The Power of Restraint
Reigning in our federal government: who has the power, and how can it be applied
By Marshall Caro
Table of Contents
Subsequent chapters will delve more deeply into some of the issues created by the federal government and how they’ve successively and incrementally made things worse.
Dedication
We dedicate this book to:
Herman Caine – who pledged (if elected President) to make the Federal Government less important in our lives.
President Barak Obama – who declared the Defense of Marriage Act “unconstitutional”.(thus demonstrating and exercising the Executive’s power to nullify laws he deems unconstitutional in fulfillment of his oath to “protect and defend the Constitution”).
Foreward
Why “Restraint”?
This book is all about reigning in our federal government and what we all can do to achieve this end.
Why focus on federal government?
“No taxation without representation” was the battle cry and the spur to the American Revolution. Our founding fathers thought of themselves as Englishmen and greatly resented the laws imposed on them by a Parliament in which they had no voice (e.g. The Stamp Act). And so our Declaration of Independence set forth the premise that governments govern by and with the consent of the governed and our Constitution (and Bill of Rights) strictly limited the powers of our federal government.
Alas, these limits have shrunk as our federal government has grown over the centuries and arrogated to itself many powers that seem to be denied to it by the plain language of our Constitution (as amended). And the powers of the several states and the people have been usurped. We’ll explore all this in the ensuing chapters and suggest simple remedies.
Why only the federal government?
That’s the genius of our Constitution – it derives its powers from the people and limits the scope of federal government (as implied in the original and as stated in the 10th Amendment). If you don’t like the laws and regulations in your state, you can vote with your feet – move to a more hospitable environ. That’s not an option for federal governance.
This book then is written for those of us who love our country and won’t abandon her, but would do what we can to limit the size and scope of our federal government. What is it that we can do to restrain it?
In Chapters 1-3 we explore in broad terms what each of the branches of our government can do in furtherance of our goals. Chapter 4 explores what the several States can do on their own. In the subsequent chapters we’ll explore the issues in more detail with the interactions of the branches. In the appendices we suggest promises we’d like candidates for office to make.
Government, like management, is overhead – the less we spend to manage ourselves the more we have to spend on other things. But government, unlike private management, diminishes our freedoms. And when our central government subsumes the powers of our state governments, we are disenfranchised – we can no longer “vote with our feet” and our voting power to restrain our local officials is lost.
Much has been written about what is wrong (and what is right) about our governance. This book is less about this came about than how the federal government can be restrained and eventually diminished. Instead, we debunk “conventional wisdom” as to the powers and responsibilities of our respective governmental branches, people, and agencies thereof. In the end of course it comes down to electing people who are committed to restraining our central government. This much is clear: Our central government is much larger and more encompassing than anyone could have imagined at its founding. The growth of the central government limits our freedoms and limiting our freedoms limits our growth.
There are things the Congress can do, things the Executive can do, and things the courts can do. But all depend on getting people in these positions who are committed to restraining the government. And that depends on the electorate – us.
There is a mythology about the powers of the branches of our federal government – and how they each “check and balance” the others. What’s generally overlooked is that all of the branches inexorably work to expand their size and scope and if fact act in concert (if not consciously) to this end.
Chapter 1 explores the powers of the Executive branch and what the President –who has the sworn duty to protect and defend the Constitution and to faithfully execute the laws of the United States – can do to reign in the other branches. For example, if the Supreme Court “nullifies” a duly enacted law on Constitutional grounds the President, if he disagrees – and is faithful to his oath -- should Order that law continue to be enforced. Likewise, if the President determines an existing law is contrary to his interpretation of the Constitution, he has the power and the duty to declare that law to be unconstitutional and that it will not be enforced[1].
Chapter 2 explores the power of the legislature. The Congress really does have the powers to check both the Executive and the Court. But it is power that is unused. The Congress has surrendered its “power of the purse” by lumping appropriations into a handful of enormous “omnibus” bills that for all practical purposes are “must pass”. Debates on these bills degenerate to threats of “shutting down” the government. Simple solution: break out all appropriations into separate bills proposed by standing committees and deny cross-funding amendments. No single filibuster could threaten the operations of the government. Let a thousand flowers bloom – and “Roundup” the weeds.
The Congress has the constitutional power to borrow money but only the Executive and its agencies can spend money. The President can refuse to spend more than Federal revenues[2], advising Congress to raise more money if they want more spending.
Chapter 3 explores the Judiciary and how it has seemingly grown its powers at the expense of the Executive and the Legislature
We discuss these ideas (and more) in the ensuing chapters.
What can the President do to restrain the Federal Government?
How can the President fulfil these pledges? What are the powers of the President? What can he really do?
His Oath of Office:
Our Constitution vests the President with the sole responsibility and authority to “protect and defend the Constitution”. The Constitution requires all other federal officers to swear or affirm they will support the constitution. The Courts, in particular, are obliged to support the Constitution as interpreted by the President – not the other way around). Here’s what President Lincoln had to say about the presumed power of the Supreme Court – in his first inaugural address:
I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration, in all parallel cases, by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.
This is common sense. We elect the President for a limited term. Justices are appointed – and for life. If we the people determine our President has wrongly interpreted the Constitution we get to correct our mistake within four years. No such luck with our Justices. And why should a simple majority of Justices determine the law of the land? Again, they’re not elected – why should they get a vote? Our President should be informed by the considerations of all Justices – not just the majority of the Justices of the Supreme Court -- and our President should make his own determinations of the meanings of our Constitution and laws. As Lincoln so presciently advised, such prospective determinations by the President should not affect a prior court ruling on the litigants, but could and should guide the courts and the country on how the constitution and laws may be understood thereon. Did Lincoln ask the Supreme Court to determine whether States may secede from the Union? Or did he honor his oath and do his duty as President?
The President (and only the President) has the constitutional power and duty by virtue of his mandated oath to nullify laws and treaties (and judicial pronouncements) he deems violative of the Constitution (as President Obama recently did when he nullified the Defense of Marriage Act). The Marshal court’s assertion of judicial review doesn’t even attempt to justify it as a constitutional power (because it isn’t – the Constitution gives to the Congress the powers to “ordain and establish [from time to time] inferior Courts [to the Supreme Court]” and to make “Exceptions … and Regulations” to the appellate jurisdiction of the Supreme Court). The Congress can deny appellate jurisdiction to the Supreme Court for constitutional cases – and for lower courts as well as David P. Currie observed.[3]
If the President determines that a law is not “necessary and proper”, the President must take corrective steps. The President can and should nullify federal laws that assert powers reserved to the states and to the people and the President should review all majority Supreme Court decisions which nullify (or bless) laws on constitutional grounds or claim to have discovered heretofore unknown “rights” or words in our Constitution that are visible only to the Justices.
Deficit Spending and who holds the purse strings
In 2016 the Federal Government spent some 2 Trillion Dollars in transfer payments (SS, Food Stamps, Health care, etc.). This figure is exempted from the economic metric, GDP (Gross Domestic Product) under the theory that our government is merely robbing Peter to pay Paul -- it really isn't the government who is "spending" these monies. Of course the money is taken from taxpayers who earn money and could very well spend it themselves.
The Congressional Budget Office (CBO) estimates 2016 government expenditures of 3.9 Trillion Dollars and the Federal Reserve Bank of St. Louis estimates the 2016 GDP will be 18.2 Trillion Dollars, all designed to show that the governments "share" of the GDP will be "only" 36%.
The GDP calculation (Gross Domestic Product = Consumption + Investment + Government spending + eXports – iMports ) includes Government spending for goods and services. This is patently absurd. Government, like management, is overhead, and should be deducted from any analysis of our economy. If we analyze these numbers (as we would for any business) our Gross Domestic Earnings (GDE) -- which is GDP less government spending we get 18.2 - 3.9 = 14.3 Trillion Dollars (GDP - government spending) and the true percentage of our GDP we spend on our federal government is 36.6 percent -- not including unfunded mandates!
The Congressional Budget Office estimates that government spending authorized by Congress will exceed revenues by 534 Billion Dollars and Congress has increased the President’s authority to borrow the monies to pay for their spending bills
It’s commonly believed (and is true) that only Congress can appropriate monies and thus deny funds for purposes for which it disagrees (e.g. closing Guantanamo). And, only Congress can approve borrowing on the faith and credit of the United States. And, the Congress can set limits on the borrowing authority of the executive branch (i.e. the Debt Ceiling). BUT, the President isn’t obliged to actually borrow monies if he thinks it imprudent. If the Congress appropriates more monies than government revenues, the President can choose not to borrow the difference – or not all of the difference. And the President has the sole authority to manage the borrowings and may choose to retire some debt.
In effect, Congress has passed the power of the purse to the President. The President can inform Congress, “I will to the best of my ability, spend all of the monies you raise. But I will not burden future generations with debt unless it is vital to our country.” In so doing the President could (and should) eliminate deficit spending with the stroke of his pen.
He can also veto bills which would raise taxes – leaving Congress to attempt to override his vetoes. The President will suggest other ways for Congress to raise additional revenues, such as the sale of government land (there is no legitimate reason for the federal government to own 28% of the acreage of the US in toto – and overwhelmingly located in the western states). Not only would this bring in immediate revenues, private ownership would make the lands productive and greatly add to our national wealth.
The Congress could pass bills which would oblige the President to borrow sufficient monies to cover the shortfalls, but the President could (and would) advise Congress that the Constitution invests all executive power in his office and that any such laws would be unconstitutional (like the War Powers Act). Of course, the House could pass a Bill of Impeachment against the President, but it will not. If the President runs on this platform and wins, he’ll be immune from impeachment for keeping his promises.
And, the President would be clever. He would rally the country by focusing the effects of his refusal to borrow (except in time of emergency) on the federal bureaucracy, as opposed to transfer payments that flow directly to the people (think Social Security and food stamps). But he would immediately shut down transfers to states and local governments that come “with strings attached” (again, subject to revenues). No longer would federal aid come with mandates to make all bathrooms co-educational. The President would inform the Congress that if they pass “clean bills” (no mandates, no matching funds), he would give such measures reasonable priorities within revenues raised. And the President would begin to pay down the National Debt.
Debt Ceiling and Spending Deadlocks – Thwarting “Government Shutdowns”
As argued above, the Constitution does not oblige the President to spend all monies appropriated by Congress. Thus he can break a deadlock over raising the debt ceiling by reducing or deferring payments to those sectors and constituencies most likely to stir Congress into action. He would certainly keep current on debt and interest payments and would likely do so for Social Security obligations and the military, but payments to federal pensioners, block grants, and assistance programs are ripe for leverage on Congress.
What should he do if Congress cannot pass a current appropriations bill (the dreaded GOVERNMENTSHUTDOWN? Well it turns out Congress has enacted an infinite appropriation in 31 U.S. Code § 1304, to wit: Necessary amounts are appropriated to pay final judgments, awards, compromise settlements, and interest and costs specified in the judgments or otherwise authorized by law when … the judgment, award, or settlement is payable … under section 28 U.S. Code § 2414 which provides that compromise settlements of claims referred to the Attorney General for defense of imminent litigation or suits against the United States, or against its agencies or officials upon obligations or liabilities of the United States, made by the Attorney General or any person authorized by him, shall be settled and paid in a manner similar to judgments in like causes and appropriations or funds available for the payment of such judgments are hereby made available for the payment of such compromise settlements.
This is the mechanism President Obama used to pay ransom to Iran.
So the President can ask his Attorney General to draw on 31 U.S. Code § 1304 funds to pay federal obligations in settlement of anticipated litigation brought to compel the United States to continue certain programs previously authorized by Congress. Poof -- No government shutdown!
Administrative “Law”
Prior to the “New Deal” there were only two significant federal Regulatory Agencies, the Interstate Commerce Commission (1887) – which was an honest effort to fulfill the federal government’s constitutional duty to regulate the interstate “channels” of commerce and the Federal Trade Commission (1914) – which was established by Wilson to further Progressivism’s theory that the people needed government to control them (rather than letting people control their government). Since then we’ve seen an explosion of federal regulatory bodies that make and enforce their own law. All of them are patently unconstitutional. Our Constitution does not permit the Congress to delegate legislative powers. This was widely understood until the Progressive Era Supreme Court overturned Field v. Clark, 143 U. S. 692 in 1911 with its decision in United States v. Grimaud 220 U.S. 506. This opened the floodgates to the complete usurpation of people’s power to make laws and the incredible growth of the federal bureaucracy. And there’s no reason for it, except to allow our representatives to hide behind the huge shadows of these agencies and profess to their constituents that they are powerless to change things.
The President should declare that the Congressional Review Act (CRA) is unconstitutional (and downright silly – among other things it requires the Congress to pass a new law[4] to invalidate any agency rule or law, possibly over the President’s veto. How does that in any way preserve Congressional oversight?) The President should give the Congress a reasonable period (one year) to pass its own replacements for the myriad agency rules and laws before he refuses to enforce them. And the President should inform the Congress that he would veto any bill establishing new agency rules that aren’t passed by roll-call (the people should know how their representatives voted). The President can thus force the Congress to affirmatively enact its own laws (as required by our Constitution); our elected representatives should not be allowed to hide behind federal agencies. It will be far more efficient (and lawful) for agencies to submit proposed rules to the Congress and for the Congress to enact whatever laws it deems “necessary and proper”. This would eliminate several layers of federal bureaucracy -- the elaborate processes dictated by the Congressional Review Act (CRA) and all of the litigation over whether the agencies followed their own rules or exceeded their authorities -- it would eliminate the silly spectacle of our courts determining whether an agency “has exceeded the discretion” given to its commissioners by the Congress.
The President is the Executive of the Federal Government
The President should pledge to reign in and control our bloated administrative agencies. In addition to limiting government expenditures to actual revenues with the attendant shrinkage of the workforce, the President can and should fire the people who should be fired[5]. Those dismissed could certainly avail themselves of civil service procedures and some of them no doubt would prevail. But the President need not let them return to the workforce – their remedies would economic. But the Congress would have to pass spending bills to compensate them and the President doesn’t have to sign them into law (this is true for the Court of Claims as well – the President can mandate that all awards must be separately enacted by the Congress and, unless there were sufficient revenues, no awards would be paid; they’d become debts of the government, paid when the more senior debts of the United States were retired , or when Hell freezes over – whichever comes first).
The Power of Pardon and the Power to nullify improper or unnecessary laws
The President’s power of Pardon is absolute. Congress, and the Supreme Court notwithstanding (See EX PARTE GARLAND, 71 U.S. 333 (1866)), he can do so prospectively (should he so interpret the Constitution). It’s also the President’s duty to enforce the laws of the land. Combined, these powers are the basis for his right and responsibility to declare laws that are improper or unnecessary to be void. Our Constitution distinguishes the powers and responsibilities of the Executive from all other federal officers. Only the President is obliged to swear or affirm that he will protect and defend the Constitution – all others must swear only to support the Constitution. Thus, only the President can (and must) determine the lawfulness of an act or an order and act accordingly
Presidential Power vs the Court’s
Federal Courts have no enforcement powers. They rely on the Executive branch, via the US Marshal Service, to serve and enforce writs and judgments. And the Marshal Service is a part of the Executive branch and subject to Rules and Procedures as ordered by the President. The President can and should establish (by executive order) a Rule of Procedure that all writs directed to officers or agents of any branch of federal, state, or local government be forwarded to the Director who shall, in consultation with the Attorney General, determine the constitutionality of a writ before it may be acted upon.
All too often we have seen renegade judges make their own laws, statutes and the Constitution be damned.
Federal Election Law
18 USC 611: Voting by aliens proscribes non-citizens voting in federal elections.
Are “anchor babies” citizens? Of course not, but the current Democrat party would have us believe differently, claiming the language of the 14th Amendment unambiguously declares that everyone born in the United States is a citizen. It does no such thing, but rather than wade into the weeds of the “debate”, we ask the reader to answer this question, “Why did Congress deem it necessary to enact the Indian Citizenship Act of 1924?” And, “Couldn’t Congress (if they so choose) pass a law that grants citizenship to anchor babies at birth?”
This book is all about reigning in our federal government. The current Democrat party is directly oppositional to this goal and their interest in increasing the citizenship roles by immigration from poorer regions and enfranchising these immigrants and their progeny to help elect more Democrats who will vote to increase benefits to this constituency.
The President can use his executive authority to prevent no-citizens from voting in federal elections. The President and also direct the Department of State to demand more in the way of proof of citizenship than a birth certificate.
And as we will see later on, both Houses of Congress can refuse to seat electees if there is a question whether non-citizen voting swung the election.
What can the Congress do to Restrain the Federal Government?
The Congress is by far the most powerful branch. This in fact was one of the guiding principles of our founders. They chose to vest the most important powers of government with the legislature.
The Constitution vests in the Congress the powers to:
a. Impeach (House) and try (Senate) all officers of the federal government for Treason, Bribery, or other high Crimes and Misdemeanors and upon conviction, remove them from Office.
b. Pass bills to lay and collect Taxes, Duties, Imposts, and Excises, to pay Debts, and to provide for the common Defense and general Welfare of the United States, to borrow Money on the credit of the United States, to regulate Commerce with foreign Nations and among the several States (and with Indian Tribes), to establish uniform rules of Naturalization and Bankruptcies, to coin Money and regulate its value and provide Punishment for counterfeiting and fix standards of Weights and Measures, to establish Post Offices and Post Roads, to establish limited times rights of copyright and patents, to establish a federal court system inferior to the Supreme Court; to define and punish Piracy and Felony on the high seas and Offenses against the Law of Nations, to declare War, grant Letters of Marque and Reprisal, to raise and support Armies and the Navy, to make Rules for the Government and the regulation of army and naval forces, to provide for call forth and regulate the Militia, to exclusively legislate the putative (and now actual) District of Columbia, to make laws prescribing the Manner of proof and enforcement of the Full Faith and Credit of every state by every other state, to admit new States to the Union, to regulate and dispose of Territories of the United States, and to make such Laws that shall be necessary and proper for the execution of the powers explicitly vested to the Congress by this Constitution and all other powers vested in Government of the United States or in any Department or Officer therof -- that become law on signature or acquiescence of the President, or upon overturning of his veto.
Alas, the Congress has chosen to fritter away their powers.
The Power of the Purse
Congress has put the federal budget on “auto-pilot”, baking automatic annual increases for most non-defense appropriations, bundling the remainder into a double handful of “omnibus” spending bills that they can’t pass without concessions to a myriad of special interests who always manage to increase spending for their favored interests. The result: gridlock. The Congress has given up “the power of the purse”.
The Constitution gives to the House the sole power to originate appropriations bills. By long standing convention, the House deems this power encompasses all spending bills as well. The House should shed itself of the dozen or so omnibus appropriations bills and “let a thousand flowers bloom”. The Rules committee should empower each standing committee and subcommittee – there are a hundred or so and if each proposes 10 bills that gives them the thousand flowers --to draft its own appropriations bills (of course, with limits set by the leadership) and not permit floor amendments to add funding for things not in that committee’s purview. The House should advise the Senate (which should organize itself accordingly) that no amendments will survive conferences that seek similar changes.
What would this accomplish? Two things, the most important being that neither the Senate nor the President could threaten to block or veto any bill that would “shut down the government”. Any single bill would affect (on average) one tenth of one percent of the federal government. Could the minority party in the Senate filibuster a bill? Surely. Could the President threaten a veto of a single bill? Of course. But could the Senate minority or the President refuse to pass or veto all the rest of the spending bills? Not hardly.
Debates would perforce be about how much funding would be authorized for each specific purpose. The rest of the government would be unaffected. The second accomplishment would be to make the proposed legislation brief and readable – no more multi-thousand page bills that no congressmen even read.
Thus, if the House wished to effect its will on, say the Environmental Protection Agency, they could put all of its funding together with such other mandates and restrictions in one bill for that agency and if Senate refused to pass it, that agency would get no funding at all. Quite the hammer and there’s no way the will of the House could be thwarted.
Of course there would be arguments that previous Congresses have enshrined the practice of omnibus bills (and regular “cost of living” increases in entitlement funding and such), but no Congress can bind future Congresses. The House can effect this idea in a heartbeat.
Replace Administrative Law with Statutes
One of the biggest problems our legislature created was its delegation of law making powers to federal agencies. The last straw (the one that really hurt the camel) was its passage of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). Under the guise of gaining congressional oversight of new agency rules the act instead requires the passage of a new law (passed by both houses and signed by the President -- or by overriding his veto). Between its enactment in 1996 and the inauguration of President Trump, only one rule (by the Dept. of Labor) had been struck down. This is ass backwards. I want my elected representatives to affirmatively approve or reject all laws (and agency rules ARE laws).
The APA (Administrative Procedures Act of 1946) requires that in order to set aside agency action not subject to formal trial-like procedures, a court must conclude that the regulation is "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law. The Supreme Court has blessed this delegation of law making power (of course) and only the Congress can change it (although as explained in the earlier chapter, the President could and should declare all agency rules unenforceable because they were not enacted by the legislature).
So, the “simple fix” by Congress would be to rewrite the Administrative Procedures Act to require that ALL agency rules must be affirmatively approved (passed) by Congress as statutory law. It’s doubtful the political will could be found to do this in the short term, but the House could whittle away at it, agency by agency, by using its regained power of the purse. And we’d eliminate all of the silly litigation over whether the agencies properly exercised the “discretion” granted to them by Congress. And I, for one, want to see my representatives vote on the record for any and all such regulations. Now they all can hide behind the fact that they’re powerless to affect whatever these agencies choose to do within what they determine their mandates are – like shutting down coal fired generating stations.
The Congress and the Courts
The Constitution vests the judicial Power of the United States in one (the) Supreme Court “and in such inferior Courts as the Congress may from time to time ordain and establish …”, such Power extending to all Cases in Law and equity arising under the Constitution and existing laws and treaties. The Supreme Court has original Jurisdiction in cases affecting Ambassadors and other “public Ministers and Consuls” and where a State is Party, and appellate Jurisdiction both as to Law and Fact subject to Exceptions and under such Regulations as made by the Congress.
The Congress can thus limit or eliminate the power of the courts to determine the Constitutionality of Federal and State Statutes, a) by denying jurisdiction to the courts and b) by requiring limiting the appellate jurisdiction of the Supreme Court to cases and controversies which challenge the constitutionality of any Federal or State statutes to only those cases and controversies that result in undivided decisions (unanimity required).
With respect to a), denying jurisdiction, Congress has done this from time to time. As recently as 2005 Congress gave gun manufacturers protections against civil liability suits in 15 U.S. Code § 7902 - Prohibition on bringing of qualified civil liability actions in Federal or State court, Congress added:
A qualified civil liability action may not be brought in any Federal or State court.
A qualified civil liability action that is pending on October 26, 2005, shall be immediately dismissed by the court in which the action was brought or is currently pending.
Congress can specifically overrule ANY Supreme Court decision that claims to invalidate (as unconstitutional) any federal statute by enacting the identical statute again, and adding a proviso such as:
No civil action by be brought in any Court in the United States challenging the constitutionality of this law.
What can the Federal Courts do to Restrain the Federal Government?
Learn some humility – Wearing a robe doesn’t make you a man of the cloth
The very words by the Justices proclaim their problem. They truly believe they are above the law. In a 1958 case called Cooper v. Aaron Chief Justice Earl Warren made a declaration about the power of the Court that is beyond shocking, declaring that their decision in this case was “the supreme law of the land” – in effect putting the court above the Constitution.
What’s wrong with this picture? Several things: The Constitution is the supreme law of the land. Constitutional law is what the three branches of our federal government – not just the federal courts -- say about the Constitution. The federal courts imagine that it and only they can read and interpret the Constitution, and that their determinations and opinions thus become the highest law of the land and only they can change it thereafter. This is nonsense.
The Constitution requires the President,
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"I do solemnly swear (or affirm) that I will faithfully execute the Officeof President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."[6]
By contrast,
[J]udicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution;[7]
The inherent problem with the courts’ attitude is that they pretend to see themselves as apolitical and “above the fray” (deciding cases on merit and not on politics). But all lawyers are politicians and all judges are lawyers – and politicians first and learned scholars second. The courts are fundamentally political bodies and as such are not deserving of any more respect or deference than the legislature or the Executive. The judiciary must continually earn its respect and its increasing tendencies to rule according to political lines and the prejudices of the justices have stripped it of moral authority. The justices feel free to add their own words to the Constitution (incorporation doctrine for one) and to see invisible words in “penumbras” to the document itself. This is hubris and must stop.
How can a federal district court judge in Hawaii interfere with the duties and responsibilities of the Executive Department?
Ans? He can’t. The judicial department relies on the Executive to effectuate the judicary’s Orders (via Federal Marshals, a part of the Justice Department). If (as recently happened), a District Court Judge half the world away from Washington Orders the Executive to do (or not do) something that the Executive disagrees with as a matter of law, the Executive Department is not obliged to obey the Order (nor even to appeal it). Doing so would violate the oath the President took when he assumed to office (“to preserve, protect and defend the constitution”) and his constitutional responsibility to “take Care that the Law [of the United States] be faithfully executed”.
That District Court’s considered opinions aren’t due any special deference by the Executive. The only consideration or question is: Is the Order lawful? If the President determines it is not, the matter ends there (although prudence would suggest issuing an Executive Order directing the Marshals to ignore the Order, stating the reasons why the Order is unlawful).
This is simply common sense. Our founders designed a system with a powerful executive who can act – and act quickly. If we were to permit the judiciary to second guess the executive (especially in times of national crisis), we’d be committing suicide.
How Did This Come to Pass
Alexander Hamilton, a member of the Constitutional Convention and himself a major figure in the Federalist Party, in Federalist 78 opined,
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.[8]
Yet in contrast, in this same essay two paragraphs later, Hamilton wrote,
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.
But there’s nothing in the Constitution that accords any right to the courts to pronounce “legislative acts void”! Indeed, the Constitution established the Supreme Court with very limited original jurisdiction and only such appellate jurisdiction as the Congress shall grant. Congress was also given the power to establish inferior courts and Congress has never enacted legislation that accords to the courts power to void other legislation void.
Hamilton believed that the Federalists would forever be in control of our government. Alas (for them), this was not to be. With the election of Thomas Jefferson in 1800 and the future prospects for the party bleak, the last Federalist President, John Adams (on his way out the door), packed the courts with Federalist stalwarts – most notably John Marshal as Chief Justice of the Supreme Court and William Marbury whose “Midnight” appointment as Justice of the Peace for the District of Columbia became the centerpiece of the (in)famous Opinion of Marbury v. Madison. And, although the Federalist Party died out in an electoral sense their politics lived on in the judiciary.
Marbury v Madison and Judicial Review (a Judicial Coup)
The case of Marbury v Madison is hailed by judicial activists as yielding perhaps the greatest Supreme Court decision of all time, establishing once and for all the concepts of judicial review and judicial supremacy[9]. Or, did it?
At issue in Marbury was William Marbury’s attempt to gain the judgeship to which he was appointed by President Adams. Alas for William, Adams’ term ended before the commission could be delivered[10] and incoming President Jefferson declined to honor Adams’ last efforts to pack the courts. William Marbury brought suit in the Supreme Court, seeking a “Writ of Mandamus” to force the Secretary of State to deliver his commission, pursuant to the Judicial Act of 1789 which assigned original jurisdiction to the Supreme Court for this purpose.
Justice Marshal could have expressed the opinion of the Court in one sentence, “The Court dismisses this suit due to lack of jurisdiction; the Constitution limits our original jurisdiction to suits between two or more states and/or cases involving ambassadors and other public ministers, the Judicial Act of 1789 notwithstanding.”
No, not Justice Marshal. Instead, Justice Marshal wrote a repetitive 3300 word opinion – for a case he had determined was outside the jurisdiction of his court! And, it was more than improper. His whimsical (and farcical) verbiage was aimed at one thing: Keeping power in the hands of the Federalists. Justice Marshal claimed,
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.
… [i]t is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature. Why otherwise does it direct the judges to take an oath to support it?
This is actually true – but not in the sense Justice Marshal meant. We have five types of law: 1) the Constitution of the United States itself, 2) Constitutional law – interpretations and applications of the Constitution by all three branches of the federal government, 3) statutory law – written by legislatures, 4) common (aka tort) law – amassed by judges over eons, and 5) law in equity – whatever a judge thinks is fair. And only for common law and law in equity is it “the province and duty of the judicial department to say what the law is”.
When Justice Marshal proclaimed “it is emphatically THE province and duty of the judicial department …” he clearly meant it is the EXCLUSIVE province of the judiciary (and it has been so interpreted by the judiciary ever since). What arrant nonsense! This was a judicial coup, meant to preserve the power of the Federalist Party bunkered down in its last bastion. It is the job of the federal judiciary to apply the law to cases and controversies. If there are conflicting laws the judiciary must decide how and when to apply them, but only if there is a case or controversy before them that requires such a decision.
Clearly it is the job of the legislature (Congress) to “say what the law is” (they actually write the laws for all of us to read), and it is the job of the Executive to enforce the law – which requires his independent interpretations thereof (what the law IS). And our Constitution requires the Executive to swear he will “protect and defend the Constitution”, and all others (i.e., legislators and the judiciary) to swear only to “support the Constitution.” It is emphatically NOT the province of the judiciary to tell the rest of us that we must believe THEM – and not our lying eyes!
If John Marshal merely wanted to “get the law right” – by that we mean, “Understand the Constitution”, and there was ANY DOUBT WHATSOEVER as to the manifest meaning of the words in the Constitution, Justice Marshal could have (and should have) “Certified a Question[11]” thereof to the President. That is, if John Marshal was an honest man (and not a power-grabbing politician, angry at the voters for turning their backs on his party). But then Justice Marshal wouldn’t have penned a repetitive 3300 word opinion for a case for which he’d already determined the Court did not have jurisdiction.
Progressive’s (née Federalist) versions of history notwithstanding, Justice Marshal didn’t actually claim an ability to declare a law unconstitutional (or the exclusive right of the judiciary to make such a determination) – the word doesn’t even appear in his opinion. Marshall’s theory was:
Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
And his conclusion:
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
The rule must be discharged.
Note that Marshal DID NOT claim the judiciary had the right (or even, the ability) to make such a determination for “other departments” (i.e., the Executive and the Congress) or that the other departments would be BOUND by pronouncements from the judiciary. All he actually asserts is that the Constitution is the supreme law of the land and we and our governments (federal and state) are bound by it.
Also of note is that Marshal was acting and opining in defense of his own department against (in his mind) an intrusion by another. Congress had added to the burdens of the Court and Marshal pushed back in a long-winded fashion. Marshal made no claim that the Court could nullify a federal law – or how that might actually work in practice.
When our modern day Supreme Court declares a federal law “unconstitutional”, what actual effect is had? And why should a divided court have the power to nullify laws? Justices aren’t elected, why should they get a vote?
The Court can’t remove the law from the Federal Register and cannot prevent the Executive department from enforcing it, should the President disagree with the Court – the law is still on the books. And Congress could enact a new law that expressly declares the law in question comports with the Constitution and that its constitutionality may not be challenged in the Courts.
Both the Executive and the Congress can cut the court’s wings. The President must swear (or affirm) that he will “protect and defend the Constitution” before he may assume the office. If the President believes that the court has wrongly interpreted the Constitution and in so doing declared a duly enacted law to be “unconstitutional” and a “nullity”, then he must honor his oath and Order the agencies of the government to enforce the federal law or to avoid interference with the state whose statute offended the wise men and women of the court. A subtle way for the President to remind the court of its place in the pantheon of power would be to issue an Executive Order to the Justice Department to the effect that all judicial orders must be approved by the Attorney General and only he can order the U.S. Marshal’s service to serve and enforce such orders
The Constitution vests the judicial Power of the United States in one (the) Supreme Court “and in such inferior Courts as the Congress may from time to time ordain and establish …”, such Power extending to all Cases in Law and equity arising under the Constitution and existing laws and treaties. The Supreme Court has original Jurisdiction in cases affecting Ambassadors and other “public Ministers and Consuls” and where a State is Party, and appellate Jurisdiction both as to Law and Fact subject to Exceptions and under such Regulations as made by the Congress.
The Congress can thus by statute limit or eliminate the power of the courts to determine the Constitutionality of Federal and State laws. They could also re-enact the same federal law that was nullified, adding the proviso that the Courts of the United States may not consider its Constitutionality. They could enact a law denying the Courts of the United States jurisdiction over cases and controversies arising from a state law that the Supreme Court “nullified” – thus freeing the state to enforce it.
So, what is the power of the Supreme Court to determine the meanings of the Constitutional? Whatever it is, it’s not a power granted to the court by the Constitution. If the powers of the Supreme Court (jurisdiction) can be changed by the Congress, then these powers aren’t a part of the Constitution. This was the heart of Marshal’s ruling in Marbury v Madison, to wit that the Congress could not add to the Supreme Court’s original jurisdiction, only an amendment to the Constitution could do that. Sauce for the goose: if a power of the court can be changed by the Congress, it can’t be a power granted by the Constitution. And if Congress cannot amend the Constitution, than neither can the Court. Moreover, the Constitution requires ONLY the Executive to swear or affirm he will “protect and defend the Constitution”. Supreme Court Justices (and all other Federal officers) are required to swear or affirm they will “support the Constitution”.
The inherent problem with the Court is that the justices are politicians all – and politicians first and learned scholars second. The Court is fundamentally a political body and as such is not deserving of ANY respect per se. The Court must earn respect and its increasing tendencies to rule according to political lines and the prejudices of the justices have stripped it of moral authority.
The justices feel free to add their own words to the Constitution (incorporation doctrine for one) and to see invisible words in “penumbras” to the document itself. This is hubris and must stop.
Dred Scott v Sandford – The Supreme Court Makes the Civil War Inevitable
Dred Scott was a slave who was bequeathed to the widow of his owner, Eliza Emerson. Scott attempted to purchase his freedom (for himself and his wife and children), but Emerson refused. Scott sued on the basis that his owner had taken him to the free state of Illinois. The matter was tried in Missouri in 1850 and the court agreed with Scott and declared him legally free. Emerson appealed to the Missouri Supreme Court which reversed the lower court’s decision (and its own precedents). Scott brought a new suit in Federal court in 1853, lost, and appealed to the U.S. Supreme Court.
The Opinion of the Supreme Court in a 7-2 decision in March of 1856 is even more remarkable than Marbury. Here again the Court determined that Scott lacked standing to sue (he being a slave and all) and then proceeded to ask itself (and answer) questions that are pure dicta – the case had already been decided!
Chief Justice William Taney ruled (again, a usurpation of power) that the Missouri Compromise[12] itself was unconstitutional[13]; This besides the fact that these acts were effectively repealed by the Kansas-Nebraska act of 1854.
This is the crucial point: while Congress had repealed the Missouri Compromise it still had the power to reinstate it. By declaring the Acts themselves to be unconstitutional, Taney effectively removed the issue of slavery from the purview of Congress; henceforth there would be no further compromises and the Civil war became inevitable.
How Should the Supreme Court Exercise “Judicial Review”?
Answer: With great humility.
The Court must come to understand that because they are unelected, they have much less real authority than the Executive and the Congress. And just because a majority of Justices share an opinion, that doesn’t make that opinion correct – or even persuasive. Moreover, the Court has no real Constitutional authority to exercise (leave alone enforce). All they have is the power of persuasion.
The Court has the right and the duty to decide cases and controversies. Its decisions are binding only on the parties and may be enforced only with the assistance of the Executive departments (the federal Marshal service is part of the Justice Department) which are part of the President’s Administration (and solely controlled by him). Only the President is obliged to swear or affirm to“preserve, protect and defend” the Constitution and only he must take care that the laws of the United States be faithfully executed. If he is to honor his oath then he must believe any law he sees executed is faithful to the Constitution. Only the President can declare a law to be “unconstitutional”.
The Justices of the Court can and should issue learned opinions on every issue that comes before it and, from time to time, certain Justices become convinced that a law or laws applicable to the matter before them is contrary to the Constitution they should explain their reasoning to their colleagues and the public and abjure from applying such law to the matter at bar. If they think a law is improper based on their understanding of the Constitution – they should say so. But all the Justices must understand that they have no power in this regard except the power of persuasion. Their rulings affect only the parties (and only if they are private parties or state actors – not the Congress or the Executive).
Let’s explore a recent (and continuing) controversy: The Patient Protection and Affordable Care Act and the Supreme Court case: NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.
Twenty-six States, several individuals, and the National Federation of Independent Business brought suit in Federal District Court, challenging the constitutionality of the individual mandate and the Medicaid expansion. The Court of Appeals for the Eleventh Circuit upheld the Medicaid expansion as a valid exercise of Congress’s spending power, but concluded that Congress lacked authority to enact the individual mandate. Finding the mandate severable from the Act’s other provisions, the Eleventh Circuit left the rest of the Act intact. Chief Justice Roberts delivered the opinion of the Court (5 judges in favor) that the “individual mandate” imposed a tax, not a penalty as expressly stated in the ACT and was therefore conformant with the Constitution. Justice Scalia (with three other justices) dissented, beginning with:
Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Patient Protection and Affordable Care Act (Affordable Care Act or ACA) go beyond those powers. We conclude that they do.
Scalia (as always) was far more persuasive but could only enlist three other justices to join with him. Thus, by current convention, the Obama Administration “won”, 5-4.
So what? Does this decision prevent our current President, Donald Trump, from adopting Scalia’s reasoning and declaring that the Individual Mandate violates the Constitution and therefore may not be enforced? Of course not! The President is bound by his oath -- not the whims of the Judiciary and not by a majority decision by unelected judges (who may include narcoleptic octogenarians – or worse).
What can the States do to Restrain the Federal Government?
Quite a lot, actually. For one, the states themselves can apply to the Congress to call a “Convention for proposing Amendments”. If the Congress receives such an application from the Legislatures of “two thirds of the Several States”, Congress “shall call” (meaning MUST call) the Convention, and any proposed amendments therefrom will become part of the Constitution when ratified by three fourths of the States.
The States Can (and often do) enact their own Multi-State Pacts
The Uniform Law Commission (ULC) was established in 1892 to provide states with non-partisan drafts of legislation to harmonize statutory law across the states. Over the years they have drafted over 300 acts which have been incorporated in whole or part by all of the states in our Union, most notably the Uniform Commercial Code and the Uniform Enforcement of Foreign Judgments Act.
Appendix I – Promises we’d like to hear from a Presidential Candidate
President Lincoln pledged at Gettysburg “that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.” Today we have government of the people; but it is government by the favored few for the favored few.
I pledge to honor the oath I will make "to protect and defend the Constitution" and I will end the usurpation of the authorities and responsibilities and rights of the states and of the people by the federal government and its agencies.
I Promise that within two years the deficit will be eliminated -- and within four, we will have begun to pay down the national debt. The Congress has the exclusive power to borrow money, but only the President can write the checks. I promise that when the Congress raises revenues sufficient to pay for the promises they make, I will spend every dollar as they direct. Until such time I will not borrow from our children’s children to cover Congress’s largesse. I will work with the Congress to prioritize spending within the limit of our revenues, but I am opposed to any spending “with strings attached”.
The federal government will be downsized because the Congress will not raise sufficient revenues to pay for its mandates. The federal government should not do for the states what the states can choose to do themselves and I will prioritize staffing reductions accordingly. I will strive to eliminate 50 % of civilian positions; I guarantee I will achieve a 25% reduction and I will summarily fire government employees who have abused our trust. I will, by Executive Order, eliminate all federal hiring biased by sexual, racial, and ethnic categorizations and insist that ability be given preference over credentials.
No longer will the American economy suffer while Washington’s booms. We will see for sale signs sprout up all around its environs. The best and brightest (who else does our government hire?) will pack up and move to the hinterlands and their presence will renew our countryside, bringing wealth and new jobs.
I will by executive order codify the Rules of Procedure for the U.S. Marshals Service. Notably, all federal court orders directed to federal, state, and local governments and agencies thereof will be forwarded to the Director who shall act pursuant to the law and the Constitution of the United States.
I will review all majority Supreme Court decisions which favored the increase in federal powers or the diminution of powers reserved to the states and to the people and I will take such actions as necessary to honor my oath.
I do not believe Executive Orders are laws and they cannot survive the end of an Administration. On my first day in office I will issue new Executive Orders to replace the ones whose effects should remain.
After my first year in office I will not permit the enforcement of any agency rule or law not passed by both houses of Congress. This will give the Congress the opportunity to pass lawful replacements.
Pursuant to my oath I will instruct the Department of Justice in my Administration to accept petitions from citizens whose constitutional rights have been aggrieved by government. Wealthy and well connected citizens may still litigate for their rights, but in my Administration we shall seek Justice for all.
[1] President Obama declares Section 3 of the Defense of Marriage Act unconstitutional – See Department of Justice Statement of the Attorney General, February 23rd, 2011.
[2] This gets a little technical which we explore in the succeeding chapters, but one simple rationale for such Executive Action is that the clear language of 31 U.S. Code § 3101 (Public debt limit) excludes only obligations “held” by the Secretary of the Treasury. The Federal Old-Age and Survivors Insurance Trust Fund is the “owner” of the special bonds issued by the treasury in return for surplus FICA taxes, but these bonds are held by the Trust, not the “managing trustee” – the Treasury Secretary. Thus, these obligations must be counted in the Public Debt and the President may not add the obligations of the federal government beyond the limit set by the act.
[3]The Consitution in the Supreme Court: The First Hundred Years 1789-1888
[4] Albeit with limited debate – if the bill disapproving an agency rule is initiated within sixty days of its appearing in the Federal Register.
[5] The President has the Constitutional power to remove any official he appoints, excepting Judges of the United States. He has no such power of removal over inferior offices created by Congress. That said, he can strip an individual of the powers of an inferior office if the President determines it necessary for the faithful execution of the laws of the land. That individual can seek the emoluments to which he might be entitled from the Courts. If he prevails in the Courts it is up the Congress to appropriate whatever monies it sees fit and if the Congress raises sufficient revenues to pay for their appropriations, the President would be obliged to pay the man.
[8] Hamilton also believed that a Bill of Rights was unnecessary and fought against its adoption. He was also the prime supporter of the Alien and Sedition Acts.
[9] Hylton v. United States, 1796 was the first time the Supreme Court was asked to rule on the constitutionality of an act of Congress and the first opinion to use the word, “unconstitutional” – however this court ruled the statute at issue was not.
[10] In an amusing twist, John Marshal was the Secretary of State in Adams’ Administration (a position he continued to hold even after he was sworn in as Chief Justice of the Supreme Court) and it fell to Marshal to deliver the Midnight commissions the Federalists had rammed through the Senate during Adams’ final days. He just couldn’t get them all delivered. Thus in Marbury v Madison, John Marshal was ruling on the effects of his own failings.
[11] The practice of “Certifying a Question” by a federal court to (usually) a state court didn’t come into use until mid-twentieth century. Marshall would have posed the question in a letter to Jefferson.
[12] The title generally given to bills passed by Congress in 1820 that outlawed slavery in what remained of the unorganized federal territory acquired by the Louisiana Purchase, north of the 36°30′ parallel, excluding Missouri (hence the title) but made no restrictions on the Arkansas and admitted Maine to the Union as a free state. In effect this established the practice of admitting new states to the Union in pairs (one free, one slave).
[13] Taney wasn’t done – he also opined that Negros were “beings of an inferior order” and could not be recognized as citizens or to freely associate with white Americans.
