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  • Reforming the Administrative State Doesn’t Require a New Law

Reforming the Administrative State Doesn’t Require a New Law

William L. Kovacs

January 2023

Reforming the Administrative State Doesn’t Require a New Law

For decades there have been concerns about the federal government’s growing power, size, and cost. Nothing, however, has been done to address it. It just expands. Why? Is it an uncontrollable deep state, an unmanageable bureaucracy, or just too complex? While a solution is always available, the federal government benefits significantly from the Administrative State. It opposes change.

The term Administrative State describes the power of Executive branch agencies to create, adjudicate and enforce their own rules. Congress enacted the Administrative Procedure Act in 1946 (“APA”) to exert control over the administrative state by establishing procedures for federal agencies to make and enforce regulations.

Congress has been unable to substantively amend the APA in the 76 years since its enactment, notwithstanding that the federal courts have expanded agency power by granting deference to agency interpretations of the law. Judicial deference is a critical component of the Executive’s regulatory power. Applying it diminishes the lawmaking power of Congress by tipping the scales in favor of Executive branch interpretations.

Today, the administrative state is a massive collection of unelected federal officials, except the president, that has issued 212,271 rules since 1976. Its regulatory tenacles control almost every aspect of society, from the food we eat to the health information given to us. Regulatory costs are estimated at $1.9 trillion in 2021.

Can the administrative state be reformed?

The 115th Congress made a serious attempt to reform the APA, and by implication, the administrative state, through the Regulatory Accountability Act (“RAA”). The RAA sought to reform the rulemaking process to ensure final rules were based on sound facts and law. The House passed the RAA. The Senate voted it out of committee; however, Senate leadership refused to bring it to the floor. This effort was Congress’ first and last serious attempt to reform the administrative state.

Congress has shown either a lack of interest or an inability to control federal agencies. Sensing out-of-control Executive power, courts are starting to reign in the administrative state’s power.

Less than a month ago, the Ohio Supreme Court, in TWISM Enterprises v. Board for Registering Professional Engineers, rejected “[A]all forms of mandatory deference.” The case involved a rule that independent contractors could not be in charge of engineering projects since they were not full-time company employees. The Ohio Engineering Board received judicial deference for its interpretation from the lower courts. The Ohio Supreme Court reversed, finding there was no statutory language precluding independent contractors from serving as full-time managers of an engineering firm. It held the principle of separation of powers precludes any mandatory deference to agency regulations that interpret a statute. Under the principle of separation of powers, only courts can interpret the law, not agencies. Deference to agencies produces “systematically biased judgments” that permit the executive branch “to say what the law means,” a clear intrusion into judicial authority.

The Ohio court also noted, “Roughly half the states in the Union review agency interpretations de novo.”

Last June, the U.S. Supreme Court, in WVA v. EPA, reviewed an EPA rule that relied upon section 111 of the Clean Air Act to regulate the types and amounts of energy that could be carried on the electricity grid. Before EPA’s “new found authority,” it applied section 111 only to specific energy sources at specific locations.

Like the Ohio court, the Supreme Court examined the power Congress granted the agency. It concluded Congress did not grant the agency the authority to set emission caps based on shifting the percentage generation of fuels that could be used. It described EPA’s attempt to assume “unheralded” regulatory power as a “transformative expansion in [its]regulatory authority” over the American economy.

Recognizing that agencies use “vague language of a long-extant, but rarely used statute[s]” to create new law,” it announced the “Major Questions Doctrine, requiring agencies to point to “clear congressional authorization” when issuing expansive rules.

The uncontrolled growth of the administrative state results from the Executive constantly seeking more power, courts that, until recently, fostered the expansion of executive power, and a Congress that is irrelevant by failing to provide aggressive oversight of agency actions and spending. If the courts continue to restrain the expansion of agency power, reform of the administrative state can be accomplished without new legislation.

All that is needed is for each branch of government to uphold the constitutional principle of separation of powers by constantly checking the powers of competing branches. Unfortunately, new legislation is the proverbial fix when government fails to follow its constitutional responsibilities.

William L. Kovacs, author of Reform the Kakistocracy, winner of the 2021 Independent Press Award for Political/Social Change, and former senior vice president for regulatory affairs at the U.S. Chamber of Commerce.

This article was first published in TheHill.com

 

 

 

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  • #Freedom20 Rule Changes Make All in Congress Equal

#Freedom20 Rule Changes Make All in Congress Equal

William L. Kovacs

January 2023

#Freedom20 Rule Changes Make All in Congress Equal

With the drama of electing Kevin McCarthy as Speaker of the House and approving new rules for the operation of the House, it is time to make Congress work. Thanks to the courage of twenty members of the Freedom Caucus (“# Freedom 20”), the overall effect of the new rules is the restoration of the most fundamental constitutional right of elected representatives, the right of all members to participate, on an equal basis, in the legislative process.

The rights of all members to fully function as legislators had been taken away by Speaker Pelosi, who legislated in small http://boscrowan.co.uk/blog/page/7/ , secret groups. She knew knowledge was “power.” She used her power to manipulate the legislative process by bringing multi-thousand-page bills to the floor without giving members the ability to read the proposed law or the right to offer amendments. Pelosi treated backbenchers as lemons.

Now, as the hard work of legislating begins. Conservatives should never forget  “No plan ever survives contact with the enemy.” This point is critical since real conservatives have fought excessive spending and increasing national debt for decades, but their efforts have many times been thwarted by Republicans who spend just as much, or more, than Democrats. Based on fiscal year spending, Republicans are bigger spenders than Democrats.

http://vancouveratmain.com/wp-includes/block-supports The necessity of member participation. Since every member of Congress is elected by a congressional district of similar size, the average number being 761,169 people, each member should have similar rights to represent the legislative needs of their districts in Congress. Those rights include the right to know what they are voting on and to offer amendments to change bad legislation.

Through a combination of Rules changes and commitments from the Speaker, members will have 72 hours to read legislation before they must vote on it. And, if the legislation is only on one subject, it will be more understandable to them and the American people. All legislators will have the right to offer amendments to cut spending as opposed to being forced to endlessly increase it.  Additionally, special interest riders will need a two-thirds vote for approval. There were 7,200 legislative riders in the $1.7 trillion Omnibus Appropriations Act.

Putting conservatives on the Rules Committee makes them part of the legislative process.  The #Freedom 20 secured the Speakers’ commitment to appoint three real conservatives to the House Rules Committee. If honored, it will give conservatives real input on what is debated on the floor of the House. If the Speaker does not keep his promises, any member can move to remove him.

 Every member of the House is now responsible for addressing the national debt. Now the #Freedom 20 and every member of Congress can run the government for the people, not the special interests. That will be an extremely difficult task. Jimmy Carter left office in 1980 with a $997 billion national debt. Today after four Republican and three Democrat presidents, the national debt is $31 trillion. As the great philosopher Pogo (a comic strip character) stated, “We have met the enemy, and it is us.”

Congress must recognize it created this spending and debt problem. Congress is responsible for addressing it. That said, the #Freedom 20 needs to convince many more members of the House and likely most of the Senate to attend “Spenders Anonymous.” Already, Republicans are on cable tv objecting to cuts in the military. If one department can be left off the table, all departments will be left off the table.

Since a point of order is merely the opening act, conservatives need to do the hard work of proving to spenders the need for budget cuts and debt reductions. Soon the #Freedom 20 will find that a “Point of Order” is great theater but is easily dismissed by a majority of spenders. For over two decades, the Congressional Budget Office identified hundreds of billions of dollars in congressional funding for thousands of expired authorizations stemming from hundreds of expired laws. All points of order were overruled.

In its last report, the CBO identified $461 billion in congressional funding for 1,118 expired authorizations stemming from 442 expired laws. House Rule XVI already prohibits such appropriations; however, the House merely voted to wave the rule and fund the expired programs.

Now, however, with the empowerment of all members and a rule that requires all committees to review expired programs, each Republican member of the House should agree to review five expired laws to determine whether they should be reauthorized, amended, or let lapse and report their recommendations to the committee chair. Such a review would analyze the entire list of 1118 expired laws that are being funded. It is a chance to immediately save almost one-half trillion dollars.

The #Freedom 20 also secured the right to offer a “Balance Budget Amendment” and a Constitutional proposal to impose term limits on members of Congress. These are two significant issues that most members of Congress would like to ignore. Most members of Congress want their privileged positions for life. Without accountability, however, members of Congress are free to do as they choose and still be reelected. Over 90% of incumbents are reelected, a percentage similar to the reelection rate for the Russian Duma.

There is some camouflage in the new rules. The select committees do not have subpoena power, which must be approved by the chairman of the relevant standing committee. The select committees, however, can waive the 5-minute rule on questioning witnesses, a huge benefit in seeking the truth. They can also make legislative recommendations.  Unfortunately, these select committees will have less investigative power than the Democrats’ infamous “January 6th” select committee.

 The real dark and cold reality facing the #Freedom 20 is the Senate. The Senate cares little about members of the “lower” House. The Constitution created the Senate to represent states, not people. Notwithstanding the XVII Amendment, Senators view themselves as closer to deity status than commoners in Congress. Even Republican Senators,  want to distribute taxpayer money to special interests. Eighteen Senators supported the Democrats’ passage of the most recent 4000-page, $1.7 trillion Omnibus Appropriations Act.

The House needs to find leverage that makes the Senate take it seriously. This standoff brings us to the very brutal part of politics. In the final analysis, the #Freedom 20, or the House in general, has only two ways to leverage its power. The House can refuse to increase the debt limit unless it receives concessions. This tactic forces the Senate to confront the debt reality, but it puts every member of the #Freedom 20 at risk of causing an economic calamity. Democrats and many Republican Senators will run to the cameras to call the House members crazy, insurrectionists or anarchists.

The second option is simply to refuse to appropriate money for items of concern to the Senate or the administration until debt concessions are made. The is no provision of the Constitution or any law that requires any member of the House to appropriate money. This approach will require waiting for the next round of appropriations.  A possible first step would be to refuse to appropriate money to fund a federal agency important to the big spenders. My nomination would be the Department of Education. It is the most important agency to Democrats and is owned by their biggest donors, teachers’ unions. Democrats will make concessions to save that Department for the unions.  House Republicans should be able to agree on defunding an agency they never wanted.

As the 118th Congress unfolds, the American public will discover if the #Freedom 20 and Republican House have crossed the Rubicon or whether they are merely taking a siesta on its banks.

 

 

 

 

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  • Yes, Virginia, The Federal Government is the Real Santa Claus

Yes, Virginia, The Federal Government is the Real Santa Claus

William L. Kovacs

December 2022

Yes, Virginia, The Federal Government is the Real Santa Claus

The Christmas season is a time of giving. Young children sit on Santa’s knee and provide him with a list of presents for under the tree. While it’s rewarding to see children happy with gifts, there is a dark downside to their expectations. Children grow up to be businessmen and women or social activists, and at Christmas time, they still expect presents. Now, however, they want, and usually receive, presents worth billions of dollars from the real Santa Claus, the federal government.

2022 is no exception. Since 1991, Congress has failed to pass its twelve appropriations bills. To avoid public failure, Congress takes the easy route. It bundles all spending into the proverbial secret Santa grab bag called an Omnibus appropriation bill. The corporatists and social advocates, like children opening presents, must wait to find out what they got until they can read the new law. The timing is usually the end of the year before Congress goes home for Christmas.

While Republicans claim they want to stop the next giveaway, they want their share of gifts even more. For this year’s share, several Republicans will likely help the Democrat business community keep their prize gifts, favorable tax treatment for research and development, and carried interest. The social activists want billions of dollars of higher childcare tax credits. The final deal is always more spending, never less.

Since the beginning of the republic, there has been a debate over the scope of Congress’s power to spend our money and then tax us to generate more money for Congress to spend. James Madison argued Congress could only spend on the items enumerated in the Constitution. Alexander Hamilton argued the Constitution’s Spending clause is independent of the enumerated powers, thus allowing Congress to tax and spend as it deems necessary. The only limitation – spending must be for the general welfare, and Congress is the only institution that determines the general welfare.

Continuing to debate the limits of Congressional spending is a waste of time. The Supreme Court has made it clear that Congress can spend on whatever it wants as long as it promotes the general welfare.

Such a broad interpretation of Congress’ ability to tax and spend has resulted in a massive expansion of government and a $31 plus trillion national debt.  The growth of the national debt will likely force posterity into involuntary servitude to the federal government. Most troubling is that the general welfare has morphed from building canals, bridges, and highways to make the U.S. an economic superpower into trillions of dollars of gifts to special interests and friends. These gifts to private entities come in the form of grants, tax credits, low rates, loan forgiveness, and paycheck protection plans.

Below are a few of the thousands of congressional gifts to private parties.

Suspending  $20 billion of student loan payments for two years and now seeking $600 billion more in student loan forgiveness based on the Higher Education Relief Opportunities Act of 2003, an act that addresses national welfare emergencies.

$ 721 billion was given in grants to states as a bribe to manage federal programs enacted outside the constitutional authority of Congress to legislate.

Forgiving tens of billions of dollars of federal Paycheck Protection Program loans made to organizations controlled by the elite rich such as Paul Pelosi (husband of the Speaker of the House); Khloe Kardashian, Tom Brady and Reese Witherspoon, Forbes Media, Ruth Chris Steakhouse, The Washington Times, and more than a few members of Congress.

$16 billion was given in farm aid to offset losses suffered by farmers on tariffs imposed on products sold to China. The top 10% of farmers receive 70% of the subsidies. This top 10% includes insurance companies, multinational corporations, and corporate farms.

Flood insurance subsidies are given to insure high-end housing in flood-prone areas, i.e., beachfront properties. This insurance program is potentially liable for $1.3 trillion in flood claims while only collecting $3.5 billion in annual premiums. The program already has $25 billion in losses taxpayers will have to pay.

The $330 billion prescription drug industry received $64 billion in federal research funding, along with immunity for any harm their drugs may cause.

Most recently, through the falsely named “Inflation Reduction Act,” Congress authorized $370 in new tax credits for corporations and individuals if they acquire green energy products or build green energy facilities. These tax credits are in addition to federal regulations imposing energy efficiency requirements on at least sixty products and $577 billion in tax credits and grants for green energy projects since 2004. The tax credits are to boost corporate sales of electric vehicles, the installation of rooftop solar panels, the development of solar power systems, heat pumps, water heaters, space heating, electric stoves, circuit breaker boxes, additional home insulation, and exterior windows, to name a few beneficiaries.

A week before the passage of the IRA, Congress authorized $280 billion to incentivize the semiconductor industry to build plants in the U.S. and invest in new research. The $ 573 billion semiconductor industry is expected to grow to $1.4 trillion by 2029 due to high product demand.

With a $31 trillion-plus national debt, citizens need to appreciate that every taxpayer owes $247,882 as their portion of the debt.

Christmas gifts to children are rewarding when parents see happiness in their eyes. Unfortunately, as some of these children grow up, they still expect gifts from the real Santa Claus, the federal government. The federal government likes playing Santa but never considers the immutable fact that the only money the federal government has is what it takes from taxpayers. The federal Santa game is simple. The federal government sees the glimmer in the eyes of its friends when they find out about the billion-dollar gifts they received for doing nothing. This tradition is the true meaning of a Washington, DC, Christmas.

William L. Kovacs, author of Reform the Kakistocracy, winner of the 2021 Independent Press Award for Political/Social Change, and former senior vice president at the U.S. Chamber of Commerce.

This article was first published in The Thinking Conservative.

 

 

 

 

 

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  • Congress Make Yourself Relevant Again

Congress Make Yourself Relevant Again

William L. Kovacs

November 2022

Congress Make Yourself Relevant Again

Congress has worked hard over the last few decades to make itself an irrelevant institution. It has achieved a bumbling status by failing to use its power to control spending and by delegating such significant power to the Executive that it has diminished its ability to resolve the nation’s primary issues.

If the United States is to remain a strong, free and competitive nation, Congress must make itself relevant again. To be relevant every member of Congress must give their loyalty to the institution of Congress; not to the political party that helped elect them. Being loyal to Congress allows each member to be a real check on the Executive and a trustee of the Constitution.

The only power “We the People” have to control government is our power to vote for members of Congress. We do not vote for the President, that is done by the electoral college and a convoluted quilt of state voting laws, state legislatures, and election officials. The entire federal judiciary is appointed by the president, Additionally, the millions of nameless bureaucrats that regulate almost every aspect of society are appointed by the Executive branch.

By wisely using its spending and delegation powers, however, Congress can reclaim its dignity and its constitutional obligation to be the nation’s lawmaker.

Congress can be relevant by “Just Saying No”

Congress has one power that no other branch of government can interfere with – it is the power to spend or not spend money. The Constitution is clear, “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law…”

Congress has failed to control spending for decades. It cannot even follow its own rules and pass the twelve appropriations bills by the October 1, start of the fiscal year. The last time Congress passed all twelve appropriations as separate bills was in 1996. Generally, Congress keeps the government running with Continuing Resolutions that fund the government at a prior year’s level. By spending trillions of dollars of taxpayer money with little, if any, review of the program citizens are paying for, Congress ensures that the federal government remains an unsupervised behemoth.

The common view of congressional powers is that Congress legislates and spends money by passing a bill in the House and Senate and sending it to the president for signature or veto. If the president vetoes it, Congress needs a two-thirds majority to override it. An intentionally difficult process.  But there is a simple mechanism for Congress to control the Executive. Both houses of Congress have one very real, but rarely used, power that permits one or both houses, to control federal spending and the growth of government, without passing a law.

It is the power of one house of Congress to refuse to spend money. Without passing an appropriation, no money can be spent. The use of this power allows a majority of one House of Congress to shrink the federal government without the difficulty of passing a new law. Reducing the size of the government, its bloated budgets, and massive debt is as easy as “Just saying no!”

Congress can make itself relevant again by reclaiming the emergency powers it delegated to the President before a dictator arises

Nothing in our Constitution can be more explicit in intent than the first sentence which 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.” By granting emergency powers to the Executive, Congress has placed itself in a difficult situation. It gives the Executive broad authority to act in lieu of Congress. Once presidents hold such power, they are unlikely to easily relinquish it.

Historically, emergency powers were limited to wartime and natural disasters. But today, non-war-time presidents exercise war-type emergency powers to control citizens in a domestic setting. The Covid pandemic highlights how emergency powers can be used by a president to rule without Congress.

From the start of his presidency, Biden has aggressively relied on congressionally delegated emergency public health powers to enact new laws. He extended President Trump’s national emergency order indefinitely on the Covid pandemic by imposing mask and vaccine requirements on the nation while keeping the science supporting its proclamation secret.

Biden also mandated that 84 million Americans subject to the Occupational Safety and Health Act either obtain a Covid-19 vaccine or submit to weekly testing and imposed a nationwide eviction moratorium allegedly to stem the spread of Covid.

In his second year in office, Biden forgave $600 billion of student loan debt. His asserted authority is the 2003 Higher Education Relief Opportunities for Students Act (“HEROES”). Once these powers are delegated to the president, in a divided Congress, it is unlikely they can be reclaimed without a Supreme Court decision favorable to Congress.

There are 126 laws passed by Congress authorizing the President to use so-called “national emergency powers.”  These laws allow U.S. Presidents to keep this nation in a perpetual national emergency. President Biden knows how to use these powers; Congress does not know how to reclaim them. Ninety-six of these laws require nothing more than the signature of the president on an emergency proclamation. Fifteen of these emergency laws merely required identifying the specific subject matter or the need for armed forces. Only thirteen of these emergency laws require a congressional declaration of emergency.

Without a statutory definition of an “emergency,” its meaning and scope is left to the vagueness of the dictionary. Merriam-Webster defines a national emergency as “a state of emergency (an unforeseen circumstance needing immediate action) resulting from a danger or threat of danger to a nation from foreign or domestic sources and usually declared to be in existence by a governmental authority.” A very subjective definition.

The troubling use of Biden’s proclamations is that they were invoked without any direct factual findings to support the actions. The public health emergency law Biden relied upon is a waiver of liability law for those assisting the federal government address Covid, i.e., protecting the pharmaceutical companies from liability. And the HEROES Act referenced loan repayment as the financial harm to students as the emergency for loan forgiveness.

The only requirement to implement emergency power is the president must specify the provision of law under which he will act. The provision cited does not need to relate to the actions taken.

The emergency law terminates on the anniversary of its declaration unless the President notifies Congress of its continuation. The only legislative option for terminating an emergency is for Congress, by joint resolution, to terminate it. Since joint resolutions must be signed by the president, their repeal is difficult since Congress needs a two-thirds majority to override a likely presidential veto. Otherwise, these emergency powers are continuously available to the president.

In addition to health emergencies, other emergency powers available to the president include the ability to control airports, industrial facilities, and any device capable of emitting electromagnetic radiation, i.e., our communications system. The authority most used is the International Emergency Economic Powers Act (“IEEPA”). It authorizes the president to invoke emergency powers relating to U.S. national security, foreign policy, or the economy, including financial and commercial transactions. Sanctions can be imposed on individuals as well as countries, including the freezing of bank accounts and the seizure of assets. While there is a requirement that the threat be related to an activity in whole or part outside of the U.S., it is easy for a president to assert a foreign connection merely by accusation. The IEEPA has been invoked 55 times.

Literally, Congress through the enactment of the National Emergencies Act gives all presidents the power to be a dictator at their chosen time. The only possible restraint is for Congress to repeal such power. While an irrelevant Congress lacks the votes to enact a law repealing a president’s emergency powers, one house of Congress opposed to the president, could “Just say No” to funding the implementation of the emergency powers.

Congress further diminishes itself by delegating war powers to the Executive

Periodically there is a howling debate over the president’s use of war powers, usually involving hostile actions against countries Congress has not declared war against. The political party out of power calls the actions unconstitutional, and introduces a never-to-pass, resolution, expressing “disapproval” so its members have media talking points. The President usually claims there to be an imminent attack on the U.S. but rarely provides evidence of any attack. While the president is the commander-in-chief of the armies, only Congress has the power… “To declare War.” Since the United States fights many undeclared wars, a discussion of how Congress abdicates this primary constitutional duty is necessary to appreciate how irrelevant Congress has become by delegating its war powers authority to the Executive.

The War Powers Act of 1973 was enacted to prevent another long but undeclared Viet Nam War situation. Under the Act, Congress grants the President, in the absence of a Declaration of War, limited powers to use force where imminent involvement in hostilities is clearly indicated by the circumstances. When the President relies on this law, he must submit to Congress a report setting forth the circumstances requiring armed forces, a statement of legal authority, and the scope and duration of the conflict. The submission of the report to Congress triggers a 60-day time limit on the use of force unless Congress extends the time.

Additionally, in 2001, Congress enacted the Authorized for Use of Military Force Against Terrorists, (“AUMF”) which allows the president to use all necessary and appropriate force against nations, persons or organizations that carried out the 2001 terrorists’ attacks against the U.S.

The dilemma for Congress is that the President, as commander-in-chief, acts as if these powers are so broad, they authorize almost any hostile action against another country.  Congress has little ability to pass a Resolution of Disapproval and, if passed, almost no ability to override a presidential veto. As a result of delegated authority under the War Powers Act, the president determines the war and Congress just salutes.

As a nation, we are 234 years from the ratification of the Constitution. At that time the U.S. has been at war for 138 years. Only five wars, totaling 32 years of war were fought under a congressional declaration of war – the War of 1812, the Mexican War, the Spanish-American War, and World Wars I and II.

Examples of abuse of the War Powers Act

President Reagan deployed troops to El Salvador but did not submit a report to Congress, or comply with a withdrawal requirement. President George H.W. Bush sent troops to the middle-east and President Clinton sent troops to former Yugoslavia. Both asserted they were acting under UN authority, and not subject to congressional time limits.

Presidents George W. Bush, Obama, and Trump relied on AUMF at least 39 times for actions in 19 countries. Lawsuits were filed to enforce the notification provisions of the War Powers Act. The courts dismissed the lawsuits as political questions to be determined by the respective branches of government.

Afghanistan, our longest undeclared war, cost the nation $2.313 trillion, approximately $300 million a day for 20 years. The death toll was significant, 2,500 U.S. military, 4,000 civilians, and 69,000 Afghan military police. Congress never used its spending power authority to cut funds off to stop the war. It’s time Congress has the courage to reclaim its War Powers.

Transforming Congress from irrelevancy to primary lawmaker

The first step Congress must take to reclaim its constitutional role in the Republic is to admit it is irrelevant and then take the steps needed to reassert it is the nation’s primary lawmaker. Its first step should be the use of its spending power to check the powers of an out-of-control Executive, no matter which political party controls the presidency.

William L. Kovacs, author of Reform the Kakistocracy, winner of the 2021 Independent Press Award for Political/Social Change, and former senior vice president at the U.S. Chamber of Commerce.

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  • The Future for the Next Generation: Involuntary Servitude

The Future for the Next Generation: Involuntary Servitude

William L. Kovacs

November 2022

The Future for the Next Generation: Involuntary Servitude

Under our Constitution, the people are the sovereign. We the people then hire the federal government to run the nation for our benefit. But like the Sci-fi movies where robots take over humans, the federal government is constantly expanding its powers to be our master and we, its servants. Both political parties increase their power over us by increasing the national debt. As the debt grows it becomes more unmanageable; eventually resulting in chaos that provides the federal government with the opportunity to fully realize its dream of placing citizens into involuntary servitude to serve its needs.

William L. Kovacs, the author

 

The United States is 246 years old. The last president to return money to the treasury was Calvin Coolidge. Our last six presidents in their forty-two combined years in office, have, on top of appropriations, borrowed, an additional, $27.46 trillion to run the nation. That is 88% of our entire $31 trillion national debt. Each taxpayer’s share of the national debt is $245,191 as of September 22, 2022. It is rising daily. The average personal income in the U.S. is $63,211.

Is our federal government incompetent, or insane or is there a more sinister agenda? Since most of the government is occupied by power-hungry people, its goal is to gain greater control over citizens. The easiest way to achieve greater control is through massive debt. It allows the government to give us what we don’t need, in exchange for taxing future generations. Eventually, it will require confiscatory taxes on citizens to pay off its debt. At that time the journey into involuntary servitude begins.

How did the government put us in this position?

The framework of our Constitution is so broad and vague as to allow the federal government to be capitalist, communist, or socialist. Moreover, the federal government can tax us as much as it needs to satisfy its wants. From 1932 to 1981, the marginal tax rate in the U.S. ranged between 63% – 91%.

Republicans and Democrats are both responsible for the National Debt. Actually, Republicans, for all their righteous calls for fiscal restraint, are responsible for 60% of it. The chart in the image uses data from The American Presidency Project, The Balance, and the Treasury Department to illustrate the increase in the national debt for each president by the fiscal year.

It is unlikely the national debt will be paid off in our lifetimes. This means we are living on the future productivity of those who have no say in creating it.  A truly unjust law to those who will have to pay tomorrow, for our spending today.

The national debt will become so burdensome to future generations that it will undermine democracy. If the federal government taxed current citizens the full amount of the programs it funds, there would be a tax revolt against “unjust taxes.” But the accumulation of massive debt is different from imposing taxes on people. Our representatives avoid accountability and confrontation by shifting the cost of today’s government to future generations.

Each dollar expended by us today without earning that dollar is a dollar our posterity will have to repay for us. Is there a point at which the debt imposed on future generations is so massive that it converts the social obligation of paying reasonable taxes into involuntary servitude to the government?

What is involuntary servitude?

Involuntary servitude” is defined as “a condition of compulsory service or labor performed by one person, against his will, for the benefit of another person due to force, threats, intimidation or other similar means of coercion and compulsion directed against him.” It is usually found in situations where the servitor is compelled to labor against his will in the liquidation of some debt or obligation.

The International Labor Organization Forced Labor Convention of 1930 deems all involuntary work or service exacted under the threat of a penalty, to be forced labor, therefore, illegal. Under the Convention government-forced or compulsory labor does not include compulsory military service, civic obligations for the benefit of the community, punishment for a crime, and emergency situations such as helping with catastrophes.

Absent from the list of exemptions are mandates imposing taxes so excessive that future generations must work to pay off the debt accumulated by prior generations.  Going forward the Congressional Budget Office estimates our national debt will continue to increase from 100% of GDP in 2022 to 180% of GDP in 2051. This will impose trillions of dollars of additional debt on future generations.

Involuntary servitude is implemented by force

The federal government will have to impose unreasonably high taxes on future generations if it is to pay off the national debt. Anyone who does not pay will be threatened by the Internal Revenue Service (“IRS”) with a fine, confiscation of property, salaries, bank accounts, or imprisonment.

In the so-called “Inflation Reduction Act,” Congress authorizes an additional $79.6 billion for the IRS. $45.6 billion of this money is for enforcing the payment of taxes. The IRS will hire more enforcement agents, and lawyers, and purchase new technology and weapons to increase enforcement efforts.

Placing the situation in perspective is essential to understanding the federal government’s intentions. It is estimated the IRS will hire an estimated 87,000 new agents. This more than doubles its current workforce of 78,661. With its 165,661 federal agents, the IRS will be the fifth largest federal agency by the number of employees.

These new employees are in addition to the 2,300 Special Agents that carry AR-15s, P90 tactical rifles, and other heavy weaponry. According to OpenTheBooks, the IRS currently has 4,600 weapons and 5 million rounds of ammunition. Moreover, the IRS will have significant fire-power backup, should it need it. The Militarization of the U.S. Executive Agencies, prepared by OpenTheBooks, reports that 103 executive agencies, outside of the Department of Defense, spent $2.7 billion on guns, ammunition, and military-style equipment between the fiscal years 2006 and 2019. It estimates there are more federal police officers (200,000) with firearms than U.S. Marines (186,000), and this is before the IRS adds its new enforcement agents.

President Biden routinely talks tough and mocks anyone (from domestic extremists to parents speaking at school board meetings) believing they could challenge the power of the U.S. government. He noted if they [citizens] planned to use guns, they would “…need F-15s and maybe some nuclear weapons.”

Likely 99.9% of citizens are not planning to challenge the federal government, in any manner. Most understand the federal government operates independently of the people in the nation. It is also extremely well-armed and could eliminate anyone or anything that remotely appears challenging. That is not the issue. The issue is that the president of the United States regularly reminds citizens that the federal government has massive military power it can use against them. So much for believing the government works for citizens.

Federal collection threats, will result in involuntary servitude?

If future citizens object to paying off a massive debt they had no part in creating, the federal government will use all the civil and criminal laws against them. It will overwhelm any person that challenges its “God-given right” to take any property for whatever the government believes is owed. These citizens will be forced to work no matter what the tax burden might be, to pay off the national debt.

Paying off a reasonable national debt is a civic duty. Working endlessly, under government threat, for a lifetime to pay off tens of trillions of dollars of debt that these future generations had no part in creating, is involuntary servitude which is prohibited by the XIII Amendment to the Constitution.

What can citizens do?

Citizens today cannot claim there is nothing we can do since the government controls the spending and increases in the national debt. Citizens in a democracy are responsible for the actions of the state. We need to treat government officials as our servants. Citizens have the ability through our vote to control them.  If we continue to allow the government to amass debt, we are telling future generations “they have no rights. All wealth belongs to the government.” At this point, the U.S. becomes an unjust nation that imposes involuntary servitude on posterity. If it continues, it is the end of our Democracy.

William L. Kovacs, author of Reform the Kakistocracy, recipient of the 2021 Independent Press Award for Political/Social Change. He also served as senior vice president for the U.S. Chamber of Commerce and a chief counsel to a congressional committee

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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  • To Whom Does an Elected Official Owe a Duty of Loyalty?

To Whom Does an Elected Official Owe a Duty of Loyalty?

William L. Kovacs

October 2022

To Whom Does an Elected Official Owe a Duty of Loyalty?

As the 2022 elections for Congress approach, citizens should ask to whom an elected official owes a duty of loyalty. Are these candidates merely politicians seeking office to enhance their brand by leading the opposition against Americans who think differently? Or are these candidates seeking office to serve as fiduciaries to the Constitution? In a dangerously polarized nation, the answer leads to dramatically different forms of governance. The current political strife leads to deceit, distrust, and conflict. Electing fiduciaries should lead to trust that our institutions work for the people.

For 256 years, the U.S. has elected representatives, but their duty of loyalty to whom or what is vague. Of course, all take an oath to the Constitution and represent constituents, but such responsibilities are so abstract they are meaningless.

The writings of John Locke, Edmond Burke, and James Madison reflect a fundamental belief that no power is granted to our representatives as individuals. These representatives are fiduciaries that must act to achieve the public good. As fiduciaries, they cannot act beyond their legal authority and must administer laws impartially. Unfortunately, today this view is rejected by what Madison terms “factions,” groups of citizens united in a common interest adverse to others in the community.

These factions are today’s political parties and interest groups that build their brand, raise massive amounts of money and acquire power by preaching division. The academic literature supports this self-interest by arguing that public officials cannot be fiduciaries since it would be impossible to give loyalty to the many diverging interests confronting elected officials.

While divergent ideas are essential and constitutionally protected, the fiduciary’s duty of loyalty does not apply to individuals, groups, or political parties. Instead, it applies to the Constitution’s separation of powers structure that allows society’s many contestable issues to be debated rationally to foster a consensus around the public good. The process includes a Congress that formulates laws after listening to all sides of a debate; an Executive administers those laws, and courts resolve the controversies between branches.

For this structure to work, each branch of government has an independent duty to act as a check on the other branches. This tension is necessary to achieve the public good. Unfortunately, when elected representatives function as politicians, they distort the constitutional structure by placing their loyalty to political parties and interest groups ahead of the institution they serve. Displaced loyalty diminishes the Constitution.

Since our Constitution is held in trust by our elected representatives, for the American people, it is protected when these officials vigorously defend the powers and duties of the branch they serve. Such defense is the best mechanism to ensure government is limited to the powers given it by the Constitution.

Today’s political climate illustrates this point. We have one political party controlling Congress and the Executive. We have an Executive making new laws, (student loan forgiveness), or refusing to enforce existing law (immigration). While the Executive’s party in Congress may have a majority of members in its caucus, at times, it still may lack the votes needed to authorize the Executive’s actions. In instances when the Executive acts without congressional authority, his party in Congress generally has the power to block the minority party from preventing the Executive’s arbitrary accumulation of power. As an end run around the Constitution, the politicians in Congress, rather than dealing with the difficulties of the legislative process, abandon their oath to uphold the separation of powers by allowing the Executive to make law through regulation, Executive Order, or simply not enforcing laws.

In theory, the Constitution works well. In practice, however, the constitutional mandate of separation of powers is regularly abused. When Congress ignores its duties to defend the separation of powers, it limits the ability of the constitutional structure to fully allow the multitude of interests a voice in the debate needed to achieve a governing consensus. For several decades party-line voting (Democrats vote one way; Republicans oppose) has become the norm. In the 1960s, party-line voting was around 60%, but by the Trump administration, it reached 90%. Without letting the structure of the Constitution work, these representatives breach their fiduciary duty to the Constitution by allowing the Executive to enhance its power by diminishing the power of Congress.

When loyalty to political parties and interest groups eliminates the separation of powers protections in the Constitution, citizens must rely on the interest groups named Democrats or Republicans for protection. Today such actions are arbitrary political power. Tomorrow it could be tyranny.

This article was first published in TheHill.com

William L. Kovacs, author of Reform the Kakistocracy, winner of the 2021 Independent Press Award for Political/Social Change, and former senior vice president at the U.S. Chamber of Commerce.

 

 

 

 

 

 

 

 

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  • In Need of a Federal Ban on Gifts to Friends of Congress

In Need of a Federal Ban on Gifts to Friends of Congress

William L. Kovacs

September 2022

In Need of a Federal Ban on Gifts to Friends of Congress

Since the beginning of the republic, there has been a debate over the scope of Congress’s power to spend our money and then tax us to generate more money to spend. James Madison argued Congress could only spend on the items enumerated in the Constitution. Alexander Hamilton argued the Constitution’s Spending clause is independent of the enumerated powers, thus allowing Congress to tax and spend as it deems necessary. The only limitations – spending must be for the general welfare and Congress cannot use taxation as a pretext to indirectly control states.

Continuing to debate the limits of Congressional spending is a waste of time. The Supreme Court has made it clear that Congress can spend on whatever it wants as long as it promotes the general welfare. Only Congress can make that determination.

Such a broad interpretation of Congress’ ability to tax and spend has resulted in a massive expansion of government and a $30 plus trillion national debt that will likely place our posterity in involuntary servitude to the federal government. Most troubling is that the general welfare has morphed from building the canals, bridges, and highways to make the U.S. an economic superpower into trillions of dollars of gifts to special interests and friends. These gifts to private entities come in the form of grants, tax credits, loan forgiveness, and paycheck protection plans.

A few examples of the cost of congressional gift giving.

$600 billion in student loan forgiveness based on the Higher Education Relief Opportunities Act of 2003, which forgave $10,000 – $20,000 of student loan debt for approximately 15 million students.

$ 721 billion in grants to states as a bribe to manage federal programs enacted outside the constitutional authority of Congress to legislate.

Forgiving tens of billions of dollars of federal Paycheck Protection Program loans made to organizations controlled by the elite rich such as Paul Pelosi (husband of the Speaker of the House); Khloe Kardashian, Tom Brady and Reese Witherspoon, Forbes Media, Ruth Chris Steakhouse, The Washington Times, and more than a few members of Congress.

$16 billion in farm aid to offset losses suffered by farmers on tariffs imposed on products sold to  China. The top 10% of farmers receive 70% of the subsidies.

The $330 billion prescription drug industry was granted $64 billion in federal research funding.

Flood insurance subsidies are given to insure high-end housing in flood-prone areas. This insurance program is potentially liable for $1.3 trillion in flood claims while only collecting $3.5 billion in annual premiums. The program has $25 billion in losses that taxpayers will have to pay.

Most recently, through the falsely named “Inflation Reduction Act,” Congress authorized $370 in new tax credits for corporations and individuals if they acquire green energy products or build green energy facilities. The tax credits are to boost corporate sales of electric vehicles, the installation of rooftop solar panels, the development of solar power systems, heat pumps, water heaters, space heating, electric stoves, circuit breaker boxes, additional home insulation, and exterior windows, to name a few beneficiaries. This is in addition to federal regulations imposing energy efficiency requirements on at least sixty products and $577 billion in tax credits and grants for green energy projects since 2004.

A week before the passage of the IRA, Congress authorized $280 billion to incentivize the semiconductor industry to build plants in the U.S. and invest in the new research.  The semiconductor industry is a $573 billion industry that is expected to grow to $1.4 trillion by 2029 due to high demand for its products.

While there is almost no limit to Congress making gifts to its supporters, historical precedents prohibited state governments from giving gifts to private entities. In the mid-1800s, many municipalities and states used public funds to purchase stock in the railroads being built across the continent. Many of these governments lost or were swindled out of large amounts of taxpayer money. To prevent this type of financial loss in the future, forty-five states enacted constitutional limitations preventing gifts to private entities. The limits placed on gifts to private parties came to be called “gift clauses.”

The general gift clause prohibited state and local governments from giving or loaning public funds to private corporations or associations or for private undertakings. The sole purpose of these gift clauses was to prohibit the gifting of public money for nonpublic purposes. Initially, these provisions stopped government speculation with taxpayer money and the gifting of public money to private entities.

Over time, however, the courts began to legislate exceptions to the prohibitions for what they construed as a “public purpose,” a purpose similar to the federal Constitution’s general welfare clause.  Courts simply found legal the gift of public funds to a private entity if the gift would somehow result in a public benefit. The courts further expanded the definition of “public benefit” to include almost anything the legislature believes is a public benefit. Such gifts can be seen in almost every type of government project, from parking lots to sports facilities, corporate rent subsidies, to outright gifts to attract business to a state or locality.

At the federal level, gifts are deemed legal to private parties for almost anything Congress wants to finance, incentivize, or throw money at. Taxpayer money just flows, and the courts find it legal since the appropriations prove that the legislature viewed the gift to private parties to be for a public purpose.

With a $30 trillion-plus national debt, citizens need to demand the enactment of a federal gift clause to limit how Congress spends our money. And while few believe that Congress will ever enact a prohibition on gifts to friends and interest groups, citizens need to demand every person running for Congress to take the following pledge:

I pledge that, as a member of Congress, I will not vote to give, grant, or loan public funds or to extend the credit of the public to any private corporation, association, or private undertaking.

By asking every candidate for Congress to take this pledge, citizens will easily distinguish between candidates seeking to protect the public’s money and those seeking personal gain.

William L. Kovacs has served as senior vice-president for the U.S. Chamber of Commerce, chief counsel to a congressional committee, and a partner in law D.C. law firms, and his book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. His second book, The Left’s Little Red Book on Forming a New Green Republic is a collection of quotes from the Left on how to control society by eliminating capitalism, people, and truth.

 

 

 

 

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  • Spending Power is Bargaining Power: No Wall, No Dept Ed

Spending Power is Bargaining Power: No Wall, No Dept Ed

William L. Kovacs

June 2022

Spending Power is Bargaining Power: No Wall, No Dept Ed

While Joe Biden has a long plagiarism record, he at least steals good lines. For the release of his FY 2023 budget, he attributed to his father a phrase borrowed from James Frick (first director of development for the University of Notre Dame), “Don’t tell me what you value, show me your budget, and I’ll tell you what you value.” Actual words of wisdom related to congressional spending power and Biden’s refusal to build a border wall or enforce immigration laws.

Biden knows what he values. Its time for Congress to respond with its own set of values. If Republicans take control of at least the House of Representatives, they should inform the president; that if he does not build the border wall and enforce immigration laws, it will not fund the Department of Education (“Dept. Ed”). While these issues are unrelated, combining them into one negotiation is legal, workable, and requires little effort by a Republican House.

The ability of Congress to place limits on an out-of-control federal government and a president that refuses to execute the laws of the land rests on how it uses the “spending power” granted by the Constitution. Congress, including Republican Congresses, have used this power to spend and spend more for a century. Today Congress is confronted by a spendthrift President that has intentionally opened the Southern Border of the U.S. to millions of illegals, including drug smugglers, sex traffickers, and terrorists. This deliberately reckless decision harms citizens, overwhelms small cities, and costs taxpayers billions. Courts have ordered Biden to enforce immigration laws, but his administration continues to implement its values.

Implied in congressional spending power is the power not to spend. With a $30 trillion national debt, Congress can no longer ignore its real power not to spend. Congress only debates the level of spending, never the fact that it does not have to appropriate any money for any program, for any reason. If one House of Congress refuses to spend money, that one Chamber can control the size and shape of government. More importantly, if the Executive acts unreasonably, one House of Congress can control the Executive by refusing to spend on the Executive branch’s priorities.

If Republicans gain control of the House of Representatives in 2023, they could impeach Biden, but a conviction is unlikely. They could try to pass a more restrictive immigration law, but they will not have the votes to override his veto. Republicans could continue whining on cable TV, which feeds their egos but little else. A more forceful alternative is to find creative ways to use its spending power.

Under the Origination and Spending Clauses of the Constitution, only Congress has the power to raise revenue and spend money. No power in the United States can make Congress appropriate money that it does not want to spend. While it takes both houses of Congress and the president to enact a new law or spend money, spending no money is different. If one House of Congress refuses to spend money, there is no authorized money to spend.

Why the Dept. Ed?

The Dept. Ed should be the center of the negotiations since it is owned and operated by Biden’s most significant political supporters, the teachers’ unions. The teachers’ unions donated $43 million to liberal groups in the 2020 election cycle.

The Dept. Ed is a perpetual pay-off to the teachers’ unions. Congress can use this sacred cow as a bargaining tool. The Dept. Ed is the platform that allows the teachers’ unions to foster the teaching of Critical Race Theory, impose mask mandates, and torture children’s minds by telling them they are born racists. The mere possibility of the teachers’ unions losing this power will likely persuade Democrats to accept the reality that building the border wall and enforcing immigration laws is a cheap price to pay to keep the Dept. Ed.

Using such leverage requires Congress to engage in high-level negotiations. If Biden concedes, the Republicans get the border wall and immigration enforcement. If Biden refuses to negotiate, the Republicans get to eliminate the agency they had wanted to eliminate since1980 when it was created.

Other than spending several trillion dollars to expand the educational bureaucracy, studies and test results establish the Dept. Ed has made little or no impact on education.

The  Dept. Ed administers educational assistance,  collects educational data, and enforces privacy and civil rights laws like destroying Title IX for women’s sports. Of the 15 cabinet-level agencies in the federal government, its $ 96 billion discretionary budget is the third largest of all departments, only behind Defense and Health and Human Services.

The Dept. Ed has not, in any manner, enhanced education in its 42 years of operation:

  1. The Programme for International Student Assessment (“PISA”) found that among the 35 members of the Organization for Economic Cooperation and Development, the U.S. ranked 30th in math and 18th in science.
  2. The same PISA study found that U.S. millennials in the workforce were tied for last on mathematics and problem-solving tests among the millennials in all the industrial countries tested.
  3. A National Assessment of Educational Progress study found that after 40 years of assistance, there has been no improvement in high school math and reading.
  4. A comparison of SAT scores from 1972 to 2021 illustrates that math scores remained flat, 509 in 1972 and 508 in 2016. The SAT was redesigned in 2017; unfortunately, the scores remained flat even on the redesigned test.
  5. On the reading portion of the SAT, test scores dropped from 530 in 1972 to 494 in 2016.
  6. The National Assessment of Education Progress (“NAEP”) analyzed the number of twelfth-grade students’ performances in science for 2009, 2015, and 2019. There was no change in achievement levels. The average science score of 150 for twelfth-grade students in 2019 was not significantly different compared to 2015 or 2009.

 

While it is unlikely Congress would ever voluntarily abolish this failed agency, it does have an opportunity to use it as a bargaining chip to have a border wall constructed finally and immigration laws enforced.

 

 

 

 

 

 

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  • The Real Separation of Powers: Government vs Citizens

The Real Separation of Powers: Government vs Citizens

William L. Kovacs

April 2022

The Real Separation of Powers: Government vs Citizens

Scholars pontificate on the brilliance of the separation of powers in our Constitution as a means of protecting citizens by limiting the power of each branch of our government. They talk as if each branch actively works to control the power of the other branches to protect citizens. Unfortunately, these scholars miss reality. The three branches of our government work together to enhance federal powers at the expense of citizens. As the power of the federal government increases, the rights of the individual shrink.

The framework of our Constitution is so broad and vague as to allow the federal government to be capitalist, communist, or socialist, or as now, a “wokeist” system. Moreover, the federal government can tax us as much as it needs to satisfy its wants. From 1932 to 1981, the marginal tax rate in the U.S. ranged between 63%  and 91%. Today, it’s hard to believe, that the federal government can’t live on $5 trillion a year.

Cementing this divide, the U.S. Supreme Court, shortly after our Constitution was ratified, adopted the English doctrine (not a law) of sovereign immunity, i.e. “The King (now the federal government) Can Do No Wrong.” The court’s decision adopted the doctrine as the law of the land. In simple terms, no one can sue the federal government without its consent. While the federal government has consented to be sued on routine matters (e.g., torts, breaches of contract, copyright violations, open records laws, and violations of civil rights when government officials are acting illegally but under color of law), the doctrine of sovereign immunity still bars citizens from challenging the illegal operations of government.

Presently the United States is a system of political rulers and citizen subjects. Citizens can change this system by electing members of Congress who will serve as trustees of the Constitution and fiduciaries to us. Our founders attempted to implement this vision through the Oath’s clause, by not recognizing political parties in the Constitution, and by vesting all legislative power in Congress. Unfortunately, Congress has abandoned its duties under the Constitution and the Executive and the judiciary have vigorously grabbed additional powers.

Notwithstanding Congress being granted all legislative power, it has delegated much of its legislative power to the Executive. Once such delegation occurs, the president through Executive Orders, proclamations and agency rulemakings, determines the law of the nation. Routinely Congress passes a law but the president ignores it, or the president uses agency rulemakings to substitute its will for the intentions of Congress. Examples include the open southern border, lockdowns in the pandemic, stripping legally held permits from the fossil fuel industry, and imposing climate change regulations without any authorizing law.

Compounding this travesty of congressional delegation of legislative powers to the Executive branch, the federal courts, since the founding of the Republic, have operated as super-legislatures. While the Constitution clearly mandates “All legislative Powers … shall be vested in a Congress of the United States,” the U.S. Supreme Court gladly approved of Congress delegating its legislative authority away, requiring only that Congress indicate some “intelligible principle” to the agency implementing the law. “An ‘intelligible principle’ could be anything in the ‘public interest, convenience, or necessity or considered ‘just and reasonable.’ Being put in such subjective terms gives agencies vast discretion when enacting new rules.”

As a super-legislature, with almost unreviewable power, the Supreme Court created rights under National Environmental Policy Act that allow environmental groups to enjoin any action they believe is not the correct environmental decision. This decision gives the environmental activists the ability to control governmental permitting decisions that encompass new oil, gas, and manufacturing decisions. Another example is the Supreme Court creating a federal right to an abortion by “discovering” some non-existent penumbra of previously unknown rights in the constitution. Simply, the Supreme Court has rewritten the Constitution in cases too numerous to mention, especially during the period 1937 – 1944.

Even in routine administrative rulemakings involving a vague statute, the Supreme Court allows the agency fills in the blanks, rather than making Congress do its work.

As the Supreme Court and the Executive expand their power, Congress is placed in a state of helplessness. It does not matter how the law reads; the law is what the court or agency says it means until Congress can gather the votes to overrule the decisions of the other branches. In a divided Congress this is almost an impossible effort.

Once in this state of helplessness, Congress has only one power to control the administrative state; the power of the purse.  Under our Constitution “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”  If one party is in control of the Executive and both houses of Congress, the will of the Executive generally prevails as Congress is a mere rubber stamp. However, if a minority party controls just one house of Congress, it can refuse to appropriate the monies needed to run the administrative state. While Congress could not eliminate the Executive or Judicial branches, it could dramatically scale back their funding as a means of reigning in a massive federal government.

While withholding the funds to operate the administrative state is viewed by many as abhorrent; it is the only constitutional power Congress can exercise that cannot be blocked by the other branches. If Congress fears using its power of the purse against the administrative state or an out-of-control judiciary, then it is a useless branch of government.

As citizens we can speak out, protest, demonstrate, complain at government meetings, and send nasty letters to our elected officials, but in the end, we will be ignored if the government wants to ignore us. The government controls our money. In most instances, government, through the withholding tax, has its money before we get our paychecks. The government controls the police to ensure we do nothing other than what it permits. The federal government has even designated parents speaking out at school board meetings to be domestic terrorists. Moreover, the government has and will most likely use, the military and its weapons to ensure citizens act only in ways acceptable to it. Police even blocked the road on the truckers’ convoy so it could not protest in DC.  The truckers’ convoy had to good sense to avoid the grave danger of protesting when the police and likely the federal government would use force to stop them. Had they been Black Lives Matter, they could have burned down the city and it would have been called a peaceful protest. That is life under a woke American government.

The only power we the people have to control government is our power to vote for our members of Congress. We do not vote for the President, the Supreme Court, or the millions of nameless bureaucrats that make laws every day through rulemakings. Our right to vote for members of Congress is extraordinarily powerful. It is a legal mechanism for a peaceful revolution. With our votes, we can vote out all elected officials over six years and elect a Congress that is a trustee of the Constitution and a fiduciary to the people.

William L. Kovacs has served as senior vice-president for the US Chamber of Commerce, chief counsel to a congressional committee, and a partner in law DC law firms. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. His second book, The Left’s Little Red Book on Forming a New Green Republic, quotes the Left on how it intends to control society by using climate change to eliminate capitalism, people, and truth.

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  • A Republican House Alone Can Reverse the Authoritarian State

A Republican House Alone Can Reverse the Authoritarian State

William L. Kovacs

January 2022

A Republican House Alone Can Reverse the Authoritarian State

Freedom-loving people may believe the U.S. is at the edge of darkness with Biden’s 76 Executive Orders46 Presidential Memoranda, and 176 Presidential Proclamations that take the form of conflicting vaccines mandates, bans on energy supplies, open borders, union organizing rules, the teaching of critical race theory, and frenzied proposals on climate change to name but a few. In the last several weeks, The Washington Post published at least four articles ( 1234), telling us “…the nation is closer to civil war than any of us would like to believe.” The narrative running through the articles is that the January 6, 2021 riot was an “insurrection” by Trump’s unarmed followers to destroy Democracy.

The Progressive press is pushing its “coming civil war narrative” so hard it seems as if it wants to incite civil war so its leftist government can use the military to violently crush the assembly of objectionable, unarmed, ordinary Americans. It would also give justification to the Department of Justice and FBI to implement their threats against parents who speak out at school board meetings. It’s hard to believe that parents protecting their children are deemed to be “domestic terrorists” by any government, yet alone a U.S. government.

While the Democrats may hysterically claim the Republicans are trying to assassinate Democracy, they cannot hide their real angst over the fact that our Constitution allows us ordinary citizens, to elect the entire House of Representatives every other year. The Left may want a civil war, but patriotic Americans can win a revolution with their votes in November.

Democrats act out of fear of what voters might do on November 8, 2022. Yes, a Republican majority in the 2023 House of Representatives can restrain Biden’s authoritarianism. That’s the easy lifting. The House also has the constitutional power to do far more to reign in an authoritarian state, even if Republicans do not regain control of the Senate.

In simple terms, the real power the original Constitution gives citizens is the right to elect the House of Representatives every two years. That constitutional right is the power to change the direction of government before any administration can cement authoritarian rule. Voting for the House is the power of revolutionary change.

While the original Constitution had state legislatures electing Senators, and presidential electors, the people, have always directly elected the House of Representatives. Our Constitution has always empowered citizens with the full power to control the federal government by electing representatives wanting to limit government’s power over its citizens.

One may ask how is such power possible when laws must be passed by the House and Senate and signed by the President? There is an unstated and rarely used power that allows a majority of just one House of Congress to control the nation’s budget and the size of government. All a Republican House needs to do is refuse appropriate money to run the authoritarian state. Think of such power as a Congressional veto over crazy spendthrifts. Using such power allows one party, controlling just one House of Congress, to restructure the entire federal government by refusing to squander taxpayer money.

Suppose voters want control over their federal government. In that case, all they need do is elect a House of Representatives that spends substantially less money than it costs to run a bloated, debt-ridden government. That action alone will shrink the federal government.

How would this process work?

Under our Constitution, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” This power can authorize more spending or be used to reduce spending and the national debt.

For Congress to spend more of the taxpayer’s money, it must appropriate the new money by enacting a law that requires the approval of both Houses of Congress and a Presidential signature. To spend less money or to spend no money; however, one House of Congress merely needs to do nothing. No provision in the Constitution gives the power to anyone to force Congress to spend money. Moreover, as an institution, Congress is the only branch of government that controls the nation’s purse, and one House of Congress can shut the purse.

Under Article I, section 7, of the Constitution, all bills for raising revenue must originate in the House of Representatives. By electing a majority of the House who support smaller government, the House has the sole power to block the enactment of new revenue streams to support a bigger government.

It is clear that no matter how big or powerful the federal government has become, a party that controls the House of Representatives can reign it in if it has to courage to do so. Republicans talk about smaller government, but the government has continuously expanded. They talk about reducing the national debt, but Republicans have increased the national debt more than the Democrats for the last several decades.

If Republicans take control of the House in 2023, it will be their “put up or shut up” moment. Only time will tell if the government remains wildly out of control or the Republican House of Representatives “puts up” to Save Democracy?

William L. Kovacs has served as senior vice-president for the U.S. Chamber of Commerce, chief-counsel to a congressional committee, a partner in law D.C. law firms, and his book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change.