April 16, 2009 by drkate4justice
© 2009 Dr. Kate/drkate4justice
(Author’s note: Every good toolbox used to tackle a major problem has at least one major instrument that can be used to slow down or jam the wheels of an intended nefarious operation. For American Patriots, the structure of our toolbox and its fundamental strength is the Constitution, AND the person carrying that document in their heart while performing ‘random acts of patriotism’.)
A Constitution is not the act of a government, but of a people constituting a government, and government without a constitution is power without a right…Thomas Paine, The Rights of Man
Constitutions and Governments
Thomas Paine’s The Rights of Man describes the formation of the American Constitution and government as that of a
‘compact of a people with each other, to produce and constitute a government, and not a compact between the government and the people.’
Paine further illuminated that:
“Government is not a trade which any man, or any body of men, has a right to set up and exercise for his own emolument, but is altogether a trust…it has of itself no rights; they are altogether duties”
Congress, are you listening?
These duties are simply, to protect life, liberty, property, and the pursuit of happiness, with powers delegated, enumerated, and prescribed to the government by the people in the Constitution.
Our constitution was established by first laying down a declaration of rights, followed by the form which government should have, the powers it should possess and not possess, the manner of representative government and democratic elections, and the manner of its amendment, or growth beyond precedent, so as to not ‘preclude the benefits of experience’. The first ten amendments to the constitution enumerate, retain and reiterate the rights of the people including the right to be protected from the tyranny of the legislative or the executive—a reminder that the government was created by and for we the people. Paine:
“Here we see a regular process—a government issuing out of a constitution, formed by the people in their original character, and that that constitution serving, not only as an authority, but as a law of control to the government.”
“The external controls of the federal government created by the Constitution were representation and federalism; the main internal control was separation of powers into three branches, with checks and balances between them”, according to an article by Nicholas J. Szabo of the George Washington University law school (link removed, phishing site). Continuing:
The external and internal controls established in the American government were a means of controlling the passions and flaws of both the people and the central government. Over decades, the internal controls on the federal government—balance of power between branches of government—have been weakened considerably by each branch of government encroaching on the other branches. The U.S. Supreme Court has been tasked in the past with ensuring this balance through the acceptance or rejection of legislation and executive actions depending on their consistency with the Constitution.
In the last eight years, in my opinion, this power grab by the Executive and the legislative branch (e.g. republican v. democratic control) has accelerated to now intolerable levels, and threatens the very existence of America.
The external controls on the federal government—we the people and our ability to discern what is going on—have been weakened by our dispersal, division, and attempts to weaken, frighten, and mislead the public as to government’s abilities, activities, role, and function.
We know that the government is assuming more powers than it has been delegated and we know that now, the Obamacrats are ready to radically change the American government and its relation with the people. By its nature, that action is unconstitutional, for it is we the people who constituted the government and delegated to it its duties. The government cannot assume powers it has not been delegated without fundamentally violating the constitution—as Paine said, “a government without a constitution is power without a right”.
Herein lies at least one tool for derailing the latest budgetary proposals, scandals, and large-scale shift of America’s domestic policies at the hands of the authoritarian Obamacrat administration. And this tool is not without precedent.
“Is the Obama budget unconstitutional?”
It is high time Americans heard an argument that might turn a vague national uneasiness into a vivid awareness of something going very wrong. The argument is that the Emergency Economic Stabilization Act of 2008 (EESA) is unconstitutional. George Will, March 29, 2009.
George Will had an interesting article in the Jewish World Review in which he argues that the Economic Stabilization Act of 2008 (EESA) is unconstitutional because it violates the ‘non-delegation doctrine’ between branches of government. Specifically, the non-delegation doctrine strictly prescribes the kinds of power the legislative branch can delegate to the Executive Branch. Will argues that:
“ By enacting it, Congress did not in any meaningful sense make a law. Rather, it made executive branch officials into legislators. Congress said to the executive branch, in effect: “Here is $700 billion. You say you will use some of it to buy up banks’ ‘troubled assets.’ But if you prefer to do anything else with the money — even, say, subsidize automobile companies — well, whatever.”
This not only shows Congress’ continued ‘dereliction of duty’ in my view, but also may provide a legal vehicle through which to jam the wheels of this ruinous, runaway train to socialism. Congress provided absolutely no guidelines for spending the $700 billion dollars, thereby reneging on their constitutionally-delegated power and responsibility to do so, and improperly delegating this authority to the Executive Branch.
Article I of the Constitution vests all legislative power to Congress. Laws enacted by Congress must be executable, that is, provide enough detail through which the Executive is constrained only to execute the law. The powers to interpret domestic law, for example through signing statements, were not delegated to the Executive; in fact they may be unconstitutional instruments in themselves.
Constitutional Power: Delegated, Enumerated, Assumed
In order to understand the significance of the non-delegation doctrine, it is important to first discuss the concept of power that is delegated, enumerated, and assumed. Black’s Law Dictionary defines Constitutional Power as
The right to take action in respect to a particular subject matter, or class of matters, involving more or less of discretion, granted by the constitution to the several departments or branches of government, or reserved to the people. Powers in this sense are generally classified as legislative, executive, and judicial, and further classified as enumerated (or express), implied, inherent, resulting, or sovereign powers.
Constitutional Powers are further defined as:
• Enumerated or express powers are those expressly provided for in the Constitution, for example, Article I Section 8,
• Implied powers–such as are necessary to make available and carry into effect those powers which are expressly granted or conferred (e.g., enforcement power) and presumably within the intention of the constitution or legislative grant,
• Inherent powers–Powers which necessarily inhere in the government by reason of its role as a government, e.g., conducting foreign affairs.
• Necessary and proper powers–Article I Section 8 Clause 18 gives Congress power to ‘make all laws which shall be necessary and proper” for carrying out its enumerated powers
• Spending power–the power of Congress to pay the debts and provide for the common defense and welfare of the United States
• Reserved or residual state powers–the powers not delegated to the United States by the constitution, nor prohibited to it by the states are reserved to the states respectively, or the people. This is the 1oth Amendment to the Constitution.
• Inherent powers by natural right–those that are enjoyed by the possessors of natural right, without having been received by another. For example, ‘inalienable rights’.
• Delegated power is the instrumenting of another with a general power
• Assumed power-all assumed power is usurpation, taking that which does not belong to you.
In the Constitution, we the people delegated different powers to the executive, legislative and judicial branches of government and retained the rest for ourselves via the 9th and 10th Amendments.
“Exercise by the executive branch of the powers delegated to the legislative branch ‘offends’ this separation and delegation of powers, and hence is unconstitutional. Certain powers of one branch of government may not be delegated to another, such as the declaration of war” (Blacks Law Dictionary). The essence of George Will’s argument is that the executive is improperly exercising the power delegated to Congress (spending power, enumerated, express, necessary and proper) and thus the EESA should be ruled unconstitutional and sent back to Congress to provide the detail required for the bill’s implementation.
The Executive has too much power, a trend started long ago and now enabled by a democratic, socialist-leaning congress. By not even looking at the legislation it passed, Congress has abrogated its responsibility.
Take a look at this Chicago Tribune cartoon from 1934 and see if you don’t agree there are a lot of similarities:
Constitutional Origin of the
The ‘non-delegation doctrine’ has its origin in, of course, the struggle of our founding fathers to assure checks and balances within the new American government. Szabo’s article describes that the concept of ‘checks and balances’ gave each branch of government essentially veto authority over the other, and that, in the interests of the Country, these branches would be compelled to act together but also to check the abuses of the other branch of government.
A key question is whether the decision-making powers granted to the government would adequately reflect the interests of the people, especially as our country grew larger in population and land base.
The ‘filtering’ of the people’s opinion through representation, and that representation further distanced from people’s control through the 17th Amendment, was viewed by many as a potential danger in the new republic. Further ‘distancing’ of the public from its representatives occurs through through the additional filter of lobbyists. That delegations of power could be conferred upon a Congress could in turn give rise to abuses of power was well demonstrated in history.
The Power of the Government to Abuse the Citizenry
The Founding Fathers had numerous examples of the abuse of power by monarchs and governments, and strove to find a way in which to prevent such molestation.
It was clearly recognized that one or all branches of government had the power to ‘abuse and effect the rights the citizenry’ and that at least two branches of government had to collude to effectuate that abuse and violate the ‘balance’ inherent in the ‘checks and balances’ theory of the American government.
It strikes me that single party rule, no matter which party, gives rise to that abuse, and that right now citizens of the United States are suffering abuse at the hands of the legislative and executive branches of national government.
Just so you know, we are entitled to a republican form of government and to protection from the abuse of the legislative or executive branch under Article IV, Section 4, of the U.S. Constitution, which states:
The United States shall guarantee to every state in this union, a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.
The state of New York successfully used Article 4 and the 10th amendment to rebuff the government’s attempts to force New York to take and manage hazardous waste, in other words, to ‘do the work of the government’. One can see easily that this tactic could be used to rebuff the government’s ‘unfunded mandates’, including the mandatory civilian service, even taxes.
Szabo goes on to note that:
‘the modern federal government, which impact citizens in an innumerable variety of ways, should ideally reflect the equally detailed real interests of real people, rather than mere general and abstract ideological goals combined with the concrete and specific interests of only skilled lobbyists. This ideal suggests a stricter rule of delegation so that more such decisions are made by deliberating representatives who collectively know much more about their constituent’s interests than the executive’.
But is this ideal really possible? Can such ‘concrete interests’ be fully represented? And can these ‘filtered representatives’ be counted on to strive for the abstract ‘public good’?
‘Either way, the vast variety of specific and concrete interests of a nation are inevitably lost when statues or regulations of a national scope are written.‘ This fundamental epistemological limitation on national rule-making is a problem common to both the legislative and the executive branches. It can be avoided neither by delegating authority to an executive branch to solve the problem behind the curtains, in the C.F.R. out of the limelight of the democratic process, nor merely through enforcing a non-delegation doctrine and insisting Congress sufficiently detailed laws.
The author insists that “it is primarily the role of other constitutional doctrines or political processes to recognize when the federal government is overreaching its epistemological limits and prevent it from occurring.’”
If this is true, and I am not in complete agreement, then the battle for the control of Congress and the executive must proceed on all fronts, including the challenging of Congress’ authority to and competence in delegating its duties to the executive.
If Congress is incapable of providing the requisite detail in its legislation for implementation, and is thus incompetent, then a delegation of authority to the executive may be deemed proper. But then why is an incompetent congress serving?
The fact that Congress may lack knowledge in a certain area, and thus cannot provide details for its legislation, does not mean or imply that the Executive will have knowledge or that the executive could delegate the problem to bureaucrats who do have the knowledge.
Some Conclusions and “Tests” for Delegation of Authority
It is possible to read the ‘all legislative powers’ and ‘all laws necessary and proper to the execution’ clauses as determining that no legislative power, that is, no power to make general law and no discretion to spend money whatsoever can be delegated to the executive or to any other body, for then no longer would all of the legislative powers be vested in the Congress.
“It may also be read to not forbid the partial and revocable delegations that occur when statutes confer law-making power to the executive in certain areas”. The nature of the language and the execution of laws is such that a statute cannot avoid providing some discretion to the executive.
The earliest Congresses sometimes put sweeping language in their statues, essentially allowing the executive to write most of the rules in a certain area of law. Their practices in this regard diverged sharply between foreign relations law, where delegation was often sweeping, and domestic law, where Congressional control was meant to be tight and detailed.
But how sweeping can such language be before it is an unconstitutional delegation of power?
The starting point for the non-delegation analysis is the interpretation of the statute written. Prior to reaching non-delegation, a court should ensure that the executive has not taken any more power than it was delegated. It is unconstitutional for the executive to subtract via rule-making (and via ‘discretion’) from an allowed category of behavior, such as sending his goons after people who exercise their First Amendment rights. It is also unconstitutional to add to a forbidden category of behavior.
The executive should derive the least amount of power over taxation, war, legal remedy, or rule-making, and the least amount of discretion over life, liberty, property, or the creation of new offices, consistent with the language and purpose of any statute written by Congress. Deference to the executive branch interpretation should play no role, since this would make the executive a ‘judge in its own case’ in terms of determining the scope of its power, even where the executive is not a party to the case. (Szabo)
In summary, then, we can look at a series of criteria for determining whether Congress improperly and illegally has given away its power to the executive, delegating to Obama what Congress is legally required to do. Constitutional scholars such as Szabo, extensively quoted here, suggest the following guidelines for assessing whether the Congress can delegate its duties to the executive:
- Stricter for criminal law than civil law. Thus, for example, criminal sentencing and the scheduling of drugs as criminally prohibited substances should be subjected to stricter non-delegation rules than similar laws with only civil penalties. Here the non-delegation doctrine is primarily about the delegation and separation of such power over life, liberty, and property.
- Stricter for domestic (ius civile) than foreign policy related law (ius gentium). Since domestic law effects primarily citizens, the representation of citizens are more heavily implicated in civil statutes, and thus it is not proper to delegate authority to the executive.
- Stricter for delegations to the executive than to the judicial branch, since the federal judiciary retains some quasi-law-making power with federal common law
- Stricter the more representation distance lies between the rule-making process and those impacted by the rule. People deserve to have their realy and varied interests represented.
- Stricter when Congress lacks the expertise to specify detailed rules in the area. When this is the case, it is more, not less, likely that the executive also lacks such expertise. Where Congress lacks the expertise, as it often does, it should either hire its own set of experts to draft legislation, or admit to the epistemological limitations of statutory and regulatory law and refrain from making the cultural or economic problems at issue a matter of such law.
This examination of the non-delegation doctrine illuminates some aspects of the ’separation of powers’, on the potential for abuses of the powers delegated, and on the limitations of statutory and regulatory law on a national scale. Based on this examination, it is my belief that Congress has improperly delegated authority to Obama which in effect turns him into a law maker, powers he does NOT have.
As Thomas Paine noted,
a collusion between the executive and the legislative branches of government would be necessary to eliminate the checks and balances of government and would lead to the abuse of the citizenry.
The collusion between the democratic congress socialist Congress and the Executive is presently harming Americans by making large scale decisions about the direction of our Country, our lives, liberty, and property without the authority to do so. It is the classic definition of a totalitarian, repressive, regime, with more on the way.
A strategy to begin to stop this is to bring before the courts every piece of legislation the Congress passes and the President signs–even before these are implemented and harm actually occurs. Because the production of these laws by Congress improperly delegates authorities to the executive that he does not have, and that we the people did not grant to the executive or to Congress.
Congress: we’re taking you on. Let the Patriot Games begin!
Update: Thanks to Dave M. for the following information on the introduction of “The Enumerated Powers Act” by Representative John Shadegg (R-AZ), which is exactly on point to the arguments made in this article. From Shadegg’s press release, the bill would do the following:
Requires each Act of Congress to contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that Act. Declares that failure to comply with this requirement shall give rise to a point of order in either chamber of Congress.
The bill (H.R. 450) was introduced on January 9, 2009 and has 19 co-sponsors, all republicans. Shadegg’s press release continues:
As a reminder of the federal government’s limited powers, 20 representatives want to ensure that every single piece of legislation passing through Congress includes a statement citing specific constitutional authority for enacting it. …
When he introduced the proposal Jan. 9, Shadegg gave a House floor speech reminding his colleagues of limited authority granted in the 10th Amendment of the United States Constitution.
It states, “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.”
“What that means is that the Founding Fathers intended our national government to be a limited government, a government of limited powers that cannot expand its legislative authority into areas reserved to the states or to the people,” Shadegg said. “As the final amendment in the 10 Bill of Rights, it is clear that the Constitution establishes a Federal Government of specifically enumerated and limited powers.”
“This measure would enforce a constant and ongoing re-examination of the role of our national government,” he said. “… It is simply intended to require a scrutiny that we should look at what we enact and that, by doing so, we can slow the growth and reach of the Federal Government, and leave to the states or the people, those functions that were reserved to them by the Constitution.”
Shadegg said the act would perform three important functions:
1. It would encourage members of Congress to consider whether their proposed legislation belongs in the federal level in the allocation of powers or whether it belongs with the states or the people.
2. It would force lawmakers to include statements explaining by what authority they are acting.
3. It would give the U.S. Supreme Court the ability to scrutinize constitutional justification for every piece of legislation. If the justification does not hold up, the courts and the people could hold Congress accountable and eliminate acts that reach beyond the scope of the Constitution.
He said the Founding Fathers granted specific, limited powers to the national government to protect the people’s freedom.
“As a result, the Constitution gives the Federal Government only 18 specific enumerated powers, just 18 powers,” Shadegg noted.
Beginning with President Franklin Roosevelt’s New Deal, he said, Congress has ignored the 10th Amendment and greatly expanded federal government. “Let me be clear,” he said. “Virtually all the measures which go beyond the scope of the powers granted to the Federal Government by the 10th amendment are well-intentioned. But unfortunately, many of them are not authorized by the Constitution. The Federal Government has ignored the Constitution and expanded its authority into every aspect of human conduct, and quite sadly, it is not doing many of those things very well.”
While many believe government “can do anything,” that is not what the Founding Fathers intended for the nation, Shadegg contends.
O.k. So now there are 20 people–instead of 8– we will keep as we ask the rest of Congress to resign!