What is the purpose of Congress? It is to do its part per the Preamble of our Constitution to help form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty for themselves and future generations. To these ends, the Constitution charges Congress with certain legislative powers.
Amid the frustrating and year-long slow walking of documents to Congress, Deputy Attorney General Rod Rosenstein, on behalf of fellow Deep State conspirators, contemptuously told Congress early last month, “The Department of Justice is not going to be extorted.” Extorted? Just who works for whom? What is going on?1
In the Framers’ Constitution, and without saying so, Congress is superior to the other branches. Lawmaking is the first feature of government and the lawmaking institution in every government from despotic to monarchial to republican is objectively superior to other institutions that exist to support, enforce, and adjudicate controversies under the law. In The Federalist #51, James Madison recognized the premier place held by Congress:
So naturally powerful was the 18th century legislative, the Framers spread it across two institutions with the members of each derived from different sources. And more, if the powers of Congress are limited to those therein granted, the Constitution curiously made two exceptions to powers it never granted to the criminal jurisdiction naturally vested in the legislatures of the era: ex post facto laws and bills of attainder.2
Nothing in the Constitution diminished another power: the unenumerated investigative authority of 18th century legislatures. Despite today’s smokescreens and deceptions from the MSM, Congressional standing to oversee the agencies it created is historically and Constitutionally solid and undisputed.
Congress does not have mere standing; it has a positive duty to the people and states to scrutinize lower federal courts and the executive branch outside of the White House. The relationship is that of employer to employee. In the realm of their work, employees are responsible for their actions to their employers. Termination is the just reward for employees who fail to perform, or heaven forbid, work to undermine their employer and company.
So, notwithstanding separation of powers doctrine and civil service restrictions which impose some limits, Congress’ oversight and investigative powers remain enormous. Congress can remove the President, all executive branch political appointees, and every judge from office. Congress determines the authority of agencies and much of the jurisdictional limits of federal courts. While Congress cannot subpoena the Constitutionally created President or Chief Justice of the United States, all other employees are subject to congressional oversight, including lower court federal judges.
Since every lower federal court exists by congressional statute, Congress may and should occasionally subpoena judges; call them on the carpet to explain outrageous decisions. No, Congress cannot overturn court decisions, but the nation deserves public exposure of the logic behind their opinions. Without scrutiny the created can become, in time, superior to the creator.
Like federal courts, Congress may imprison individuals for contempt. From a paper by the Congressional Research Service, “The long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain that which is needed.” In a contempt proceeding, “the offender is tried at the bar of the House or Senate and can be held in custody until such time as the contemnor provides the testimony or documents sought, or until the end of the session.”3
While the 5th Amendment protects a witness against self-incrimination, “but generally not against a subpoena for existing documentary evidence.”4 Failure to answer substantive questions should, in my opinion, be grounds for firing and loss of pension and benefits. No private employer would suffer this and neither should we accept such behavior from our servants.
All of which begs the question, why are senior FBI/DOJ officials not in separate jail cells as guests of the Capitol Hill Police for not producing the unredacted documents requested last year by congressional committees?
Before our eyes is a Constitutional cage-fight like no other. Once over, either Deep State conspirators or the republic will remain standing. I fear for the worst since one political party outright rejects America’s first principles and half of the other party doesn’t mind keeping the republic as long as it doesn’t threaten their reelection. This pitiful condition was nearly impossible under the Framers’ Constitution. Here’s why.
Pre-17th Amendment, the Senate had the aristocratic and institutional pride to check the executive and judicial branches. The first, second, and last job of today’s senators is reelection, a popular reelection that few will endanger with public stances that could possibly anger a segment of their state’s population, or more precisely, the Left-Media.
After decades of avoiding even remotely controversial public positions, the Congress’ aforementioned incredible powers atrophied from disuse; this in turn allowed the federal courts and executive branch agencies to run wild and abuse the American people without pushback from Congress. Congress typically punts its responsibilities on trade, immigration and war to the executive, who in turn is often stymied by federal courts. In The Federalist #51, James Madison asked, “What method should we use, then, to maintain the necessary partition of power between the different branches as laid down in the Constitution?”
Simple prohibitions on paper are inadequate protection against the usurpation of one branch’s authority by another. Government, wrote Madison, “must be structured, designed , so that the three constitutional branches and their relationships will have the ability to keep each other in their proper places.” Furthermore, “Ambition must be made to counteract ambition. The personal interests of the man must be connected with the Constitutional rights of the place.” The failure of Congress to immediately imprison those FBI/DOJ officials responsible for submitting incomplete documents only encourages the Deep State coverup of felonies against the republic.5
Just as nature abhors a vacuum, so too does power. Since the nature of men is to aggrandize power, the other branches absorbed over decades much of enormous powers our Framers assigned to Congress. So much so, that Rod Rosenstein and his Deep State colleagues regard the inner workings of the FBI and DOJ as beyond the reach of a neutered and sissy Congress.
They may be right.
1. Rosenstein: Congress Won’t Extort Justice Department.
2. The 18th century authority of Parliament and state legislatures extended to bills of attainder, i.e. legislative prosecution, judgement and sentencing. Had it not been explicitly prohibited, attainting would undoubtedly have been a time-out-of-mind recognized practice available to the US Congress. Governor Edmund Randolph, June 17th 1788 at the Virginia Ratifying Convention: “We know well that attainders and ex post facto laws have always been the engines of criminal jurisprudence. This is, therefore, an exception to the criminal jurisdiction vested in that body.” Read about the 1778 Virginia attainder of Josiah Phillips.
3. Inherent contempt was most often used as a means of coercion, not punishment. Congressional Research Service. Pages i, 2, 3.
4. Ibid., 69.
5. Webster. (1999). The Federalist Papers in Modern Language Indexed for Today’s Political Issues. Bellvue, WA: Merril Press. 210, 211. The 17A disconnected the personal interests of senators from the Senate