Posts Tagged Supreme Court

Is Congress Obsolete?

It is still early in the race for the 2016 Republican Presidential nomination, but the rise of “outsider” candidates such as Donald Trump and Dr. Ben Carson to the top of the polls has revealed what can only be described as outrage over the ineptitude of the party’s establishment leadership.  For the past seven years the GOP has stumbled and bungled failing to effectively check the near-despotic power of President Obama or even present a coherent alternative to his policies.

Given the fact the president is governing by fiat the question arises: Is congress obsolete?  Sure, the U.S. Constitution requires three branches of government.  But, with most of that document shredded by the president and the courts as congress stands idly by, you have to wonder whether or not the legislative branch matters anymore.

November last Republicans swept into control of the United States Senate.  From sea to shining sea voters rejected Democratic candidates delivering a mandate to congress for change.  Since the onset of GOP control last January nothing has changed.  There has been no discernable difference between a Senate led by Harry Reid and that run by Mitch McConnell.

Voters are furious that the message they delivered has not been heeded.

And the impotence of the Republican congress continues apace.  President Obama has negotiated a multi-national nuclear deal with Iran that is opposed by a solid majority of both voters and members of congress.  Yet it will go into effect.  Why? Because the president out maneuvered congressional leadership by calling the deal an executive agreement rather than a treaty.

A pact between nations is by definition a treaty.  Treaties require a two-thirds vote in the affirmation by the U.S. Senate for ratification.  But executive agreements go into effect unless they are specifically rejected by congress.  Congress will reject the Iran accord, but one-third of the Senate can sustain a presidential veto and it appears the president has those votes.  Thus the will of a substantial majority of congress – and of the American people will be thwarted.

It is not just the president who shows congress no respect.  The Supreme Court of the United States, in two rulings on the Affordable Care Act essentially ruled that what congress passed isn’t what it meant thus allowing Obamacare to remain in effect.  Clearly the court – or at least Chief Justice John Roberts – views congress as a useless appendage.

Congress has been marginalized in even its most basic tasks.  Most years a federal budget is not passed resulting in periodic “fiscal cliffs” as members dither up to and sometimes past budget deadlines before enacting so-called “continuing resolutions,” to allow spending to continue at past levels. The next act in the budget drama will play out in the coming weeks as the October 1st deadline for a new spending plan looms.

The GOP’s ineffective congressional leadership is already cuing up its next capitulation.  A series of recent videos has exposed the gruesome and horrific excesses of Planned Parenthood’s abortion mills.  Despite the fact the U.S. Constitution requires all federal spending to originate in the House of Representatives, which is controlled by the GOP, look for congressional efforts to defund Planned Parenthood to fail.

President Obama, unable to build either public or congressional support for his radical policies, has made good on his pledge to use his pen to by-pass the legislature.  When congress blocked a job-crushing cap-and-trade bill, the president simply put his agenda into place by having the Environmental Protection Agency issue massive numbers of new regulations.  Congress can’t reach consensus on immigration reform, so the president orders border patrol to stand down as illegal aliens swarm into the country. So-called “sanctuary cities” refuse to enforce federal law; congress stands idly by taking no action to force compliance.

And so issue after issue, year after year congress has proven to be irrelevant.  Yet Republican majorities in both the House and the Senate prop up incompetent leadership while the voters who sent them to Washington look on with increasing dismay. Voters now understand the presidency is what really matters.  Having seen epic failure from congress – and by extension the GOP establishment – they are now looking elsewhere for leadership. Outsiders like Donald Trump, Dr. Ben Carson and Carly Fiorina may be untested, but voters now appear willing to go for untested rather than those who have been tested and repeatedly failed.

(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal.  

His e-mail address is

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Demystifying the Judicial Branch

With five statewide appellate court seats up for election – including three on the Supreme Court – an unusual political spotlight is focused this year on the judicial branch of government.  Partisan control of the Supreme Court, yes there is such a thing, hangs in the balance as a wide range of future policy issues and ultimately congressional redistricting will end up before the justices elected this year.
This also presents a unique opportunity to pierce the mystique spun by the legal profession that the courts are somehow special, above the realm of politics and political maneuvering and of higher stature than the other two – supposedly co-equal – branches of government.  The courts are not, and should not, be considered special.  Different, indeed, as each branch of government has its own distinct and unique role.  But special it is not.
Just as labor unions exert out-sized influence over the legislature, the legal profession via the Bar Association holds sway over the selection of judges, particularly at the state level.  Through a secretive vetting process the Bar Association rates the candidates with an eye toward influencing the party endorsement and election processes.
Given the fact that lawyers are but one sub-set of the electorate with a stake in the judiciary, the degree of influence the Bar’s recommendations have had in the past jeopardizes the fairness of the courts.  The carefully crafted illusion is that Bar Association recommendations are somehow the bestowing of superior wisdom on a clueless electorate.  In fact, the Bar ratings are just the views of yet another special interest group.  An important special interest group, yes, but an interest group nonetheless.
Voters should approach the Bar Association’s ratings in that light.  Further, their ratings should be viewed with all the suspicion of a Brian Williams war story.  Members of the evaluation commission are selected in the absence of any public input, their deliberations are secret and the factors weighing on their recommendations are kept from public view.  This total lack of transparency is the exact opposite of the endorsement processes of the political parties where those doing the endorsement are themselves elected by voters, the endorsement meetings are open to the media, and the votes of state committee members recorded for all to see.
A controversy has arisen over the Bar’s ratings this year because they are refusing to recommend Commonwealth Court Judge Ann Covey for a seat on the state Supreme Court.  Judge Covey was endorsed by the Republican State Committee pitting the party against the Bar.  Covey, refusing to play by the Bar Association’s rules, has publicly criticized the recommendation process and questioned its fairness.
Further eroding the Bar Association’s credibility is the fact that the current Chief Justice of the Pennsylvania Supreme Court, Justice Tom Saylor, was not recommended by the group in his first run for a judicial post.  Given the fact he has now become the top jurist in Penn’s Woods, the Bar is left with considerable egg on its face.
The current mess created by the Bar Association also adds one more argument to those who oppose the merit selection of judges.  If the legal community conducts its recommendation process in secret, what kind of back room deals might we expect from merit selection?  Further, the formerly staid recommendation process has now become embroiled in controversy as a result of its own failings.
It is time for voters to take charge.  The state Supreme Court races will top the ballot this year meaning there is no presidential, senatorial or gubernatorial race to steal the spotlight.  The state’s news media need to step up and cover the court races like they would other statewide races because the positions merit that level of debate and scrutiny.  And voters need to educate themselves, both in the primary and general elections, about the candidates so they can make an informed decision when going to the polls.
This is an opportunity for We the People to have an impact on a vitally important and co-equal branch of state government.  It is time to push aside the mystique of the judiciary.  We must take this election with the same degree of seriousness we do in electing our governor and our legislators.
Because in the end judges matter.

(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal. His e-mail address is


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The Pendulum Swings

When history looks back at the just completed term of the Supreme Court of the United States it will view it as the end point of the pendulum swing toward an imperial presidency and the beginning of a return toward a government more respectful of constitutional rights.

In an amazing set of landmark decisions handed down by the high court during the last week of its term the justices have placed limits on executive power, upheld the constitutional prerogatives of congress, reaffirmed the constitutional prohibition against unreasonable searches and seizures, validated religious freedom, and protected Americans from forced association.

It is an enduring tribute to the wisdom of our Founding Fathers that the government they established during the Constitutional convention of 1787 and the subsequent addition of the Bill of Rights devised a system of government that, however tenuous, works to this day.  In this case, a president found that although he has a pen and a phone, the constitution is a more powerful instrument.  And, even when a feckless and inept congressional leadership allowed itself to be run over roughshod by an autocratic administration, the third branch of government – in this case the judiciary – stepped forward to reassert the primacy of the constitution.

Individually the court decisions covered a wide range of issues with each case posing a threat to constitutional rights. The common thread was in every instance the court did what the founders envisioned it doing and protected the liberties granted to us by our Creator and spelled out in our nation’s governing document.

While most of the cases were decided by narrow 5-4 majorities, a cause for concern moving forward, the Justices did unanimously rule against the President’s usurpation of congressional confirmation powers by upholding the right of the U.S. Senate to decide for itself when it is in fact in session.  At specific issue were appointments to the National Labor Relations Board made by the president while the senate remained in session but not fully present in the capitol.  The president argued that was a recess during which time he could make appointments without senate confirmation.  The court ruled otherwise, bringing to a close the presidential end-run around congress and the constitution.

In a major win for individual rights, the court held that the federal government cannot require family-owned corporations to provide contraceptive benefits to employees if it violates their religious beliefs. Under the Affordable Health Care Act the administration had sought to force the national craft chain Hobby Lobby and Conestoga Wood Products in Lancaster County to provide such benefits despite their religious objections.  While the ruling was narrowly applied to corporations in which the corporation is indistinguishable from the family that owns it, it did mark the first time the high court has extended religious freedom protections to corporations.

The court also issued a sweeping ruling protecting the privacy rights of every American by requiring law enforcement authorities to obtain a search warrant before looking at the contents of an individual’s cellular telephone. Chief Justice Roberts humorously observed that “the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

President Obama was not the only one reeled in by the court’s recent rulings.  Ruling in an Illinois case the Justices collared public sector labor unions that had been forcing thousands of in-home health care workers to pay union dues. The court held that practice violated the first amendment rights of workers who might disagree with union policy and political positions.

Thomas Jefferson once observed that: “The tree of liberty must be refreshed from time to time by the blood of patriots and tyrants.”  In his time there was little recourse to obtain liberty than by armed rebellion to win and protect it.  He and his compatriots embarked on a Great Experiment to provide a peaceful means of refreshing our God-given rights.  This past week, for the time being at least, the experiment worked.

(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and 

host of the weekly Lincoln Radio Journal.)

Permission to reprint is granted provided author and affiliation are cited.

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Register of Wills And Justice of the Supreme Court

It is not very often that a Register of Wills makes statewide headlines.  But Bruce Hanes, holder of that ministerial office in the suburban Philadelphia County of Montgomery did just that recently when he began issuing marriage licenses to same sex couples.  Apparently in his spare time Mr. Hanes dons black robes and fancies himself a state supreme court justice as he unilaterally proclaimed Pennsylvania law prohibiting same sex marriage to be unconstitutional.

The office of Register of Wills – known fully as Register of Wills and Clerk of the Orphans Court – is one of a number of so-called  “row offices,” that perform a variety of administrative functions for the county court system.  These offices date back to the pre-electronic age when a wide range of clerical tasks were broken up into various categories each assigned to an elective office.  Some counties in Pennsylvania have updated the process by adopting a home rule charter and consolidating the functions into fewer offices.

At no point has the Register of Wills been viewed as a policy-making office let alone a judicial one. The actions of Mr. Hanes were so outside the norm that even the statewide association of Registers of Wills rebuked him by adopting a resolution opposing the issuance of marriage licenses to same sex couples. This will apparently spare Penn’s Woods from enduring a wave of Registers of Wills gone rogue.  Clearly most holders of the office have a better understanding of the limits of their governmental duties than does Mr. Hanes.

The action of Mr. Hanes can be viewed in a number of contexts.  It could be merely a crass publicity stunt meant to raise his profile and secure the support of a key voting block for the next election, perhaps even a run for higher office.  It could, and likely is, a set-up for legal challenges.  Such court activity has increased greatly in the wake of recent rulings on same sex marriage by the Supreme Court of the United States.

Regardless, the issuance of same sex marriage licenses by Mr. Hanes has received considerable news coverage, most of it positive, and resulted in numerous editorials and commentaries heralding his historic stand in favor of same sex unions.  But, let’s take the issue of same sex marriage out of the equation.  Replace it, if you will, with gun rights.  Would the reaction be the same?

Imagine that a sheriff in one of Pennsylvania’s 67 counties decided that gathering information on gun owners to issue a License to Carry Firearms was unconstitutional.  Given that the state constitution says the right of the people to possess a firearm “shall not be questioned,” there is plausible legal basis for such a position.  Now what would happen if that sheriff decided to begin issuing carry licenses to anybody who walked into his office; requiring no ID, gathering none of the information required by law, no questions asked?  The howls of protest from the media and the denizens of the Left would resonate from Lake Erie to the banks of the Delaware.  That sheriff would be vilified, classified as a Neanderthal, impeached and removed from office.

But how is that scenario any different from what Bruce Hanes has done in Montgomery County?  There is no difference.  The issue here is not same sex marriage – that is an entirely different debate.  The issue is the rule of law and following the constitutionally prescribed methods for changing laws with which we may disagree.  The disturbing trend of elected officials, from the President of the United States, to the state Attorney General to a Register of Wills, deciding for himself what laws are constitutional and which they will enforce must be stopped dead in its tracks before our entire system of government dissolves into utter chaos.

Register Hanes, like our mythical sheriff, have clear channels to pursue the policy changes they desire.  The law itself can be changed by a majority vote of both houses of the Pennsylvania General Assembly and obtaining the signature of the governor.  Those who feel a duly enacted law may violate either the state or the federal constitution have remedy in the courts.  Supporters of same sex marriage are in fact doing just that, as is their right.  Those forums, not the unilateral actions of a county administrative official, are the appropriate channels for debate and resolution of this issue.

(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal.  His e-mail address is


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This Week on Lincoln Radio Journal: Chris Nicholas talks Redistricting

Radio Program Schedule for the week of December 17, 2011 – December 23, 2011

This week on American Radio Journal:

  • Lowman Henry talks with Dr. Victor Davis Hanson of PJ Media about the upcoming U.S. Supreme Court battle over the Arizona border protection law
  • Andy Roth of the Club for Growth has the Real Story behind the Republican Presidential race
  • Adam Tragone of Human Events offers his Off the Cuff assessment of the presidential race
  • Col. Frank Ryan, USMC (Ret.) has an American Radio Journal commentary on why the failure of the Super Committee on deficit reduction was actually a good thing.

This week on Lincoln Radio Journal:

  • Lowman Henry gets details on the new congressional, state senate and state house districts from Chris Nicholas of the Pennsylvania Business Council
  • Joe Geiger has Patrick Bradley from the Central Pennsylvania Blood Bank in the Nonprofit Spotlight
  • Al Paschall interrupts his retirement with a Somedays commentary on the arrest of former GOP Lieutenant Governor candidate Montgomery County Commissioner Jim Matthews on perjury charges.

Visit the program web sites for more information about air times. There, you can also stream live or listen to past programs!

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