Outpost of Freedom blog

Who makes the laws?

(“He has erected a multitude of new offices”)

Gary Hunt
Outpost of Freedom
December 22, 2009

“It poisons the blessing of liberty itself.  It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.  Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

James Madison
Federalist Papers #62

We have been taught that the Congress of the United States makes the laws.  After all, we elected them to legislate, to make those laws that are necessary for the government to exist and to do its job.  But the question arises — does Congress make those laws that we are bound to?

Well, for over 150 years, the Congress did make the laws.  But, then, they got too busy with other things and found that they didn’t have time to do what they were elected to do, rather, they opted to delegate the authority to make the laws to others, giving them more time to socialize with their friends and local lobbyists.  Of course, they rationalize their actions as the way that they have found to work the best to conduct their duties for us.  They have put the specific authority for making most laws into the hands of those who are, well, more experienced and more qualified to make those laws than the Congressmen, themselves, the they, for the most part, are completely unknown to us.

I realize that this is a hard nut to swallow, so we must begin looking at a law that was enacted in 1946.  This law was passed by the Congress, but, it was also the beginning of the end of Congress ‘wasting their time’ doing what they were being paid to do.

We will begin with a brief legislative timeline of the Administrative Procedure Act.  In 1937, a Presidential committee recommended “separation of investigating/prosecuting functions from decision making functions”.  So, the first recommendation to deal with Administrative agencies was to separate their functions.  The Act, which claimed to address these concerns, was first submitted in 1939, under the title, Walter- Lagan administrative procedure bill.  It passed Congress, but was vetoed by then President Franklin Roosevelt.  It was again submitted to Committee in 1941, went through numerous hearings, and was resubmitted again in 1944, with no action taken.  It was submitted, again, as Senate Bill 7 (SB. 7) in 1945.  This Act was passed into law in 1946.

During the course of submission, review and resubmission, a number of statements were made in defense of the procedure being used to, well, refine the Procedures Act.  In an article by Wills Smith, a member of the North Carolina Bar and President of the American Bar Association, he said.  “A bill of that character in these days required a background of preparation to achieve such acceptance.”

Let me point out, here, that within the Congressional Record, many Bar associations, attorneys and CPAs (Certified Public Accountants) were shown to be supportive of the Act.  Why not?  It created a lucrative field from whence they could broaden their client base.

We can look at years of legislative practices that demonstrate that legislation will be submitted, objected to, refused, revised, resubmitted, and on and on, until the concept has been rendered acceptable.  This does not mean that what is first passed will be the ultimate result.  More often, it is simply a way for the Congress to “get their foot in the door”, and, once we, the People, have gotten used to the existence of such an such a program, they can then ‘adopt’ revisions to bring it up to where it was intended to be, in the first place.

The Bill, “Administrative procedure Act”, was submitted by Representative Pat McCarran, Democrat, Nevada, who gave us some insight into its purpose, when he said (from the Congressional Record, March 12, 1946), “We have set up a fourth order in the tripartite plan of government which was initiated by the founding fathers of our democracy.  They set up the executive, the legislative, and the judicial branches; but since that time we have set up fourth dimension, if I may so term it, which is now popularly known as administrative in nature.  So we have the legislative, the executive, the judicial, and the administrative.”

“Perhaps there are reasons for that arrangement.  We found that the legislative branch, although it might enact a law, could not very well administer it.  So the legislative branch enunciated the legal precepts and ordained that commissions or groups should be established by the executive branch with power to promulgate rules and regulations.  These rules and regulations are the very things that impinge upon, curb, or permit the citizen who is touched by the law, as every citizen of this democracy is.

“This is not a Government of man.  It is a Government of law; and this law is a thing which, every day from its enactment until the end of time so for is this Government is concerned, will touch every citizen of the Republic.

“Senate bill 7, the purpose of which is to improve the administration of justice by prescribing fair administrative procedure, is a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal government.  It is designed to provide guarantees of due process in administrative procedure.

“The subject of the administrative law and procedure is not expressly mentioned in the constitution, and there is no recognizable body of such law, as there is for the courts in the Judicial Code.

“Problems of administrative law and procedure have been increased and aggravated by the continued growth of the Government, particularly in the executive branch.

Therefore, they have set up the fourth branch of government.  The Constitution established three branches of government.  It also provided means for amendments to the Constitution.  The provision for amendments was intended to modify the Constitution, if it were judged to be insufficient for the purposes.  It did not give the legislative branch, or, the executive branch, the authority to establish a fourth branch of government — that bridged the gap between the legislative and executive, and, created its own judicial branch.

Note, also, that he suggests that hundreds of thousands of Americans will benefit by the creation of these administrative agencies.  He does, however, recognize that there is no “body of such law” in the constitution, though the he does not prescribe a proper remedy.

Finally, he acknowledges that the problem is created by the “continued growth of the Government, particularly in the executive branch”.  So, I suppose, we are to accept that the founding fathers intended for the executive branch to extend ‘outward’ and touch every aspect of our lives.

Later, on May 24 (Congressional Record), Representative John Gwynne of Iowa provides insight into what “rule making” is when he has said, “After a law has been passed by the Congress, before it applies to the individual citizens there are about three steps that must be taken.  First, the bureau having charge of enforcement must write rules and regulations to amplify, interpret, or expand the statute that we passed; rulemaking, we call it.  Second, there must be some procedure whereby the individual citizen who has some contact with the law can be brought before the bureau and his case adjudicated…  Finally, there must be some procedure whereby the individual may appeal to the courts from the action taken by the bureau.“

“Amplify, interpret or expand”?  Pretty much a free hand to extend their authority where the Founding Fathers never contemplated such power.  But, there you have it.  The agencies have become “rule maker” (legislator), judiciary, and overseer of their own activities.

When we think of the Bill of Rights, we think of those areas where the government cannot intrude into our lives.  Those Rights are preserved and sacred.  To assume that the government has created a “bill of rights” within the purview of the administrative agencies is about as preposterous as can be imagined.  Most of the Rights protected by the Bill of Rights have fallen prey to the administrative agencies’ rules, policies, and regulations.  The Due process that is assured by the Constitution is subordinated to agency tribunals rather than courts established in accordance with Article III of the Constitution.

The federal agencies have been established in such a way that their regulations have the effect of law, though they were promulgated by the agencies.  Though most actions by the agencies are subject to review by the Supreme Court, we need to understand what the Court has said, with regard to review of matters that come before it.

From Ashwander v. TVA [297 U.S. 288 (1936)]:

MR. JUSTICE BRANDEIS, concurring.

The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

1. The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding, declining because to decide such questions ‘is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals.  It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act

2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it…  It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.

3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.

4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.  This rule has found most varied application.  Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter…  Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation…  Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right.  Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained…  In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional.  In Massachusetts v. Mellon, the challenge of the federal Maternity Act was not entertained although made by the commonwealth on behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

7. ‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.

Understand that these principles laid out in Ashwander were laid out 10 years before the Administrative Procedure Act.  Those in Congress had no doubt that the Constitution would be subordinate to the Administrative Agencies’ rules, regulations, and procedures.

Administrative Agency rules have made slaves of states, by providing funding conditioned on action or activities predicated by the Agencies, without regard to the proper relationship between the States and the federal government (10th Amendment).

The “continued growth of the Government, particularly in the executive branch”, demonstrates the folly that we find ourselves in.  It was determined by the Founding Fathers that we should have a President, not a King.  The function of the President was broad in external matters (foreign policy), and was defined as to carry out the will of the Congress (Legislative Branch) in internal matters.  Instead, the Act has modeled the President, as executive over the Administrative Agencies, a King who can enact rule and regulations which ignore the prohibitions in the Constitution and subordinate both the States (members of the Union) and the People (the sovereigns from which the authority of government evolves) to his will.

He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.

Declaration of Independence