DACA

 [The president] shall take Care that the Laws be faithfully executed

U.S. Constitution, Article 2 Section 3

The Dream Act, which was first proposed in 2001, was legislation that would allow those who are brought into the United States as minors to be granted a conditional amnesty.  Though technically illegal immigrants, they had no say in the matter and have spent the majority of their lives as Americans.  The Act has been debated repeatedly but never passed.  That last point is significant.  There was no law passed for the president to faithfully execute.  When President Obama pushed for the Dream Act, Congress declined to pass it.  Therefore, immigration law treats 'Dreamers' no differently than any other illegal immigrant.  The president takes an oath to faithfully execute the laws that have been passed, not laws he wished had been passed.  However, limited resources often mean that a president must chose where to put emphasis.  DACA was more than that.  President Obama implemented an executive amnesty that not only told prosecutors to ignore Dreamers but also granted legal status via work permits.  The president was not only being unfaithful to the laws that Congress had passed, he was enforcing laws that they did not pass.  Yet another impeachable offense by President Obama.  Of course, impeachment is pointless in our era and the Republicans were too spineless to use the power of the purse.

 

DACA is unconstitutional and should be revoked.  This is something Congress must legislate.  President Trump has provided Congress with 6 months in which to pass the Dream Act.  Let's see if they pass it this time.  If not, let the deportations begin.  Enforce the laws or change the laws but don't ignore the laws.  That is the path to anarchy and collapse.

Mutiny of the Deep State

Here is a story about how federal employees are defying President Trump and his appointees.  The story is generally sympathetic to the mutineers.  Working in government is not a right.  Long tenure does not mean that you get to set policy.  Love him or hate him, President Trump is the chief executive.  He's the boss, the top dog, the big cheese, the orange overlord.  When the Obama Department of Justice declined to prosecute the New Black Panthers for voter intimidation after they had loitered with clubs at a polling station during the 2008 election, J. Christian Adams resigned and became a critic outside of government.  He disagreed with the decision of President Obama and his appointees but didn't become some mole in the administration who would leak classified data.  Too often, that is what is happening now.

 

The deep state, the regulatory state, the bureaucracy, or whatever else one might call it is profoundly unconstitutional.  The Constitution says "All legislative Powers herein granted shall be vested in a Congress of the United States."  The EPA is not the Congress and yet the Federal Register returns 14,640 documents regarding EPA rules.  These rules are binding on the citizenry but they were not legislated by elected representatives; they were written by career bureaucrats who remain in their jobs for decades, regardless of which party is in office.  There are so many of these bureaucracies that Congress doesn't have the time for anything but cursory oversight.  Worse, the Congress has passed laws that limit the executive's authority (that's also unconstitutional) in managing these almost independent fiefdoms of regulatory power.  ANY rule or regulation that can result in a penalty must be legislated by the Congress.  By outsourcing legislative power under the euphemism 'regulation,' the government has experienced massive growth.

 

Sticking with the EPA, here are a few of the arms within the agency:

 

1. Office of Policy: The OP creates the regulations and is the effective legislative branch of the EPA.

2. Office of Enforcement and Compliance Assurance:  The OECA enforces the regulations, basically what an executive branch does.

3. Office of Administrative Law Judges: The OALJ adjudicates the regulations and is the judicial branch.

 

Look how convenient that is: legislative, executive, and judicial all in one agency.  Who needs separation of powers?  The separation of powers exists to prevent the consolidation of power into one entity but too many of these regulatory agencies are self-contained realms whose various parts are unlikely to provide a fair hearing to those it chooses to harass.

 

The swamp likes this cozy arrangement and is alarmed by Trump's threat to drain it, thus the mutiny.

Separation of Powers Blurred

All legislative Powers herein granted shall be vested in a Congress of the United States

Article 1, Section 1, US Constitution

Notice the All.  It doesn't say most or the majority.  It says All.  Many Senators and Representatives are less than keen on imposing unpopular provisions on We the People because We the People might vote against them.  Eventually, the elected set discovered a work around that would allow them to exercise ever greater power over We the People while not having to answer for imposing the laws that granted that additional power.  They adopted the parliamentary system of primary and secondary legislation.  The legislature would create a regulatory agency and imbue it with legislative powers.  Thus, the Environmental Protection Agency - which is part of the Executive Branch of government - can make laws (euphemistically called regulations).  With each new regulatory agency, the government dramatically expands its scope.  The 535 legislators could never produce the number of laws that scores of agencies churn out on a regular basis.  Moreover, once created, the agency can implement laws even when the Congress is gridlocked.  We the People may have voted for divided government to slow down law-making but that has little impact on these independent law-making executive agencies.  On this basis, it is clear that all regulatory agencies are unconstitutional.  Congress needs to pass laws and be subject to voter displeasure rather than hide behind bureaucrats who cannot be voted out of office.

 

The executive Power shall be vested in a President of the United States of America.

Article II, Section 1, Clause 1, US Constitution

 

The President executes the laws and administers the executive agencies.  He is the person responsible if those agencies aren't getting the job done.  However, thanks to various laws, he doesn't have the authority to do so.  For instance, the Veterans' Administration has been shown to be a disaster for veterans, unable to provide healthcare in a timely manner.  The President cannot clean house because Civil Service Reform has taken 98% of federal jobs out of his ability to fire.  If the CEO cannot fire an employee, that employee can safely ignore the CEO.  On that basis, Civil Service Reform is unconstitutional.  The President runs the executive branch, which includes hiring and firing.  The lethargic bureaucracy will become quick and nimble overnight if the president could dismiss foot draggers.

 

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Article III, Section 1, US Constitution

 

Though the judicial power resides in the Supreme Court, the Congress has considerable authority on its size.  If Congress so desired, it could eliminate all the Federal Courts in the US and abolish all but one justice on the Supreme Court.  The courts have judicial power and yet have, from time to time, offered rulings that are indistinguishable from legislation.  Worse, some of these rulings are essentially beyond the power of the actual legislature to amend or repeal.  The court should limit itself to interpreting the laws.  If it must legislate, it should limit that to negative legislation, merely striking down laws that do not conform to the Constitution rather than positive legislation that implements their policy preferences.  Clearly, when the court has a ruling that is in opposition to the continually voiced desires of We the People, one must ask where US Sovereignty really resides: with the people or with 5 members of the Supreme Court?

 

The blurring of the lines between the three branches is a big part of why the government has become so bloated and unresponsive to We the People.  If the branches remained within the bounds of the Constitution, the government would be dramatically smaller, less expensive, and vastly more efficient.  There is far too much government for us to claim to have limited government.

Supreme Dork

Yesterday, the Supreme Court again ruled in favor of Obamacare.  In his majority opinion, Chief Justice John Roberts ruled that 'Established by the State' does not necessarily mean 'Established by the State.'  You see, that could ruin the law as it is currently being executed.  Well, let's pause there.  If the law is badly or ambiguously written, shouldn't it be returned to the Legislature to correct it?  No, apparently not.  Instead, the majority of the Court ruled that the law as the Obama administration has chosen to implement it (which has been modified from the law that the Supreme Court upheld in 2012) is just fine.  Justice Scalia put it this way:

 

The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress ‘[a]ll legislative Powers’ enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them. This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that ‘[o]ur task is to apply the text, not to improve upon it.’

 

The majority assumed the role of legislature and made the law conform to how the Executive Branch implemented it, not how the Congress (badly) wrote it.

Today, the Supreme Court ruled that gay marriage is Constitutional and must be allowed in all states, the democratic decisions of those states be damned. Chief Justice John Roberts, who yesterday was in favor of judicial legislation, wrote a strong dissent:

  

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Thus the Roberts’ Judicial Doctrine is that ‘legislating is acceptable when I am in the majority but a horrible breach when I am in the minority.’ You can’t have it both ways. Either you rule on the law as written or you don’t. You can’t pick and choose.

Separation of Powers

Everyone is familiar with the three branches of government: Legislative, Executive, and Judicial.  This is probably the first thing one learns in civics in the United States.  Congress writes the laws, the President enforces the laws, and the Supreme Court adjudicates the laws.  Simple, right?

The Presidency has taken upon itself some legislative functions.  Of course, the Congress is complicit in this, as it must be.  The Constitution invests only the Congress with the authority to legislate but the Congress time and again delegates this power to newly-minted Executive agencies that then regulate.  This is outsourced legislation.  To members of Congress, this is great.  Senator Bob can claim credit for creating this or that agency and thus showing his concern for this or that issue but also deny any responsibility if the regulations prove onerous or expensive.  At that point, the President needs to address the issue.  Perhaps there will be meaningless hearings that accomplish nothing but look serious and responsible.

The President cannot delegate his veto pen to his chief of staff.  He cannot delegate Commander in Chief to his Defense Secretary.  The Constitution allocates these to the President and he cannot then divest himself of them.  The Supreme Court cannot outsource its role as Court of Final Appeal to a law clerk.  By the same token, the Congress cannot outsource legislation.  Laws written by persons who have not been given the Consent of the Governed should be null and void.  We the People did not vote for Bureaucrat Bill.  When Bureaucrat Bill writes a law, We the People cannot vote him out if we are unhappy with his legislation.

If Congress had to pass all laws - as was intended - we'd have a lot fewer laws.  Laws would not run hundreds or thousands of pages which the legislators didn't have time to read.  There would not be passages that allocated 'rule making' or 'regulation' to this or that cabinet Secretary.

Separation of Powers existed to preserve the liberty of We the People.  The legislator who passes the law doesn't then enforce it.  The policeman who makes the arrest is not also the judge at the trial.  The judge who adjudicates the laws doesn't also legislate.  The conflict of interests is clear on this basic level.  But when the Congress grants legislative authority to the President, few see the parallel.  When judges create law through their rulings, too many are unfazed.  Separation of Powers protects liberty while their combination invites tyranny.