Do Your Job (Part 1 of 2)
- Only Congress and State/Territory/Local legislatures can make law, not the Courts. But the courts need tools to force these legislatures to change laws and bills when they are found lacking.
- Previously existing “contempt” laws should be made available to the Courts to use against legislators that attempt to circumvent the rulings of the Courts. This could also include wasting the Court’s time and resources with frivolous new versions of laws that have already been overturned.
- Members of the Executive Branch — including the President — should clearly be specified as not immune from criminal nor civil charges.
Previously, in the legislative section, we added several Amendments that made it so that the courts could remand a law or approved bill back to the legislatures of both the Federal Government and the States/Territories. However, the courts lack a Constitutional enforcement mechanism to make that possible. The enforcement mechanisms that exists today are, for the most part, completely made up by the courts or Congress and are known as “contempt”:
18 U.S. Code § 401
A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as —
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
18 U.S. Code § 402
Any person, corporation or association willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia, by doing any act or thing therein, or thereby forbidden, if the act or thing so done be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed, shall be prosecuted for such contempt as provided in section 3691 of this title and shall be punished by a fine under this title or imprisonment, or both.
Such fine shall be paid to the United States or to the complainant or other party injured by the act constituting the contempt, or may, where more than one is so damaged, be divided or apportioned among them as the court may direct, but in no case shall the fine to be paid to the United States exceed, in case the accused is a natural person, the sum of $1,000, nor shall such imprisonment exceed the term of six months.
This section shall not be construed to relate to contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other cases of contempt not specifically embraced in this section may be punished in conformity to the prevailing usages at law.
For purposes of this section, the term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
18 U.S. Code § 403
A knowing or intentional violation of the privacy protection accorded by section 3509 of this title is a criminal contempt punishable by not more than one year’s imprisonment, or a fine under this title, or both.
The above is acceptable and makes sense (and surprisingly includes a definition of “State” that includes just about any other possession of the United States). However, this does not give the Courts the ability to hold Congress, the President, or the State/Territory legislatures in contempt. For that, we’ll need some additional Amendments, starting with a new Section 5 in Article 3: the powers and checks on powers of the Judicial Branch.
By Amendment to the Constitution of the United States, Article 3, Section 5, Clause 1 shall be added:
When standing in judgement of a law or lack thereof, neither the Supreme Court nor any inferior court may create law, modify the meaning of existing law, or remove existing law. The Supreme Court or the designated inferior court must send the law or need for a law back to the appropriate legislature — whether that be Congress or the legislatures of a State or Territory — to create, modify, or remove the law entirely.
As noted, in the legislative chapter we gave the Supreme Court (or it’s designated lower court) the ability to review laws that have been passed by Congress or the State/Territory legislatures and decide if they are Constitutional. However, should a law pass that initial process or was passed before that process existed, the Judicial Branch would need a mechanism to make sure they can review it. Here, we talk about “standing in judgement”, which in this case means when a trial comes along that challenges a law (or lack thereof), we lay out that the courts cannot create their own law to fix or fill the gaps. Instead, the courts will always have to send orders back to the legislature from whence the law originated and the law must be fixed there. Of note, this also forces legislatures to write law to remove items officially instead of just being stricken by the court. Again, it is that line in the sand that only legislatures can create, modify, or annihilate law.
However, the Courts need a mechanism to force them to do any of those actions. Previously, we already gave the courts the ability to set a timeframe in which the legislatures would be allowed to work to get those updates in. But what would happen if the legislatures just ignored them? The Judicial Branch needs some teeth:
By Amendment to the Constitution of the United States, Article 3, Section 5, Clause 2 shall be added:
Should the Supreme Court or a designated inferior court send to Congress or the legislature of a State or Territory a demand for the creation, modifications, or removal of law within a specific timeframe and criteria, and the legislature does not act in accordance with the orders of the Supreme Court or designated inferior court, the Supreme Court or designated inferior court may hold any or all members of the legislature in contempt and implement any procedures and penalties as defined by law.
Now we are getting somewhere! Congress and State/Territory legislatures act with impudence because there are no personal consequences for them. We will return to this very idea later, but for now we introduce the first of what will be many personal risks an individual may take for being in a legislature. It is nice that someone wants to serve our government, yet that does not give them carte blanche to just do anything they want. Today, though, that is exactly what happens as it does not matter what legislators do or do not do since the biggest consequence they may face is not getting re-elected (and even that is relatively rare, as shown earlier).
With this Amendment, the Judicial Branch would have some real power over the Legislative one in that they could fine, imprison, or order both on the members of Congress or legislatures of the States/Territories for refusing their direction. It is still at the discretion of the courts to decide if and how much they want to implement this, but it means that members of Congress and the State/Territory legislatures face the exact same rules as regular people — which is precisely what they are. Congress defined “contempt” above, including how it can be implemented and what the penalties are. Why, then, cannot the same rules apply to them?
The reason these controls need to be specifically laid out in the Constitution is because some would consider being forced to vote for something one does not believe in as induced “speech”. Since the 1st Amendment grants the freedom of speech to everyone, a separate part of the Constitution with equal weight would be needed to override that precise idea. Therefore, here, legislatures must vote and come to a solution or face the potential wrath of the courts. With this Amendment, being a member of government restricts rights enjoyed by the masses.
And these controls and power of the Judicial Branch should not end here. Congress and — especially — State/Territory Legislatures have been known to take actions that waste the time and resources of the Courts. If they do so, they should face similar penalties.
By Amendment to the Constitution of the United States, Article 3, Section 5, Clause 3 shall be added:
Should Congress or the legislature of a State or Territory knowingly and willfully pass a law that is in violation of the Constitution, existing Federal Law, existing State or Territory Law, or prior judicial interpretation of the law — with the express intent of using the judicial system to challenge existing law and judicial interpretation — the Supreme Court or designated inferior court may hold any or all members of the legislature in contempt and implement any procedures and penalties as defined by law.
Whatever your politics, when a State passes a law that is knowingly un-Constitutional, they always pay a price by having to cover the court costs and some of their opponents’ costs. Yet, time and time again, these legislatures feel it is their duty to pass laws they openly discuss as being created just to bring a challenge to the Supreme Court and overturn some other prior decision.
Now, we have made many changes already that every law passed is going to be reviewed by a court to begin with, so no law can come into effect without first passing muster. But that does not stop a State/Territory or Congress from passing the same or similar law over and over. Sometimes, a State/Territory or Congress is just picking a fight to change the definition of the world while the Supreme Court has made it clear: if you want a change, you need to go through a Constitutional Amendment process.
These laws are a waste of taxpayer dollars and time. When Mississippi passed a more restrictive version of a law that had been overturned the year before, U.S. District Judge Carlton Reeves exacerbated:
“Here we go again…”
“Mississippi has passed another [similar] law… The parties have been here before.”
“Last spring, plaintiffs successfully challenged Mississippi’s ban… The Court ruled that the law was [un-Constitutional] and permanently enjoined its enforcement. The State responded by passing an even more restrictive bill.”
“It sure smacks of defiance to this court…”
But what could Reeves do about it? All he could do was enjoin the defendant again and put the whole law into the process where it would not be heard by the Supreme Court. With this Constitutional Amendment, the Courts could hold legislators in contempt for just such an action. We will return to other ways legislators will have to pay for their choices, but for now we need to extend the same controls to the Executive Branch:
By Amendment to the Constitution of the United States, Article 3, Section 5, Clause 4 shall be added:
Should the President of the United States or the Governor of a State or Territory knowingly and willfully sign a law passed by their legislature or give an Executive Order that is in violation of the Constitution, existing Federal Law, existing State or Territory Law, or prior judicial interpretation of the law — with the express intent of using the judicial system to challenge existing law and judicial interpretation — the Supreme Court or designated inferior court may hold the President or Governor in contempt and implement any procedures and penalties as defined by law.
As can be seen here, the language is almost the same so that executives cannot simply sign-off or give an order and say they are not accountable. They will follow the same potential penalties for knowingly wasting the time of the courts and the money of the taxpayers.
That is not where oversight of the Executive Branch should end, though. There is another area that needs to be considered: abuse.
By Amendment to the Constitution of the United States, Article 3, Section 5, Clause 5 shall be added:
The Supreme Court or its designated inferior court may directly bring a criminal Case against the President, Vice President, Department Heads, Agency Heads, or any other person in the employ of the Executive Branch should — in the course of performing duties — that individual violate the Constitutional rights and rights granted by law to any person.
Right now, it is completely up to the Executive Branch whether to bring charges up against someone. However, that means the Executive Branch is also in judgement of itself and can choose to ignore issues, decide they are not issues, act in a judicial function and decide penalties, or — occasionally — decide to pass them off to the correct legal authority and act as the prosecution. The conflict of interest here is vast and does not provide the proper check. Many people are under the impression, for instance, that a sitting President cannot be indicted because of the Constitution. That could not be further from the truth. The Constitution says nothing about this, only stating in Article 1, Section 3, Clause 7:
Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
In just the year 1973 — in response to the Watergate scandal involving then President Richard Nixon — the Justice Department wrote a memo that said a sitting President could not be indicted. Then, in 2000, the Justice Department wrote another memo saying basically the same thing and that no court cases had overturned this prior memorandum. So, it was nearly 200 years after the Constitution was written that an Executive Department under the direct authority of the President unilaterally decided something that amounts not just to new law, but to new definition of the Constitution.
The Constitution — as shown above — is clear that that the impeachment process is only to include removing someone from office and can pursue no other punishment. An elected or appointed official can be indicted, tried, and found guilty of the same crimes and be punished under the criminal and civil code. The Justice Department seems to be implying that these are “in-order” items — that is, that the impeachment must happen first, then they can be charged. What was written here was stating just two separate facts: an executive can be impeached and can be indicted; these are mutually exclusive actions. While it seems unlikely that one would happen without the other, it is quite possible for a person to be found guilty of crime and sentenced to prison or some other penalty without losing their position and continuing to operate in their role.
That is why this Amendment is needed; we need to reaffirm first that the Courts have oversight over the Executive Branch and that the Executive Branch cannot have end-say supervision of itself. With that, we can then say the Court’s job is to bring charges against the Executive Branch when the Executive Branch refuses to do it itself. That does not guarantee a verdict, but it does put that check in place and removes the idea that the Executive Branch can create its own law that gives itself immunity.
Think of a case like this: A United States Citizen has been detained under suspicion of being an undocumented immigrant. The person presents papers showing his legal status as a Citizen yet is still detained for several weeks. Finally, after a national news agency picks up the story, the person is released. This person has faced untold damage to time, health, wages, and has been attacked by his own government. His only recourse now is to sue civilly for what he has lost, but will anyone be held responsible criminally?
Unfortunately, the answer is “no”. All will go on before no matter if this person sues or not and is successful or not. But what about the people that caused harm during this entire process who were negligent in their duties and have violated both the Constitutional and legal rights of this person? From the border agent that detained this person to the investigators at immigration services to the warden at the detention facility to the head of the department that has made these orders happen to the President himself who set the policy — are any of these people going to be held criminally guilty or civilly liable? Without this Amendment, all of them do not have to think or worry about consequences; they can just act with impudence for applying the law capriciously and maliciously. There is nothing that can be learned and there will be no personal responsibility so long as members of the Executive Branch have unchecked power.
But that does not mean that the Courts should have unchecked power of their own, either.
TO BE CONTINUED…