Topic category:  Government/Politics

Are you surprised that President Obama is willing to have constitutionally prescribed procedure ignored in order to impose Obamacare or that he misstated a United States Supreme Court ruling and insulted the captive audience SCOTUS justices during his State of the Union address?

If you are a regular reader, you aren't at all surprised.

The so-called "Slaughter rule," which is designed to avoid a yes or no vote on the Senate version of Obamacare, is unconstitutional.

Article I, Section 7 of the United States Constitution, pertaining to legislative process, specifies: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States.... in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively...."

"Shall" is mandatory.

But Team Obama is planning to try to pass Obamacare without the constitutionally required "Yeas and Nays" on the Senate bill.

Obama's openness to this unconstitutional procedure puts his recent insult to the United States Supreme Court in this State of the Union Address in context.

Like FDR's attempt to "pack the Court," Obama's State of the Union remarks were a thinly veiled attempt to intimidate the Court.

Whether it's the Constitution of the United States or of Honduras that is at stake, Team Obama puts fundamental radical change above the rule of law. So much for that oath to uphold the Constitution.

In "Honduras Supports Rule of Law, Infuriating the Obama Administration" (September 8, 2009) (http://www.webcommentary.com/php/ShowArticle.php?id=gaynorm&date=090908), I warned that the Obama Administration's treatment of Honduras showed a dangerous disrespect for the rule and law as well as dishonesty in misreporting the facts:

"Don't be misled on what happened in Honduras: the Honduran military did NOT arbitrarily take power. Unlike former Honduran president Manuel Zelaya, it followed the rule of law and obeyed the highest court of Honduras.

"The Honduran congress and supreme court rejected Zelaya's proposed referendum as illegal.

"Then Zelaya confiscated the referendum ballots and tried to proceed with the vote.

"Upon receiving an order from the highest court of Honduras, the Honduran army arrested Zelaya before the referendum could take place.

"Yet the Obama administration was outraged that the Honduran army followed Honduran law and is backing the power-hungry Zelaya.

"There's an important lesson there for Americans: the Obama administration has been supporting Zelaya.

"The Obama administration is supporting a radical who craves power and sneers at term limits, his country's constitution and highest court and the rule of law.

"So how long does Obama plan to live in the White House?

"Obama's support for Zelaya suggest he favors unchecked executive power but perhaps not a two-term limit for presidents.

"In 'Stop Bullying Honduras,' dated September 3, 2009, the Editors of National Review reported: 'Roughly a week after it suspended "non-emergency, non-immigrant" visa services at the U.S. embassy in Tegucigalpa, the State Department has formally suspended non-humanitarian U.S. aid to Honduras. Furthermore, Foggy Bottom has made clear that it will not support the outcome of the upcoming Honduran elections (scheduled for November) unless the country’s recently deposed and exiled leader, Manuel Zelaya, is first reinstalled as president.'

"National Review smartly summarized the Obama administration's position as follows: 'In order to be considered "legitimate," the Honduran elections must be overseen by a Hugo Chávez disciple who was ousted from the presidency for (as Honduran supreme court chairman José Tomás Arita wrote in the arrest order) "acting against the established form of government, treason against the country, abuse of authority, and usurpation of power."'

"What is ominous as well as outrageous, in the words of National Review, is that '[t]he Obama administration has effectively turned Zelaya into a symbol of democracy' while Zelaya 'is exactly the opposite.'

"Don't expect the liberal media establishment to explain what National Review did in these straightforward terms: 'To understand why Zelaya was sacked — and why his removal from office was perfectly legal — one must be familiar with the Honduran constitution. Shortly after Zelaya’s ouster, in an article the State Department must have ignored, former Honduran culture minister Octavio Sánchez observed that Zelaya had "triggered a constitutional provision that automatically removed him from office" (emphasis added). More specifically, when Zelaya tried to stage a national referendum aimed at launching a "constituent assembly" that would write a new constitution, his clear intent was to change the laws pertaining to presidential terms limits and succession, which cannot be amended under the current constitution. (Honduran presidents can serve for only a single four-year term, and Zelaya’s term was due to expire in January.) Through his actions and intentions, Zelaya violated the constitution and, according to its text, "immediately" forfeited his office.'

"The Obama administration does not believe that the highest court of Honduras is entitled to order that the constitution of Honduras be enforced.

"So how confident should Americans be that Obama will respect the United States Constitution?

"The constitution of Honduras is clear on the subject.

"National Review: 'Writing in the Los Angeles Times, Washington lawyer Miguel Estrada (a native Honduran) explained that "Article 239 specifically states that any president who so much as proposes the permissibility of reelection 'shall cease forthwith' in his duties, and Article 4 provides that any 'infraction' of the succession rules constitutes treason."'

"'"Under Article 272,' Estrada noted, the army "must enforce compliance with the constitution, particularly with respect to presidential succession."'

"So it was Zelaya, not the Honduran military, that was out of control.

"National Review: 'Zelaya’s constitutionally mandated successor was congressional leader Roberto Micheletti, who has been serving as the temporary Honduran president since late June. Micheletti recently declared his willingness to resign and support Zelaya’s return to the country — provided Zelaya does not seek to resume the presidency. Honduran authorities consider Zelaya unfit to be chief executive — federal lawmakers voted nearly unanimously to approve his ouster — and with good reason. Zelaya will be lucky if he avoids jail time. He has no legitimate claim to the presidency.'

"But it doesn't seem to matter to Obama whether a claim to the presidency is legitimate or not.

"National Review: 'As for the Obama administration, its mistreatment of the interim Honduran government is an ongoing travesty. In removing Zelaya from office, Honduran officials took a legal, constitutionally authorized stand against Chávez-style authoritarianism. They deserve praise, not punishment.'

"Judge Obama by his actions, not by his rhetoric, and beware!"

So it was and so it is.

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.