I would like to pose a very serious question in the hopes that it may receive serious consideration and thoughtful response – with knowledge.
While I am not accredited with a law degree, I am attuned to and have good understanding surrounding the foundations of our governance, the constitution, bill of rights and a few other precepts of foundational consideration required in this discussion.
Therefore, given our representative form of government, it is such that we are meant to elect our Congress and Senate to safeguard our liberty. We expect them to legislate with minimal effect and only when necessary for the welfare of the people as a whole. While not my question of topic I have to ask however; how did we get to a point that the United States Government looks more like Cold War era Soviet Union than a Constitutional Republic?
How the hell did the American people allow Congress to masquerade as constitutionally responsible in their effort? They have ceded their responsibility and authority, with the unwilling consent of the people, to regulatory agencies and the central planners. They allow unelected to create what is applied to me as LAW when they are not law makers that create it. They are regulators. Somehow though, when they wish to prosecute or enforce, they always seem to refer to a regulation when quoting chapter and verse.
Think of it from this perspective. How is it we are taken to a court of law and face imprisonment, forfeiture, fines and probation by people we did not elect or ask to regulate us? Is it because they feel we have violated the spirit of one of their regulations? Not a LAW – a REGULATION. How is it they, the regulator, get to use my court system with me in it if I had no representation in the granting of their authority over me to begin with?
So here is my question.
May I sue my Congressman for negligent representation if they allow for these unelected bodies to continue turning out what should be the work of the Congressman? I am sincere in the question. Is a Congressional Oversight committee, rife with graft and that requires hundreds of thousands of dollars of fundraising of the congressman to be able to serve really the constitutional precept we expect? Evidently it is what we accept.
The regulatory system is a communist precept. Bureaucratic central planning, comprehensive plans, regulation and oversight of every Americans life and majority if not most of their choices is not constitutional. It certainly is not a constitutional precept.
Congress may have crafted get out of jail free mechanisms to avoid work, but that does not make it constitutional. It is the antithesis of constitutional preservation. It is destructive to liberty and thus our freedom. It is when personal liberty dies that freedoms wain. You see, the more choices made for us the less freedom we have. Therefore, it is the responsibility of every American to defend their liberty. My oath was to protect it from all enemies foreign and domestic.
So, my Congressman has ceded his constitutional responsibility to a precept foreign to the Constitution.
Should I not have the standing as the owner of this government to redress and prosecute?
Please do not leave the refrain in the mollycoddle tone and remind me that I have the right to not vote for them if I think they are doing something wrong. Nah, what congress has done is criminal. Each is individually liable for their action and or inaction to participate in the illegal and coercive operation of an unconstitutional government. E Pluribus Unum – from one many, so I hold not just the one but the total of all of congress in contempt before the American people.
So, do I have grounds to redress in a court?
Again, ”May I sue my Congressman for willful and negligent representation if they allow for these unelected bodies to continue turning out what should be the work of the Congressman?”, or, ” May I sue my Congress for willful and negligent representation if they allow for these unelected bodies to continue turning out what should be the work of the Congress”?
To expand this discussion let me drill further down into the core of the issue. A regulator is not elected. They are not subject to recall by vote. They are hired, protected and vested government employees. They make what is known as regulatory law. When election time comes they do not have to worry about a rule they made that could cost them their job. No one votes for them. We do however vote for our legislators, that is why we expect them to do the work and to make the law.
When congress sets out to making law they first begin creating language saying something like “We want the air to be clean and we want cars to stop polluting it by doing this, this and this”. If and when the bill passes the proper process review, discussion and voting, it then goes to POTUS. If POTUS decides it looks good it becomes a law. This is how the constitution says we are to make new law.
What has happened instead is that once the bill becomes a law the Congress has said, OK, EPA you decide what that means. What will clean the air and make a car better in terms of pollution? Have at it. Write it all down in a big book of “do’s and don’ts” and we will have your back. Simplified of course, but they are saying “When you figure it out, lay the details on paper and then you can enforce it.”
Really, we are letting a bunch of bureaucrats decide the law. I know the critics have arguments. They will say that the amount of required compliance is beyond the ability for Congress to deal with. I would say to them, you are right. That is why the States should deal with it. It will be less complex and the elected will deal with the detail.
Look at what happened to Healthcare. A several thousand page law of ambiguity and misdirection that acts as the blueprint for everyone, including regulatory agencies, to know how to deal with. To big, ineffective and unconstitutional in my humble patriotic opinion. Nobody knows what is what or who is in charge.
Here is how the EPA describes it on their website.
“Once a law is official, here’s how it is put into practice: Laws often do not include all the details needed to explain how an individual, business, state or local government, or others might follow the law. The United States Code would not tell you, for example, what the speed limit is in front of your house. In order to make the laws work on a day-to-day level, Congress authorizes certain government agencies – including EPA – to create regulations.
Regulations set specific requirements about what is legal and what isn’t. For example, a regulation issued by EPA to implement the Clean Air Act might explain what levels of a pollutant – such as sulfur dioxide – adequately protect human health and the environment. It would tell industries how much sulfur dioxide they can legally emit into the air, and what the penalty will be if they emit too much. Once the regulation is in effect, EPA then works to help Americans comply with the law and to enforce it.”
Wow, there is so much wrong in this precept it is hard to figure out where to start. Let’s go here. Regulations set specific requirements about what is legal and what isn’t. Obviously there has to be some kind of authority granted them from someplace. The Constitution sure as hell did not say that if they wanted Congress could just make an agency to write the law of the land. Well Congress agreed in 1933, as part of Roosevelt’s New Deal, to delegate law-making power to agencies under the control of the President. In other words it makes him a Monarch of sorts. With enough influence they become dictator in a “regulatory” sense.
Let’s use the current battle between California and the Federal Government, predominantly the EPA. California is claiming that the 10th Amendment of the Constitution allows them the right to regulate the emissions of the vehicle in their State. I would argue that if it is manufactured there then fine. I do not believe that the Federal government, even if congress did the work, has the ability to regulate function that is prescribed to the State. I do not agree with California’s standards. That is fine though. I do not live there. This is the whole idea of fifty laboratories, each state, setting their own standards of governance and regulation. If a state gets too extreme in their power residents can leave. Just like they are in exodus from California and New York to less restrictive and better managed states. Where can you go when it is the Federal government if, and they are, the ones out of control? See, that is part of the precept of the 10th amendment. Let the States deal with it.
But when you introduce the EPA as the arbiter of decision on something the state has full authority to regulate, you hit a brick wall real fast. The preponderate amount of regulatory effort made by the federal agencies is much better left to the states to decide if it is required at all. The government best administered is closest to the people because the people have better control over more localized government. Congress has abandoned their responsibility. They were persuaded that only through this type of Socialist / Marxist approach could these types of issues be handled. The belief is entirely inaccurate.
It is certain simply from the stand point of the fact that if Congress cannot draft, vote and enforce a law written by them – then it should be a real good indicator that it should not exist at their level. It shows they are dealing with too much and should delegate it to the States. Again, it should be relegated to the States for their consideration and dealt with at a lower level to eliminate complexity and to increase transparency and accountability. It brings the process closer to the people.
The words below are not mine. However they are those of a former US Senator and Astronaut that was on the Apollo missions. They bare close consideration and serious attention. His words are from Americas Uncommonsense
Former Senator Schmitt Cites Constitutional Limits on Regulatory Government
Regulatory intrusions into the social and economic fabric of America have reached crisis levels in their attack on individual and collective freedom. Recent actions by the Obama Administration in placing regulatory limits on healthcare, the Internet, the use of public lands, transportation, energy production and transmission, and financial transactions merely constitute the tip of a colossal authoritarian iceberg ahead of the American Ship of Liberty.
It is now obvious that Congress got America into a real pickle when it agreed in 1933, as part of Roosevelt’s New Deal, to delegate law-making power to agencies under the control of the President. This unconstitutional and increasingly threatening situation became entrenched with the passage of the 1946 Administrative Procedures Act. APA set up the formal mechanisms for creating regulatory law outside any direct action by Congress.
With the Administrative Procedures Act, Congress gave the Executive Branch almost complete responsibility for directly overseeing the economic burden, legality, and the constitutionality of non-legislative regulations. The legal oversight of regulatory law through the Federal Courts, and its costs were left to the people and the States, as the current challenges to healthcare law and regulations so clearly illustrate.
Does any constitutional authority exist for Congress to transfer the power to establish regulatory law to a federal agency? The very limited answer to this question is “yes.” Clause 18 of Section 8, Article I, gives Congress the final power, “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 any Department or Officer thereof.” The underlined phrases, however, clearly limit Congressional authority to enumerated powers, specifically Clauses 1-17. Federal Judge Henry Hudson’s recent ruling that Clause 18 “may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power” reinforces this obvious limitation.
Unfortunately for the economy and liberty, the limited congressional delegation of authority under this “necessary and proper” Clause has morphed into a vast and growing array of administrative regulations that suffocate private initiative and intrude into the lives of Americans far beyond the constitutional authority of the Congress and the Executive. Now, by ignoring enumerated powers, some would argue that the Congress can give the Agencies the authority to regulate almost everything Americans do by invoking the “general welfare” clauses of the Preamble and Article I, Section 8, Clause 1, or through the “interstate commerce” Clause (Article I, Section 8, Clause 3). Such an argument blatantly ignores the word and intent of the Founders related to these two clauses.
The full Article I “general welfare” phrase, in fact, reads, “provide for the common Defense and general Welfare.” Following Clauses both specify and limit the specific powers of the Congress in regard to the common defense and general welfare, but none give Congress power to do anything it decides is politically or ideologically expedient. This phrase also must be viewed in the context of the more inclusive phrase “promote the general welfare” contained in the Preamble to the Constitution. That phrase in the Preamble sets out one of several basic reasons for the establishment of our form of government, and, in so doing, it links the Article I Congressional general welfare power to other constitutional provisions. Of particular note in this regard are (1) the lack of any Section 8 enumeration of forms of “general welfare” open for Congressional intervention beyond the specifically stated areas and (2) the combined effect of the 5th and 14th Amendments that make unconstitutional the legislative imposition of reward or penalty on some and not on others and thereby depriving those others of “equal protection of the law”. Unequal protection forms the basis of almost all regulatory law.
Nor can the power of Congress to regulate interstate commerce under Clause 3 of Section 8 provide constitutional justification for federal regulation of everything involved in commerce. Clause 3 merely states that Congress has the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. This Clause was intended to make commerce “regular” among the States, that is, to prevent artificial political, taxation, or other barriers from being created that would prevent the free flow of commerce between States. It was not intended to give Congress the power to regulate the details of actual commercial interactions, either directly or indirectly. Judge Hudson eloquently counters an expansive interpretation of the Commerce Clause in his recent ruling on the 2010 healthcare law that an individual mandate to buy health insurance under Obamacare unconstitutionally expands the scope of the Commerce Clause.
For example, the Commerce Clause permits the President’s appointees to be authorized by Congress to capture and prosecute persons involved in interstate high jacking, wire fraud, and other commerce-related crimes. Congress also can direct agencies to oversee interstate road, rail, and river transportation as well as interstate energy transmission. Federal regulatory activities in these and comparable arenas counter threats to uninterrupted commerce between the States.
What can be done to restore constitutional control over regulatory law? The Founders clearly intended by the language of Article I that enactment of federal laws be the responsibility of the Congress and not passed on to the Executive Branch through generalized regulatory authority. The primary responsibility for reform therefore lies with the Congress. In order to return to the Founders’ intent, Congress, first of all, should adhere to the original constitutional limitations of Article I, Section 8, relative to the transfer of regulatory authority to Executive Branch agencies. Second, a schedule for the sunset of existing regulatory authorities should be set in law along with a commitment to a coordinated schedule for constitutional and policy review by relevant Committees.
Then, by Rule and by action, neither House of Congress should allow floor consideration of any Bill or Joint Resolution that is not accompanied by a comprehensive constitutional analysis and justification, that is, a Constitutional Authority Statement. In addition, any Legislative Act should include such a Statement as modified by floor and Conference deliberation. If a Bill’s Constitutional Authority Statement has not been approved by a roll-call vote of two-thirds of the members, the legislation automatically should be referred back to Committee.
What, then, can be done to restore constitutional control over existing regulatory law? Of course, if a constitutional challenge to a regulation is warranted, relevant authorities in the Congress can file suit in Federal Court to have that regulation or any generalized regulatory authority struck down. Relative to legislative action, the Constitution (Article I, Section 7, Clause 3) would appear to limit Congressional repeal of regulatory law or general regulatory authority to a separate bill passed by both Houses and signed by the President. In spite of the fact that the President is bound to uphold the Constitution, he or she may decide not to sign a Bill of Repeal. The President also may have conflicts of interest, as it would have been Agencies administered by his appointees, operating under Presidential authority, which issued the various regulations in the first place.
Alternatively, agreement by the House and Senate to a One House Legislative Veto process provides an additional constitutional approach to regulatory review and potential disapproval of regulations or any Executive or Agency order having the effect of a regulation. By compatible Resolutions, the House and Senate could create a One House Legislative Veto process relative to any decision, order, or regulation promulgated by the Executive Branch. Under this process, any Member could introduce a Resolution of Disapproval of a specific regulation or set of related regulations. The Committee of jurisdiction would have 60 days to act after which a discharge petition signed by at least 20 percent of the Members of the relevant body would be in order on that body’s floor. The 20 percent requirement limits the possibility of tying up the business of the House or Senate with frivolous or personal use of a Resolution of Disapproval.
If a Resolution of Disapproval passes either House, the Congress can maintain constitutional control of its Legislative Veto process by adhering to the following sequence: one House passage of a Resolution of Disapproval, followed by the other House’s opportunity within 60 days to pass a Resolution of Disapproval of the first House’s action. This sequence avoids the constitutional requirement for the President to sign any joint action by the House and Senate. Should an Agency or Department refuse to honor the Legislative Veto of a specific regulation, the Congress can hold that Agency or Department in contempt of Congress or use a relevant Appropriations Bill to rescind funding for enforcement of the offending regulation.
The 112th Congress must counter the Obama Administration’s now obvious intent to assume authoritarian power through regulatory fiat. This is one of the many opening battles in continuing the 2010 Revolution prior to the 2012 elections when super majorities in the House and Senate as well as the Presidency must be in the hands of men and women willing to govern as the Founders intended. ~ https://www.americasuncommonsense.com/2011/02/regulation-and-the-constitution-1/
While the good gentleman’s words are dated a few years back they still reflect a growing need for revision of what is being done behind closed doors in DC.
So, there is a way to deal with this beast. There are options. We agree on the lack of constitutional authority at the level of which these demons have grown. That then begs the question again –
“May I sue my Congressman for negligent representation if they allow for these unelected bodies to continue turning out what should be the work of the Congressman?”
How may any self-respecting legislator respectfully stand by while a Pollitt Bureau Amerikan Style continues to turn out binding law in what should be your effort, not your predecessors edicts. You know the 1933 class that gave FDR your willful participation in the process. What do you people do up there anyway. From down here, when I am brave enough to look up, all I see is a bunch of 4th grade agitators and schoolyard bullies. But what the hell else do you have to do anyway. Everything of any great significance is being done in your Pollitt Bureau Agencies. Some leaders you are. Are you all emasculated or have you all become conquered? Will somebody please stand up for the Republics sake and rally the God fearing Americans to order? Who will lead. Where are the brave and honorable amongst Americas legislative ranks?
If their is but one that feels muzzled for fear of retribution then you are bound by duty sake of Liberty to stand tall and pontificate in Liberty’s interest. If each is to wait for the other, never the moment will be. Assemble as good people chosen to do an honorable and righteous duty for men as servants of our freedom. Do so as the dutifully sworn keepers of the light of Liberty. Not as elitist egalitarians, but as our servants in providential accordance with the freedom of the individual for everyone’s sake. Please God, wake them up.
~ Eric D. Miller – 2018