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The Point of Impeachment: Tolerating Obama’s lawlessness invites a dictatorial presidency.
National Review ^ | 11/15/2014 | Andrew C. McCarthy

Posted on 11/15/2014 10:27:42 AM PST by SeekAndFind

n writing Faithless Execution: Building the Political Case for Obama’s Impeachment, I had a purpose: Explain that the capacity of Congress to oust a lawless president is central to the Framers’ design of our governing system. Because executive power is awesome, and intended to be that way, certain abuses of it can be discouraged only by the credible threat that Congress will remove the president from power — or, if discouragement fails, can be remediated only by the president’s actual removal. That is why Madison believed that the inclusion of impeachment in Congress’s arsenal was “indispensible” to preserving the Constitution’s framework of liberty vouchsafed by divided power.

Abuse of the executive’s power over immigration enforcement now belongs in this category of maladministration that impeachment alone can counter. One must use the qualifier “now” because this was not always the case. Immigration enforcement was originally a state responsibility. Washington has supplanted the states since the early 20th century, an erosion of federalism largely responsible for our current immigration crisis. That, however, is a subject for another day. Like it or not (I don’t), the federal courts’ ill-conceived application of preemption principles has left the states and the American people vulnerable to a lawless president who refuses to protect them from illegal immigration while preventing them from protecting themselves. (Obama’s theory that disarming the state somehow promotes security works about as well in Arizona as it does in Ukraine.)

I drew on Faithless Execution in last weekend’s column and in a follow-up Corner post, positing that, short of credibly threatening impeachment, Congress and the courts can neither compel a president to enforce the laws nor stop him from using his plenary pardon authority to grant a sweeping amnesty. That gets Obama two-thirds of the prize he is pursuing — namely, several million aliens whose illegal status has been purged, put on the path to inevitable voting rights that will give Democrats an invincible electoral majority.

As for the remaining third, Congress could, in theory, block the president from granting illegal immigrants legal status and other positive benefits (such as work permits) without impeaching him. To do this in reality, though, Congress would have to use its power of the purse. Translation: It would take the credible threat of a government shutdown to check the president’s lawless conferral of benefits.

Alas, that constitutional parry has already been disavowed by GOP congressional leadership. If they persevere in this disavowal, it will be in defiance of their base (and against the sound tactical advice of Mark Krikorian). Yet such a signature display of preemptive surrender would come as no surprise given that, as previously argued here, their opposition to Obama’s imperious method of achieving his goal seems, shall we say, less than genuine. Moreover, the judiciary that Mr. Obama is stacking with Lawyer Left activists like himself can be relied on to twist the Constitution into mandating any benefits the president does not succeed in awarding.

Against this backdrop, I am gratified that Fox News’s Megyn Kelly and Charles Krauthammer have just given the topic of impeachment in the immigration context more of the serious consideration it deserves. Appearing on The Kelly File Thursday, Dr. Krauthammer asserted that the president’s anticipated amnesty decree for millions of illegal aliens “is an impeachable offense.”

He is plainly correct. As Faithless Execution elaborates, “high crimes and misdemeanors,” the Constitution’s trigger for impeachment, is a term of art for abuses of power that violate the president’s fiduciary obligations to the American people he serves, the constitutional system he takes an oath to preserve, and the laws whose faithful execution is his core duty. High crimes and misdemeanors are not — or at least, not necessarily — the same as “crimes” and “misdemeanors” prosecutable in the courts. Impeachment is a political remedy (i.e., the removal of political authority), not a legal one (i.e., the removal of liberty after criminal indictment and conviction). That is why Hamilton, in Federalist 65, described impeachable offenses as “political” in nature — as “proceed[ing] from the misconduct of public men, or in other words from the abuse or violation of some public trust.”

A sweeping amnesty for millions of unrepentant lawbreakers that punishes American workers, imposes crushing burdens on the states, and betrays law-abiding aliens who comply with our immigration rules is not an indictable offense. Yet it is obviously an impeachable one. So is the failure to enforce the immigration laws. And the effort to award by executive decree benefits that only Congress has the power to grant is patently lawless and thus just as clearly impeachable.

Dr. K made a couple of other observations worth noting. He aptly asserted that the distortion of the doctrine of prosecutorial discretion — the ploy by which Obama camouflages his usurpation of congressional lawmaking power — is a “travesty.” I respectfully suggest, however, that Krauthammer conflated two distinct executive powers. He said prosecutorial discretion is properly invoked to refrain from enforcing a law in the rare situations where that law’s strict application would cause an unjust result. Actually, that is what the pardon power is for. Prosecutorial discretion (see here) is, instead, a routine resource-allocation principle. It calls for certain laws (e.g., marijuana possession) to go unenforced not out of clemency but because investigative resources are finite and weightier offenses must be prioritized. Nevertheless, Dr. K’s overarching point was sound: Obama is abusing prosecutorial discretion to undermine our governing framework.

There was irony for me in Krauthammer’s suggestion that impeachment seems less politically viable at this point because (1) Republicans have mounted no opposition to his years of serial lawlessness, most prominently including over 30 executive alterations of Obamacare, and (2) we are late in Obama’s presidency. Faithless Execution attempts to illustrate how Republicans could build political support for Obama’s impeachment by marshaling his years of unilateral and systematic “waivers,” amendments, distortions, and defiance of federal law. But when I made that argument, critics (including some on the right) claimed that I was trying to criminalize policy disputes, that impeachment was overkill.

It was a half-baked critique: (a) impeachment is not a criminal-law process but a political one; (b) I was emphatic that the constitutional problem was not Obama’s policies, with which I disagree, but his unconstitutional manner of imposing them, with which everyone should disagree; and (c) I also stressed that the goal of highlighting presidential lawlessness should not be to impeach the president but to revive impeachment as the credible threat that the Framers intended it to be — the idea is to try to bend Obama into honoring his oath to execute the laws faithfully, such that the political case for impeachment would become viable but resorted to only if Obama remained defiant. I contended that the best thing for the country would be for Obama to finish his term as a law-abiding president but that the country would be endangered if he chose to remain obstinately lawless — something that could not be ignored without grave consequences.

In any event, I am gratified that Dr. Krauthammer, too, now sees Obama’s years of serial lawlessness as something Congress should have framed as impeachable misconduct. One only wishes that he and other influential commentators had come around to that view earlier, when some of us were being flayed for saying so. More regrettable, though, is Krauthammer’s waiver argument, to wit: Congress has somehow forfeited the impeachment power owing to (a) the GOP’s earlier passivity while Obama ran roughshod over the law, and (b) the related fact that we are now entering the last two years, rather than the first two, of Obama’s presidency.

To the contrary, cataloguing prior, serial lawlessness is how a persuasive impeachment case is built, not undermined. Because impeachment is a grave remedy reserved for truly egregious cases, it is only natural that acts of lawlessness have to reach a critical mass before politicians are (finally) ready to act. Once the lawlessness becomes intolerably dangerous to the republic, as in Richard Nixon’s case, we don’t say, “Gee, we can’t impeach the president now because there were other abuses of power that we failed to address in a timely manner”; we say, “Now that we have decided to act, we are going to take account of every prior abuse because they help justify our taking this extraordinary action.” Moreover, when Nixon was impeached six years into his presidency (and after being reelected in 1972 by a landslide that dwarfs Obama’s 2012 victory margin), no one said it was too late to act. The logical conclusion, instead, was that with no more elections to worry about and thus little political incentive to mend his ways, a rogue in the White House posed more of a threat, and was therefore more worthy of impeachment, than he would have been in his first term.

In the end, Megyn Kelly framed the major argument for impeachment, one that cuts across partisan lines — or at least ought to — this way: President Obama mulishly repeats a syllogism — he has patiently waited for Congress to act on his call for immigration “reform” (i.e., amnesty); Congress has refused; and therefore he must act unilaterally. This, Ms. Kelly and Dr. Krauthammer agreed, is a perversion of our constitutional system, in which the president presses policy arguments but Congress decides what becomes law. When Congress does not defer to the president’s wishes, it is not shirking its responsibilities — it is executing those responsibilities by saying “no.” Kelly and Krauthammer offered fitting hypotheticals: Imagine a Republican president who says he will use prosecutorial discretion to excuse people who harass women trying to enter abortion clinics; or such a president who, confronted by the Democrats’ failure to enact his demanded repeal of the capital-gains tax, says, “If they don’t act, I will,” and promptly issues an executive order directing the IRS not to collect the tax.

In the past, presidents acting in such ways would surely have been impeached. But as Kelly and Krauthammer illustrated, tolerating Obama’s lawlessness invites a destructive new era of dictatorial presidency. Not all future presidents will be liberal Democrats. Even with the press as the wind at their backs, Democrats faced with a Republican president who exploits Obama’s precedents to impose his agenda lawlessly will experience what Republicans are going through today: They will have insufficient support for ending the lawlessness. Obama will have devolved us into a banana republic where might makes right.

This is the theme of Faithless Execution: All Americans who aspire to sustain a nation of laws not men have a vital interest in rejecting executive lawlessness. The Framers understood that presidential usurpation of lawmaking power would be the road to tyranny. They were right . . . and avoiding tyranny should not be a partisan issue.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.

TOPICS: Constitution/Conservatism; Culture/Society; Editorial; Government; News/Current Events
KEYWORDS: amnesty; andymccarthy; impeachment; impeachobama; lawlessness; obama; palin; sarahpalin
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1 posted on 11/15/2014 10:27:42 AM PST by SeekAndFind
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To: SeekAndFind

The Congress is EXEMPT, like the Moslems that control it,
as the corrupt EXEMPT reinstitute and condone
SLAVERY, quartering, and lawlessness.

The Congress is EXEMPT and could not care less.

2 posted on 11/15/2014 10:30:31 AM PST by Diogenesis (The EXEMPT Congress is complicit in the absence of impeachment)
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To: SeekAndFind

McCarthy is spot on. But I doubt that the current crop of GOP have the cajones or the spine to go thru impeachment arguing they would never get the 2/3 of Senate.
My point of contention to that has always been the lesser of evils is still evil...and to do nothing to stem the flow of THE LAWLESS one is to invite more abuse...AND at some point a Big Brother.
Madison warned us...but alas i fear we won’t heed him...after all hes just a dead white rich guy...

3 posted on 11/15/2014 10:35:58 AM PST by lexington minuteman 1775
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To: SeekAndFind

Not going to happen.

I don’t see the Democrats voting to remove Obama from office in the Senate.

Republicans are intimidated by the man. Boner and McCon aren’t made of the “right stuff” to stand up to Obama and say “no.”

Sadly, the President will get away with it.

4 posted on 11/15/2014 10:38:42 AM PST by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: SeekAndFind

Impeachment is required when the President demands it.

5 posted on 11/15/2014 10:40:37 AM PST by HMS Surprise (Chris Christie can STILL go straight to hell.)
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To: SeekAndFind

We “might” be a to impeach him but, you would never prevail in the Senate.

Seems pointless given his Yuge outsized ego and I tbink he would consider the failure to convict in the Senate a badge of honor and validation of his greatness, that he is able to withstand all challenges to his supremacy.

Seems pointless.

I believe our only option is in the house and severely crippling his ability to spend.

Even then, I believe be would simply order Treasury to continue writing checks and then hold us off until 2017.

Our next best option is to challenge him in court, burying the administration in lawsuits, which he will again, wait us out until 2017.

6 posted on 11/15/2014 10:43:18 AM PST by Vendome (Don't take life so seriously-you won't live through it anyway-Enjoy Yourself ala Louis Prima)
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To: SeekAndFind

As long as the Republicans are more interested in political hay than there are the survival of the republic, obama is safe.

7 posted on 11/15/2014 10:44:41 AM PST by The_Republic_Of_Maine (In an Oligarchy, the serfs don't count.)
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To: SeekAndFind

Our Ageless Constitution

"The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its components are beautiful, as well as useful; its arrangements are full of wisdom and order...."
-Justice Joseph Story

Justice Story's words pay tribute to the United States Constitution and its Framers. Shortly before the 100th year of the Constitution, in his "History of the United States of America," written in 1886, historian George Bancroft said:

"The Constitution is to the American people a possession for the ages."

He went on to say:

"In America, a new people had risen up without king, or princes, or nobles....By calm meditation and friendly councils they had prepared a constitution which, in the union of freedom with strength and order, excelled every one known before; and which secured itself against violence and revolution by providing a peaceful method for every needed reform. In the happy morning of their existence as one of the powers of the world, they had chosen Justice as their guide."

And two hundred years after the adoption of this singularly-important document, praised by Justice Story in one century and Historian Bancroft in the next and said by Sir William Gladstone to be "the most wonderful work ever struck off at a given moment by the brain and purpose of man," the Constitution of 1787 - with its Bill of Rights - remains, yet another century later, a bulwark for liberty, an ageless formula for the government of a free people.

In what sense can any document prepared by human hands be said to be ageless? What are the qualities or attributes which give it permanence?

The Qualities of Agelessness

America's Constitution had its roots in the nature, experience, and habits of humankind, in the experience of the American people themselves - their beliefs, customs, and traditions, and in the practical aspects of politics and government. It was based on the experience of the ages. Its provisions were designed in recognition of principles which do not change with time and circumstance, because they are inherent in human nature.

"The foundation of every government," said John Adams, "is some principle or passion in the minds of the people." The founding generation, aware of its unique place in the ongoing human struggle for liberty, were willing to risk everything for its attainment. Roger Sherman stated that as government is "instituted for those who live under it ... it ought, therefore, to be so constituted as not to be dangerous to liberty." And the American government was structured with that primary purpose in mind - the protection of the peoples liberty.

Of their historic role, in framing a government to secure liberty, the Framers believed that the degree of wisdom and foresight brought to the task at hand might well determine whether future generations would live in liberty or tyranny. As President Washington so aptly put it, "the sacred fire of liberty" might depend "on the experiment intrusted to the hands of the American people" That experiment, they hoped, would serve as a beacon of liberty throughout the world.

The Framers of America's Constitution were guided by the wisdom of previous generations and the lessons of history for guidance in structuring a government to secure for untold millions in the future the unalienable rights of individuals. As Jefferson wisely observed:

"History, by apprising the people of the past, will enable them to judge of the future; it will avail them of the experience of other times and other nations; it will qualify them as judges of the actions and designs of men; it will enable them to know ambition under every disguise it may assume; and knowing it, to defeat its views."(Underlining added for emphasis)

The Constitution, it has been said, was "not formed upon abstraction," but upon practicality. Its philosophy and prin­ciples, among others, incorporated these practical aspects:

The Constitution of the United States of America structured a government for what the Founders called a "virtuous people - that is, a people who would be able, as Burke put it, to "put chains on their own appetites" and, without the coercive hand of government, to live peaceably without violating the rights of others. Such a society would need no standing armies to insure internal order, for the moral beliefs, customs, and love for liberty motivating the actions of the people and their representatives in government - the "unwritten" constitution - would be in keeping with their written constitution.

George Washington, in a speech to the State Governors, shared his own sense of the deep roots and foundations of the new nation:

"The foundation of our empire was not laid in the gloomy age of ignorance and superstition; but at an epocha when the rights of mankind were better understood and more clearly defined, than at any former period.... the treasures of knowledge, acquired by the labors of philosophers, sages, and legislators, through a long succession of years, are laid open for our use, and their collective wisdom may be happily applied in the establishment of our forms of government."

And Abraham Lincoln, in the mid-1800's, in celebrating the blessings of liberty, challenged Americans to transmit the "political edifice of liberty and equal rights" of their constitutional government to future generations:

"In the great journal of things happening under the sun, we, the American people, find our account running ... We find ourselves in the peaceful possession, of the fairest portion of the earth....We find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us. We found ourselves the legal inheritors of these fundamental blessings. We toiled not in the acquirement or establishment of them - They are a legacy bequeathed us, by a once hardy, brave, and patriotic...race of ancestors. Theirs was the task (and nobly they performed it) to possess themselves, and through themselves, us, of this goodly land; and to uprear upon its hills and its valleys, a political edifice of liberty and equal rights, 'tis ours only, to transmit the latest generation that fate shall permit the world to know...."

Because it rests on sound philosophical foundations and is rooted in enduring principles, the United States Constitution can, indeed, properly be described as "ageless," for it provides the formula for securing the blessings of liberty, establishing justice, insuring domestic tranquillity, promoting the general welfare, and providing for the common defense of a free people who understand its philosophy and principles and who will, with dedication, see that its integrity and vigor are preserved.

Justice Joseph Story was quoted in the caption of this essay as attesting to the skill and fidelity of the architects of the Constitution, its solid foundations, the practical aspects of its features, and its wisdom and order. The closing words of his statement, however, were reserved for use here; for in his 1789 remarks, he recognized the "ageless" quality of the magnificent document, and at the same time, issued a grave warning for Americans of all centuries. He concluded his statement with these words:

"...and its defenses are impregnable from without. It has been reared for immortality, if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, THE PEOPLE. Republics are created by virtue, public spirit, and intelligence of the citizens."

Our ageless constitution can be shared with the world and passed on to generations far distant if its formula is not altered in violation of principle through the neglect of its keepers - THE PEOPLE.

Our Ageless Constitution, W. David Stedman & La Vaughn G. Lewis, Editors (Asheboro, NC, W. David Stedman Associates, 1987) Part VII:  ISBN 0-937047-01-5

8 posted on 11/15/2014 10:45:15 AM PST by loveliberty2
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To: SeekAndFind

Has anyone seen the Trey Gowdy canard on Drudge? Now the Repubs have found a new excuse to oppose impeachment. It’s called Joe Biden. This is a (expletive deleted) no-brainer. Biden as incompetent as he may be is NOT a lawless Kenyan usurper hell-bent on shredding the Constitution and taking down America. Given the choice between a bumbler and an outright reverse-racist sociopath whose every stated and intended action is dedicated to the destruction of the U.S. white middle class, there is no comparison. They are not equal. Neither is the bumbler worse than the sociopath. Only in an upside-down world can this kind of rough equivalence even be contemplated—much less publicly stated—by a so-called opposition party. As they say on the streets: “We’s in trouble.”

9 posted on 11/15/2014 10:57:24 AM PST by 4Runner
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To: lexington minuteman 1775

As has been demonstrated with the attempt to remove the Former Occupant of the Oval Office, 1993-2001, impeachment is an exercise in futility. The jury (the Senate) never convicts and carries out the penalty phase.

A better strategy would be to make life so intolerable for The Won, that he decides to resign, in the manner of Richard Nixon. There is certainly a LOT more to lay on the Current Occupant’s lap than was ever charged against Nixon, who on his worst day, was not treasonous of the principles that were the ideal of the United States of America.

10 posted on 11/15/2014 11:03:42 AM PST by alloysteel (Most people become who they promised they would never be.)
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To: alloysteel

The first step must be repeal 17. With it in place impeachment is impossible.

11 posted on 11/15/2014 11:17:23 AM PST by Thom Pain (If you like your country you can keep it. Period.)
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To: SeekAndFind

Republicans in congress eyther stop Obama or there will be nothing to keep this country from falling into a banana republic style dictatorship. Even democrats who arn’t merely useful idiots know that.

That said If Obamas powers are sustained then the Next President will be able to uses the same means to effectively end the welfare State and every single Federal Domestic agency. The power of the dictator works both way. Given the countrys embrace of sodomy I not sure I care either way. This country is doomed in the long run so let it fall in such a way that those parts still victorious should be reborn from the ashes of tyranny.

That is the real trick how to fell a tree so that it falls in precisely the right way as to allow for cultural and spirtical revolution in our part of its former shadow.

12 posted on 11/15/2014 11:39:12 AM PST by Monorprise
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To: SeekAndFind
Obama will have devolved us into a banana republic

Andrew is late to the party. We became a banana republic the day congress passed the obamacare law that they didn't write, and didn't read.

That is rule by decree, and he has continued to rule by decree right up to the present while congress responds with absolute silence.

13 posted on 11/15/2014 11:49:02 AM PST by marron
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To: goldstategop

The House must still carry out its duty regardless of what the senate does - the two are not linked.

14 posted on 11/15/2014 11:52:01 AM PST by atc23 (The Confederacy was the single greatest conservative resistance to federal authority ever)
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To: SeekAndFind

Others are coming around (what took so long), to the fact and also to explain that Obama is a dictator and running His regime through our government. Not much that he does is in line with the founding of this country. That’s not extreme to say.

We, the people, are suppose to sit back and rely on the trusted republicans to do all of this maneuvering in the House and Senate to put the brakes on Obama. The representative from South Carolina told us the other evening what they are planning on doing. Paper shuffling.
Excuse is Biden. Come on. Biden is a goofball but I bet he in his own way loves this country. Cowardness in D.C., is that wrong to that we are in store for...

It’s hard to see how much further people are willing to give to Obama, you know. I’m sorry but the representatives from both sides should be screaming in opposition to control this dictator. Some of the highest level democrats need to be walking over the White Office to put the pressure on Obama as what happened with Nixon. Nixon’s problems are nothing to what we see now. This stuff is like watching a movie gone dead wrong. Because no one wants to stand up to the child who doesn’t like No! He has been programed to do what he is doing. BOR on Fox saying that Obama is a good person; a good person would not do these things that we see.

15 posted on 11/15/2014 11:59:01 AM PST by Christie at the beach
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To: Thom Pain
Agree. We are no longer self-governing. There is no republic.

Article V. Many Freepers think we'll lose freedoms that are already gone. There is little downside risk and everything to gain.

16 posted on 11/15/2014 12:07:22 PM PST by Jacquerie (Article V. If not now, when?)
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To: SeekAndFind

Lefties are trying to make an ever-growing Federal machine- designed to be inefficient- efficient by co-opting Congress’ powers.

17 posted on 11/15/2014 12:34:07 PM PST by Finalapproach29er (luke 6:38)
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To: SeekAndFind

that any person could get away with exercise such arrogant (or audacious, if he wishes) dictatorial contempt for our American constitution and our Bill of Rights....
means we have to implement some structural changes, improvements....
to try to prevent, or make it more difficult...for anybody else to do this to us again in future

(assuming we survive the present..., of course..., otherwise it won’t matter anyways)

18 posted on 11/15/2014 12:35:54 PM PST by faithhopecharity ((Brilliant, Profound Tag Line Goes Here, just as soon as I can think of one..))
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To: SeekAndFind

Five decades of public education under socialist principles will render this piece unreadable, let alone comprehendible by the very population that could benefit from impeachment.

19 posted on 11/15/2014 1:16:31 PM PST by Fester Chugabrew (Even the compassion of the wicked is cruel.)
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To: SeekAndFind

The Dhimmicrats have no problem whatsoever with tyranny, provided they’re the tyrants.

20 posted on 11/15/2014 2:57:27 PM PST by Slings and Arrows ("I Only Love You When I'm Drunk" -
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