Publius-Huldah's Blog

Understanding the Constitution

Model Nullification Resolutions for State Legislatures.

The Proposed Tennessee Resolutions of 2012

PLEASE NOTE:  I have revised these model resolutions.  The revised version is better organized and reads better.   You can find the revised resolutions by clicking on the following hyperlink:

Now, How Do We Get Rid Of Obamacare?  Nullify It!

Do use the revised model for your study, instead of the one below.

The revised version – which you can find at the link – sets forth in a nutshell all one needs for a basic understanding of our Constitution – and how the supreme Court destroyed it.

As always, feel free to post your questions.  PH

Proposed by Publius Huldah.

1. Resolved, That the States composing the United States of America are not united on the principle of unlimited submission to the federal government; but that, with the Constitution for the United States, they established a federal government for limited purposes only.  That they delegated to this federal government only limited and enumerated powers; and reserved, each State to itself, all remaining powers, along with the right to their own self-government.

That whenever the federal government assumes undelegated powers, its acts are unauthoritative, void, and of no force.

That to these Principles, each State agreed as a State, and as the Parties to the Constitution.

That the federal government is not a party to the Constitution, but is merely the creature of the Constitution; and as the mere creature, was not made the exclusive or final judge of the extent of the powers delegated to it; since that would have made the creature’s will, and not the Constitution, the measure of its powers.  That as in all other cases of compact among powers having no common judge, each State has an equal right to judge for itself as to whether the creature has committed infractions, and as to the mode and measure of redress.

2. Resolved, That Art. I, Sec. 2, of the Constitution of The State of Tennessee acknowledges the Principle that the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.

3. Resolved, That the Constitution of the United States ordained and established a Federation of Sovereign States which united only for THE LIMITED PURPOSES enumerated in the Constitution: national defense, international commerce and relations; and domestically the creation of an uniform commercial system:  Weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy laws, and mail delivery.  That the 10th  Amendment to the Constitution also declares that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

That nowhere in the Constitution of the United States was any power granted to Congress to make laws respecting agriculture, farming operations, labor and employment, or children and families; and that nowhere in the Constitution are powers over these matters prohibited to the States. These matters are altogether outside the scope of powers delegated to the federal government. Therefore, power over these matters is reserved solely and exclusively to the respective States and THE PEOPLE, each within its or their own territory.

4. Resolved, That Art. I, Sec. 1 of the Constitution of the United States provides that all legislative Powers granted by that Constitution are vested in CONGRESS; therefore, Departments within the Executive Branch are forbidden to make any “rules” or “laws” of general application whatsoever.  That administrative rules promulgated by the Department of Labor, one of the Executive Departments of the federal government, set forth at 29 CFR Part 570, and which pretend to regulate child labor throughout the several States; are altogether void, and of no force,  as in violation of Art. I, Sec. 1, of the federal Constitution.

5. Resolved, That child laborers, including agricultural workers and children who work on family and other farms, are under the jurisdiction and protection of the Constitution and laws of the State wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual States. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”; the rules of the federal Department of Labor set forth at 29 CFR Part 570, which assume powers not delegated by the federal Constitution over child laborers, including agricultural workers and children who work on family and other farms, is not “law”, but is altogether void, and of no force.

6. Resolved, That since children and their parents or employers are under the protection of the State Constitution and laws of the State where they are; in cases of any violations of the Laws of such State, they are entitled to have their cases handled by the duly convened Courts of such State.  That transferring power of defining, prosecuting, and judging any such violations from the three branches of the State Governments to bureaucrats within one of the federal executive departments, is altogether unlawful and an intolerable usurpation of power.

7. Resolved, That the misconstructions long and unlawfully applied by the federal government to the so-called “taxing”, “general welfare”, “interstate commerce”, and “necessary and proper” clauses, to the effect that these clauses bestow unlimited powers on the federal government, goes to the destruction of all limits prescribed to their powers by the federal Constitution. That the true and genuine meaning of those clauses is as follows:

a) The “taxing” and “general welfare” clauses:  Art. I, Sec. 8, cl.1, employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the general terms. It is “error” to focus on the “general expressions” and disregard “the specifications which ascertain and limit their import”; thus, to argue that the general expression provides “an unlimited power” is “an absurdity” (Federalist Paper No. 41, last 4 paras).

The federal Constitution declares that “the power of Congress…shall extend to certain enumerated cases.  This specification of particulars…excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended…” (Federalist No. 83, 7th para).

b) The “interstate commerce” clause: “Commerce” is the buying and selling of goods – only that and nothing more. Webster’s American Dictionary (1828) says “commerce” is:

“an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals… by barter, or by purchase and sale; trade; traffick… inland commerce…is the trade in the exchange of commodities between citizens of the same nation or state.”

Federalist No. 22 (4th para), Federalist No. 42 (9th  &10th  paras), Federalist No. 44 (at 2.), and Federalist No. 56  (5th & 6th paras), explain the two purposes of the “interstate commerce” clause: (1) to prohibit the States from imposing tolls and tariffs on articles of import and export – goods & commodities – merchandize – as they are transported through the States for purposes of buying and selling; and (2) to permit the federal government to impose duties on imports and exports, both inland and abroad.

Article I, Sec. 8, cl.1; Art. I, Sec. 9, cls. 5 & 6; and Art. I, Sec.10, cls. 2 & 3, of the federal Constitution give express effect to these two purposes of the “interstate commerce” clause.

c) The “necessary and proper” clause:  This clause merely delegates to Congress the power to pass laws necessary and proper to execute its declared powers (Federalist No. 29, 4th para); a power to do something must be a power to pass all laws necessary and proper for the execution of that power (Federalist No. 33, 3rd para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article” (No. 33, 2nd para); and thus the clause is “perfectly harmless”, a  tautology or redundancy” (No. 33, 3rd para).  Madison writes to the same effect in (Federalist No. 44, at 1.).

The clause merely permits the execution of powers already delegated and enumerated in the federal Constitution.  No additional substantive powers are granted by this clause.

That contrary to the misconstructions long and unlawfully applied by the federal government, the federal Constitution is one of enumerated powers only:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.”  (Federalist No. 45 , 9th para)

“…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects….” (Federalist No. 39, 3rd para from end)

“…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...” (Federalist No. 14, 8th para)

“…It merits particular attention … that the laws of the Confederacy [those made by Congress], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land…Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…”[caps are Hamilton’s] (Federalist No. 27, last para).

That The Federalist Papers – and not the U.S. supreme Court – is the highest authority and evidence “of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning”. The supreme Court is merely a creature of the Constitution and is completely subject to its terms; and when judges on that and lower federal courts – who serve during “good Behaviour” only (Art. III, Sec. 1, cl. 1) – usurp powers, they must be impeached and removed from office (Federalist No. 81, 8th para).

8. Resolved, That to take from the States all the powers of self-government and to transfer all powers to a general and consolidated national government, in defiance of the Constitution which was ordained and established by THE PEOPLE, is not for the peace, happiness or prosperity of THE PEOPLE.

Therefore this State is determined to refuse to submit to undelegated powers exercised over them by the federal government; and rejects altogether the notion that the federal government may exercise unlimited powers over them.

That in cases of an abuse of the delegated (enumerated) powers, the members of the federal government, being chosen by the people, a change by the people would be the constitutional remedy.

But, where powers are usurped which have not been delegated to the federal government – when the federal government acts outside of, and in defiance of, the federal Constitution by exercising powers not delegated to it by that Constitution; then a nullification of the unlawful act is the rightful remedy.

Thus every State has a natural right – which pre-dates & pre-exists the federal Constitution – to nullify of their own authority all such lawless assumptions of power within the boundaries of their State.  That without this pre-existing natural and original right, they would be under the dominion, absolute and unlimited, of whoever in the federal government chooses to exercise tyrannical powers over them.

The States alone are The Parties to the compact; and thus are solely authorized to judge in the last resort of the powers exercised under it.  Congress, the Executive Branch, and the Judicial Branch are not parties to the contract; but are merely the creatures of the compact (Federalist No. 33, 5th para).  As mere creatures, they may exercise no powers other than those enumerated powers specifically delegated to them.

9. Resolved, That matters pertaining to “labor”, “employment”, “farms”, “children” and their employers or parents, are nowhere delegated to the federal government by the federal Constitution; but are among the countless multitudes of matters reserved to the States or THE PEOPLE.

Therefore, the federal Department of Labor is itself an unlawful department, and its mere existence an affront to the Constitution; and all of the powers it exercises are usurped powers as outside the scope of the powers delegated to the federal government by our Constitution.

That if the pretended “rules” of this spurious federal Department of Labor should stand, these conclusions would flow from them; that unelected bureaucrats within the Executive Branch of the federal government may force upon The States and THE PEOPLE their own ideas of what children and their employers or parents may and may not do; that they may place any act they think proper on a list of prohibited activities, that they will send out swarms of officers to trespass upon private farms and places of business, to harass employers, children and their parents;  and then prosecute and punish violations of their pretended “rules” in their own pretended “administrative courts” with their own pretended “administrative judges”.

That the federal departments within the Executive Branch of the federal government have established a pattern of unlawfully functioning as legislators, when they write “agency rules”; as executives, when they investigate and prosecute violations of “agency rules”; and as judges and juries when they decide whether violations of their “agency rules” have occurred.  Thus the Executive Branch unlawfully functions as legislator, accuser, judge & jury, in violation of the Constitution and of the Principles of Separation of Power and of Checks and Balances.

To this abomination is added the additional affront that the objects of these pretended “rules” are altogether outside the scope of the enumerated powers delegated to the federal government in our Constitution.

That in this way, those within the Executive Branch of the federal government are sweeping away all the barriers of our Constitution; and that no ramparts now remain between their unbridled and insatiable lust for power over THE PEOPLE except for the several States.

10. Resolved, That if the States do not now resist all such blatantly unlawful usurpations of power, THE PEOPLE of their States will be delivered into abject slavery subject to the unbridled control of whosoever occupies the office of President.  Our Representatives in Congress have shirked their constitutional obligation to support the Constitution (Art. VI, cl. 3), by acquiescing in the blatant usurpations by the Executive Branch; and  have failed in their duty to impeach and remove those within the Executive Branch who usurp powers (Federalist No. 66, 2nd para, and No. 77, last para).  That the supreme Court long ago took the side of those who seek to exercise unlimited control over the States and THE PEOPLE; and that Congress has failed in their duty to impeach and remove federal judges who usurp powers (Federalist No. 81, 8th para).

That pursuant to Art. VI, cl. 3 of our federal Constitution, all State legislators, State Officers and State Judges take a solemn Oath to support our federal Constitution. Therefore, they are bound to protect THE PEOPLE of their States from the usurpations of the federal government whose clear object is the establishment of an absolute Tyranny over the States and the People.

That our Framers anticipated the dangers we now face and provided wise counsel for such a time as this.  Federalist No. 28 (last 5 paras) states that when “the representatives of the people betray their constituents”, the people have no recourse but to exert “that original right of self-defense” [The Declaration of Independence, 2nd para], against “the usurpations of the national rulers” (5th para from end).

That in a Federation of States united under a federal government for only limited purposes,

“…the people… are…the masters of their own fate. Power being almost always the rival of power, the general [federal] government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress…” (4th para from end)

Thus, THE STATE LEGISLATURES are the ultimate bulwark of The People and The Ultimate Human Protectors of our Constitutional Republic:

“It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.”  (3rd para from end)

The last paragraph of Federalist No. 28 recognizes that when the federal government seeks

“… a despotism over the great body of the people … [the people] are in a situation, through the medium of their State governments, to take measures for their own defense…”

11. Resolved, That because men may not be trusted with power, the federal Constitution fixed the limits to which, and no further, the federal government may go.  Would we be wise if we permit the federal government to destroy the limits the Constitution places upon its powers? Would we be wise if we permit unelected bureaucrats in the Executive Departments of the federal government to regulate every aspect of our lives?

That if those who administer the federal government be permitted to transgress the limits fixed by the federal Constitution, by disregarding the limits on its powers set forth therein, then annihilation of the State Governments, and the erection upon their ruins, of a general consolidated  government, will be the inevitable consequence.

That the several States, being sovereign and independent, have the unquestionable right to judge of infractions to the federal Constitution; and that nullification by those sovereign States of all unauthorized acts of the federal government is the rightful remedy.

THEREFORE, this State, recurring to its natural rights in matters outside the scope of the powers delegated to the federal government, declares these acts void, and of no force, and will take measures of its own for providing that neither these acts, nor any others of the federal government not plainly and intentionally authorized by the Constitution, shalt be exercised within this State.

Notes:

1. The above is patterned on the relevant portions of The Kentucky Resolutions of 1798, written by Thomas Jefferson in response to the alien and sedition acts passed by Congress which purported to grant to the President tyrannical powers with respect to aliens & “seditious” words.

2. These proposed Resolutions focus on administrative “rules” made by a Department within the Executive Branch of the federal government. This Model may be easily adapted to address acts of Congress which are outside the scope of its enumerated powers; Executive Orders which are outside the scope of the President’s enumerated powers; and supreme Court opinions which exceed their enumerated powersand disregard the federal Constitution, such as their lawless rulings banning public expressions of the Faith of Our Fathers and misapplying Sec. 1 of the 14th Amendment in order to undermine the morals of the People and to destroy the residuary sovereignity of The States.

3. Several attorneys, historians, and others who claim special knowledge on this subject have asserted that States have no right to nullify anything the federal government does; that the States and The People must submit to the federal government no matter what it does; that only the federal government may question the federal government; thatthe federal government created by the Constitution is the exclusive and final judge of the extent of the powers delegated to it; and the opinion of five supreme Court judges, not the Constitution, is the sole measure of its powers.

Such people may not understand the distinction between abuses of delegated powers (e.g., unwise bankruptcy laws – Art. I, Sec. 8, cl. 4), for which election of better Representatives is the answer; and usurpations of powers which have not been delegated and are thus outside the lawful reach of the federal government (e.g., obamacare), for which nullification is the proper answer. When any branch of the federal government steps outside of the Constitution to make laws or “rules” or issue “opinions” which exceed their delegated powers; the States must resort to those original rights which pre-date & pre-exist Our Constitution to nullify such usurpations by the federal government of undelegated powers.

Such people also do not seem to understand our Founding Principles: Our Declaration of Independence says:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it …”  (2nd para)

In that one paragraph, we learn the five foundational principles of our Constitutional Republic:

  • Our Rights are unalienableand come from God;
  • The purpose of civil government is to protect our God-given Rights;
  • Civil government gets its powers from THE PEOPLE;
  • Civil government is legitimate only when it stays within the powers WE delegated to it; and
  • When civil government becomes destructive of the purposes for which WE created it, WE may throw it off.

The Constitution is the formal expression of our Consent for the federal government to exist; and it is our formal statement of which specific powers WE agreed to delegate to the three branches of that government. Look atthe opening words:

“WE THE PEOPLE … do ordain and establish this Constitution for the United States of America.”

The federal government operates with our consent only when it restricts itself to the powers WE delegated to it – when it obeys the Constitution. When it exercises usurped powers which have not been delegated to it, it becomes illegitimate. 

When the federal government loses its legitimacy – as it now has – it is the sworn duty of the States, pursuant to Art. VI, cl. 3, of our Constitution, to resist.

4. Others who claim special knowledge on this subject insist that a single State may not nullify any act of the federal government; that only a majority of the States acting in concert may do so.

But they overlook the nature of the laws protested in the Kentucky & Virginia Resolutions. Those Resolutions addressed laws made by Congress which purported to grant to the President certain dictatorial powers and jurisdiction over “aliens” and “seditious words”. The States have no means of stopping the President from enforcing such laws since the President has the raw power to send out armed thugs to arrest people by night; and then to prosecute, convict, & execute them in secret tribunals and chambers. The States may object – but they can’t stop it. The supreme Court may denounce it, but can’t stop it. Only Congress can put an end to it by impeaching & removing such a usurping President (Federalist No. 66, 2nd para & No. 77, last para).

But when Congress by means of a law (which is outside the scope of its delegated powers); or the President by means of an executive order (which is outside the scope of his delegated powers); or federal executive departments by means of administrative rules (which they are altogether prohibited by Art. I, Sec. 1 from making); or the supreme Court by means of opinions which contradict Our Constitution; purport to require THE STATES to do something, or stop doing something, then of course THE STATES – on an individual basis – have both the POWER and the DUTY (imposed by their Art. VI, cl. 3 Oaths of Office) to nullify such usurpatious acts within the boundaries of their States.   The proper battle cry in such events is, “Not in my state!”

Do you see? PH
Posted March 13, 2012

Postscript Added March 15, 2012:

The federal government is not God.  It is merely our “creature”. We The People created the federal government when We ordained and established Our Constitution. And when We enumerated the powers We delegated to each branch of the federal government, We told the federal government what We were giving it permission to do.

But we have now come to believe that the federal government may do whatever it wants; and we must obey it.  And because we have believed this for so long, a totalitarian fascist dictatorship is right now being imposed on us.

So what should we do?  Revolution and bloodshed? No!  There is a better way, and our Framers show us:  On behalf of The People of their States, The State Legislatures must now resort to that original right of self-defense which pre-exists & pre-dates The Constitution; and must nullify those acts of the federal government which are outside the scope of the powers We delegated to it in Our Constitution.

The Model Resolutions  set forth the Authorities on which they are based, so that State Legislators may propose them in their State Legislatures with complete confidence that Our Framers “have their backs”. PH

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March 13, 2012 Posted by | 10th Amendment, Administrative Law, Checks and Balances, Declaration of Independence, Department of Labor, Elastic clause, General Welfare Clause, Kentucky Resolutions of 1798, Necessary and Proper clause, Nullification by States, Nullification of unconstitutional acts, Nullification Resolutions, Oath of Office, Resistance to tyranny, Rulemaking by Executive Agencies, separation of powers, States Retained Powers, States Rights, Tennessee Constitution, Tenth Amendment, The Tennessee Resolutions, Usurpations of power | , , , , , , , , , , , , , , , , , , , , | 60 Comments

The President’s Enumerated Powers, Rulemaking by Executive Agencies, & Executive Orders.

By Publius Huldah.

On election night, November 2, 2010, Rep. John Boehner said in his victory speech:

…While our new majority will serve as your voice in the people’s House, we must remember it is the president who sets the agenda for our government. … [emphasis added]

Next morning, Ezra Klein commented in the Cult of the President lives on:

I’d like Boehner to show us where in the Constitution it says that the president sets the agenda for the government.

But Boehner is not as astute as Ezra Klein, and does not know that it is our Constitution which sets the “agenda” for the federal government.  The agenda the Constitution sets restricts the federal government to war, international relations & commerce; and domestically, the establishment of an uniform commercial system: a monetary system based on gold & silver, weights & measures, patents & copyrights, a bankruptcy code, and mail delivery (Art. I, Sec. 8, cls.1-16). 1

And because none of the House Republicans seem to know that our Constitution sets the agenda, and don’t know that our Constitution also enumerates the powers delegated to the President, they are allowing Obama to carry out his “agenda” to transform our Country into a fascist dictatorship.

What are the Enumerated Powers of the President?

The powers of the President are “carefully limited” and precisely defined by our Constitution.  In Federalist Paper No. 71 (last para), Alexander Hamilton asks,

…what would be … feared from an elective magistrate of four years’ duration, with the confined authorities of a President of the United States?…[emphasis added] 2

The answer to Hamilton’s question is this: There would be nothing to fear if Presidents obeyed the Constitution. But they don’t obey it because the dolts in Congress don’t make them obey it!

Well, then!  Here is the complete list of the President’s enumerated powers:

Art. I, Sec. 7, cls. 2 & 3, grants to the President the power to approve or veto Bills and Resolutions passed by Congress.

Art. I, Sec. 9, next to last clause, grants to the executive Branch – the Treasury Department – the power to write checks pursuant to Appropriations made by law – i.e., by Congress.

Art. II, Sec. 1, cl.1, vests “executive Power” [see below] in the President.

Art. II, Sec. 1, last clause, sets forth the President’s Oath of Office – to “preserve, protect and defend the Constitution of the United States”.

Art. II, Sec. 2, cl.1:

  • makes the President Commander in Chief of the armed forces when they have been called by Congress into the actual service of the United States. 3
  • authorizes the President to require the principal Officers in the executive Departments to provide written Opinions upon the Duties of their Offices.
  •  grants the President power to grant Reprieves and Pardons for offenses against the United States, 4  but he can not stop impeachments of any federal judge or federal officer.

Article II, Sec. 2, cl. 2 grants to the President the power:

  • to make Treaties – with the advice and consent of the Senate. 5
  • to nominate Ambassadors, other public ministers and Consuls, federal judges, and various other officers – with the advice and consent of the Senate.

Article II, Sec. 2, cl. 3 grants to the President the power to make recess appointments, which expire at the end of Congress’ next session.

Art. II, Sec. 3:

  • Imposes the duty on the President to periodically advise Congress on the State of the Union, and authorizes the President to recommend to Congress such measures as he deems wise.
  • Authorizes the President, on extraordinary Occasions, to convene one or both houses of Congress [e.g., when he asks Congress to declare War]; and if both houses can not agree on when to adjourn, he is authorized to adjourn them to such time as he deems proper.
  • Imposes the duty upon the President to receive Ambassadors and other public Ministers.
  • Imposes the duty upon the President to take care that the Laws be faithfully executed, and
  • Imposes the duty upon the President to Commission all the Officers of the United States.

That’s it! Anything else the President does is unlawful and a usurpation of powers not granted.

 What is the “executive Power”?

So!  The granting of the “executive Power” to the President is not a blank check giving him power to do whatever he wants.  The “executive Power” is merely the power to put into effect – to implement – those Acts of Congress which are within Congress’ enumerated powers.  Thus, if Congress establishes “an uniform Rule of Naturalization” (as authorized by Art. I, Sec. 8, cl. 4), it is the President’s duty to implement and enforce the law Congress makes. The President is to carry out – to execute – Acts of  Congress.

But note well:  His Oath of Office – to “preserve, protect and defend the Constitution”, shows that the President must use his independent judgment 6  as to which acts of Congress are and are not constitutional.  Thus, as shown in this paper, “The Oath Of Office: The Check On Usurpations By Congress, The Executive Branch, & Federal Judges“, the President has the duty, imposed by his Oath, to act as a “check” on Congress (and on federal courts, as well).

Accordingly, when Congress makes a “law” which is not authorized by the Constitution, it

…would not be the supreme law of the land, but a usurpation of power not granted by the Constitution”… Federalist No. 33 (last two paras); 7

and since the President’s Oath requires him to “preserve, protect and defend the Constitution“, the President must refuse to enforce an unconstitutional “law” made by Congress.  Otherwise, he’d be in collusion with the legislative branch to usurp power over The People. 8

So, then!  Acting as a check on Congress (and federal courts) by refusing to enforce unconstitutional “laws” (and opinions), as well as the duty of entertaining foreign dignitaries, are the only occasions where the President may act alone. His prime responsibility is to do what Congress tells him.

Article I, Sec. 1 & The Unconstitutional Administrative Law State

Now, you must learn of “administrative law” – i.e., rulemaking by Executive Agencies. 9

Article I, Sec.1, U.S. Constitution, says:

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

That little phrase is of immense importance. It means what it says, that only Congress may make laws: laws are to be made only by Representatives whom we can fire every two years, and by Senators whom we can fire every six years.

But in Joseph Postell’s “must read” paper, “Constitution in Decline“, he shows that during the administration of the nefarious Woodrow Wilson, Congress began delegating its lawmaking powers to agencies within the Executive Branch.  Since then, Congress passes an overall legislative scheme, and delegates the details to be written by un-elected, un-accountable bureaucrats in the various Executive Agencies.  They write the “administrative rules” which implement the Legislation. The result is the execrable Code of Federal Regulations (CFR), which is accepted, by the indoctrinated members of my profession, as “law”. Go here to see the abominable CFR.

May the President Lawfully Make “Executive Orders”?

The Guiding Principle is this:  The President has no authority to do ANYTHING apart from constitutional authority or statutory authority (assuming the statute itself is constitutional).

1.    So!  Respecting those matters within his constitutional authority & duties, and authority & duties imposed by constitutional statutes, the President may make “orders” – call them “executive orders” if you like.

For example: It is the President’s constitutional duty “to take care that the Laws be faithfully executed”. Thus, he has the duty to enforce [constitutional] laws made by Congress.  How does he enforce the laws?  Sometimes, by means of “orders”.

To illustrate: Say Congress makes a law, as authorized by Art. I, Sec. 8, clause 6, making it a felony to counterfeit the Securities and current Coin of the United States.  If U.S. Attorneys are not prosecuting counterfeiters, the President should “order” them to do it. Or fire them.

But say Congress makes a law which purports to make possession of shotguns shorter than 18 inches a crime.  Since the President’s Oath requires him to “preserve, protect and defend the Constitution”, he is obligated to “order” the U.S. Attorney General and the U.S. Attorneys to refuse to prosecute anyone for possession of sawed-off shotguns. Why?  Because such a “law” is unconstitutional as outside the scope of the legislative powers granted to Congress in Our Constitution.  It also violates the Second Amendment.

Clearly, such an order to refuse prosecution falls within the President’s constitutional duties (enforce the Constitution), and he is giving an order to people within the Executive Branch. The President is the one who is charged with carrying out the Acts of Congress – he has the “executive Power”.  But because of his Oath, he may not carry out unconstitutional “laws”. That is one of the checks on Congress.

The President may also properly make orders addressing housekeeping issues within the Executive Branch:  Dress codes, no smoking or drinking on the job, he may encourage executive agencies to hire qualified handicapped people, and the like.  Just as if you have a business, you may make orders addressing such matters.

So! Do you see?  The President may lawfully make orders to carry out his constitutionally imposed powers and duties, and powers bestowed by statutes which are constitutional; and he may address “housekeeping” issues within the Executive Branch.

2.   But a President may not lawfully, by means of “orders”, exercise powers not delegated to him by the Constitution or by (constitutional) Acts of Congress.

Yet Obama has issued various executive orders which are unlawful because they are not authorized by the Constitution or by (constitutional) Acts of Congress. Here are two executive orders which are particularly pernicious because they undermine our foundational Principle of “Federalism”, and have as their object the “improper consolidation of the States into one … republic.”: 10

E.O.13575 – Establishment of the White House Rural Council: This E.O. provides for over 25 federal departments & agencies to run every aspect of rural life!

E.O. Establishing Council of Governors: The effect of this E.O. is to erase the Independence and Sovereignty of the States and consolidate us into a national system under the boot of the Executive Branch.

Joseph Stalin couldn’t do better than this.  These E.O.s are blatantly unconstitutional as usurpations of powers not granted in The Constitution!  So,  Nullify them!

3.   Likewise, executive agencies may not, by means of “administrative rulemaking”, usurp the powers of Congress. (Remember, because of Art. I, Sec.1, all rulemaking by executive agencies is unconstitutional)!

Here are several cases of such unconstitutional rulemaking:

a)  When Congress refused to pass the DREAM ACT, which provided a path to citizenship for certain categories of illegal aliens, ICE had no authority to implement it, in whole or in part, by executive “memo”!  Power over Rules of Naturalization (i.e., who qualifies for citizenship and what are the procedures) is expressly granted to Congress by Article I, Sec. 8, cl. 4, which grants to Congress alone the Power “To establish an uniform Rule of Naturalization”.

The President has no constitutional power over immigration & naturalization except to enforce the Acts of Congress respecting those subjects.  Article II, Sec. 3, which imposes upon the President the duty to “take care that the Laws be faithfully executed”, requires the President to enforce such constitutional Acts of Congress.

But if Congress refuses to make a law respecting naturalization, a President who enacts it anyway,  via “executive order”, or “administrative regulation”, or “administrative memo” by his underlings in the various executive agencies, is acting lawlessly.  His unlawful acts should be nullified, and he should be removed from office for his usurpation.

b) Congress recently did not pass three sinister and grotesquely unconstitutional bills Obama wanted: “Card check“, “Cap and Trade“, and the Disclose Act.  These bills are unconstitutional as outside the scope of the legislative powers granted by our Constitution to Congress. Nowhere does our Constitution give Congress authority to make laws about labor unions (“card check”), or to regulate carbon emissions – CO2, the stuff humans and animals exhale, and plants & trees need for photosynthesis (“cap and trade”), or requiring people with federal contracts to report their personal political activities to the Executive Branch (“Disclose Act”)!

Since Congress may not lawfully make laws on such subjects, no one can. Yet, Obama is circumventing the Constitution and implementing these three failed & unconstitutional bills by agency rulemaking or executive order!:

The National Labor Relations Board, is implementing “card check” by agency regulation.  Read this.

The Environmental Protection Agency is implementing “cap and trade” by agency regulation. Read this.

And it appears that Obama – in furtherance of his “agenda” to reward his supporters and punish non-supporters – is considering signing an executive order to implement the Disclose Act. Read this.

So! Let us sum this up:  The President must always uphold our Constitution. When Congress makes an unconstitutional law, the President must refuse to implement it; and he may, by means of executive orders, instruct people in the Executive Branch not to comply.  E.g., if a President orders the U.S. Attorneys to decline to prosecute persons for possession of sawed-off shotguns, he would be acting lawfully because Congress has no authority to ban them. But the President is violating the Constitution when he implements “card check” by agency rules made by the NLRB; when he implements “cap & trade” by agency rules made by the EPA; and the “Disclose Act” by executive order, because the President and executive agencies (as well as Congress) do not have authority over these objects; and further, no one in the Executive Branch has authority to make “laws”!

What Should we do about illegal Executive Orders & Rules made by Executive Agencies?

A Congress filled with he-men and she-women, instead of ignorant cowards, wusses, and wimps, would impeach obama for his usurpations in signing unconstitutional executive orders, and in circumventing Congress by having executive agencies implement, by means of administrative rules, legislation which Congress did not pass.  In Federalist Paper No. 66 (2nd para), Hamilton expressly states that impeachment is an essential check on a President who encroaches on the powers of Congress; and in Federalist No. 77 (last para), points out that impeachment is the remedy for “abuse of the executive authority”.

But since the people in Congress are too ignorant and weak to rid us of the abomination in the White House, the States and Counties must nullify unconstitutional executive orders and administrative rules, or submit to slavery and the destruction of our Constitutional Republic. Since State and County officials have taken the Oath to support the U.S. Constitution (Art. VI, last cl.), they are bound by Oath to refuse to submit to illegal executive orders and illegal agency rules.

And of course, WE THE PEOPLE and our businesses must also spit on such illegalities by the Executive Branch. Our “creature” (Federalist No. 33, 5th para, Hamilton), has turned into Frankenstein, and has lost all legitimacy. PH

Endnotes:

1  In Federalist No. 45 (9th para), James Madison, Father of Our Constitution, says,

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. [boldface added]

2  In Federalist No. 48, Madison points out that in our representative republic,

…the executive magistracy is carefully limited; both in the extent and the duration of its power… (5th para) [i.e., limited & enumerated powers and 4 year terms]

…the executive power being restrained within a narrower compass [than that granted to the legislative branch], and being more simple in its nature… (6th para)

In Federalist No. 75 (3rd para), Hamilton says,

…The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate… [boldface added]

In Federalist No. 78 (6th para), Hamilton says,

The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules … The judiciary … has no influence over … the sword or the purse …and …must ultimately depend upon the aid of the executive arm … for the efficacy of its judgments. [boldface added].

Read the list of the President’s enumerated powers!  The President’s powers really are “confined” and “carefully limited” to carrying out laws made by Congress and enforcing certain judicial decisions, military defense (a power shared with Congress), appointing officials (subject to Congress’ approval), and entertaining foreign dignitaries. That’s it!

3 Only Congress has the power to declare war (Art. I, Sec. 8, cl. 11)!  See clauses 12-16 showing that Congress has the power to determine the funding for the military, and to make the Rules for the discipline & training of the military and the Militia.

4 Re “Offenses against the United States”: I explain here the criminal laws Our Constitution permits Congress to make.  It’s a short list.  Take note, you federal criminal defense lawyers.

5 I explain the treaty making power of the United States in two papers here

6 During the Terri Schiavo case, Alan Keyes spoke on the radio about the constitutional powers of the President.  I seem to recall that Dr. Keyes spoke of the President’s obligation to exercise his “independent judgment” as to whether an act of Congress or a federal court opinion is constitutional. Whatever he said, he opened my eyes, and enabled me to see the elegant beauty of our Constitution.

7  Hamilton also says in Federalist No. 33 (6th para)

…it will not follow…that acts of …[the federal government] which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of … [the States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such… [T]he clause which declares the supremacy of the laws of the Union [Art. VI, cl. 2]…EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION … [caps are Hamilton's, boldface mine]

8 Madison says in Federalist No. 44 (last para before 2.):

the success of the usurpation [by Congress] will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; … [boldface added]

The President must not collude with the legislative  or judicial branches to usurp power over The People!  He must honor his Oath!

9 Most of the existing “federal” executive agencies are unconstitutional.  They meddle in matters which are not the business of the federal government, as power over the matters is not granted by our Constitution to the federal government.  Here are a few of the unconstitutional federal agencies: the Departments of Agriculture, Labor, Health and Human Services, Housing and Urban Development, Energy, Education, Transportation, and Homeland Security.  Likewise for the Environmental Protection Agency, the Federal Communications Commission, the Office of Science and Technology Policy, the Office of National Drug Control Policy,  the National Economic Council, the Small Business Administration, the Council on Environmental Quality, etc., etc., etc.

10  Progressives have erased the concept of “federalism” from our minds. “Federalism” refers to the form of our government & the division of powers between the national government and the States. A “Federation” (which is what our Constitution creates) is an alliance of independent States associated together in a “confederation” with a national government to which is delegated authority over the States in specifically defined areas ONLY (i.e., the enumerated powers granted to Congress by our Constitution).  Those enumerated powers are the only areas wherein the national government is to have authority over the States.  In all other matters, the States have supremacy, are independent, and sovereign!  Learn more of “federalism” here and here.

Our Framers warned against the consolidation of the sovereign States into one national sovereignty:   In Federalist No. 32 (2nd para), Hamilton writes,

An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention [the Constitution] aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States…. [caps are Hamilton's; boldface mine]

Federalist No. 62 (5th para) says,

… the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.  So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic. [boldface mine]

And in Federalist No. 39  (6th para), Madison says,

“But it was not sufficient,” say the adversaries of the proposed Constitution, “for the convention to adhere to the republican form. They ought, with equal care, to have preserved the FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states; instead of which, they have framed a NATIONAL government, which regards the Union as a CONSOLIDATION of the States.” And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision….[caps are Madison's]

Madison then gives a brilliant exposition of the “national” and “federal” aspects of Our Constitution.  More than any other Paper, No. 39 addresses the primary political problem of our Time:  The  destruction of “federalism” by eradicating all vestiges of sovereign & independent States. 

We are a trusting People easily lead astray.  Make something sound “patriotic”, and we are all for it.  Since 1892, American public school children have been indoctrinated with the statist Lie that ours is an indivisible national government.  This was done by means of the Pledge of Allegiance:  “….one nation … indivisible…”.  Is it any wonder that the author of this nasty bit of poison, Francis Bellamy, was a socialist who worked with the National Education Association to institute this statist indoctrination into the public schools?  This pernicious pledge is why you don’t know, and no one knows, that our Constitution created a “federation” of sovereign & independent States, united only for the limited purposes enumerated in the Constitution. Wikipedia has good info on Bellamy. PH

August 30, 2011

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August 30, 2011 Posted by | Administrative Law, Enumerated powers of the president, Executive Orders, Pledge of Allegiance, President's enumerated powers, President's powers, Rulemaking by Executive Agencies | | 90 Comments

   

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