Do Federal Regulations Violate the Constitution?

Posted on April 15, 2013

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The Myths

 The current regulatory environment does not violate the Constitution.

 Numerous federal agencies writing enormous amounts of regulations does not violate the Constitution.

The fact these regulations are given the force of law even though none of them are passed through the normal legislative process does not violate the Constitution.

Any law passed by congress or any regulation issued by any department of the federal government is a valid law.

The legislative branch can delegate legislative powers to either executive branch agencies or to independent government agencies without violating the Constitution.

The federal government can use these regulations to control various aspects of the lives of anyone living in this country and every commercial enterprise doing business here.

 The Truth

 This regulatory environment does violate the Constitution in many fundamental ways.

 Only the US Congress has the power to write laws that are legally binding on the general public.

Only laws that are passed through the formal legislative process have the full force of law.

Only laws that do not violate the Constitution are valid laws.

Congress is not granted the authority to delegate legislative power to anyone therefore it cannot.

The constitutional authority of the federal government does not extend down to the individual citizens of this country nor does it extend down to the individual businesses located here.  Only the State governments have the constitutional authority to regulate the lives of those living inside their borders and the companies doing business there.

The Facts

 The Interstate Commerce Act of 1887 created the Interstate Commerce Commission.  The 5 members of this commission were nominated by the president and confirmed by the senate. The commission issued regulations that controlled the rates railroads could charge.  These regulations were given the force of law even though they were never submitted to the legislative branch for passage through the formal legislative process.  This process is defined by Article 1 Section 7 Clause 2 of the Constitution.  Unless a bill is passed through this process it does not become a law therefore it has no effect on anyone outside of the federal government.

When this act was passed the legislative branch created an independent government agency and delegated to it the authority to write regulations that had the force of law over railroads. Nowhere in the Constitution is the legislative branch granted the authority to delegate the power of writing laws to another branch or independent agency.  Article 1 Section 1 of the Constitution states very clearly that all legislative powers are granted to congress. Since the power to delegate legislative power is not listed anywhere in the Constitution congress does not possess that power.

According to the Supremacy Clause, Article 6 Section 2, only federal laws that do not violate the Constitution are valid.  Because the regulations were written by the Interstate Commerce Commission and were never passed through formal legislative process they violated the Constitution therefore they were not valid laws.

The Interstate Commerce Act of 1887 was just the beginning of the regulatory tidal wave that is burying us today.  Over the next few decades the Interstate Commerce Commission was granted the authority to regulate bridges, terminals, pipelines, telephone rates, and so much more.  All of the authority to regulate this commercial activity was granted to the Interstate Commerce Commission by Congress under the guise of the Commerce Clause.  This Clause does not grant Congress the authority to regulate the commerce of individual industries or companies in this manner.  The Commerce Clause only grants the US Congress the authority to regulate commerce between the States by placing taxes and duties on the large scale transportation of goods between the States. Only the individual States are granted the power to regulate, in the form of rules and restrictions, commercial activity within their own borders.  Only States have the power to regulate the commercial activity of individual companies that engage in commerce between States through rules and restrictions.  This act was the first attempt at regulating private companies that engage in this type of interstate commerce and it occurred 98 years after the Constitution was ratified.  Before this act Congress still followed the original meaning of the Commerce Clause.  With the passage of this act  Congress completely rewrote the meaning of this clause.

President Theodore Roosevelt was the first president to issue regulations independent of any legislation passed by Congress delegating that power to an executive department agency or an independent agency.  He issued executive orders that were treated as administrative laws. They were given the full force of law even though they were never passed through the formal legislative process. President Roosevelt believed he had the power to issue administrative laws because he believed he was not specifically denied this power by the Constitution.  The framers of the Constitution firmly believed the Constitution only granted to the federal government specific limited powers that were clearly spelled out or enumerated. This is reinforced by the 10th Amendment.

President Woodrow Wilson used World War I as an excuse to shift the practice of regulating through executive orders into high gear.  Almost every aspect of life in America was affected by these regulations,  Entire agencies ware set up by executive orders to issue regulations.  These agencies included the Food Administration, War Trade Bureau, and the Committee on Public Information.

President Franklin Roosevelt built on the work done by Woodrow Wilson in ways that were previously unimagined.  Under his administration the executive branch became the primary legislative branch of the government and has been ever since even though the Constitution declares that all legislative powers are granted to congress.  In addition to new regulatory agencies created by executive order congress passed several laws during the Great Depression that created new agencies and delegated to them legislative authority.  Some of these Agencies were part of the executive branch, some completely independent, and others semi-independent.  These agencies include the Federal Trade Commission, the Securities and Exchange Commission, The Federal Communications Commission, and the National Labor Relations Board.  All of  these agencies are still here issuing regulations even though they are unconstitutional.

The number of regulations and executive orders became so numerous congress passed the Federal Register Act in 1935.  This act created the Federal Register to catalog the executive orders and regulations written by the executive branch and independent agencies.  In 1936 the first yearly published federal register contained 2620 pages. The one published in 2011 contained a whopping 82415 pages.  This is such a tremendous amount of regulations it is crushing the American people and American businesses.  Every regulation is a loss of freedom for the American people and an added expense for American businesses. It is estimated this enormous amount of regulations is costing businesses around $200 billion a year.  Instead of cataloging these unconstitutional executive orders and regulations Congress should have demanded the executive branch stop legislating decades ago.

These regulations are also a clear violation of the 10th Amendment and the constitutional doctrine of federalism that is enshrined in that amendment.  The Constitution created a federal government that is limited to only those powers that are enumerated in that document.  All government powers that were not specifically granted to the federal government remain with the States and the people.  That is federalism and that is what is reinforced by the 10th Amendment.  The federal government was never granted any power to regulate the lives of the people living in the United   States nor was it granted the power to regulate businesses operating here.  Because that power was not granted to the federal government it remains with the States.  With these regulations the federal government is intruding into areas that were left in the hands of the States thus violating the 10th Amendment and the doctrine of federalism.

Beginning with the inauguration of President Obama the federal regulatory environment has shifted into hyper drive.  ObamaCare granted enormous regulatory power to existing government agencies and created many new agencies.  The Affordable Care Act is 2400 pages long, which in itself is mind boggling, however 20,000 pages of regulations have been added to date.  ObamaCare violates the Constitution in so many ways I have devoted 2 articles to that subject to date.  Dodd Frank also creates an enormous amount of regulations all of which will do a significant amount of harm.  President Obama has used the regulatory authority of the Environmental Protection Agency to wage war on coal fired power plants.  This is only a small taste. A complete chronicling of the regulatory abuses of the Obama administration would require a lengthy book.

 The Proof

John Locke —Second Treatise

The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others. The People alone can appoint the Form of the Commonwealth, which is by Constituting the Legislative, and appointing in whose hands that shall be. And when the People have said, We will submit to rules, and be govern’d by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands.

James Madison Federalist Paper 47

One of the principal objections inculcated by the more respectable adversaries to the constitution, is its supposed violation of the political maxim, that the legislative, executive and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner, as at once to destroy all symmetry and beauty of form; and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.

No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty than that on which the objection is founded. The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal constitution therefore really chargeable with this accumulation of power or with a mixture of powers having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies, has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense, in which the preservation of liberty requires, that the three great departments of power should be separate and distinct.

Article 1 Section 1 – Legislative powers; in whom vested

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 1 Section 7 Clause 2 – The Legislative Process

2. Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the president of the United States; if he approve, he shall sign it, but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration, two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the president within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

A link to Article 1 Section 8 – Powers of Congress

http://avalon.law.yale.edu/18th_century/art1.asp#1sec8

Article 6 Section 2 – Supremacy Clause

2. This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

10th Amendment – Rights of the States under Constitution

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.

Section 1 from the Kentucky Resolutions by Thomas Jefferson 1798

1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Letter from Thomas Jefferson to William Johnson, 1823

The capital and leading object of the Constitution was to leave with the States all authorities which respected their own citizens only and to transfer to the United States those which respected citizens of foreign or other States; to make us several as to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction if the words will bear it, and in favor of the States in the former if possible to be so construed

Letter from Thomas Jefferson to Joseph C. Cabell 1816

The way to have good and safe government is not to trust it all to one, but to divide it among the many, distributing to every one exactly the function he is competent to. Let the National Government be entrusted with the defence of the nation and its foreign and federal relations; the State governments with the civil rights, laws, police and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best.

Thomas Jefferson 1791

The power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State (that is to say, of the commerce between citizen and citizen) which remain exclusively with its own legislature, but to its external commerce only; that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.

Letter from James Madison to Cabell 1829 on the commerce clause

Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the nonimporting, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

The preface to Notes on the Debates in the Federal Convention by James Madison

The want of authy. in Congs. to regulate Commerce had produced in Foreign nations particularly G. B. a monopolizing policy injurious to the trade of the U.   S. and destructive to their navigation; the imbecility and anticipated dissolution of the Confederacy extinguishg. all apprehensions of a Countervailing policy on the part of the U. States.

The same want of a general power over Commerce led to an exercise of this power separately, by the States, wch not only proved abortive, but engendered rival, conflicting and angry regulations. Besides the vain attempts to supply their respective treasuries by imposts, which turned their commerce into the neighbouring ports, and to co-erce a relaxation of the British monopoly of the W. Indn. navigation, which was attemted by Virga. the States having ports for foreign commerce, taxed & irritated the adjoining States, trading thro’ them, as N. Y. Pena. Virga. & S–Carolina. Some of the States, as Connecticut, taxed imports as from Massts higher than imports even from G. B. of wch Massts. complained to Virga. and doubtless to other States. In sundry instances of as N. Y. N. J. Pa. & Maryd. the navigation laws treated the Citizens of other States as aliens.

James Monroe discussing the Commerce Clause in 1822

Commerce between independent powers or communities is universally regulated by duties and imposts. It was so regulated by the States before the adoption of this Constitution, equally in respect to each other and to foreign powers. The goods and vessels (tonnage duties) employed in the trade are the only subjects of regulation. It can act on none other. A power, then, to impose such duties and imposts in regard to foreign nations and to prevent any on the trade between the States was the only power granted.

James Madison in a letter to Professor Davis discussing the Commerce Clause

The power to regulate commerce among the States was well known and so explained by the advocates of the Constitution when before the people for their consideration, to be as a necessary control on the conduct of some of the importing States toward their non-importing neighbors. A recurrence to the angry legislation produced by it among the parties, some of whom had passed commercial laws (duties and imposts on articles of import) more rigid against others than against foreign nations, will well account for the constitutional remedy.

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