In this commentary I refer to Dr Charles Lincoln's insightful analysis (for which I thank him):
When the Valid Public Debt is Questioned, Congress Must Answer
Sovereign Munity
Governments in general and judges in particular seem to grasp the cloak of sovereign immunity around their breasts to shield against attack for errors, torts, crimes against the people, and breaches of loyalty oaths. I consider sovereign immunity utterly unjustified in most cases because of the essential meaning of the word "republic" - a government in which the law binds the ruler as well as the ruled.
Dr. Lincoln attacked sovereign immunity in footnote 5 of his paper suggesting that Congress must answer questions regarding the valid public debt:
5 It is extremely important to note that Article I, §6:3 is the only constitutionally express or even implicit grant of "Sovereign Immunity" from suit to any branch of the Federal Government of the United States of America---despite "ad hoc" claims to executive immunity and privilege and judicial constructions of executive, judicial, and general governmental immunity which lack any textual basis in the constitution at all, and would in fact seem to be contradicted by the guarantee of the "right to petition for redress of grievances" in the First Amendment. Claims to governmental immunity for violation of the Constitution are a disease eating away at the marrow of our ideally free, democratic society, and the lawsuit, action in equity, and/or Constitutional declaratory judgment proposed here would be an important step towards limiting this pernicious doctrine (of Federal governmental immunity even for violations of the Constitution).
His observation hints, but does not come out and say, that a Constitution's provision permitting an activity in an instance implicitly prohibits that activity in all other instances. The 10th Amendment limits the US government to powers the Constitution grants, thereby forbidding it from exercising all other powers, and reposing those in the states and people. The 9th Amendment acknowledges that the people have a plethora of unidentified rights and powers which stand senior to and outside the reach and control of government powers. Furthermore, it implicitly limits state power over the people. These amendments appear to function as a mandate to the courts and the voters to reign in government power at every opportunity, to force confined to those areas the Constitution specifies. As we all know, the courts have failed to comply with that mandate, such as by construing the power of Congress to regulate interstate commerce as the power to regulate any state activity that might affect interstate commerce.
My point here: the Constitution's prohibition against questioning of valid public debt imposes a requirement to question the validity of all public debt, and further to question, and indeed denounce all the invalid public debt. Furthermore, the grant in I.6:3 of sovereign immunity in one limited sense, denies all other senses. In other words, by failing to mention any other sense, it thereby implicitly prohibits all other forms, senses, or potential instances of sovereign immunity. For that reason, it imposes an implicit obligation on the public and members of government to sue people in government for their torts, misfeasance, and malfeasance. In other words, members of government have no sovereign immunity except to the extent the Constitution specifically dictates.
Validity of the Debt
This leads me to assert that lobbying and any influence peddling that causes Congress to create debt might thereby create invalid debt because influencing a legislator does not stop with pointing out the debt's benefits to constituents. It can include threats of career destruction or harm to a friend or family member, blackmail, bribery, and other coercion. Any vote for debt under such conditions has zero validity, regardless of otherwise noble motives for the debt. This same principle could apply to bill riders and other negotiations that amount to vote-buying. Questioning of public debt for validity would include private and public investigation into the influences on legislator behavior. In my opinion any argument or proposition not directly related to the merit of the central target of the legislation constitutes undue influence. Such questioning should become intense, always, because the public simply cannot trust elected officials to act in the best interest of constituents and IN CONCERT with the law, Constitution, and ideals of good government. This remains especially true when almost anyone can buy a legislator's vote on some issues for $500 to $1000.
Seen in this light, any legislator, lobbyist, influence peddler, aide, or adviser who operates to create invalid debt SHOULD suffer a lawsuit or criminal prosecution for so operating.
The Point of the Loyalty Oath
Why? Because the Constitution and numerous laws require federal and state officers, employees, and registered voters to swear oaths of loyalty to support the Constitutions of the US and (for state functionaries) the state. And yet, no law penalizes breaches of that oath. The absence of such a penalty law obliges the people themselves to sue in law or equity for redress.
Sovereign immunity exists in an oligarchy because the people have no say over government, owing to the plenary nature of the oligarch's power. But in a republic, where the law binds rulers and ruled alike, no sovereign immunity can exist. The above analysis proves it. Thus, everyone who has ever sworn a loyalty oath as mentioned above owes to the republic the solemn duty to sue and prosecute those other oath takers who breach their corresponding duties, including voting or campaigning for invalid public debt.
SSI as a Trust and Property Right
Dr. Lincoln specifically refers to efforts of the Executive branch to breach the public trust respecting certain valid debts like those to recipients of Social Security Income and Medicare. He asserts that advocates "sold" the taxation needed to fund these obligations by referring to the tax payments as insurance premiums. He says passage of the law made the obligations into constructive trusts.
In fact most SSI recipients worked for decades, paying plenty of money into the treasury in the form of FICA tax which most people believe went into a fund for old age, survivors, and disability insurance. The fact that it goes into the general fund and Congress allocates money from that fund to pay recipients does not mitigate the responsibility of Government to pay that valid debt. Dr. Lincoln beautifully makes the point that such entitlements constitute property rights and recipients enjoy, or ought to enjoy, protections under 5th Amendment defense against government taking property without compensation. And so, neither the President NOR the Congress should diminish SSI and Medicare benefits, period, end of subject. Or, if any do diminish it, they should do so only to the extent prospective recipients paid little or nothing into it.
Obligation of Americans (and Government) to Sue
Thus, Congress ought to respond to President Obama's threats to withhold SSI or Medicare by suing him to enforce specific performance of that obligation - he must order the treasury to pay those obligations off the top. SSI recipients have no less a valid claim on US money than do the nation's other creditors. Likewise, the President should sue Congress for diminishing the SSI entitlement through legislation, such as laws eliminating the annual inflation adjustments or extending the age limits for payments.
So, Congress and the President should use lawsuits to answer one another's questions about those specific valid public debts. Why? Because the 14th Amendment forbids them from questioning the debts EXCEPT through efforts to determine the extent of the debts' validity.
To summarize:
Let the lawsuits rain on the wicked in government. "Don't Mess With Our Trust Entitlements."
 | Bob Hurt My Blog 2460 Persian Drive #70 Clearwater, FL 33763 Email; Call: (727) 669-5511 Law Studies: Donate Subscribe Learn to Litigate with Jurisdictionary |  |
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