Publius-Huldah's Blog

Understanding the Constitution

The “Regulation Freedom” Amendment and Daniel Webster

By Publius Huldah

“The politician that undertakes to improve a Constitution with as little thought as a farmer sets about mending his plow, is no master of his trade. If that Constitution be a systematic one, if it be a free one, its parts are so necessarily connected that an alteration in one will work an alteration in all; and this cobbler, however pure and honest his intentions, will, in the end, find that what came to his hands a fair and lovely fabric goes from them a miserable piece of patchwork.” Daniel Webster, 4th of July Oration, 1802.

We live in a time of constitutional illiteracy. A recent survey found that only 26% of Americans can name the three branches of the federal government. Yet every Tom, Dick and Harry thinks he knows all about how to amend a document he never bothered to read. Our lawyers were indoctrinated in law school with the Supreme Court’s perversions of our Constitution, and know nothing of our actual Constitution. We should read and learn the Constitution we have before we tinker with it or jump on the bandwagon of tinkerers. Otherwise, we destroy the “fair and lovely fabric” we were given.

Summary

 Under our Constitution, Congress makes the laws, and the President enforces them. The powers of “making” and “enforcing” are separated so that the President and Congress may act as a “check” on each other.

But 100 years ago, Congress starting passing laws they had no constitutional authority to make, and delegated the details to be written in by agencies within the Executive Branch. This process continued and resulted in the Code of Federal Regulations which contains the huge body of regulations made by agencies within the Executive Branch. And thus we got the unconstitutional administrative law state under which every aspect of our lives is being increasingly regulated and controlled. 1

And now appear those who, under the promise of limiting the regulatory administrative law state, propose an Amendment to our Constitution which would legalize it!

1. Only the Legislative Branch has Constitutional Authority to make Laws

Article I of our Constitution created the Legislative Branch of the federal government. Section 1 thereunder says:

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.”

That means what it says. Only Congress may make laws [and laws are restricted to the powers granted in the Constitution]; and laws may be made only by elected Senators and Representatives in Congress.

2. The Executive Branch Enforces the Laws Congress makes

Article II of our Constitution created the Executive Branch. A primary function of that branch is to enforce laws passed by the Legislative Branch. Since the President’s Oath is to “preserve, protect and defend” the Constitution, he is obligated to refuse to enforce any Act of Congress which is unconstitutional.

3. Rulemaking by Agencies in the Executive Branch

But during the early 1900s, Congress began to make laws outside the scope of the handful of powers granted to the federal government, and delegated the details to be written by unelected bureaucrats in the Executive Branch.

This is now routine practice: Congress passes an overall statutory framework, and bureaucrats in the Executive Agencies write the rules to flesh it out. The Agencies themselves are often unconstitutional as outside the scope of powers granted in the Constitution. 2

To illustrate: Congress passed – without reading – the over 2,000-page Obamacare act. Then it went to the Department of Health & Human Services (an unconstitutional federal agency) to have tens of thousands of additional pages of regulations added to fill out the framework.

This unconstitutional practice resulted in the infamous Code of Federal Regulations. The Code is so huge it’s difficult to impossible to keep up with the rules and revisions which pretend to regulate one’s trade, business, or profession. [See Trump’s tweet below for an illustration of the size of the Code.]

The administrative law state and agency rules are unconstitutional! They violate Art. I, § 1, US Constitution, and are outside the scope of powers granted to the federal government.

So, what’s the solution?

4. The “Regulation Freedom” Amendment

Roman Buhler of the “The Madison Coalition” says we should support the “Regulation Freedom” Amendment to the US Constitution:

“Whenever one quarter of the Members of the U.S. House or the U.S. Senate transmit to the President their written declaration of opposition to a proposed federal regulation, it shall require a majority vote of the House and Senate to adopt that regulation.”

Do you see the trap the amendment sets? It would legalize rulemaking by federal agencies in the Executive Branch and would thus supersede Article I, §1 of our Constitution! And the entire existing Code of Federal Regulations and the rulemaking process itself – which now violate the Constitution – would be made constitutional! 3

The amendment would thus bring about a fundamental transformation of our Constitution from one where Laws are made by elected Representatives on only a handful of enumerated powers; to the administrative law state where laws are made by unelected, nameless, faceless bureaucrats in the Executive Branch (the same branch that accuses, prosecutes, and judges violations). The executive agencies would make whatever Rules they please—and they would stand unless Congress, which often doesn’t even read the laws they pass, overrules it.

It protects 2nd Amendment Rights?

In an email dated November 10, 2017, Mr. Buhler said his proposed amendment “protects 2nd Amendment Rights”.

But his amendment does the opposite – it legalizes all the existing federal regulations which restrict firearms and ammunition. Look at Title 27, Chapter II, Subchapter B, Parts 478 and 479 of the Code of Federal Regulations. As of now, every rule in Parts 478 & 479 is unconstitutional as outside the scope of powers delegated in the Constitution; violates Article I, §1; and violates the 2nd Amendment. But with Buhler’s proposed amendment, all those rules would become constitutional!

Furthermore, the amendment would provide constitutional authority for the Bureau of Alcohol, Tobacco, Firearms and Explosives to make whatever future rules they want – and they would all be constitutional unless Congress objects and votes against them.

So the amendment vastly increases the powers of the federal government by legalizing what is now grotesquely unconstitutional.

5. Daniel Webster’s Warning

We are in a state of moral, religious, intellectual, and psychological decline. We don’t know what our Constitution says, and didn’t bother to find out. We elected people who didn’t know and didn’t care – and they made a mess.

To fix the mess, we must learn and enforce the Constitution we have and elect people who know it and obey it. We can gradually downsize the federal government to its enumerated powers. And as to Buhler’s proposed amendment, heed Daniel Webster’s warning:

“…If an angel should be winged from Heaven, on an errand of mercy to our country, the first accents that would glow on his lips would be, Beware! Be cautious! You have everything to lose; you have nothing to gain. We live under the only government that ever existed which was framed by the unrestrained and deliberate consultations of the people. Miracles do not cluster. That which has happened but once in six thousand years cannot be expected to happen often. Such a government, once gone, might leave a void, to be filled, for ages, with revolution and tumult, riot and despotism…”Webster’s Oration.

Endnotes:

1 Administrative law judges in Executive Branch agencies decide whether violations of agency rules have occurred. The agencies thus act as lawmaker, prosecutor, and judge! Isaiah 33:22 says God is our Judge, Law-giver, and King. Because humans are corrupt, our Framers separated the functions into three separate branches of government: Legislative, Executive, and Judicial. And since the Oath of Office requires persons within each branch to obey the Constitution – not the other brancheseach branch has a “check” on the other branches.

2 Where’s the constitutional authority for the Dept. of Education? Energy? Agriculture? Housing & Urban Development? Labor? Environmental Protection? etc., etc., etc.?

3 Our existing, but long ignored, Constitution limits federal power to the enumerated powers. But the proposed amendment would supersede that limitation because it permits the exercise of federal power on whatever the Executive Agencies make rules about!

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December 17, 2017 - Posted by | Administrative Law, Code of Federal Regulations, Daniel Webster, Madison Coalition, Regulation Freedom Amendment, Roman Buhler | , , , , , ,

35 Comments »

  1. […] shown in The “Regulation Freedom” Amendment and Daniel Webster, rulemaking by federal agencies is unconstitutional as in violation of Art. I, §1 of our […]

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    Pingback by COS Project’s “Simulated Convention” Dog and Pony Show and What They Did There « Publius-Huldah's Blog | January 14, 2018 | Reply

  2. Dear PH, thank you for recounting that last quotation from Daniel Webster about the angel warning us to beware. It sent chills down my spine when I first read it. Americans have not heeded his warning. I hope we can reverse this trajectory before we reach the tumultuous, despotic end of his prediction.

    Liked by 1 person

    Comment by CWB | December 28, 2017 | Reply

    • Yes, Daniel Webster was an amazing speaker – everything he said was that good. Truly gifted by God to speak.

      Like

      Comment by Publius Huldah | December 28, 2017 | Reply

  3. I would submit that just because they pass an Amendment to the Constitution making something “constitutional” does NOT, necessarily, make it “lawful”. I further, submit, that many of the Amendments from 11 – 27 are such. I have determined that our governments are nothing more than ORGANIZED CRIMINAL ORGANIZATIONS!

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    Comment by Diamondback | December 27, 2017 | Reply

    • If it’s an amendment to our constitution, it’s “constitutional”.

      Of course, it could still violate God’s laws; e.g., an amendment to our Constitution permitting homosexual marriage and abortion would violate God’s Laws.

      Like

      Comment by Publius Huldah | December 27, 2017 | Reply

  4. So the Article V ConCon thinks they can reverse all these damages ? Not if they appoint BAR Attorney’s they can’t, won’t.

    Now Hannity will begin airing COS on his show too?

    As I see it all issues, roads and actions point to Civil War still.

    Sicilianthing Patriot

    >

    Like

    Comment by SFH | December 23, 2017 | Reply

    • I hope you aren’t among those flakes who assert that “BAR” means “British Admiralty Registry” or some such rubbish.

      Actually, this is what it refers to: American courtrooms are typically divided into two parts: the Judge and the lawyers sit in the front – then there is a short wall just behind the tables of counsel. The short wall is [prepare yourself] the “bar”. Spectators sit behind the wall [the “bar].

      So when we are admitted to the “bar”, we are admitted to the group of persons – lawyers- who can sit in front of the “bar” – the short wall.

      Real simple – no secret conspiracy here.

      Hannity was never the sharpest knife in the drawer – I expect he’s being paid to push COS – I expect he has no idea of the ramifications. Just dumb old Hannity.

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      Comment by Publius Huldah | December 23, 2017 | Reply

  5. Reblogged this on Bob's Opinion and commented:
    This is where most of the Shadow Government live…

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    Comment by R.S. HELMS | December 19, 2017 | Reply

    • Yes, that is True. Nameless, faceless people we never elected sitting in their cubicles writing rules to govern us – and EVERY RULE they write will be constitutional unless Congress votes it down.

      Like

      Comment by Publius Huldah | December 19, 2017 | Reply

  6. Academically I agree with your arguments. I also agree that the proposed Amendment would legitimize the administrative state we have created.

    I have difficulty though understanding how you would go about executing the laws passed by Congress without some sort of administrative rules. I understand your position that if we reduced our federal government to only address the enumerated powers we would have a much smaller federal government and there would not be a need for much, if not most, of the administrative law that has been created. However, I think there would still be a need for some.

    Are you suggesting that Congress, actually congressional staff, should become involved in the minute details of administrating an enumerated powers federal government? I think that would require a huge expansion of Congressional staffing and result in unworkable processes. I think one of the major problems we have now is that the bureaucratically entrenched congressional staffs are in control of Congress. The same people go to work on the Hill every day no matter who is elected to sit in the front office. In many, many cases they are driving the agenda, shaping the laws, enacting the policies. I think the more you enlarge Congress the worse the problem becomes.

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    Comment by Benny White | December 18, 2017 | Reply

    • Whether we “agree” or “disagree” with something is not the test of whether it is true! Objective Reality exists whether we agree with it or not.

      This site contains the laws passed by the first Congress convened under our Constitution of 1787: http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=146

      Look around the Acts: they are short, single subject, easy to understand. When Congress is restricted by the enumerated powers, there aren’t any details to be filled in by executive agencies. And in any case, pursuant to Art. I, Section 1, ONLY CONGRESS MAY MAKE LAWS.

      Here’s one of my favorites: The Militia Act of 1792: http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=394

      That’s how laws are to be written: short, sweet, single-subject, on an enumerated power, and by Congress alone.

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      Comment by Publius Huldah | December 18, 2017 | Reply

      • “To fix the mess, we must learn and enforce the Constitution we have and elect people who know it and obey it.”

        I think it was Einstein who said that doing the same thing over and over and expecting a different result is the definition of insanity. We have tried the above approach for 30-40 years with no success.

        Of course, you are correct that the Administrative State has no Legislative power under the written Constitution. However, under the Constitution as amended by the Supreme Court, unelected bureaucrats do have legislative power. Further, for the Congress to veto a regulation passed by unelected bureaucrats requires a majority in the House, 3/5 majority in the Senate to overcome a filibuster, and the signature of the President.

        A practical response to this perversion of the Constitution that would return Legislative power to the Congress, would be a Congressional veto with 1/4 of the House OR 1/4 of the Senate (with no filibuster permitted and immediately brought to the floor for a vote if 1/4 of senators signed a petition). The proposed Buhler amendment needs to be strengthened by requiring Congress to pass a bill and the President to sign it to overcome the veto by Congress of any regulation.

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        Comment by Stephen Duval | December 18, 2017 | Reply

        • Who are YOU to tell another that he is correct or incorrect about the Constitution? What do YOU know?

          Furthermore, your proposal is the “cave-in” approach – to legalize what the usurpers have done. Shame on you!

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          Comment by Publius Huldah | December 18, 2017 | Reply

          • There are three alternatives to solve the Administrative State problem:
            1) elect 60 Senators, 218 Members of the House, and the President and have 5 Justices of the Supreme Court on your side, all at the same time, OR

            2) elect 50 senators and the President, have 2 Supreme Court Justices retire, appoint 2 Justices to join Thomas, Alito, and Gorsuch and then the Supreme Court can amend the Constitution to restore it to what it was when written. This alternative has some possibility: we have the President, we have 50 senators, and Kennedy and Ginsburg are on the edge. However, this just continues the Judicial dictatorship with a different set of dictators even if the dictators are more to our liking. Then in 2020 Trump loses, some Senate seats switch sides, Thomas retires and we are back where we started.

            3) elect 25 Senators OR 109 Representatives after the Buhler amendment is ratified by 38 State Legislatures.
            Since it is very unlikely that 2/3 of the House and 2/3 of the Senate will propose the Buhler amendment, the only available alternative under the Constitution is to get 34 State Legislature to request a Convention of the States to propose the Buhler amendment.

            Alternative 1 has been tried for 30-40 years. Alternative 2 continues the Judicial dictatorship with our dictators. It is time to give alternative 3 a chance.

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            Comment by Stephen Duval | December 18, 2017

          • So, then, you are on the side of the statists who claim that the way to rein in governments which violate the Constitution is to legalize the violations.

            As I point out in the conclusion of the paper, Americans are in a state of moral and intellectual decline. Only a morally & intellectually degenerate people could believe what you and Buhler are pushing.

            Are you aware that if the Buhler amendment were ratified, the Bureau of Alcohol, Firearms, Tobacco and Explosives could make a rule disarming the American People; and if Congress doesn’t vote against it, house to house searches to disarm us would be constitutional?

            Like

            Comment by Publius Huldah | December 19, 2017

  7. Ms. Huldah, you could not have explained it any clearer. Thank you and God bless.

    Like

    Comment by Sayedna Gregori | December 18, 2017 | Reply

    • Thank you, Abouna Gregori! I find that writing clearly takes a lot of time! My first drafts are awful.

      Liked by 1 person

      Comment by Publius Huldah | December 18, 2017 | Reply

  8. our govt and we the people have been USURPED BY CRIMINAL TRAITORS, and ANY so called LAW NOT MEETING THE CONSTITUTIONAL TEST IS NULL AND VOID.
    which would be about 99% OF ALL FEDERAL LAWS TODAY.
    and only another EVENT LIKE OUR FOREFATHERS PULLED AGAINST THEIR OWN GOVT WILL EVER FREE US.
    let me say this.
    THERE’S NEVER BEEN IN RECORDED HISTORY A NATION OR PEOPLE THAT EVER VOTED THEMSELVES OUT OF TYRANNY, BUT THEY HAVE SHOT THEMSELVES FREE.

    Like

    Comment by Jim Marine #4 (@357mag22) | December 17, 2017 | Reply

    • The American People aren’t innocent victims: We have the governments (state and federal) they voted for. Our Framers drafted a Constitution which secured the Rights God gave us: https://publiushuldah.wordpress.com/2014/12/01/how-our-federal-constitution-secures-our-god-given-rights/

      Except for slavery – which denied to Blacks all the Rights God gave them – our federal Constitution was a 6,000 year miracle.

      But Americans didn’t want governments which did nothing more than secure their God-given rights – they wanted governments which “do” for them: give them “free” stuff and “free” services, provide them with a safety net, and relieve them of the responsibilities of freedom.

      Consider the wild popularity of social security and Medicare! They are monstrously unconstitutional and immoral – yet Americans love them.

      So our problem is the American People: They rejected the motto, “In God we Trust” and replaced it with “Take it from somebody else and give it to me”.

      Our problem is the moral collapse of the American People.

      Like

      Comment by Publius Huldah | December 18, 2017 | Reply

  9. Still in my prayers Ma.

    Liked by 1 person

    Comment by imtryingwolfy | December 17, 2017 | Reply

    • Thank you, dear Son! And Merry Christmas!

      Like

      Comment by Publius Huldah | December 19, 2017 | Reply

  10. Reblogged this on Starvin Larry.

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    Comment by gamegetterII | December 17, 2017 | Reply

  11. Wow, you have articulated some great points in this excellent piece. And you are right on the spot regarding the proper solution. Too many conservatives are misled to believe in false solutions propagated by neoconservative media. They don’t know how simple the solution really is: Inform and educate the electorate on the Constitution and enforce obedience to it at every level of government. Ta da!

    Sent with [ProtonMail](https://protonmail.com) Secure Email.

    >

    Liked by 1 person

    Comment by Liberty Stevens | December 17, 2017 | Reply

    • My dear Liberty,
      I place my hopes in you – and the few others like you – to educate the American People after I am gone.

      Liked by 1 person

      Comment by Publius Huldah | December 17, 2017 | Reply

  12. Back in the early 1950’s when I went to meet the Board of Registers to register to vote my father went with me, as a character witness, The board members had known me since birth but the Laws required a witness. I sat across the table from the four member board and for almost one hour I was questioned about the Declaration of Independence and The Constitution as to it’s provisions and amendments provided. After I had answered the questions to their satisfaction I was allowed to sign my registration form. Can you think what H— would break loose if those requirements were to be suggested to day!

    Like

    Comment by Sandpiper | December 17, 2017 | Reply

    • With your moving account of how voters were once qualified, you bring tears to my eyes.

      So you must be in your mid to later 80’s? And to think that I once thought that being 73 was “really old”.

      What State was that?

      Under Article I, Section 2, Clause 1, US Constitution, the States retained the power to set qualifications for voter registration.

      But somewhere along the line, Americans got indoctrinated with the crazy idea that it is somehow “good” if everyone votes.

      Rubbish! I know few who are sufficiently knowledgeable to be allowed to vote.

      Liked by 1 person

      Comment by Publius Huldah | December 17, 2017 | Reply

  13. So, if the current government, based on the Constitution, does not abide by the Constitution, exactly whose government are the American people dealing with?

    Like

    Comment by highlanderjuan | December 17, 2017 | Reply

    • I thought you died and went to Heaven! Nice to hear from you. It’s been years.

      I’m not sure what you mean by your question – We have the federal [and State] governments the American people voted for. And when only 26% of them can name the 3 Branches of the federal gov’t, the candidates they elect are as ignorant as they are. So yeah, our Country [actually, all of Western civilization] is dying.

      I tell Americans that if they would trouble themselves to learn the list of enumerated powers, they would be able to see that most of the candidates for office are blithering idiots.

      Liked by 1 person

      Comment by Publius Huldah | December 17, 2017 | Reply

  14. Beautifully and provokingly written. Thank you for your continued wisdom.
    ~ Fluffy

    Like

    Comment by WatchmanMomma | December 17, 2017 | Reply

    • I’m so glad you posted! The email addresses I had for you were kaput.

      Like

      Comment by Publius Huldah | December 17, 2017 | Reply

  15. While I always find your scholarship fassinating and for most part on point. Regrettably that government of which Mr. Webster spoke of has long since been gone. As Mr. Franklin reported on that governments creation “We have a republic if we can keep it”. It’s desolution began immediately and mutated to become what we have today. A national farce which I fear is beyond constitutional reconstruction.

    Like

    Comment by Michael L Solitro | December 17, 2017 | Reply

    • It’s gone because The People didn’t want governments which did nothing more than secure the rights God gave them: https://publiushuldah.wordpress.com/2014/12/01/how-our-federal-constitution-secures-our-god-given-rights/

      The People wanted governments which “do” for them, give them “free” stuff & services, and provide them with a safety net. In short, they wanted governments which relieve them of the responsibilities of Freedom.

      Are we too contemptible and lazy and corrupt to be free? We will see! I’m trying to open enough eyes so that we can restore our federal Constitutional Republic. I understand that our problem is not the governments – the problem is that Americans are lazy, ignorant, and immoral.

      Liked by 2 people

      Comment by Publius Huldah | December 17, 2017 | Reply

  16. […] More… […]

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    Pingback by The “Regulation Freedom” Amendment – Southern Nation News | December 17, 2017 | Reply

  17. […] More… […]

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    Pingback by The “Regulation Freedom” Amendment | NCRenegade | December 17, 2017 | Reply


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