is the norquist tax pledge constitutional?

    By Oxy Mora on Sat, 08/06/2011 - 2:16pm |

    Actually my original intent was to ask if the pledge signed by Republicans is an act of 'treason". One definition of treason is "the betrayal of one's own country by waging war against it or by consciously or purposefully acting to aid its enemies." In the case of the Republicans in Congress, no one could ever prove "conscious". But Republicans may have given aid and comfort to China, our military competitor.

    The Norquist pledge taken by Republicans not to rasie taxes in any form, including the elimination of tax loopholes, led to the brinkmanship in the recent debt standoff. The acrimony and duration of the debt fight--especially the negative change in attitudes since April--was a central premise in S&P's downgrade of  U.S. debt. The downgrade led to a lecture by China to reduce our military spending. A large element of our military spending rests upon the assumption that China is a potential military enemy, especially a threat in the China Sea. 

    Any way you analyze China's lecture to the U.S to reduce it's military spending, it's not a favorable outcome of the debt down grade and the behavior of the hostage takers in Congress who enabled it.

    The financial lecture by China could be looked upon as an act of aggression. If so, our self inflicted downgrade has resulted in aggression against us. That is an unintended consequence, but cannot be called treason. However if China senses we are vulnerable to the charge of militarism in the context of world opinion,  the downgrade has helped our enemies prey on our weaknesses. Still, it would be hard to prove that the chain reaction leading to a lecture by China was an intended outcome of the right wing in Congress. Therefore, no treason. And the constitution provides potential treasonous perps with a high hurdle of proof. 

    Ah, the constitution. And the Norquist pledge.

    Judge H. Lee Sarokin in a HuffPo blog on 04/0511 presented an analysis of whether the Norquist pledge was constitutional. he said,

    "To commit in advance to a position without the necessary knowledge seems to be a dereliction of duty imposed upon lawmakers, particularly when the commitment is made at the instigation of a private organization."

    The oath of office a Congress person takes requires the support and defense of the Constitution "without any mental reservation". The Norquist pledge is a clear mental reservation in the performance of duties under the constitution.

    The Norquist pledge apparently provides an "out" with respect to military spending. But the military spending challenge by China is a result of the use of the pledge, not a decision on military spending per se.

    It is absurd to me that Grover Norquist can hog tie Republicans to the extent that they nearly sink the U.S. economy; and that as a consequence of the "pledge" and the brinksmanship it engendered, cause a ratings agency to downgrade the U.S. debt on the essential argument of lack of ability to compromise.

    It is time, as has been said, to peel back the onion on Norquist and his pledge. But if we don't do it, and the Congress fails to compromise, perhaps we can send Grover Norquist to China and they can peel his onion over there.  

    Comments

    I get your message.

    I understand your message.

    But the repubs without grover's bullshite have constantly avoided their constitutional obligations for decades.

    REPUBS DO NOT GIVE A SHITE ABOUT THIS COUNTRY.

    They care about government by the corporation, of the corporation and for the corporation and they always will!

    My mission in life is to see that Obama fails says McConnell and rush and all the other fascists in this nation.

    But I am intrigued by the behavior of the one branch of government that is supposed to decide these constitutional matters.

    My buddy TPC sent me this today. It is a good summary of what has happened to our Supreme Court.

    THERE ARE NO RULES ANYMORE.

    As my own blogs have demonstrated--at least to my satisfaction--racism is no longer a no-no with regard to publications.

    Class warfare is a term used by the fascists.

    There never really was justice but at least we pretended. hahahahah

    Congressional Republicans do not give one goddamn about this country!

    And the sooner people swallow that truth, the sooner we can begin to declare war on the fascists who run this country.

     


    by Richard Day on Sat, 08/06/2011 - 3:22pm

    From what I've seen so far the downgrade came not because of the acrimony and duration of the debt fight, but because the cuts didn't go far enough.


    by Elusive Trope on Sat, 08/06/2011 - 3:36pm

    From TPM, it was not the CUTS that were too sparse but the lack of revenue: "Compared with previous projections, our revised base case scenario now assumes that the 2001 and 2003 tax cuts, due to expire by the end of 2012, remain in place. We have changed our assumption on this because the majority of Republicans in Congress continue to resist any measure that would raise revenues, a position we believe Congress reinforced by passing the act."

    by CVille Dem on Sat, 08/06/2011 - 3:45pm

    In other words, they could care less about acrimony and duration of the debt fight, but instead it was either given the amounts of cuts the need to raise revenue or given no new revenue the need to cut more.  If there was ten times the acrimony, but in the end new revenue was generate or more cuts made, the downgrade wouldn't have happened.  Since the current reality is that there won't be new revenue, then more cuts are needed.


    by Elusive Trope on Sat, 08/06/2011 - 4:16pm

    Trope, the downgrade included quite a bit about the failure of the process. The full text of the downgrade can be found at the cbsnews website, sorry, don't have the full address. A fair amount was said about the inability of the two parties to reach agreement. Specific reference was made to the amount of time it took to reach an agreement. In the preamble, one of the key conclusions was that the situation had worsened since the warning in April. If you or someone could post the full text it would be very helpful. Thanks for your comments.  


    by Oxy Mora on Sat, 08/06/2011 - 9:44pm

    Doesn't Congress have a fiduciary responsibility to protect the rights and well-being of the citizens of the United States?  Fiduciary Responsibility is defined as "a relationship imposed by law where someone has voluntarily agreed to act in the capacity of a "caretaker" of another's rights, assets and/or well being. The fiduciary owes an obligation to carry out the responsibilities with the utmost degree of "good faith, honesty, integrity, loyalty and undivided service of the beneficiaries interest."   Well, given the actions of Congress lately they seemed to have abdicated that responsibility.  Perhaps we can file a class action lawsuit on behalf of the American People. 


    by MrSmith1 on Sat, 08/06/2011 - 3:45pm

    Sign me up! I'll polish my pitchfork up too!

    by CVille Dem on Sat, 08/06/2011 - 3:48pm

    The vision of pitchforks I have is everyone waking up one morning, grabbing one, and heading to Washington to find themselves one of them tea partiers cause they've just damn well had enough of their foolishness.  


    by Oxy Mora on Sat, 08/06/2011 - 11:02pm

    And a tea party politician will say that keeping American from going further into debt to the Chinese is looking after their well-being, and it is those who are seeking even greater debt who are not looking to protect the rights and well-being of the citizens today and tomorrow. 

    And so we're right where we began in the stand off.


    by Elusive Trope on Sat, 08/06/2011 - 4:20pm

    How can deliberately causing the U.S. to be downgraded be seen as anything but abdicating their fiduciary responsibility?


    by MrSmith1 on Sat, 08/06/2011 - 4:45pm

    All I'm saying is one can make the case the Dems, by resisting the necessary cuts given that one shouldn't raise any taxes (i'm not personally advocating this position), were abdicating their fiduciary responsibility.

    The reality is that there were three approaches, all equally possible in the realm of physics, to avoid the downgrade:

    1. make all the necessary cuts with no tax increases

    2. make cuts mixed with increases in taxes

    3. make all the necessary tax increases with no cuts

    In each of these three approaches, there was the right amount that would avoid the downgrade.  And one can, depending on one's ideology, make a legitimate case for the approach at this time.

    In order for a jury to convict the tea party / repubs for abdicating their fiduciary responsibility would require that they adopt a particular ideology as a given.


    by Elusive Trope on Sat, 08/06/2011 - 5:01pm

    There was also, 

    4. Stamp coins, don't print Federal Reserve Notes.

    Remember, there are 2 billion one dollar presidential coins rotting in the vault.

    They cost 30 cents each.

    If the platinum billion dollar coin gives you shpilkes, just let'em stamp out 7 trillion dollar coins, net to treasury 4.9 trill, impact on debt, zero.,


    by jollyroger on Sat, 08/06/2011 - 5:07pm

    whatever.


    by Elusive Trope on Sat, 08/06/2011 - 5:43pm

    double post (illuminati up to their tricks again)


    by Elusive Trope on Sat, 08/06/2011 - 5:04pm

    That's an interesting point, fiduciary responsibility.

    What frosts me about the lame media coverage of the debt debacle is in spite of all the talk about the constitutionality of the 14th amendment option, there was no focus on this issue of the constitutionality of the "pledge".

    Alan Simpson recently roasted Norquist, calling legislators "chicken" to cross Norquist.


    by Oxy Mora on Sat, 08/06/2011 - 9:48pm

    Well, I'll be hornswaggled.  The tea-party folks had the exact same idea about 5 months ago. LOLOL (For very different reasons, of course.)  http://www.teapartypatriots.org/BlogPostView.aspx?id=bb877bda-2d89-4584-aaca-e3b8059600c4


    by MrSmith1 on Sat, 08/06/2011 - 10:50pm

    Unbelievable. And that is what is called small government.


    by Oxy Mora on Sat, 08/06/2011 - 10:59pm

    I have read your post a couple of times and the more I read it the better I like it. Maybe there is something actionable here.  


    by Oxy Mora on Sun, 08/07/2011 - 8:02am

    I don't think it's necessarily not Constitutional.  I mean, it's possible to construct an argument, as you have done, but I don't think being committed to certain policies counts as "mental reservations".

    The pledge, however, is weapons-grade stupid on a massive scale, though.  And that's a lot easier to prove. 


    by The Liberal Mob on Sun, 08/07/2011 - 1:57pm

    Thanks for commenting. If we never have the public argument of whether the pledge is a mental reservation, we never get to the next stage. Truth is, Democrats have allowed the pledge itself to go unanswered and that is why we are living with the consequences. I don't know how stupid it is. If I went to my investors and told them my company was getting its brains beat out by our stupid competitors, I think there would be a very long silence.

       


    by Oxy Mora on Sun, 08/07/2011 - 9:54pm

    I'm a big fan of Hanlon's razor: Never attribute to malice that which is adequately explained by stupidity (or incompetence).

    I think you're highlighting an important corollary: if it can't be explained by stupidity, then let's go with malice.

    That said, I think it depends on how one defines "malice". If by malice you mean "favoring the rich with complete indifference to the middle class and poor", then sure, that's what we're talking about here.


    by Verified Atheist on Mon, 08/08/2011 - 6:30am

    Thanks. And thanks for sharing the Atheists' razor. It can cut either way. I think Republicans have just employed your eponym in their willingness to tank the economy given the fact that the public now supports, by 70% including some Republicans, raising taxes on people earning over $250K. The Republicans apparently could not sell the stupidity that the rich create jobs so don't tax them. So let's go ahead and tank the economy, we can blame the chaos on Democrats. Unfortunately Republicans have discovered Oxy's razor: When faced with stupid competing hypotheses, choose the one the public will buy.  


    by Oxy Mora on Mon, 08/08/2011 - 9:46am

    If your investors want you to go for short-term profits over long-term growth or company health, you'll go with short-term profits or be out of a job.

    Corporations frequently suffer from this type of pledge. Whether a pledge for no new taxes, to the sanctity of the flag, for a balanced budget, to defeat Germany, the moon in 5 years, for oil independence, or for universal health care no matter what are different, I can't say, but my guess is the Constitution doesn't care.


    by PeraclesPlease (not verified) on Mon, 08/08/2011 - 8:03am

    Now Peracles, don't go personifying the Constitution, the Supremes might want to make love to it the way they did to corporations.  


    by Oxy Mora on Mon, 08/08/2011 - 9:52am

    I was under the impression that they'd already f$@ked it.


    by Verified Atheist on Mon, 08/08/2011 - 2:59pm

    Ha! I think you're right.


    by Oxy Mora on Mon, 08/08/2011 - 6:16pm

    The pledge is indeed stupid, Oxy. But the idea that it raises any kind of constitutional issue at all is at least as stupid.

    No court would even entertain it. So it's not worth thinking about.


    by acanuck on Sun, 08/07/2011 - 4:29pm

    But then again, we thought no court would entertain Citizens United ... LOL


    by MrSmith1 on Sun, 08/07/2011 - 5:44pm

    I'm sure the Supremes found that one very entertaining.


    by acanuck on Sun, 08/07/2011 - 6:00pm

    Thanks. I look at blogging as kind of a product design process. There are no bad ideas, just ones that lead somewhere else. Every time I do one of these, I find out things I didn't know. Like the idea of fiduciary responsibility.

    Sometimes I think we liberals and progressives are too introspective. We question why we do things, we should have done this, what should we do next. I think what we should do is reconnoiter the enemy, go behind the lines, find weaknesses we can attack with the weapons we have or can improvise.

    The pledge is one of the most successful political maneuvers in the history of American politics. One of the reasons it hasn't been countered is that it is truly unusual. It has been underestimated. A smart guy from Harvard who is essentially a huckster stuck tenaciously to one idea. It was audacious in a sense. Ten years ago who would have thought he could pull it off? What even now is keeping this row of domino's from falling down in one swift motion?

    I chose to highlight this subject in the hope of finding the audacious counter product, weapon, if you will, which will cut the knees from under my competitor and replace it with a better product which brings me gains, not losses. Thanks for playing. 

     


    by Oxy Mora on Sun, 08/07/2011 - 10:17pm

    I take that as a downgrade to something less than AA+.

    I do think that if we can't test the outlier hypotheses we might as well close up shop.


    by Oxy Mora on Sun, 08/07/2011 - 7:04pm

    Oxy, I apologize for calling your idea stupid; I should have just pointed out that it is wrong. I was waiting for someone with a grounding in U.S. law to shoot it down, and nobody did. So I got impatient, pissed off and rude. Sorry.

    We agree on many issues. I'm totally open to "outlier hypotheses," to the extent I thought Obama should go the 14th-amendment route on the debt ceiling.

    But there's nothing about the Norquist pledge that could possibly raise any constitutional issue. To begin with, it's not a law, regulation or decree; it's just a signed scrap of paper with no legal weight.

    You argue that the pledge violates the legislators' oath to uphold the constitution without "mental reservation." Even if that were provable -- and it isn't -- what of it? The oath's wording is set by Congress, not the constitution. Congress can enforce it as it sees fit.

    I did go back to the HuffPost article you cite, written by Judge Sarokin, to see what legal arguments he cited. Pretty thin stuff. But most important, he never does raise the issue of "constitutionality." Not at all. He merely suggests, as you do, that signers are derelict in their duty. But as for his headline's crucial question of whether they've violated their oath of office, he answers:  

    The "Pledge" may be neither illegal nor unethical, but I cannot help but find it troublesome.

    Maybe we can agree on that. But when it comes to "troublesome" things that U.S. legislators and politicians do, I've stopped keeping a list.

     


    by acanuck on Sun, 08/07/2011 - 11:18pm

    Thanks, no apology needed. I would like to get some of this cleared up so that we can get to a point of how in  fact to dissect this pledge and put it in the spotlight. The argument that the pledge may be unconstitutional certainly falls flat with the distinction you cite, and I admit I glossed over it in my own mind, that it is a Congressional oath to uphold the Constitution not an oath in the Constitution itself.

    I think what pisses me off is that the "pledge" has gone unchallenged by Democrats. If the Democrats in Congress had staged a similar "pledge" the Republicans would have jammed it down their throats on the arguments that we just rejected and the public would have agreed with them.    


    by Oxy Mora on Mon, 08/08/2011 - 1:17am

    Perhaps the task is, "figure out how to jam things down Republicans's throats, or other convenient orifices".

    Simple messaging like "no new taxes" might be a good place to start.

    If you can't fit your idea in a quarter-Tweet, it might be too long and not get traction.

    And certainly no one from news media will understand it or have the attention for it.


    by PeraclesPlease (not verified) on Mon, 08/08/2011 - 8:08am

    I think you're on it, Peracles.


    by Oxy Mora on Mon, 08/08/2011 - 9:30am

    Perhaps linking lowering federal taxes to people's property taxes going up. Call it the Seesaw Effect. The more Repubs lower taxes on the wealthy, the higher your property taxes are going to go up.  If states and municipalities don't have Federal assistance (or it's cut way back), they can't pay for essential services if they don't raise revenue, and since the Repubs have made raising personal taxes anathema, the only place to go for most towns is to raise property taxes.  So paint the Repubs as paying for tax cuts for the wealthy by lowering the value of your home by raising your property taxes... thus destroying small town neighborhoods to pay for swimming pools and new corporate jets for the rich ... or something like that. 


    by MrSmith1 on Mon, 08/08/2011 - 9:57am

    Bravo. The SeeSaw effect. That cuts ice. In fact, the Tea Party is really the SeeSaw Party.


    by Oxy Mora on Mon, 08/08/2011 - 10:29am

    Isn't a legislators responsibility to his/her constituents, we the people, and not to some guy and his foreign friends? I would posit that Norquist's outside interests (mainly in Saudi Arabia), and the republicans loyalty to those interests (via the pledge), hedges very near what I would call treason.


    by tuxedocat (not verified) on Tue, 08/09/2011 - 3:43am

    It all goes back to original intent. See, when the founding fathers wrote the Constitution, people was understood to mean "white men with land".


    by Verified Atheist on Tue, 08/09/2011 - 6:28am

    That's where the tea party is headed. First, they have to fight the civil war over again, which is why Rick Perry is announcing his run at the birth place of the Secession.  


    by Oxy Mora on Tue, 08/09/2011 - 8:02am

    Thanks, Tuxedocat.  The money conned from foreign interests needs to be put into the equation. I didn't know that Norquist switched from Indian tribes in the U.S. to tribes in the Middle East.   

    Re constituents, legislators should be confronted with,for example, poll numbers from their own districts showing the support for taxes on those making over $250K, which nationally is about 70%.

      


    by Oxy Mora on Tue, 08/09/2011 - 7:54am

    A friend drew this for me after I explained the concept.  The dollar sign on the moneybag is backwards, but so is the economy.

     


    by MrSmith1 on Tue, 08/09/2011 - 12:16pm

    Whoa and shut the front door! I like it. The little house is worried and hanging on for dear life. I'm seeing a deck of cards.

    College tuition.

    Roads and Bridges.

    Medical Research.

    And a game called, "Go Cut"


    by Oxy Mora on Tue, 08/09/2011 - 12:57pm

    I agree.  Please help eliminate Norquist's influence by signing and forwarding this pledge:

     

    http://www.ipetitions.com/petition/make-grover-norquists-tax-pledge-is/


    by Mark C (not verified) on Sun, 12/04/2011 - 12:10pm

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