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 Permission to reprint in whole or in part is gladly granted, provided full credit is given

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