Sunday, July 20, 2014

Executive orders, regulations, and other encroachments on individual liberty

Following is Unit 15 of the Patriot's Guide to the Bill of Rights Constitution Law course I'm preparing for Schoolhouse Teachers.

One does not establish a dictatorship in order to safeguard a revolution; one makes a revolution in order to establish a dictatorship. --George Orwell
A dictatorship would be a heck of a lot easier. There’s no doubt about it. --George W. Bush
You don’t need legislation if you don’t respect the rule of law
Our democratic republic is in danger, not just because the Constitution is being stretched and rewritten by judges and Congress, but also because the executive branch has discovered the power of the Executive Order.
First, a brief explanation of what the Founding Fathers envisioned when they drafted the portion of the Constitution that ensures that democratically-elected lawmakers from the several states are involved in making laws that can dramatically impact the lives of United States citizens.
Article I, Section 1 of the Constitution reads, “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.” Article I goes on to set out how members of the House of Representatives and Senate as chosen. At the time, house members were elected by popular vote in the respective states, and senators were chosen by the states themselves, either legislatively or by popular vote, however the individual state saw fit. The logic behind the states setting up how Senators were chosen was that if a rogue senator voted against a state’s interests, the state legislature could recall him and replace him with someone who’d respect state sovereignty. Ultimately, this process ensured accountability. There’s a long process involved with making laws the proper way, and lots of time for the voters to voice their opposition to the behavior of their elected leaders.
Imagine the alternative. One man, the President, wants a law passed that he knows would never make it through the crucible of Constitutional legislation. So, he just writes one himself and makes it a law that must be enforced by federal agencies and law enforcement. That is how most dictators come to power. As Plato put it, “Dictatorship naturally arises out of democracy, and the most aggravated form of tyranny and slavery out of the most extreme liberty.”
Democracies don’t protect the people from dictators, dictators use Democracy to take control of the people
In the modern world, most dictators rise to power by popular vote. Adolf Hitler lost the 1932 German presidential election. However, he came in second in the election with more than eleven million votes, which led President Hindenburg to appoint Hitler Chancellor. When President Hindenburg died, Hitler assumed the leadership of Germany, and the rest is history.[1]
President Bashar al-Assad is serving his third seven-year term as the democratically-elected dictator of Syria. He has killed more than 100,000 of his own people to silence opposition. He inherited the leadership of Syria from his father who killed more than 20,000 of his people to stop the 1982 Hama uprising.[2]
Closer to home, Hugo Chavez, who died in 2013, was elected president of Venezuela in 1999. He quickly moved to strip private individuals and corporations of their property rights by nationalizing key industries, including oil and energy production. He was unabashedly a Leninist-Marxist during his rule.
The Fuhrer Adolf Hitler, and Presidents al-Assad and Chavez did whatever they wanted. By definition, they ruled with Executive Orders, and they never waited for parliament or Congress to give them the power to do something.
This isn’t a Democratic or Republican thing
Following is a chart of the number of executive orders issued by United States’ Presidents.
Total Orders
Grover Cleveland – II

Thus, the top five presidents to issue executive orders not necessarily with the backing of Congress, the lawmaking authority in the United States, are:
1.     Franklin Delano Roosevelt     3522
2.     Woodrow Wilson                    1803
3.     Calvin Coolidge                       1203
4.     Theodore Roosevelt                1081
5.     Herbert Hoover                       968
Congress legislates or passes laws, the Executive/President executes or implements these laws, and the Courts rule whether the laws themselves and how they are being implemented are legal. It’s called separation of powers and each branch sticking to its enumerated role is critical in keeping one branch or another from turning into a dictatorship.
In researching this issue, I was surprised that—given all the talk in the media about President Barack Obama misusing executive orders to legislate from the Oval Office—he was far down on the list of presidents who used the power of the executive order to legislate. Sure, he’s made many threats, but he hasn’t come close to the top five offenders. Neither did the preceding ten presidents. Maybe more recent Presidents respect separation of powers after all? We can only hope.
The power to regulate is the power to destroy
After Congress passes laws it’s up to federal agencies—arms of the Executive Branch—to implement them. Agencies do this by writing regulations to guide those subject to the laws and the agencies that enforce their provisions. Congress never gets a chance to pass or even look at these regulations before agencies begin enforcement. Only after someone negatively impacted by a regulation sues or gets sued will the real scrutiny begin, and then we often don’t hear about it unless it’s a particularly onerous regulation.
Fighting federal agencies is a very expensive process. But this expense pales in comparison to the costs to businesses and individuals in complying with such regulations, costs that often keep small business and entrepreneurs from bothering to open up new enterprises or expanding the ones they already operate.
Examples of out-of-control regulations
The flyover rule. One of the EPA’s functions is to protect wetlands. By definition, a wetland is “land or areas (as marshes or swamps) that are covered often intermittently with shallow water or have soil saturated with moisture —usually used in plural.”[3]
By an earlier EPA guideline, if a bird can see water when flying over a property, it is a wetland. So, if you dig a hole on your property and it fills with water, even though the hole is manmade and created for your pleasure, the land has become a wetland and you can no longer make improvements to the property without consulting with the EPA. The good news is that this rule has not been enforced for years, so it’s no longer an issue.
Equine Equality. Hotels, bars, and restaurants must adopt policies to accommodate miniature horses as service animals.[4]
Pee Policing. Ever had to flush your toilet more than once? There’s a good reason for this. There’s a federal regulation that limits how many gallons of water can flush each time, so, if it’s a particularly nasty BM, you have to flush more than once.[5] There’s also a more recent proposed regulation mandating urinal efficiency, whatever that means.[6]
Unlock your own cell phone and go to jail! For a brief time, the FCC interpreted the “unlocking your cell phone for financial gain” provision in the Digital Millennium Copyright Act (DMCA) in 1998 to mean that one could be imprisoned and subjected to thousands of dollars in fines merely for unlocking a cell phone to transfer service to another carrier. Congress passed DMCA to protect copyrights, not to punish people for shopping around for better cell phone rates, yet the FCC read the law differently. Congress fixed this problem, thankfully.
A comparison is helpful. The Federal Code takes up 35 volumes of around 1,200 to 1,400 pages each—that’s more than 45,000 pages of laws! Federal regulations written by administrative agencies in charge of enforcing the laws take up more than 170,000 pages,[7] almost four times more than the number of pages of laws enacted by Congress. Again, regulations are not written by Congress, the branch of the government with constitutional authority to enact laws. Here is where we get things like the flyover rule, workplace regulations that make it more and more difficult to start a new business, overbearing inspectors who, at best, increase the cost of doing business by forcing employers to spend more on meeting ridiculous demands or, at worse, compel businesses to just walk away from money-making, employee hiring ventures.
The increased number of regulations that are so numerous it is impossible for the average citizen to know they exist let alone obey is absurd. From a lawyer’s perspective, this is terrific. It takes lots of lawyers to guide the small businessman through the maze of regulations. But this isn’t what our founders envisioned when they based our economic system on entrepreneurism, capitalism, and rugged individualism. It’s far from freedom and bordering on tyranny of the regulators paid to enforce these ridiculous regulations.
“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men." Sir John Dalberg-Acton.
The power to tax is the power to destroy
The Sixteenth Amendment to the United States Constitution reads: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.”
The Sixteenth Amendment was ratified in 1913. Before, direct taxes on individuals had to be apportioned among the states based on population. Thus, if more wealth was concentrated in New York in a smaller percentage of the population, it is not properly apportioned.[8] The specific constitutional provision that controlled was Article I, Section 2, Clause 3, which reads, “direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers.”
Before the Sixteenth Amendment, most of the revenue generated by the federal government consisted of customs duties and export tariffs. During crisis, such as the Civil War, Congress imposed temporary income taxes on personal incomes and property that raised so much revenue that they wanted to implement these policies on a more permanent basis, but the Supreme Court struck down such efforts in Pollock v. Farmers' Loan & Trust Company.[9]
The fact is that before Pollock, earned income taxes (on wages) were considered indirect and were therefore constitutional pursuant to Article I, Section 8, Clause 1, which reads “[t]he Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…” But progressives saw such a limitation unfair since it didn’t imbue them with power to tax things such as dividends, rental income, and other revenue generated by capital or wealth. So, in order to tax the rich, Congress needed to amend the Constitution. What was the impact of this amendment?
What is one’s “fair share”?
The American Revolution began in part because the colonists were overtaxed and underrepresented. Yet, by today’s standards, their 1-2% income tax is chump change.[10] Today, there are seven tax brackets from 10% to 40%, which doesn’t include FICA and Self Employment tax (Social Security), which adds another 13-15% burden on incomes.[11]
Again, the American Revolution, which made the original Tea Party famous for its protest against tea taxes, began over income taxes of just 1-2%. We’re dealing with 23% to more than 50%. But that’s not really true, is it?
From those according to their means, to those according to their needs
Redistributive tax policy is based on justice. The logic is that the rich can afford to give up part of his income to help those in need. It sounds good, but not if you’re the one who’s continuously being forced by the heavy hand of government to hand over your hard-earned money. It’s telling that the person who coined the phrase “from those according to their means, to those according to their needs” was Karl Marx, the Father of modern communism.[12] If you doubt the communist origins of our income tax system consider where we’ve come after ratification of the Sixteenth Amendment:
The top 10 percent of taxpayers paid over 70% of the total amount collected in federal income taxes in 2010, the latest year figures are available, according to the Tax Foundation, a think tank that advocates for lower taxes. That's up from 55% in 1986.
The remaining 90% bore just under 30% of the tax burden. And 47% of all Americans pay hardly anything at all.[13]
So the numbers are more dire for the so-called wealthy, the ones who start the businesses that employ the rest, the ones who invest capital in enterprises that build American schools, roads, buildings, houses, etc. This redistribution is the legacy of the Sixteenth Amendment. Yet, there’s another legacy that’s even more dangerous.
The more money the federal government takes, the more power is has to force states to do its bidding
Technically, the federal government doesn’t have the power to directly involve itself in the welfare of the states’ citizens. It must have an enumerated power under the Constitution to do so. That’s where provisions such as the Commerce Clause, Treaty Power, National Defense, etc. come into play. With the dramatic increase in taxes over the past century, the federal government has confiscated a large chunk of revenue that would otherwise be available to the states via state income and property taxes. The states need this money! The Constitution gives the states a means to get it, but with strings.
Congress has the power to tax and spend for the general welfare. So, if Congress thinks a policy is important enough to twist the arms of states to implement it, it just ties receipt of federal money on the states’ enactment of laws it deems critical. This is how the federal government coerced states into dropping the maximum highway speed limit to 55 in the late 70s. This is how mandatory seat belt laws were enacted nationwide. This is how many states were forced to enact motorcycle helmet laws (but not Kansas!). This is how the EPA is able to coerce states into compliance with many of its mandates. The latest cause is mandatory ignition interlocks for first time DUI offenders. I predict that most if not all states will succumb since no ones wants to be seen as endorsing drunk driving, and falling on that sword when it means losing million of dollars in much needed revenue isn’t wise.
Simply stated, the tax and spend power wouldn’t be such an issue if the Sixteenth Amendment hadn’t been ratified since income tax revenues would be collected closer to home, by the states themselves and not the federal government.
Those running for office wouldn’t have to tout their success in securing earmarks or pork projects if the tax dollars never left their home states.
How do you remove accountability from Washington D.C.? Take away the power of states to recall senators who don’t do their jobs of looking out for their states’ best interests.
The states ratified the Seventeenth Amendment in 1913. It reads, in pertinent part: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.” Before ratification, Senators were appointed by their respective states. If a state chose popular election, that’s how the people in the state chose their senators. Whether by election or state legislative appointment, the important thing was that the states were in charge. If a senator voted for policies deemed hostile to his state’s interests, the state could immediately recall him and appoint someone else. With each state only having two senators, this served to give small states greater input on issues that affected not only the national government but also the individual states. The Seventeen Amendment eliminated this accountability. Short of impeachment, which is seldom successful, there’s no practical way for a state to punish its senator for voting for policies detrimental to the state. The net result is that most senators get elected and then do as their party commands even when it’s bad for their home state.
Consider the words of Alexander Hamilton:
When you take a view of all the circumstances which have been recited, you will certainly see that the senators will constantly look up to the state governments with an eye of dependence and affection. If they are ambitious to continue in office, they will make every prudent arrangement for this purpose, and, whatever may be their private sentiments or politics, they will be convinced that the surest means of obtaining reelection will be a uniform attachment to the interests of their several states.[14]
The Seventeen Amendment eliminated this accountability. Short of impeachment, which is seldom successful—indeed, only one senator has been impeached in America’s history—there’s no practical way for a state to punish its senator for voting for policies detrimental to the state. Again, the net result is that most senators get elected and then do as their political party commands even when it’s bad for their constituents.
Here’s an example of how ridiculous and damaging this change is. Most senators who’ve served two or more terms in the Senate no longer reside in their home state. At best, they maintain token residences so they can retain eligibility. This wouldn’t happen if state legislators played a bigger role in selecting and retaining senators.
The Affordable Care Act is another example.[15] Poll after poll shows that most Americans didn’t support the legislation. Also, had the Senate not changed its own rules to allow reconciliation with the House and Senate versions with a simple majority rather than two-thirds, it wouldn’t have passed. Had states been able to recall their senators if they passed this bill that was not supported by many of their constituents, it is unlikely that it would have made it out of the Senate. Had the states been able to immediately recall their senators when they circumvented the check and balance of the 2/3rds vote, it’s doubtful they would have changed the rules as they did.
Why are we where we are today, and how do we regain what we lost?
[N]either the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt. He therefore is the truest friend of the liberty of his country who tries most to promote its virtue, and who, so far as his power and influence extend, will not suffer a man to be chosen onto any office of power and trust who is not a wise and virtuous man.
--Samuel Adams

Virtue is dying in America, virtue that compels people to care for the nation they leave their children. It’s easy to add amendments and appoint bad judges when the people aren’t paying attention. The virtue Sam Adams and other founding fathers said was essential to maintaining our Republic has eroded. How do we get it back? Pay attention. Compare what your leaders do to what you would do under similar circumstances. Stop voting for men and women who willingly sacrifice your freedom for their power. We have the power to vote out leaders who don’t respect American ideals. So when the time comes to vote, research the issues, then vote for people who respect your beliefs.

Children who learn about the Constitution and freedom, tell your parents about it. Parents, teach your children about our history, the despotic places we came from, and the sacrifices of Patriots who bled and died to restore God-given freedoms to the People.

[1] See This Day In History, January 30, 1933, The History Channel On-line,
[2] 1982: Syria's President Hafez al-Assad crushes rebellion in Hama, The Guardian On-line Archives,
[5] See Energy Policy Act of 1992.
[7] See Tony Lee, 11327 Pages Added to Federal Code of Federal Regulations Under Obama,, September 11, 2012,
[8] Pollock v. Farmers' Loan & Trust Company, 157 U.S. 429 (1895).
[9] Ibid.
[10] Grover Norquist, Tea, Tax, and the Revolution, Foreign Policy Magazine on-line edition, July 3, 2012.
[11] Technically, individuals only pay just under 6.5% for Social Security, Medicare, etc., and the employer matches. However, the reality is that the additional 6.4% is tied to the employee and effectively reduces the employee’s wages by this amount, to the net result is almost 13% more of the employee’s wages being confiscated by the federal government.
[12] For a primer on communism and many of Karl Marx’s philosophies including redistribution of wealth, see his seminal book Communist Manifesto (Signet Classics; Reprint edition (October 1, 1998)).
[13] Grover Norquist, Tea, Tax, and the Revolution, Foreign Policy Magazine on-line edition, July 3, 2012.
[14] Colin Snell, Excessive Democracy: The Tyranny of the 17th Amendment, The College Conservative, April 29, 2013,
[15]  See John Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, LAW LIBRARY JOURNAL Vol. 105:2 [2013-7]*,