies such as the General Court of Massachusetts which had a Senate and House of Representatives, and often they met in conventions; and they were well aware of the differences between legislatures that assembled and conventions which convene:

    Those words give a President his authority to change Congress in ways this syllabus can only outline. The Power to make those changes are in the provisions of the Constitution no recent President has used.

    However, before the President makes the leap from being a pawn of Congress, to controlling Congress, he must first demand loyalty from those who say they support him. It is only then that he can Take Power.

    Taking Power II

    Congress stripped the presidency of Power to "convene " Congress simply by letting the Presidents give up their power, which led to the present "Pro Forma Sessions of Congress" that makes a mockery of the Power of the President, and prevents the President from making recess appointments.

    Article II Section 2 Clause 3 provides:

    The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

    This is actually an authority the President does not need, but Congress has convinced each President since Kennedy that it is. And to make sure the President needed to make recess appointments, Congress has steadily, over the years, given the President the authority to appoint more and more heads of departments, then created more departments to which the President could make more appointments. That gave each President the right to appoint more political hacks to fill relatively unimportant positions, and it gave the Senate to control who would be appointed.

    When President Trump took office there were approximately 1,300 offices he was required to seek Senate advise and consent. Many of those are yet to be filled, while consent to fill them gives the Senate Power over the President.

    Article II, Section 2, Clause 2

    The President.... shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States....”

    Congress has created a Pro Forma session, a session in name only, where Congress never adjourns - is never in recess - to prevent recess appointments, and diminish the power of the President. It was used when the Democrats controlled the Senate during President G. W. Bush, when the Republicans controlled the Senate under President Obama, and now, while the anti-Trump Republicans control the Senate.

    The pro forma session is used to comply with Article I Section 5 Clause 4 of the Constitution:

    Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days...

    To comply with the Constitution, the House and Senate adopt a concurrent resolution whereby each House agrees, by unanimous consent, to adjourn for three days for a pro forma Session. And that is only possible because each and every so-called loyal Trump supporters in Congress, is more concerned with their perceived self importance than giving President Trump the power to run the nation.

    Whenever Congress decides it wants to adjourn for more than three days, each House adjourns on a different day, usually at the end of the week, with one adjourning on Thursday, and the other on Friday. However, most of the members of Congress, including every Republican leaves earlier, with only the leadership remaining. A single member of each House can, and often does gavel in and adjourn the house for three days and gavels out. Sunday does not count as a day, so each House will come back into session on its respective Monday and Tuesday. A single member will gavel in, opening the session, ask unanimous consent, without objection, gavel out and adjourn for another three days; and three days later the process repeated itself with a different member performing the duty of the Chair.

    But President Trump has Power over the Republicans, which he only uses with disloyal Republicans. What he does not realize is they are all disloyal, and he need to tell them to either back him completely, or he will not support any Republican Senator who is up for election, and any member in the House, as they will all be up for reelection.

    The President only needs one loyal follower in the Senate. But he needs more in the House.

    The pro forma session makes Congress vulnerable to violating the three day provision of Article I Section 5 Clause 4.

    Article I Section 5 Clause 1 provides:

    "... a Majority of each [House] shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members...."

    Clause 2 "Each House may determine the Rules of its Proceedings...."

    A quorum is 51 Senators and 218 members of the House, and the pro forma session is only possible because the Supreme Court has upheld the long standing Rule, that a quorum is always assumed, unless the absence of a quorum is raised.

    e.g. On March 2, 1789, a single member of the Congress of the Confederation opened a session, and by unanimous consent adjourned sine die, (without a day).

    THIS WILL ONLY WORK ONCE:

    Unanimous consent is necessary in the usual order of legislation because it allows for speedy adoption of motions. But it can be used to obstruct and delay; and, any member of either House who goes against the leadership will be denied committee positions - prestige and power. And that is a driving force that causes the members of Congress to abandon the President and vote unanimously (by leaving Washington each weekend), leaving a single person to adjourn for three days.

    The pro forma session requires unanimous consent, and a single member of the House can object and prevent the adoption of the resolution. Likewise, a single member of the House can attend the pro forma session, and object to unanimous consent.

    When Power is taken it must be taken fully; and this is an outline of how the President can take Power.

    When the House adjourns for three days ending on Monday or Tuesday:

    Every loyal backer of the President attends the pro forma session, perhaps ten members. As soon as the session is opened, a members Calls the Quorum, or Point of Order - absence of quorum. The secretary then calls the roll. (The assigned Representative will be calls the leadership on his phone.) When the secretary announces the absence of a quorum, there are two options. By majority vote they can direct the Sergeant at Arms to bring the missing members to chamber, or vote to adjourn from day to day as the Constitution allows.

    The Loyal Members must vote to adjourn.

    In order top do that, there must be at least one more President supporter than the opposition; and it is most likely that there will be two or three opposition Members who will rush to chambers to oppose.

    House Rules provide that the House must adjourn under a previously unanimous order, but that is not permitted by the Constitution Article I Section 5 Clause 1: "...a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members...."

    Once the House has been adjourned it cannot be in session again until the same time the next day; and because there was no quorum, the House was never in session. One second after midnight the House will have adjourned for four days in violation of Article I Section 5 Clause 4.

    "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days..."

    The Senate only gave Consent for the House to "recess pursuant to a previous order entered by unanimous consent," for three days. It did not consent to any time beyond thee days.

    At that point there is "Disagreement between" the House and Senate, "with Respect to the Time of Adjournment."

    Congress has complied with those pesky words for over 200 years, and violating them will create a constitutional crisis, and given Power to the President.

    Article II Section 3 of the Constitution provides that the President

    "may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper...."

    The pro forma session Congress created to deprive the President of a Power he really does not need, will have given President Trump Power the opportunity to Take Power no other President has ever had and never will be taken again.

    The President has not been given that Power. He must take it. To do that, President Trump must adjourn Congress sine die (without a day).

    When Congress is adjourned, neither the Senate nor the House will have any authority to act. All proceedings in both Houses end. The endless House investigations End. Congress will be without power.

    The only question would be, for how long?

    The House will have violated Article I Section 5 Clause 4 and "adjourn for more than three days," "during the Session of Congress," without the Consent of the Senate.

    This was not done during "a " Session of Congress. It was done during "the" Session of Congress.

    The President will adjourn Congress within "the" two year Session, "to such Time as he shall think proper."

    However, Article XX Section 2 mandates:

    "The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day."

    An issue for the Supreme Court will be whether the violation of the Constitution applies to "the Session of Congress," that is, the two year term of Congress; or, whether "the Session of Congress " ends with the assembly each year on the 3d day of January.

    Whatever the Court decides, it is solely up to the President to call Congress to session at such Time as he shall think proper prior to date on which the Supreme Court decides.

    That is just the beginning of the Power the President can take.

    Taking Power III
    Protecting Supreme Court Nominations

    Every President has the right to fill vacancies on the Supreme Court. But having that right does give him that right. A President must Take Power and take that Right, and what is presented here is how to take that Power.

    No President has ever adjourned Congress, and it is likely that no President will ever again have that opportunity; and taking that Power gives the President the opportunity to change the way Congress legislates, without having to fight Congress while it is in session.

    Even without the violation of Article I Section 5 Clause 4 the President has the authority under Article II Section 3 of the Constitution, which provides that the President, "may, on extraordinary Occasions, convene both Houses, or either of them."may, on extraordinary Occasions, convene both Houses, or either of them."

    However, since the President has chosen not to invoke Article II Section 3, the three-day violation should change that; and what is proposed is for the President to adhere to the "Words" of the Constitution and require the Supreme Court to determine what those "Words" mean.

    It is, therefore, necessary to know the meaning and intent of Article I Section 5 Clause 4.

    "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days".

    The framers of the Constitution chose those Words carefully, and they apply only to "the Session of Congress."

    They do not apply when either is not during the session, and therefore either House may adjourn for more than three days when it is not "during the Session of Congress." That is, Clause 4 does not apply when the President convenes either House under Article II Section 3 of the Constitution.

    More specifically, "on extraordinary Occasions," when the President convene either House, it is a presidential session, or an extraordinary session. It is not convened during "the Session of Congress," nor is it a Special Session of Congress, even though that is how it is designated.

    That means, that "on extraordinary Occasions " when the President Convenes either House its proceedings have the same authority the Constitution grants Congress.

    The convention, as it were, are the constitutional proceedings of an extraordinary presidential session, and are conducted under its own rules.

    Article I Section 5 Clause 2 only permits either House to " determine the Rules of its Proceedings." Their Rules do not apply in presidential proceedings.

    The Constitution does not limit the President’s authority to convene Congress "on extraordinary Occasions," and he may convene either House or both of them, even when Congress is in session. He does not need to wait until Congress has adjourned or is in recess. And when either House is convened in a presidential session, when the President adjourns the convention, that House can adjourn without Consent of the other House. However, when it was called while Congress was in session, it can only adjourn to immediately return to session.

    Article II, Section 2, Clause 2:

    The President.... shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States....”

    The Advice and Consent of each of these is an extraordinary Occurrence, and previous Presidents have convened the Senate to ratify or confirm them.

    Confirming presidential nominees, whether judges or heads of departments, should be no different from confirming Supreme Court Justices during a presidential extraordinary convention.

    But its success depends on a strategy that will assure success.

    At present, there are about 300 unconfirmed presidential nominees. With the Senate adjourned the President could make recess appointments. That would defeat the purpose of adjourning Congress.

    Instead, The President must ask for the resignation of all presidential appointees he no longer wants to serve, and he will want there to be between 300-500 nominations to present to the Senate.

    The President must also establish a comprehensive immigration system, with each element to be presented as a stand alone bills.

    When the President is ready, he signs a proclamation stating that “Certain matters touching the public good require that the Senate be convened,” and Summons the Senators as President Washington did (Senate Executive Journal 79-84.)

    Once convened, the President declares it to be a “Presidential extraordinary Convention;” and not a Special Session of the Senate; that the Senate is convened as a Committee of the Whole; that Senate Rules do not apply during the presidential proceeding; the Convention will follow the Parliamentary Rules; the Vice President will appoint a “Chair” who will not be a Senator; all Senators will be in attendance at all times; and, the proceedings will remain convened with recess only as necessary for eating, breaks and sleeping.

    The President will present the 500 nominations for Advise and Consent. The Chair will announce the Standing Rule that each nominee will have his or her qualifications read into the record so the Senate as a whole will be able to Advise and Consent.

    The Chair will make clear that the 500 nominees should only take 90 hours to be read into the record and they should all be able to be confirmed or those not confirmed to have new nominations within three months of continual proceedings.

    It is reasonable to expect that the Senate will reject the process and the President will have standing to take the cause to the Supreme Court as a matter of first impression, on an emergency as the nation will have extraordinary occurrences that cannot be addressed.

    The ISSUES will be:

    1. Whether the President can convene an extraordinary session at any time, even when Congress is in session;
    2. Whether the extraordinary proceedings are governed by its own rules; and
    3. Whether, when a House has been convened during a session of Congress, that House can conduct any business outside the extraordinary session without approval of the President.

    When the Supreme Court sees that Advise and Consent are extraordinary Occasions, mandated by the Constitution, and deserve consideration without obstructionist Senate Rules; and when the Court is presented with Senate Rule 1, that unconstitutionally allows the President Pro Tempore of the Senate to appoint Senators to act in his stead, and they in turn appoint other Senators to replace them, it is quite likely the Supreme Court will rule in favor of the President.

    As soon as the Court rules to give the President the Power to conduct the presidential proceedings by the President’s Rules he must convene the Senate and establish the Rules for the proceedings.

    The Goal is to confirm every nominee; eliminate the politics with single issue bill and focus on what America needs, not what political parties want; passing the stand alone Senate Bills on every previously contested immigration issue; passing appropriation bills on single issues to be sent to the House.

    The Strategy is to give the Senators the opportunity to be in Chambers from 7AM to 10PM with scheduled short rest breaks and meals. All members of Congress are lazy and rarely hold sessions that last an entire day; and they usually return to their States and Districts each weekend. Therefore, any Democrat objection to a proposed bill would result in a two or three day analysis of the need for the law, followed by every Senator having 5 minutes to speak in favor or opposition, even if there is a majority in favor prior to the objection.

    With 40 hours of speeches (including the time for members to come to the dias) if there is no majority the bill would be tabled for reconsideration. It will be reconsidered after a week of continual hearings that hint at the House being convened indeffinatly.

    The Strategy of keeping the entire Senate in prolonged sessions, which would most likely only last two or three weeks, would establish the Rule for presidential extraordinary sessions.

    As soon as the Senate adjourns, the President must convene the House under his rules. The Boarder Wall already passed by the Senate on an appropriation bill previously sent to the Senate, should be first, and brought to the floor with a three day analysis of shy it is needed, followed by each of the 435 Members being given five minutes to express their views. If a Member reserves time, it will be given at the end of the comments to the Republicans in favor the passage.

    The many issues that would arise with the President adjourning Congress after a pro forma violation of the three day mandate, are irrelevant if President Trump decides he does not want to take Power, and will therefore be left to a move favorable time.


    Copyright 1997, 2012, 2015, 2016, 2019 by Sabrina Aset. All rights reserved.