by Walt Garlington
With the executive branch of the federal government making Obamacare headline news once again by issuing regulations regarding end-of-life counseling – while the same law silently threatens ‘to generate over 100,000 pages of enabling regulations’ absent any congressional debate or vote – now would be an excellent time to revisit Article I, Section 1, of the U.S. Constitution.
Art. I, Sec. 1, states simply enough, ‘All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.’
But is the Congress the only institution of the federal government currently exercising those legislative powers? The answer, as illustrated above, is clearly No. The bureaucracy of the executive branch is and has been unconstitutionally exercising the legislative power for decades.
And let there be no mistake: The rules and regulations issued by the executive bureaucracy are laws, though they are not called laws. The legal definition of ‘law’ should suffice to prove this. According to William Blackstone, a law is
“A rule of … conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.”
(See also other legal definitions from this web site.)
Furthermore, law is ‘binding’ on the people of the land and ‘enforced by a controlling authority.’
All of these characteristics of law apply to the rules promulgated by the federal executive.
But there is only one way prescribed in the Constitution for enacting a new law: passage of a proposed bill by both the House and the Senate. The role of the executive branch is secondary; it is Congress alone that is the primary cause in matters of legislation. The President may sign or not sign a bill, in either of which cases it becomes law. He may veto a bill passed by Congress, but his veto may be overridden, in which case the bill still becomes law. (See Article I, Sec. 7.)
Other than signing, not signing, or vetoing proposed laws, the only other function of the federal executive branch with regard to legislation is ‘to take Care that the Laws be faithfully executed’ (Art. II, Sec. 3).
If it be argued that the executive branch needs to have the flexibility to write rules to execute the laws passed by Congress, even this argument has been answered in the text of the Constitution in the famous Necessary and Proper Clause (Art. I, Sec. 8): ‘The Congress shall have 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 in any Department or Officer thereof.’ The legislative branch alone – not the executive branch, or any other ‘Department or Officer’ of the federal government – is granted the power to write rules governing the execution of laws it passes.
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So the Congress is supreme according to our Constitution when it comes to passing new laws.
What does this mean, then? That there is another constitutional basis for declaring many federal regulations decreed by the executive bureaucracy ‘unauthoritative, void, and of no force’, whether regarding health care, the environment, agriculture, etc.
‘Legislative supremacy’ let us call this constitutional principle, and let us define it thusly: Only the U.S. Congress may pass laws, or any rule or regulation having the characteristics of law. Should any other branch, department, or officer of the federal government issue anything purporting to have the force of law, that fraud ought to be ignored and resisted by state and local governments and the citizens themselves in the way deemed most prudent.
If any of the constitutional scholars at the Tenth Amendment Center or elsewhere would like to help clarify and buttress this principle, such aid would be gratefully received.
Finally, I wish to thank the Texas Public Policy Foundation for giving me this idea in the first place via a wise proposal of their own:
‘Our representatives in Congress can have an important role in stopping federal overreach. A simple amendment to the Administrative Procedures Act could establish that the Supremacy Clause of the Constitution (Article VI) shall not apply to regulatory action, and that in cases of conflict between an administrative agency rulemaking and state law, state law prevails.’ (Ted Cruz and Mario Loyola, Reclaiming the Constitution: Towards an Agenda for State Action, P. 16. Available for download as a PDF file here
Walt Garlington is the founder of the Louisiana State Sovereignty Committee.
Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given
FCC, FDA, and all other extra congressional organizations need to be eliminated completely.
You raise a great issue here. Thanks! A corollary issue is the quasi-judicial powers that are exercised by the executive branch, usually tasked with interpreting the very regulations the overseeing agency has implemented — conflict of interest, anyone?
The first new rule says you HAVE to have insurance. Both my husband and I have pre-existing conditions, and although the new bill says we can't be denied coverage because of it. So far, the cheapest health insurance we've been able to find is called "Wise Health Insurance" search for it online if you are pre-existing conditions.
The author quotes then ignores the Constitution. Congress is empowered to pass all laws "necessary and proper" to effect powers described in the Constitution. He fails to appreciate history and acts as if he has just discovered there are agencies in the United States government that pass regulations. While I cannot argue with his complaint regarding them, I can bet dollars to doughnuts that if I took the time to study U.S. law already passed by Congress, it granted such authority to the agency in question. This grant may be several decades old. It may be recent but I guarantee it is there authorized by the necessary and proper clause. In short his complaint is a legitimate one that should be addressed by amendment and indeed can only be addressed by that means.
Congress has for years "passed the buck" in regards to the hard decisions of legislation to the courts or to other parts of the government. In this way, they avoid the political heat associated with, for example, closing bases. Clearly the Constitution designates that Congress regulates the military. Closure of bases is a form of such regulation. But instead a commission created by Congress makes the decision and Congress merely rubber stamps it. If there is complaint, the answer is the commission made the decision, not us. This is one of literally thousands of possible examples.
The same is being used in his example. The commission made the rules, not us. Blame them. This is wrong and an amendment is needed to redress it and force Congress to make a lot more decisions that just "pass the buck."
this view of the necessary and proper clause is wholly incorrect. sad, though, its a pretty common view….although not generally from regular readers of this site.
if anyone wants some recommended reading on this clause, let me know.
Please post the recommended reading because I see both sides to this issue although I am not a fan of delegated duties by Congress.
A good dictatorship understands how to best nourish its own siblings.
An additional note on this subject:
In Article II we find this stipulation.
'He [the President] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient….'
If the executive branch possessed the power to enact on its own anything possessing the colour of law, why would the Constitution include this language requiring the President to present legislation to Congress?
would Mr. Boldin please comment: debate today on senates fillibuster rule, interesting. Under the original constitution, prior to the 17th amendment, it is my understanding that senators were the representative of the State Legislatures in the federal government; by and through their senator, a State Legislature had the power, among others, to halt or nullify federal legislation it was opposed to through the use of a fillibuster–is that historically accurate?