Debatable: Trump, Clinton, Johnson, Castle (part 1)

The debate last night was short at least two candidates that should have been present: Darrell Castle and Gary Johnson. This morning, I'm looking at the transcripts, the additional candidates' response and commentary, and comparing all their comments to what the Constitution says.

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The Constitution is so very important, folks; it's so much more than just a piece of paper, or a legal document, it is the Charter of Liberty. And, without it, government is just cut loose from us. It's free to do whatever it wants, like it is now; it doesn't recognize any limits, and that's important. We have to limit it to the Constitution.
-Darrell Castle, statement

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I'm using this transcript, and giving this fact-checker an occasional glace. I contacted the Castle and Johnson campaigns in an effort to get their responses to the same questions, but at this time have not heard from them. I tried to collect their from the internet relevant comments from candidates that should have been on the stage, but were not. Text from the transcripts and candidate comments are bolded; my commentary follows. I am ignoring irrelevant comments designed to make voters feel good or the opponents look bad. So, here goes.


"This debate is sponsored by a nonpartisan commission."
Rigged, of course, since really any candidate that has ballot access in the bulk of the States ought to be on stage. This is one of the several ways that the Republicans and Democrats belittle and minimize so-called "minor" players: by exclusion. Then, when few have heard of them and few votes follow, they point to it as proof that there's no call for a third party. Meanwhile, fully a third of Americans find no representation among the Republicans and Democrats. But we're supposed to believe that that third has no ability or interest in being represented. It's a pretty racket.



Clinton: "First, we have to build an economy that works for everyone, not just those at the top. That means we need new jobs, good jobs with rising incomes. I want us to invest in you. I want us to invest in your future. That means jobs in infrastructure, in advanced manufacturing, innovation and technology, clean renewable energy, and small business, because most of the new jobs will come from small business."


There is no Constitutional authority for "investment" by the President. The President's jobs deal primarily with executing - carrying out - the laws passed by Congress (Article II Section 1), with the military (Article II Section 2). He may recommend measures to Congress (Article II Section 3),  and he deals with foreign ambassadors  and other public ministers (Article II Section 3), and he's got responsibility for judicial nominations (Article II Section 2). But he's not tasked with creating jobs, and what is not specifically delegated is out of bounds.

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The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 
-Tenth Amendment

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Clinton: "And I want us to do more to support people who are struggling to balance family and work."

This is the same - outside of the office of the President, and not a power delegated to Congress, either. This would be a great project for the Clinton Foundation or other private charity, but it's outside the proper role of government.


Johnson: “We had a 11.6 percent job growth that occurred during our two terms in office. But the headlines that accompanied that report – referring to governors, including me, as ‘job creators’ – were just wrong. The fact is, I can unequivocally say that I did not create a single job while I was governor. Instead, we kept government in check, the budget balanced, and the path to growth clear of unnecessary regulatory obstacles.” (Source)

This appears to be a Constitutionally sound methodology: government in check {he'll need Congress to assist, or plan to veto a whole lot}; a balanced budget {the budget is a particular concern to the House, as all revenues must originate in the House (Article I Section 6), but the President may recommend bills (Article II Section 3) and he has veto power as well (Article I Section 7)}; and a path cleared of unnecessary regulatory obstacles {for repeals, he would need Congress's cooperation in introducing and passing new bills (Article 1 Section 8), but he could do quite a bit by just vetoing bills with burdensome amounts of regulations (Article I Section 7), and by shutting down unconstitutional regulatory agencies that operate within the Executive departments (Article II Section 2)}.


Castle: I'm all in favor of returning power to the States; that's what my taxing program is all about: empowering the States and disenpowering Washington. That's what we're about. I'd be a Tenth Amendment President, for sure. (Source)

There's not tons to go on here, but the fact that he is referencing the Tenth Amendment's limits on what the federal government can do, as well as talking about returning the States to their proper role is refreshing.


Castle: I favor the tax system that's set out in Article I Section 9 Paragraph 4, and that is that the tax would be apportioned among the States. That is, if you have one percent of the nation's population, you would be responsible for collecting one percent... apportioned by census in the same manner that we elect Representatives. That would take power away from Washington and return it to the States and the People where it belongs; it would eliminate some of the concepts of Washington funneling money to the States and saying, "If you don't do this or that," or, "If you don't pass this or that we're going to cut off your money." (Source)

Gotta love it when the candidate cites the relevant portions of the Constitution for me. I cannot argue with his view of the Constitution here, or with the likely outcome. He would have to get Congress on board to do it, which might be a challenge, though if he has the grit to veto the budget if it's not done this way, it could happen. I do not think that the Sixteenth Amendment would be a problem, because it doesn't require uneven taxes, it merely allows them.


Clinton: "So let's have paid family leave, earned sick days — let's be sure we have affordable child care and debt-free college. How are we going to do it? We're going to do it by having the wealthy pay their fair share and close the corporate loopholes."

These are measures that she, if elected, may recommend to Congress for consideration. But it would be way out of the role of the President to try to do any of these things unilaterally, by Executive Order or any other method. All powers of legislation - the creation of law, whether it's called law, regulation, or another name - resides in the Congress, not the President:

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All legislative powers herein granted shall be vested in a Congress of the United States...
-Article I Section 1

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Trump: "So Ford is leaving. You see that, a small car division leaving. Thousands of jobs leaving Michigan, leaving Ohio, they are all leaving. And we can't allow it to happen anymore."

I fail to see how the President can, without usurpation, make this happen. Congress and the unelected bureaucracies (many of the unconstitutional) have burdened our businesses, large and small, with an unsustainable level of regulation, so they take their jobs elsewhere. If we want them back, we have to do something about the regulation. For the President to attempt to do it on his own (and Mr. Trump doesn't mention collaboration or cooperation with Congress, just stopping the flow of jobs), would be completely unconstitutional. It would require legislation to remove barriers to businesses creating jobs, and legislation is Congress's department (Article I Section 1).


Trump: "As far as child care is concerned and so many other things, I think Hillary and I agree on that. We probably disagree a little bit as to numbers and amounts and what we're going to do, but perhaps we'll be talking about that later."

 So, this reference to childcare is pretty vague -- the fact check/analysis version of the debate has a bit more information:

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Trump’s plan would allow parents to deduct their state’s average cost of child care, and he would also introduce rebates for lower-income parents. There would also be new savings accounts for parents to set aside money for child care. As for Clinton, she has said that families should not pay more than 10 percent of their income for child care, though it’s not clear how that would be implemented. She also has called for more Head Start funding, as well as universal pre-K programs.

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The power to tax is among the powers delegated to Congress (Article I Section 8), and so the President may rightly recommend to Congress measures he deems "necessary and expedient" (Article II Section 2) including amendments to the tax code, but I think it would be wise if we encouraged our candidates and the sitting Presidents to move away from "I will do..." kind of statements because it normalizes the transfer of power from Congress to the President - which is a very common brand of usurpation. Thanks to the Sixteenth Amendment, it is no longer necessary for taxes to be evenly borne among the States, nor for them to be tied to the population of the States in any way, so that requirement is not a hindrance to a childcare proposal. However, Congress is still bound by the description of their powers in Article 1 Section 8:

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The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.
*To borrow money on the credit of the United States; 
*To regulate commerce with foreign nations, and among the several States, and with the Indian tribes;
*To establish an uniform rule of naturalization, and uniform rules on the subject of bankruptcies throughout the United States;
*To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
*To provide for the punishment of counterfeiting the securities and current coin of the United States;
*To establish post-offices and post-roads;
*To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
*To constitute tribunals inferior to the supreme court;
*To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
*To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
*To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
*To provide and maintain a navy;
*To make rules for the government and regulation of the land and naval forces;
*To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
*To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
*To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; And,
*To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

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This list is an exhaustive list of all the things about which Congress may legitimately legislate, and I don't see how childcare could be a federal matter. If it is to be done by government (a questionable proposal), then this would have to be matter left to the several States to do or not do as their populations see fit to instruct the various legislatures. The Tenth Amendments makes clear that powers not delegated are reserved, and therefore off limits to the federal level:

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The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 
-Tenth Amendment

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Therefore, both Trump and Clinton are calling for an unconstitutional expansion of federal power when they call for federal meddling in childcare.


Trump: "Under my plan, I'll be reducing taxes tremendously from 35 percent to 15 percent for companies, small and big businesses. That's going to be a job creator..."

 The President may recommend legislation he deems "necessary and expedient" (Article II Section 3),  but Trump's "I'll be reducing taxes..." indicates that he thinks this can be done by the President alone, which would be unconstitutional and a usurpation of Congressional power.


Trump: "We have to renegotiate our trade deals and we have to stop these countries from stealing our companies and our jobs."

Trade deals, as with all treaties, are made "by and with the advice and consent of the Senate" (Article II Section 2), so it is conceivable that the President could do this, and it would not be too big of a stretch for the President to take credit, though it would be more proper for him to acknowledge the input and consent of the Senate.


Trump: "First of all, you don't let the companies leave."

He doesn't have any specific plans stated, so there's not much to analyze here, but it's worth pointing out that our country was founded on the concept of inalienable Rights, among them the right to life, to Liberty and self-determination, and the right to control property. This comment shows that Trump places little value on either self-determination or on property rights. Given his record, this should come as no surprise.


Trump: "And once you say you're going to have to tax them coming in and our politicians never do this because they have special interests and special interests want those companies to leave because in many cases they own the companies."

Clinton: "[Experts] looked at my plans ... and I intend to get it done..."

 Working with Congress, and within the constraints of the laws that Congress passes, is the heart and soul of the work of the President. The President cannot expect to get his way on every single issue because he is not a monarch; he is a leader of a representative government within a system of principled limitations on the government's power. Trump and Clinton both show here that they fail to grasp that concept.


Johnson: "Free trade, not isolationism, is what will lead to more US jobs. (Source)

Trade deals, as with all treaties, are made "by and with the advice and consent of the Senate" (Article II Section 2), so it is conceivable that the President could do this, with a willing Senate.


Clinton: "Scientists say [climate change is] real... And here's what we can do. We can deploy half a billion more solar panels. We can have enough clean energy to power every home. We can build a new modern electric grid. That's a lot of jobs."

First, there would have to be laws passed allowing the Executive to act to bring in more solar panels - but there is no authority for Congress do that in the Enumerated Powers of Article I Section 8. The measures she's talking about here could have various regulations added (though adding to the regulatory burden isn't an effective way to stimulate anything) or regulations could be taken away, but the actual instillation and the funding from it need to come from private, or possibly State funds, but to do it at the federal level would be illegitimate.


Next there's some unpresidential and highly irritating bickering (preschoolers typically behave better than these two), where neither one of them says anything of substance. Then this:


Trump: "I'm going to cut regulations. I'm going to cut taxes big league..."
Clinton: "Clinton: I will not add a penny to the debt..."

More of the same: promises for unilateral action -the Founders would have said monarchical action- by the President. These types of comments are not indicative of a solid understanding of or respect for the Constitution. Our candidates act this way because We The People let them; this is on us.


Castle: That is what this whole debate is about: power and the desire to keep it. I doubt whether the president or Congress really care how much we owe or what it costs us. What they care very passionately about is staying in power ... What is the root of the debt problem? Borrowing is the problem that makes our entire monetary system unsustainable. You can't solve a problem caused by borrowing by borrowing more; but the attitude seems to be "let's do more of what's not working - perhaps we just haven't done enough of it." The problem then is not just borrowing to pay bills and finance debt but literally borrowing our money into existence. (Source)

Borrowing against the credit of the United States is a power of Congress (Article I Section 8), but I have no problems with the assertion that we are well beyond what could be termed "responsible borrowing".  Mr. Castle, as President, could potentially take this problem on by vetoing bills that included what he deemed to be too much borrowing (Article I Section 7), though Congress could override him (Article I Section 7).


Clinton: "What I have proposed would cut regulations and streamline them for small businesses. What I have proposed would be paid for by raising taxes on the wealthy because they have made all the gains in the economy..."

At least in this breath she's talking about proposals.


Clinton: "I think it's time that the wealthy and corporations pay their fair share."

If by fair, she means a just proportion, then we should have skipped the Sixteenth Amendment: prior to that point, taxes were to be uniform throughout the United States (Article I Section 8)- which is the only just way to do it. But now there's specifically and deliberately no requirement for any kind of equity in the tax code, which leads to this sort of inequitable and pandering to the covetous by wrangling about so and so "paying their fair share".


And that's enough for today. I'll try some more, probably on Friday.