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By Dr. Robert Owens
The Evansville Bar Association in its annual recognition of Constitution Day in 2015 summed it up well;
Although the terms "Separation of Powers" and "Checks and Balances" are not found in the Constitution, these principles are key to its vitality. As George Washington wrote in February of 1788, the two great "pivots upon which the whole machine must move" are: (1) "the general Government is not invested with more Powers than are indispensably necessary to perform the functions of a good Government[,]" and (2) "these Powers are so distributed among the Legislative, Executive, and Judicial Branches, that [the Government] can never be in danger of degenerating into a monarchy or any other despotic or oppressive form, so long as there shall remain any virtue in the body of the People." As recently as 2011, the Supreme Court affirmed that these principles were "intended, in part, to protect each branch of government from incursion by the others. The structural principles secured by the separation of powers protect the individual as well.
Congress has abdicated its powers to unelected bureaucrats and the courts have decided that is the order of the day. Generation Opportunity covers this well when they say;
One of the reasons that elections are such so important is because legislative representatives are responsible to create federal laws that impact every one of their constituents.
This is not a task to be taken lightly, which is why voters must dedicate time to research candidates before heading to the voting booth. But few people realize that there are unelected individuals who create regulations that govern everything from what type of light bulb you are allowed to use, as well as how much water your toilet may flush. According to an article published by the Competitive Enterprise Institute (CEI), no one is entirely sure how many government agencies actually exist, not even the government knows the exact number.
For instance, in the appendix of the Administrative Conference of the United States, there are 115 agencies listed with a disclaimer saying, “[T]here is no authoritative list of government agencies.”
The federal government has grown so large that no one can even keep track of it anymore. Worse still, each of these agencies are filled with unelected people who take on legislative authority to interpret laws passed by Congress.
Although Congress is prohibited from “delegating” its legislative function to another branch of government, Courts have consistently held that federal agencies may create their own rules as long as an “intelligible” principle can be discerned from the original statute in question.
In other words, if Congress passes a law that regulates a particular industry or action, unelected federal bureaucrats are given almost unchecked power to create whichever rules (or crimes associated with the conduct in question) that they please.
Here’s an example: When Congress passed the Clean Air Act Amendments of 1977, it mandated that certain environmental standards must be imposed on the states, but it hardly clarified what those standards were, or how they were to be enforced.
One of the components of the Act mandated states to establish a permit program that regulates, “new or modified major stationary sources” of air pollution. That seems simple enough, except that Congress never properly defined what qualified as a “stationary source.”
Therefore, the Environmental Protection Agency was left with the task of defining what a “stationary source” meant. Additionally, the original legislation never detailed what the penalty would be for breaking any of the statutes created by the new amendments, leaving it open to interpretation by the EPA.
This predicament led to the 1984 landmark case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., where the Supreme Court held that federal agencies have authority to interpret statutes which they are in charge of administering.
This meant that the EPA now had legal authority to determine what would be considered a “stationary source” of air pollution.
Since the Chevron Doctrine applies to all government agencies, the opportunities for abuse are endless. Government is only legitimate when it derives its powers from the consent of the governed. When we give legislative powers to unelected government officials we completely disregard the core American belief of consensual representation.
In other words we elect legislators to make laws and they make general laws like, “We want clean water,” and then they let unelected bureaucrats fill in the blanks with the force of law.
Here is how it works. Everyone wants clean water so the legislators pass their “We want clean water,” law and they come back to their constituents and campaign on “I brought you clean water.” Then the EPA issues a regulation that says you can’t build on wet lands. The EPA gets to decide what wet lands means which consequently gives them De Facto control over any piece of property they say is a wet land. Then when voters complain to their congressional representative, who voted for the law and bragged about it, that they can’t build their house on a lot that is obviously dry the legislator becomes indignant. They tell their constituents, “We’ll just see about this!” Then they have an aide send a strongly worded letter to the EPA that makes no difference whatsoever.
Problem solved. Pat the denizens from fly-over country on the head and leave the matter in the hands of the commiczars who have inherited the rule of what was once a representative republic. This way the hack can get back to his real job of raising money and getting re-elected.
This abdication of responsibility on the part of the legislature is the root cause of our problems because it has led to or facilitated the rise of the imperial presidency wherein many presidents have expanded the power of the executive until today we have an elected monarch who rules by decree unchallenged by Congress and unfettered by the will of the people.
Although the imperial presidency by no means began with the present occupant of the White House, to many Barack Obama has pushed the envelope beyond any discernable constitutional limits and has become the prime example of this phenomenon.
According to the Christian Science Monitor;
President Obama’s use of executive action to get around congressional gridlock is unparalleled in modern times, some scholars say. But to liberal activists, he’s not going far enough.
Obama, a former constitutional law lecturer, was once skeptical of the aggressive use of presidential power. During the 2008 campaign, he accused President George W. Bush of regularly circumventing Congress. Yet as president, Obama has grown increasingly bold in his own use of executive action, at times to controversial effect.
The president (or his administration) has unilaterally changed elements of the Affordable Care Act (ACA); declared an anti-gay-rights law unconstitutional; lifted the threat of deportation for an entire class of undocumented immigrants; bypassed Senate confirmation of controversial nominees; waived compliance requirements in education law; and altered the work requirements under welfare reform. This month, the Obama administration took the highly unusual step of announcing that it will recognize gay marriages performed in Utah – even though Utah itself says it will not recognize them while the issue is pending in court.
Early in his presidency, Obama also expanded presidential warmaking powers, surveillance of the American public, and extrajudicial drone strikes on alleged terrorists outside the United States, including Americans – going beyond Mr. Bush's own global war on terror following 9/11. But more recently, he has flexed his executive muscle more on domestic policy.
In the process, Obama's claims of executive authority have infuriated opponents, while emboldening supporters to demand more on a range of issues, from immigration and gay rights to the minimum wage and Guantánamo Bay prison camp.
To critics, Obama is the ultimate "imperial president," willfully violating the Constitution to further his goals, having failed to convince Congress of the merits of his arguments. To others, he is exercising legitimate executive authority in the face of an intransigent Congress and in keeping with the practices of past presidents.
It also leads to the tyranny of the courts. Unelected lawyers with life tenure decide what is and what is not constitutional often with the vaguest references to the Constitution itself. Disregarding what are clearly enunciated rights such as the one to keep and bear arms while finding such nonexistent rights such as the right to dispose of unborn children. The Justices of the Supreme Court have abrogated unto themselves unlimited power to turn our Constitution which was supposed to be written in stone into a living letter written in sand. Or as one Chief justice said, Chief Justice Charles Evans Hughes once said, "We are under a Constitution, but the Constitution is what the judges say it is." Or as the website Western Journalism describes it;
Our federal judiciary has become, arguably and disturbingly, an oligarchy. When they rule on the “constitutionality” of an issue, it is assumed to be the final say in whether a vote of Congress or the vote of the people via referendum or initiative is legitimized or annulled. This is not how the Supreme Court and its substrata of appellate courts were intended to operate, nor is it de facto the way it should be.
The federal judiciary, as it has evolved, has unchecked and unlimited power over the nation by either of the other branches–the executive or the legislative–or even the people. Its members are not accountable to the citizenry, since most of their appointments are for life, and they cannot be removed from the bench by a vote of the people they purportedly serve. Their ruminations and the results of their decisions are insular, and they often trump the will of the people with regard to key social issues. Their decisions are presumed to be final, even though they may be at odds with the democratic majority of our citizens.
Herein lies the fundamental problem about the present construct of our federal judiciary as it has evolved since the founding. If, as stated in the 10th Amendment, all “rights and powers” not specifically itemized in the Constitution are held by the people collectively or by the states, what right does a court have to negate the will of the people? As it relates especially to key cultural issues like abortion, public religious displays, and definitions of marriage, should not the final court be the court of public opinion, rather than an oligarchy of judges insulated from, and not accountable to, the citizenry? In most of these cases, state courts have ruled, and appeals are then made to the federal judiciary.
Thomas Jefferson portended this judicial despotism: “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control.”
These situations exist because Congress abdicates its authority to unelected bureaucrats of the federal nomenclature, it refuses to stand up to the runaway executives and refuses to reign in the Supreme Court.
The first could be accomplished by passing a law rescinding the ability of bureaucracies to issue regulations that have the force of law without congressional approval.
The second could be accomplished as they were with President Nixon, hearings which could lead to impeachment.
And the third is constitutionally provided for in Article 3, Section 2, Clause 2 which states, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Congress should exercise its power to limit the jurisdiction of the courts. The Constitution provides that Congress is authorized to establish those federal courts subordinate to the Supreme Court and set forth their jurisdiction. Congress also has the power to limit the jurisdiction of the Supreme Court and regulate its activities. Accordingly, Congress should exercise this authority to restrain an activist judiciary.
If Congress would step up and be what we elect them to be We the People could once again become more than just an empty phrase from History in a discarded document that once sought to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity. If our representatives will represent us instead of themselves and their cronies we would find that the solutions to our broken institutions are in the Constitution.
Dr. Owens teaches History, Political Science, and Religion. He is the Historian of the Future @ http://drrobertowens.com © 2016 Contact Dr. Owens firstname.lastname@example.org Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens / Edited by Dr. Rosalie Owens
How could any of this fail to end America’s 240 year old experiment in human freedom?
Congressional authority, Dr. Owens, imperial presidency, judicial tyranny, constitution, supreme court, balance of powers, checks and balances.
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