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SCOTUS Ignites a Glorious Regulatory Reform Revolution

William L. Kovacs

July 2024

SCOTUS Ignites a Glorious Regulatory Reform Revolution

The recent decisions by the conservative U.S. Supreme Court (SCOTUS) at the end of its 2024 term are of significant importance in the realm of regulatory reform. These landmark rulings, which end judicial deference of agency decisions and require jury trials when agencies seek penalties, mark a pivotal moment in the fight against the regulatory powers that have shaped the modern Administrative State. They are a continuation of the court’s 2022 decision on the Major Questions Doctrine, which mandates that agencies provide statutory support when making significant changes to a long-standing regulatory policy. Together, these three cases represent a ‘Glorious Regulatory Reform Revolution.’

It’s crucial to remember, however, that a prior liberal/Progressive SCOTUS created the regulatory powers of the Administrative State. These court-created powers lasted for many decades and greatly diminished Congress’s powers to control the Administrative State.

To prevent a return to an all-powerful, court-sanctioned Administrative State, it is imperative that Congress seizes this period of anticipated regulatory sanity to codify and expand the court’s decisions. The role of congressional action in preserving this victory cannot be overstated. After being absent from the regulatory reform debate for decades, Congress must now actively protect the benefits of these recent decisions.

The three SCOTUS decisions are excellent examples of how, in the absence of Congress, the federal judiciary can allow regulators to take on the trappings of a “Star Chamber” that can only be dismantled by a future court.

In Loper Bright Enterprises v. The Secretary of Commerce, the court reversed the forty years of deference courts gave to federal agencies under Chevron vs. NRDC. Chevron’s legal and economic impact is gargantuan. At the time of the Chevron decision in 1984, the federal bureaucracy had issued approximately 65,000 regulations since the beginning of the Administrative State. After Chevron, the tentacles of the Administrative State expanded to control almost every aspect of society, including the products made, the information provided, and the energy it used. By 2023, the bureaucracy had issued 215,500 regulations costing the economy approximately $2 trillion to implement annually.

The courts dutifully applied Chevron’s deference. Seventy future SCOTUS  decisions relied upon it, and it was cited in 17,000 lower court decisions. By removing agency deference, SCOTUS returned agency rulemaking power to Congress’s original intent, formulated in its Administrative Procedure Act (“APA”)—that judges, not bureaucrats, make independent interpretations of the law.

In the second case, SEC vs. Jarkesy, the court struck down the power of federal agencies to act as regulators, judges, and executioners, which could impose substantial civil penalties without providing the defendant’s Seventh Amendment right to a jury trial.

While Jarkesy sought judicial review in a federal court, the SEC forced him to adjudicate the matter in-house. The agency’s administrative law judge levied a $300,000 fine on Jarkesy and ordered the disgorgement of $685,000 in illicit profits for violations of the anti-fraud provisions in federal securities law. Jarkesy petitioned the Fifth Circuit Court of Appeals for judicial review, arguing that he had the right to a jury trial since the SEC sought penalties. The federal appellate court agreed with Jarkesy.

The Supreme Court upheld the appellate court’s finding. It is reasoned that when an agency seeks to impose civil penalties, the action is in the nature of punishment. Since punishment at common law was imposed by courts holding jury trials, Jarkesy was entitled to a jury trial.

The ruling in Jarkesy is significant because federal agencies hire several thousand ALJs to hear evidence and make judicial decisions. These administrative proceedings are very costly to defendants but are more comfortable for agencies since the outcome is determined by their paid-for, in-house “judges.”

Loper and Jarkesy build upon  WVA v. EPA, the case in which SCOTUS formulated its Major Questions Doctrine requiring an agency to establish statutory authority when transforming long-standing policy into a dramatically new one. EPA historically applied section 111 of the Clean Air Act only to specific energy sources at particular locations. Suddenly, the EPA “discovered new authority” and authorized itself to determine what types of electrical power could be generated and distributed to the nation. SCOTUS found that EPA lacked the statutory authority to transform its facility-by-facility approach to clean air regulation into the power to regulate the entire electricity grid. The critical aspect of its ruling is that when federal agencies suddenly change long-established policies, the agency must prove Congress granted them such authority.

In the three cases, SCOTUS reversed long-established positions that agencies could fill in the legislative blanks in the law, force citizens into trials controlled by agency-paid judges, and unilaterally extend regulatory powers to “newly discovered activities.”

The dramatic change in the court’s judicial philosophy exhibited a newfound respect for Congress as it searched for its congressional intent or any constitutional support for agency activity.

For those familiar with our Constitution and congressionally written laws, it’s clear that vagueness is omnipresent in most texts. This understanding should raise concerns about the potential for a future SCOTUS with a liberal/Progressive majority to reverse the current limits. Such a reversal could allow agencies to once again operate as unsupervised lawmakers, thereby potentially making them supreme in the lawmaking process. This potential imbalance underscores the need to preserve the recent SCOTUS decisions.

While conservative Republicans in Congress for decades voiced concerns over the growth of the regulatory state, they could not secure the votes to restrain the system created by the liberal/Progressive SCOTUS.

Only the 115th Congress seriously attempted to reform the APA and, by implication, the Administrative State through the proposed Regulatory Accountability Act (“RAA”). The RAA sought to reform the rulemaking process to ensure final rules were based on sound facts and law, inadequate science could be challenged, major rules were subject to on-the-record hearings with cross-examination, and courts, not regulators, interpreted the law.

The House passed the RAA several times. A Republican Senate even voted it out of committee; however, Senate leadership under Mitch McConnell, a patron of the Administrative State, refused to bring the legislation to the floor. This effort was Congress’ first and last serious attempt to reform the Administrative State since its creation in 1946.

In the final analysis, agencies will fight to the last rulemaking proceeding to expand their regulatory powers. The Biden administration recently proved the truth of the assertion by forgiving additional student loan debt after a conservative SCOTUS declared such actions beyond the powers granted to the Executive by Congress. While the current SCOTUS has significantly limited the power of agencies to make new laws without congressional authority, a future liberal/Progressive court could reverse these limits. It is up to Congress to place statutory limitations on an agency’s power to make laws without authority from Congress. Such action is necessary if Congress is to reclaim and retain its constitutional role as the nation’s sole legislative authority.

William L. Kovacs, author of Devolution of Power: Rolling Back the Federal State to Preserve the Republic. Received 5 stars from Readers’ Favorite. His previous book, Reform the Kakistocracy, received the 2021 Independent Press Award for Political/Social Change. He served as senior vice president for the U.S. Chamber of Commerce and chief counsel to a congressional committee. He can be contacted at [email protected]

 

 

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  • What Is Key to an Impeachment Inquiry – Truth or Punishment?

What Is Key to an Impeachment Inquiry – Truth or Punishment?

William L. Kovacs

May 2024

What Is Key to an Impeachment Inquiry – Truth or Punishment?

As part of the impeachment inquiry of President Biden, Congress should ask itself – What is more important to the United States – knowing the truth about President Biden’s alleged payments from our foreign adversaries or impeaching and convicting him? Politics and the lack of time will not allow Congress to have both.

Discovering the truth about the alleged Biden Family corruption will either establish that President Biden is innocent of all criminal allegations or alert the nation to how it has been compromised by his corruption. If impeachment is more important to Congress, there is not sufficient time for it to occur, and even if impeached, there will be no conviction in the Senate.

It should be clear to the two House committees that the Department of Justice (“DOJ”) will do whatever is necessary to obstruct their impeachment investigation into the Biden family corruption by refusing to produce the requested information or the needed witnesses.

The House must recognize reality – he who controls the DOJ determines the rule of law in this country. Biden will not ever stand trial in the Senate. The Senate established that fact with the Mayorkas impeachment, which it dismissed without hearing a scintilla of evidence. Moreover, its actions clarify the scope of power conferred on the Senate as “the sole power to try all impeachments.” The Senate’s dismissal of the Mayorkas impeachment changed the impeachment process forever. It was the only time in 225 years and twenty-one impeachments that the Senate refused to hear evidence. The three prior dismissals all occurred due to a resignation from office or expulsion from Congress.

The Democrats’ actions de facto eliminated Congress’s impeachment power from the Constitution. As long as the president’s party controls at least one House of Congress, the president, his appointees, friends, criminal syndicates, illegal aliens, and cartel members are free to break any law and remain in control of the nation. The Constitution is only as viable as those who have the power to determine its meaning and application.
If the House seeks punishment against Biden and the family syndicate, Congress, as the legislative branch, can’t impose it. Even if Congress exposes the corruption, DOJ will not prosecute it, as evidenced by the Horowitz and Durham reports of government corruption.

A congressional obsession with impeaching and convicting Biden will be a futile gesture that obstructs the pathway to securing the truth about his financial dealings. Fortunately, Congress still has time to discover the truth. The only leverage the House has to obtain the truth from its inquiry is to grant “Use Immunity” to Hunter and James Biden, their business associates, and the past and present leadership of the DOJ and FBI.

“Use Immunity means that, while the government may prosecute witness for offences related to subject matter of witness’ testimony, the witness’ testimony itself and any fruits there from, may not be used against witness in any criminal case except prosecution for perjury arising out of testimony.” Use Immunity protects the Fifth Amendment rights of the witness while allowing Congress to secure the testimony needed for its investigation.

If the House wants the truth, the witnesses with the information must testify, and as long as a witness can assert a Fifth Amendment right, there will be no testimony about what happened. Discovering evidence within these confines can only be achieved by granting Use Immunity.

Congress has the sole discretion to grant Use Immunity. For separation of powers principles, Use Immunity is not self-executing by Congress as it is traditionally an executive function. Upon a majority vote of its members, the House must apply to the federal district court for an order to compel the testimony. 28 USC sec 6005 mandates the court issue the order. Moreover, neither the DOJ nor the courts can interfere with the grant of it. Section 6005 authorizes either House of Congress to grant Use Immunity once an individual refuses to give testimony or provide other information based on his privilege against self-incrimination.

The district court must grant the congressional request if it finds:

1. In the case of a proceeding before either House of Congress, the immunity request was approved by a majority vote of the members present or
2. In the case of a proceeding before a committee, the request for such an order was approved by two-thirds of the members of the Committee and
3. That the Attorney General was given ten days’ notice. The Attorney General can request another twenty days to “insulate from the immunity grant any incriminating data already in his files prior to the witness’s testimony.”

Use Immunity was used extensively by the Democrats in Watergate and the Iran-Contra Affair. Once one House of Congress meets the conditions of the statute, granting Use Immunity is mandatory. “The court shall” issue the order. Chief Judge Sirica [in the Watergate trials] held section 6005 casts the court’s role as ministerial, and the Attorney General is deprived of his normal discretion concerning the granting of Immunity.

Once receiving Use Immunity, the witnesses can testify free of prosecution for any testimony of their criminal activity given to Congress. A refusal to answer subjects the witness to Contempt of Congress and could result in imprisonment.

Historically, Congress is reluctant to grant use immunity since it usually results in an inability of the DOJ to prosecute criminals. DOJ describes the dilemma:

Congress must now choose between granting Immunity to exercise its oversight and investigative functions or forgoing a grant of Immunity to allow the prosecution of key witnesses.

However, Congress is not facing such a dilemma in the Biden impeachment proceedings. The DOJ has a long record of refusing to prosecute any of the involved parties, including identified lawbreakers in the Horowitz and Durham reports.

In the Watergate trials, a corrupt DOJ refused to cooperate with Congress like today. The US Senate sought to grant Use Immunity to witnesses. DOJ asserted it, and the court has the power to block the grant of Immunity. Chief Judge Sirica upheld the Senate’s power, writing:

Immunity is the fixed price that the government must pay to obtain certain kinds of information, and only the government [Congress] can determine how much information it wants to ‘buy’ in light of the fixed price.

Judge Sirica concluded: [There is a] power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government. Quoting President Wilson, he notes the informing function of Congress should be preferred even to its legislative function.

The American people deserve the truth about corruption in their government. The House of Representatives has the power to obtain the truth but only by relinquishing its illusionary right to impeach and convict the president of “High Crimes and misdemeanors.” What is more critical to the nation, truth or the false hope of punishment by removal from office? After all the facts come out, Biden will either be exonerated or punished by history, the most painful of all punishments for a president.

William L. Kovacs, author of Devolution of Power: Rolling Back the Federal State to Preserve the Republic. His previous book, Reform the Kakistocracy, received the 2021 Independent Press Award for Political/Social Change. He served as senior vice president for the US Chamber of Commerce and chief counsel to a congressional committee. Bill can be contacted at [email protected]

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Interview discussing “Devolution of Power” with Tippingpointnm.com

April 2024

Interview discussing “Devolution of Power” with Tippingpointnm.com

For those wanting to view or listen to a discussion of my new book Devolution of Power: Rolling Back the Federal State to Preserve the Republic, the first link is to the video file and the second to the audio file.

The host of the show was Paul Gessing, President of the Rio Grande Foundation.

(Video file): https://www.youtube.com/watch?v=vNU8guSkRB0

(Audio file): https://tippingpointnm.com/595-william-l-kovacs-devolution-of-power-rolling-back-the-federal-state-to-preserve-the-republic/

For those who missed my post outlining the main topics in the book, a link to the article is at:

Devolution of Power: Rolling Back the Federal State

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  • Enacting Devolution of Power to the States

Enacting Devolution of Power to the States

William L. Kovacs

November 2023

Enacting Devolution of Power to the States

Part III 

The devolution of power from the federal government to the states is highly likely in the next decade. It is not feasible for the U.S. to pay off a $33 plus trillion-dollar national debt that requires annual interest payments of a trillion dollars or more. Debt and deficits will force cuts in federal programs. Many of the cuts will be federal grants to states. When this occurs, devolving national power to the states will be the best option out of a bad situation.

Before a crisis occurs, the feds and the states should negotiate a transition of power to ensure a workable separation of functions and an understanding of the costs involved.

The primary goal of devolving federal power to the states is to alleviate federal fiscal mismanagement as much as possible while enhancing democracy by transferring governmental services to the lowest level of government that can effectively and efficiently manage the programs. It will also require the states to determine which federal programs they want to continue managing and which programs are unneeded within their states. Every program and every level of bureaucracy eliminated saves money for taxpayers.

The federal government has created more government and complexity than it can manage. Devolution of power is essential for the federal government to focus on its most significant responsibilities to protect the nation from threats to national security.

Options for devolving power to the states.

Congress should establish a federal intergovernmental commission to identify the powers to be devolved to the states.

 A federal intergovernmental commission composed of members of Congress, governors, and state legislators would be the most straightforward way to approach this process. The Commission’s task would be to identify all federally exercised powers that could be more efficiently and effectively managed by the states. It could start with the thousand-plus grants that entice states to implement federally designed programs. In 2022, the federal government awarded states $1.2 trillion in subsidies. Since the federal government collects the monies given to the respective states from state taxpayers and only returns a portion of what is collected to the states, the states will be in a better financial situation if they tax their citizens for the programs citizens want and drop the unwanted programs.

As leverage against a resistant federal government, States that are reimbursed only a fraction of the program’s cost could refuse to administer federal programs not wanted by their citizens or unaffordable to the state. If the states decline to administer more than a few federal regulatory programs, they would cause chaos as the federal government lacks the personnel to administer the programs without the help of the states.

Such a move by the states would also demonstrate that the federal government, without state cooperation, cannot manage or pay for the government it has created.

When the work of the Commission is complete, its final product would be introduced in Congress and voted upon under rules established by Congress. The federal intergovernmental commission stands the best chance of success since the states would identify the programs they need and are likely to continue. Conversely, Congress would learn from the negotiations about unwanted programs.

Congress could enact a process similar to the Base Realignment and Closure Commission (“BRAC”) that applies to federal domestic programs imposed on states.

If Congress wants to avoid negotiations with the states and their legislatures, it could construct a Devolution of Power Commission comprised of experts to study and report to Congress on the programs most fitting to be transferred to the states. After receiving the BRAC-type report, Congress could do an up or down vote on the entire package as it does under BRAC, or it could allow amendments to ensure more legislative precision.

Re-constitute the Joint Committee on Reduction of Non-Essential Federal Expenditures (“The Joint Committee.”).

The Joint Committee would be similar to the Congressional Committee established by Congress after WWII to get control of the federal deficit. While the Joint Committee was only a study committee, requiring its recommendations to be submitted to authorizing and appropriation committees, it significantly impacted government budgeting by identifying non-essential federal activities.

Such a process keeps all study and decision-making within Congress. Once the recommendations are made, Congress could establish by rule that it must vote on them as a package. Alternatively, Congress could allow the recommendations to go through the regular committee hearings, markup, and floor debate order.

Use of Interstate Compacts to devolve federal powers to the states.

Interstate compacts are cooperative actions between states to advance specific policies and programs. The compacts can be congressionally approved to ensure they have legal recognition, or they could be informal agreements between states to cooperate.

Formal, congressionally approved compacts with other states are established under Article I, sec.10, cl. 3 of the U.S. Constitution. These formal compacts range from boundary disputes to lotteries, river management, drivers’ licenses, to multi-state tax matters. Ballotpedia provides a list of approved compacts from 1785 to 2018. Compacts can be on any subject that concerns several states. Every formal Compact requires congressional approval, which is very time-consuming. Due to approval complexities, States would be unlikely to submit, and Congress would unlikely approve enough formal Compacts to make any difference in the devolution process. While the formal Interstate Compact approach is doubtful for resolving a large number of programs, it is an option that the states and Congress can utilize on the more significant and controversial issues that would grant federal legal status to multi-state cooperative agreements.

The Southern States Energy Compact is a significant success in bringing economic development to the South. It has eighteen members and was created to encourage economic development among its member states by improving energy, environmental, and technology policies.

Under the informal Compact approach, the participating states would cooperate on specific programs without congressional approval. The downside of this approach is that states are free to withdraw at any time without congressional involvement. Moreover, Congress could terminate informal compacts at any time, assuming Congress can secure the votes to repeal an agreement between states or sue to have the compact declared contrary to federal law or unconstitutional. A good example is the climate change compacts. States with similar policy views are organized into regional working units designed to regulate activities of regional concern. For example, nine states in the Northeast and Mid-Atlantic and three west coast states formed regional compacts to address climate concerns in a manner beyond what was allowed under federal law. The states entering these informal compacts initiated a cap-and-trade process that capped CO2 emissions and authorized the trading of emission credits.

While the informal mechanism is an ad hoc approach to devolving power to the states, it could take several of the most controversial domestic issues off the federal plate, such as abortion, welfare, and illegal immigration, other than citizenship. The states in the various Compacts would address these issues uniformly, which will likely be dramatically different from existing federal policy.

Congress could terminate all federal grants and unauthorized programs and immediately save trillions over a few years.

The most drastic approach to devolving federal power is for Congress to terminate its funding for all unauthorized federal programs and all subsidies to the states to manage federal programs. Under congressional rules, Congress cannot fund unauthorized laws without waiving its rules. If Congress does not have the time or interest to reauthorize programs enacted into law, it should not fund them. Moreover, if Congress stops subsidizing states, the states can eliminate the implementation of unneeded federal programs and fund the needed programs at a cost they can afford. Defunding these many programs immediately reduces the federal government’s budget by around $ 1.7 trillion ($432 billion of unauthorized laws and $1.2 trillion in grants to states).

Congress and the president will likely oppose, as infeasible, any devolution of power to the states. Unfortunately, the federal government faces an either/or situation. Either it relinquishes power and cuts its budget to what is manageable by the nation, or it faces a financial crisis that takes the nation to a dark place. Transferring federal programs to the states is a practical alternative to resurrecting a bankrupt nation.

William L. Kovacs has served as senior vice president for the U.S. Chamber of Commerce, chief counsel to a congressional committee, chairman of a state environmental board, and a partner in law D.C. law firms. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at [email protected]

Part I: Fix a Government Too Big to Govern: Devolution of Power to States

Part II: The National Debt Will Force Devolution of Power to the States

 

 

 

 

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  • National Debt Will Force Devolution of Power to the States

National Debt Will Force Devolution of Power to the States

William L. Kocacs

November 2023

National Debt Will Force Devolution of Power to the States

Part II:  Series on Devolving Power to the States

As the spending minuet plays out between the House and Senate over appropriations, supplemental spending for wars, and government shutdowns, a wall of debt is being built around the Congress. With an estimated $45 trillion national debt by 2030 and interest payments exceeding a trillion a year, reality will force our lawmakers to stop spending. One of their first cuts will be to reduce and eventually eliminate the $1.2 trillion Congress gives to states as a bribe to operate federal programs that the federal government, many times, has no authority to operate. This occurrence will be the beginning of the devolution of power to the states.

How did the federal and state governments get into this bind? More importantly, how do they get out of debt?

The answer is clear: if it’s constitutional to increase federal power, it must also be constitutional to decrease it. This flexibility allows the federal government to return to the states the powers taken from them over the past eighty years. Devolution of power will be the lynchpin that keeps a de facto bankrupt Union together.

The growth of the federal government has been the only unifying ambition of Congress, presidents, and the courts since the dawn of the Republic.

The expansion of federal power started with Chief Justice Marshall’s 1819 decision in McCulloch v. Maryland. Marshall not only solidified all the federal government’s enumerated powers, he broadly applied the ‘necessary and proper clause’ to establish sweeping implied and incidental federal powers. He indicated no phrase in the Constitution limits the use of these implied powers.

His decisions elevated the Supreme Court to being the final arbiter of constitutional issues. By skillfully combining the Constitution’s enumerated powers with its implied powers, Marshall designed a governing structure with few limits on federal power short of a revolution.

While the Supreme Court approved the accumulation of massive federal power early in the Republic, it took until the 1940s for the court to erase the Tenth Amendment and state powers from the Constitution.

The demise of the Tenth Amendment arose when the Department of Labor sought to regulate local wages. States argued wage regulation was not an enumerated federal power in the Constitution. Therefore, such power rested with the states. Unfortunately for the states, a unanimous Supreme Court in United States v Darby (1941) held the Tenth Amendment was merely a “truism” since the substance needs to be determined by what powers are delegated to the federal government from any part of the Constitution. In Darby, the court held the federal government has the constitutional authority to regulate local wages under the Commerce Clause.

The ever-expanding Commerce Clause.

Using its expansive interpretation of the Commerce Clause, the Supreme Court sanctioned the massive growth of what has become the Administrative State. It transformed a country that practiced federalism (a system of governance in which two levels of government control the same territory) into a nation of federal rule. Over eighty years, Congress enacted thousands of laws and over 200,000 regulations that reach almost every activity and product in the nation.

Between 1937 and 1995, the Supreme Court did not strike down a single law expanding federal power. In 1995, it finally struck down a congressional enactment involving gun possession in a schoolyard and another case involving violence against women, finding both to be intrastate, not interstate, commerce. After minimally limiting federal power, the Supreme Court returned to rubber-stamping all future congressional enactments.

Gaps in federal power over states were filled by bribing states to pursue national priorities.

A Brookings study on state budgets noted, “In 1900, states and localities raised $1.75 for every $1 of federal revenue. They performed all government activities except national defense, foreign relations, [federal] court proceedings, and postal services.” While the federal government made grants to the states in this period, those grants generally subsidized existing state programs.

Since the Great Depression, Congress enacted many new social programs, some of which it did not have the constitutional authority to implement. To overcome its constitutional limits, Congress raised federal taxes to generate sufficient funds to make grants to states to incentivize them to implement federal wishes. By 1960, there were 132 state grant programs. Today, federal grant programs range between 1,000 to 1,300. In 2021, these grant programs  cost the federal government $1.2 trillion annually. The federal government taxes the American public to pay for the grants it makes to the states to have federal wishes implemented.

According to the Bureau of Census, federal grants to states in FY 2020 represent 35.9% of state revenues. While states accept these grants, they come with federal handcuffs. Compliance with many federal mandates often distorts state priorities by displacing local programs that may be more significant to the state’s citizens than the federal programs. Receipt of federal funds can require states to provide matching funds, comply with federal regulatory mandates, and increase personnel for program management.

States are beginning to resist oppressive federal regulation.

More than a few states are now resisting implementing federal programs they do not want to administer or are not being fairly compensated for managing.

State frustration with implementing federal programs started with the conflict over sanctuary states and cities during the Trump administration. Over three hundred states and cities refused to enforce federal immigration laws even though they accepted federal grant monies for law enforcement associated with these programs.

The federal-state conflict, however, is over more than Sanctuary cities. Twenty-three states and the District of Columbia have legalized marijuana, notwithstanding it is illegal under federal law.

Additionally, some federal programs only cover a fraction of the implementation cost. States implement approximately 96% of federally delegated environmental programs but only receive 28% of the cost of implementation. At some point, states will refuse to implement the unwanted or underfunded federal programs, or the feds will increase state funding. Making this decision will depend on the financial situation of the federal government.

Federal deficits will be the catalyst to stop state funding.

Complicating state dissatisfaction with the federal grant programs is the federal government’s financial mess.

The federal government’s interest payments for FY 2022 are $475 billion. CBO projects that net interest costs could total $640 billion in 2023 and soar to $1.4 trillion in 2033. The combination of increasing national debt and soaring interest payments on the debt will cause interest payments alone to exceed the total amount of all grants made to states. The federal government will need to find hundreds of billions of dollars annually to service the increased debt, or it will need to find budget reductions, such as state program grants, to remain in the same financial position as today.

The conflicting trends of states not wanting to implement specific federal programs and the federal government not having sufficient money to fully compensate the states for implementing its programs will start the debate over which federal programs should be administered and by whom.

The federal government’s inability to fund state programs will be the catalyst that drives the states to eliminate the implementation of those programs and spark more freedom to implement programs sought by their citizens. Hence, devolution of power will begin.

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. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at [email protected]

Part I:  Fix a Government Too Big to Govern: Devolve Power to the States.

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  • Fix a Government Too Big to Govern: Devolve Power to States

Fix a Government Too Big to Govern: Devolve Power to States

William L. Kovacs

October 2023

Fix a Government Too Big to Govern: Devolve Power to States

For the last several weeks, Congress has been unable to function because of its inability to elect a Speaker of the House of Representatives. Before that, it was an inability to deal with the debt ceiling and the nation’s massive national debt that has been growing for decades. The U.S. Southern border had been opened to drug cartels and terrorists for years. We are depleting our military arsenal, draining our Strategic Petroleum Reserves for political gain at the ballot box, and now the U.S. faces the possibility of wars in Ukraine, Israel, and perhaps the entire Middle East and Taiwan. Most challenging to the U.S. is the formation of a new form of Axis power consisting of Russia, China, Iran, North Korea, and likely some associate members designated as terrorists. Our national defense is so distracted it cannot even identify a Chinese spy balloon traveling over all its top-security military bases.

The list of potential disasters facing the federal government seems to be never-ending.  Why does our federal government continuously have so many problems? The answer might be more obvious than most think. Our political friends in Washington have created a government that is too big to govern. By trying to control every aspect of life, the federal government is putting the entire nation at risk. Perhaps it’s time to devolve many of the domestic powers the federal government accumulated over the last century to the states. Call it a power-sharing arrangement to better manage the nation.

Taking on this topic will be a series of articles that discuss how the federal government has been allowed to grow without any constitutional changes and how the federal government can shrink the monster it has created. But first, is the devolution of power a path worth considering?

While I would argue yes, there are likely very, very few elected officials that would ever support losing the control over citizens they fought so hard to acquire. This first article will explain what devolution of power is and its benefits.

Our Constitution is structured to foster a strong economy while protecting the nation from harm. Until the Great Depression, the respective states had a major role in the domestic affairs of the nation. Unfortunately, the massive accumulation of federal regulatory and taxing power transformed the respective states into mere administrators of federal rule. If the federal government does not allow the country to return to a viable structure of federalism in which states have a serious role in shaping domestic policy, the U.S. is likely to join the many nations that now hold the status of a “once-great power.”

What is Devolution of Power?

Devolution transfers substantial power and authority from the federal government to state and local governments. Devolution differs from decentralization, which merely transfers certain functions from a central location to several locations. Decentralization would be a relevant concept if the federal government were to move its workforce out of Washington, DC.

Making devolution work and its benefits.

For devolution to work, the federal powers transferred to the states must include all powers necessary to implement the policies transferred, including decision-making authority, managerial control of the legal framework for the policies to be managed, and the ability to tax and spend. After the transfer of power to the states, the federal government would cease regulating those activities. .

By assuming such powers, the states will have the capacity to implement all of the programs transferred to them by the federal government or to eliminate current federal domestic programs unneeded or unwanted by its citizens. Moreover, by clearly identifying the powers transferred, devolution allows the nation to operate as a unitary country that legally divides the management of issues between the federal government and the states for efficiency and practical implementation of programs sought by citizens of the respective states. Devolving federal power to the states brings the domestic programs of government closer to the people it serves. It also eliminates an entire level of bureaucracy.

Greater program efficiency.

The programs administered by a state will be smaller in size and administered by government that is closer to those it serves. By having more knowledge of the area and people served, the government administering the programs will be better able to achieve program goals. Greater efficiency results in more government accountability.

Enhances democracy.

In smaller communities, there is less bureaucracy. Participating in decision-making and running for office is more accessible and less costly. Greater participation in democracy builds trust in government. People of ordinary means can seek elected office.

Fosters innovation and trust.

With less bureaucracy to block innovative ideas, there is more focus on solutions and getting the job done than protecting the status quo. Since citizens are more trusting of and familiar with state and local government, they can better evaluate how the government manages the issues of most concern to them, such as health care, crime, taxes, and the economy. Significant citizen participation cannot happen when a distant central government lacks knowledge of the local issues yet controls the process for the resolution of disputes.

Limits bureaucratic power.

Sharing power between different authorities at different levels of government is an effective mechanism for deterring the ability of any government to become too powerful.

Assists with resolving conflicts.

Solutions are easier to achieve when there is an ability of citizens and government to exchange views.

Denationalizes controversial issues.

National governments nationalize all matters before them, from abortion and education to local permitting and economic development issues. When the federal government deals with state and local issues, the national lobbying organizations control the outcome to fit their national objective. For example, it is the national environmental groups that block oil drilling and mineral mining in Alaska, not Alaskans. The same is true for oil and gas pipelines and forest management. National environmental groups control local development across the nation by capturing the federal bureaucracy. By allowing states to control controversial issues, each state will take a different path that is usually more satisfactory to the locals than the advocacy of the national groups. This approach allows citizens the ultimate right to live as they want and to vote with their feet.

By having fewer responsibilities, the federal government will be able to focus on the nation’s defense and national issues. The states can very competently manage most domestic matters. Only through a system of genuine federalism can the U.S. prevent authoritarian rule, a civil war, or a wholly weakened, unstable nation in a world of enemies.

The states can’t afford the programs is a myth.

That answer as to what level of government can afford what will come very soon as the federal government is crushed by its own debt and the surge in interest payments on it. The federal government funds well over 1,000 state programs. Keep in mind, however, that many of these programs are the brainchild of the federal government, and the state is given grants to implement them. Since the federal grants rarely cover the state’s costs, the states end up subsidizing the federal programs.

Most significant, however, is that many unwanted federal programs displace programs important to the states. Also, every dollar the federal government pays the states to implement federal programs is a dollar the federal government took from a citizen of the states. Washington merely collects the tax dollars and returns them to the states, minus its commission.

The question is not who is going to pay. The taxpayer always pays. The real question is, who decides and implements the programs that citizens must pay for?

 

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. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at [email protected]

 

 

 

 

 

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  • Blessed Are the Young, They Shall Inherit the National Debt

Blessed Are the Young, They Shall Inherit the National Debt

William L. Kovacs

September 2023

Blessed Are the Young, They Shall Inherit the National Debt

Between now and September 30, 2023, Congress must fund the government, a task it has been unable to do on time for 27 consecutive years. The only kind word to describe Congress and the president during appropriation season is that they are   “pixilated,” “mildly insane, bewildered, tipsy” over their inability to manage the nation’s money. If a corporation managed its books in the same manner as our federal government, it would be a fraudster, and the feds would be actively shutting it down. Fortunately for Congress, President Herbert Hoover, the man many blame for the Great Depression, provided advice for the ages, “Blessed are the young, for they shall inherit the National Debt.”

Why would Herbert Hoover make such a comment when the National Debt was only $23 billion dollars when he left office in 1933? Hoover and all presidents and Congresses after him knew the answer. If the federal government taxed current citizens the total amount of the programs it funds, there would be a tax revolt, and all elected officials would lose their jobs. So, there is no controlling federal spending as long as the nation has children who will inherit the national debt.

The United States is 247 years old. By the end of Biden’s term in office, the last seven of forty-six presidents, in their forty-four combined years in office, will have borrowed $34 trillion, in addition to the trillions spent annually to run the nation. That is 94% of the estimated FY 2025 national debt of $36 trillion. Each taxpayer’s share of the national debt exceeds $250,000. The average personal income in the U.S. is $63,211. The Congressional Budget Office estimates that our national debt will continue to increase from 98% of GDP in 2023 to 181% in 2053. Over the next ten years, the federal government will pay an additional $10.5 trillion in interest on the debt.

Unfortunately, our Constitution is only as good as the people we elect to manage the nation. It has few guardrails as to the type of government established. The federal government can operate as a capitalist or socialist government as long as our rulers are elected and give lip service to the Constitution. The dialogue in the debate plays out like a long-running Broadway show. Well-rehearsed Conservatives argue for less domestic spending and more military spending. Better rehearsed Progressives advocate for more domestic spending and less military spending. The only issue both parties have historically agreed upon is spending more money.

Moreover, a sober reading of the words of our Constitution illuminates the fact Article I, sec. 8 of the Constitution establishes the federal government as an unrestrained tax master that has unlimited taxing, spending, and borrowing authority. The Sixteenth Amendment to the Constitution expanded Congress’ power to tax without apportioning taxes among the states. Its power to tax extends to all gross income. The monies collected can used to reward friends with subsidies, deductions, and tax credits to minimize the taxes of those that support the government in power. The tax code is loaded with gifts to friends and private industries, from semiconductors to NASCAR and horse racing, and low carried-interest tax rates for the wealthiest.

Federal spending solidly rests on  U.S. Supreme Court decisions that hold high taxes are not considered involuntary servitude or the taking of property. Excessive, even confiscatory taxes, are authorized under the Constitution. Marginal tax rates were above 90% from 1944 to 1963.

To the federal government, taxation is a means to collect money to keep politicians in power.  The average citizen is a mere commodity whose only duty is to pay taxes and die in one of the many useless wars that benefit only the defense industry and those politicians to which it contributes money.

Democrats and Republicans are jointly responsible for the National Debt. Republicans, for all their righteous calls for fiscal restraint, are responsible for 57% of it through FY 2022. This percentage, however, will come into balance as the Biden administration is projected to add another $ 6 trillion or more to the national debt by the end of its first term.

The chart below illustrates that both parties equally share the blame for the national debt.

 

 

Natl Debt increases              

Republicans Democrat Total National Debt
Hoover FY1930-1933 + 5.7 billion $ 23 billion
F. Roosevelt FY 1934-1945 +$ 236 billion $ 259 billion
H. Truman FY 1946-1953 +$ 7.3 billion $ 266 billion
D. Eisenhower FY1954-1961 +$ 23 billion $ 289 billion
J. Kennedy FY 1962-1964 +$ 22.8 billion $ 312 billion
L.B. Johnson FY 1965-1969 +$ 41.8 billion $ 353 billion
R. Nixon FY 1970-1974 +$121.1 billion $ 475 billion
G. Ford FY 1975-1977 +$223.7 billion $ 698 billion
J. Carter FY 1978-1981 +$ 299 billion $ 997 billion
R. Reagan FY 1982-1989 +$ 1.86 trillion $ 2.857 trillion
G.H.W. Bush FY 1990-1993 +$ 1.55 trillion $ 4.407 trillion
W. J. Clinton FY 1994-2001 +$ 1.4 trillion $ 5.807 trillion
G.W. Bush FY 2002-2009 +$ 5.85 trillion $ 11.665 trillion
B. Obama FY 2010-2017 +$ 8.6 trillion $ 20.257 trillion
D. Trump FY 2018-2021 +$ 8.2 trillion $ 28.845 trillion
J. Biden (estimate) FY 2022-2025 + $7.2 trillion+ $ 36.0 trillion
Party totals $ 17.83 trillion $ 17.82 trillion

 

Since all branches of the federal government have manipulated the Constitution to acquire more federal power to tax, spend, and borrow, how can citizens control it?

There is a passage in Martin Luther King, Jr.’s Letter from Birmingham Jail on unjust laws that should be mandatory reading for every elected official and their staff. It extends far beyond the heinous evils and unjust nature of racial discrimination. It is a timeless analysis of the fundamental attributes of structuring “just laws” in a democracy.

King is asked: “How can you advocate breaking some laws and obeying others?” He replied, “…there are two types of laws: there are just laws, and there are unjust laws.” He explained the moral basis for the distinction. But his two examples of the differences provide insight into structuring “just laws” in a democracy.

To Dr. King, an unjust law is a law the majority imposes on a minority but not itself. A just law applies to all equally.

Secondly, an unjust law is inflicted upon a group that had no part in its passing, e.g., deprived of the right to vote.

While these principles apply to racial discrimination, they can also be applied to the rapidly increasing, massive national debt imposed on future generations who have not been given a “say” or “vote” in the process. Future generations are being told, “Pay our bills.”

It is improbable the federal government will pay off the debt in the lifetime of those living today. We, citizens, are allowing the federal government to let us live on the future productivity of those who have not voted for or benefitted from the debt being created.

We can easily claim there is nothing we can do; our elected leaders control the budget, spending, and continuing increases in the debt ceiling. Moreover, we are constantly told those borrowed funds go to the many “good causes” supporters claim must be addressed.

Notwithstanding the immense power exercised by federal officials, citizens are responsible for the actions of the state. If we continue to allow the federal government to amass debt, we are telling future generations “they have no rights. All wealth belongs to the federal government and those it decides to give money to.” The U.S. is an unjust nation to its children.

Benjamin Franklin, the first prophet on the evils of federal spending, noted, “When the people find that they can vote themselves money, that will herald the end of the republic.” Today, we elect representatives who campaign on giving us trillions of dollars more than we send to Washington in taxes. Franklin reportedly also quipped when asked about the type of government created by the Constitution “We have a Republic if we can keep it.”

It looks like our pixilated federal government will be a Republic until our elected officials run out of green ink. Alternatively, our children could get off their climate change obsession and lobby the federal government to control its spending, an action that will really preserve the U.S. for its children.

 

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. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at [email protected]

 

 

 

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  • House Republicans: Up the Ante in the Student Loan Poker Game

House Republicans: Up the Ante in the Student Loan Poker Game

William L. Kovacs

July 2023

House Republicans: Up the Ante in the Student Loan Poker Game

Within hours after the U.S. Supreme Court held Biden’s student loan forgiveness program unconstitutional, the Biden administration issued an already prepared Plan B that would serve the same loan forgiveness purpose as his unconstitutional Plan A. The substantive change from Plan A to Plan B was merely relying on a different statute, the Higher Education Act of 1965, rather than the HEROES Act, an emergency act passed during the pandemic. The administration boasts Plan B is the most affordable repayment plan in history. Moreover, in customary high schoolish swagger, Biden states he, Harris, and Cardona will not stop fighting for borrowers.

The timing is proof that Biden knew all along that his loan forgiveness program was unconstitutional. The timing also revealed that Biden is playing a poker game. He is betting that he can buy the votes of the 38.6 million students wanting someone other than themselves to pay off their debt. The House Republicans need to raise the stakes by informing the president that if he persists with his unconstitutional actions, the House will refuse to fund the entire Department of Education.

So far, however, the Republican House members complain on Fox News about Biden’s unconstitutional acts but look like the proverbial deer in the headlights when it comes to action. Indecision gives Biden the advantage since the student debtors, with little understanding of the Constitution, view him as their champion.

Biden’s bravado gives the House Republicans the opportunity to address one of their top election issues, the nation’s failing education system. By calling Biden’s bluff, Republicans will reestablish that only Congress has the power to appropriate money, not the Executive branch. All the House needs do is to refuse to appropriate any money for the Department of Education.

This big bet puts all the chips on the table, debt forgiveness vs. defunding the Department of Education. It will be one of the few times in history that one House of Congress effectively limited the powers of the Executive without having to pass a law. House Republicans have 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….” Spending money requires the agreement of both Houses of Congress. If One House refuses to spend money, then money cannot be spent. One House of Congress that says “No” to spending cuts off the money for Executive activities.

A refusal to spend money on the Department of Education allows a majority of one House of Congress to the power shrink the federal government without the difficulty of passing a new law.

Biden has placed the Department of Education at the center of the loan forgiveness conflict. It is Biden’s most prized possession since it is owned and operated by his most significant political supporters, the teachers’ unions. The teachers’ unions donated $43 million to liberal groups in the 2020 election cycle. The possibility of Biden losing his key supporters’ most valuable asset will likely persuade him to drop his unconstitutional nonsense that the Executive has the power to appropriate money.

The Department of Education has a $ 96 billion discretionary budget. It is the third largest of all Executive departments, behind Defense and Health and Human Services. Since its creation, the U.S. has spent trillions of dollars on an educational bureaucracy that has made little or no impact on education. The most recent  National Assessment of Education Progress report card found the biggest drop in test scores in its thirty-year history of the test.

There are many examples of the Department of Education’s 42 years of failure.

  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. In 2022, the average total SAT score was 1050, the lowest since the test changed format in 2016.

It is very unlikely that Congress could get the votes to abolish this failed agency in the normal budget process. In the present situation, however, Biden’s refusal to obey the Supreme Court’s ruling gives the House the justification it needs to defend the Constitution by permanently limiting Biden’s unconstitutional spending.

By playing poker to win, the Republican House may save the country’s educational system from an education department whose loyalty is to the Teachers Union that ensures a failed educational system.

This article was first published in The Thinking Conservative.

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. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at [email protected]

 

 

 

 

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  • Department of Justice: 44 Years without Congress’ Re-Authorization

Department of Justice: 44 Years without Congress’ Re-Authorization

William L. Kovacs

June 2023

Department of Justice: 44 Years without Congress’ Re-Authorization

In 1998, Henry Hyde, then chairman of the House Judiciary Committee, noted, “Authorization [the congressional reauthorization process to renew laws] is the process by which Congress creates, amends, and extends programs in response to national needs. Authorization is perhaps the most important oversight tool that a committee can employ…” Most laws are authorized for 3 -5 years and need reauthorization at the end of that time period.

Chairman Hyde’s efforts were the last serious attempt by Congress to comprehensively reauthorize the statutory authority of the Department of Justice. Regrettably, the overall activities of the Department of Justice were last formally reauthorized by Congress in 1979.

In light of this background and the recent Horowitz and Durham reports, the American people should not wonder why the Department of Justice and its FBI act as a crime syndicate. DOJ has not been supervised or questioned by Congress in almost a half-century. It has been given whatever it requested; its indolence has been tolerated.  Now it is an uncontrollable plague on the nation that initiates false investigations of its enemies and hides real criminal activity from the public.

The reauthorization process for laws and Executive agencies is hard work. It requires a complete review, approval, amendment, or repeal of every statute within the jurisdiction of the agency being examined. Unfortunately, Congress flaunts its own rules requiring it to reauthorize expired laws. House of Representatives Rule XXI provides that “[A]n appropriation may not be reported in a general appropriation bill…for an expenditure not previously authorized by law…” Compliance with this rule would seem to ensure Departments like DOJ could not be funded without being reauthorized. Congress gets around this rule by waiving it. Chairman Hyde describes this waiver process as “The de facto ceding of the authorization power to appropriators.” Hyde concludes such a process diminishes the role of the House and Senate Judiciary Committees.

As far back as  2002, Senator Grassley, in a letter to DOJ, described the agency as one that encroached [interfered] on many of the essential investigations of other federal agencies. He also noted there was a two-tiered system of justice, with the senior officials prosecuting one way and the rank and file another way. The Senator concluded that the DOJ’s Federal Bureau of Investigation shows “a contempt for any public or private entity that dares to question its motives or performance.”

While a few DOJ programs, e.g., violence against women and the FISA activities, were reauthorized by Congress, the overall reauthorization of the DOJ as an Executive agency has escaped oversight for 44 years. It should be noted that under FISA, the DOJ and FBI filed false affidavits with the court, proving even a reauthorization review cannot catch professional fraudsters.

In its 2023 Budget request, DOJ requests $6.2 billion for literally hundreds of programs that have not been reviewed by Congress in decades. It also filed a 2022-2026 Strategic Plan. Goal 1 of its Strategic Plan is to “Uphold the Rule of Law.” It will achieve this goal by protecting the country’s Democratic institutions and promoting good government. These commitments are made while it refuses to comply with congressional information requests, hides information to protect Hunter Biden, refuses to allow Congress to examine bank records, invents the Russian collusion scandal to tarnish a sitting president and raids the home of a former president for possessing classified documents while giving the sitting president weeks to gather documents. This is the DOJ/FBI “rule of law.”

If any agency in the U.S. government is in need of oversight, it is DOJ. It is the duty of Congress to undertake the full reauthorization process, including:

A review of every program from litigation to community policing to state and local grants. Any program that cannot justify that it has accomplished the intent of the statute creating it or failed to protect the rule of law should be immediately defunded.

A review of all alleged criminal activity by the DOJ and FBI so the committee can assess the honesty or criminality of the organization. To achieve this goal, the DOJ and FBI leaders for the past decade should be granted Use Immunity so they testify honestly, without fear of incriminating themselves. Only by granting such immunity will a criminal testify to the truth. Otherwise, the agencies will again assert many objections to answering questions. The granting of Use Immunity opened the flood of testimony in the Watergate hearings, it is time to grant it again so Congress can reform the DOJ and FBI.

The difficult policy questions should be asked. Should the billions for Community-based programs be converted to block grants to state and local governments? Does an organization like the FBI that refuses to cooperate with Congress deserve billions of dollars for a flashy new building? Has Congress transferred too many new programs to DOJ/FBI, such as counterterrorism, counterintelligence, weapons of mass destruction deterrence, and cyber security? Should all of these programs be transferred to other agencies to preserve the rule of law?

What would a restructuring of the DOJ and FBI look like? This is the obvious question. Unfortunately, there is no obvious answer. Rather than protecting Democracy, these massive agencies are a threat to Democracy. Congress needs to determine what it wants the DOJ/FBI to do. Are they just law enforcement agencies as prior to 9/11, or are they to be the master of the law enforcement circus as they are now?

Next, Congress needs to determine – what is working at DOJ/FBI that needs to be preserved. What is broken but can be fixed to work? What is so corrupt it is harmful and must be eliminated due to its harm to Democracy? The reauthorization process gives Congress the opportunity to answer these essential questions needed to preserve our Democracy.

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. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at [email protected]

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  • Use Immunity: Congress Can Find Truth by Forgoing Punishment

Use Immunity: Congress Can Find Truth by Forgoing Punishment

William L. Kovacs

May 2023

Use Immunity: Congress Can Find Truth by Forgoing Punishment

As investigations of the Biden administration and related activities proceed in the House Oversight and Judiciary Committees, the Department of Justice (“DOJ”) and the FBI are not cooperating with the Committees.  These agencies will not even produce a specifically identified, unclassified Form FD-1023 that is a record of a payment scheme involving then vice president Biden and a foreign national. Moreover, the special counsel’s investigation of Hunter’s taxes and foreign business dealings has been listless since starting in 2018. The Committees can continue attempting to squeeze information out of a stone wall or answer the existential question – what is more critical to the nation, the truth about the government’s actions or punishment for its criminal activities?

If punishment is the desire, Congress, as the legislative branch, can’t impose it. If Congress exposes the corruption, DOJ will not prosecute it, as evidenced by the Horowitz and Durham reports of government corruption.

Since the DOJ and FBI are impeding the congressional investigations, the only viable option left for the Committees is to secure the testimony of all relevant witnesses by granting “use immunity” to the Biden family, Hunter’s business associates, and the past and present leadership of the DOJ and FBI. Congress has this power under 18 U.S.C. sec 2005.

Once receiving use immunity, the witnesses can testify free of prosecution for any testimony concerning their criminal activity. A refusal to answer subjects the witness to Contempt of Congress and could result in imprisonment.

Congress has the sole discretion to grant use immunity. Moreover, neither the DOJ nor the courts can interfere with the grant of it. Title 18 USC sec. 6005 authorizes either House of Congress to grant use immunity once an individual refuses to give testimony or provide other information based on his privilege against self-incrimination.

Historically, Congress is reluctant to grant use immunity since it usually results in an inability of the DOJ to prosecute criminals. DOJ describes the dilemma:

Congress may now be forced to choose between granting immunity to exercise its oversight and investigative functions and forgoing a grant of immunity to allow the prosecution of key witnesses.

In the present situation, however, Congress is not facing a dilemma since DOJ is unwilling to prosecute any of the involved parties.

In the Watergate trials, like today, the DOJ refused to cooperate with Congress. The US Senate sought to grant use immunity to witnesses. DOJ asserted it, and the court has the power to block the grant of immunity. Chief Judge Sirica upheld the Senate’s power, writing:

Immunity is the fixed price which the government must pay to obtain certain kinds of information, and only the government [Congress] can determine how much information it wants to ‘buy’ in light of the fixed price.

Obtaining an immunity order from the district court is straightforward. In this instance, a duly authorized representative of the House of Representatives or the Committee seeking the testimony shall request a court order to require a witness to give testimony. The House or the concerned Committee must give ten days’ notice of the request to the Attorney General.

The district court must grant the congressional request if it finds:

  1. In the case of a proceeding before either House of Congress, the request was approved by a majority vote of the members present, or
  2. In the case of a proceeding before a committee, the request for such an order was approved by two-thirds of the members of the Committee; and
  3. That the Attorney General was given ten days’ notice. The Attorney General can request another twenty days to “insulate from the immunity grant any incriminating data already in his files prior to the witness’s testimony.”

Once these conditions are met, the statute is mandatory. “The court shall” issue the order. Chief Judge Sirica held section 6005 casts the role of the court as ministerial, and the Attorney General is deprived of his normal discretion concerning the granting of immunity.

Judge Sirica concluded: “[There is a] power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” Quoting President Wilson, he notes the informing function of Congress should be preferred even to its legislative function.

The American people are owed the truth about corruption in their government. The House of Representatives has the power to obtain the truth. What is more important to the nation, truth or the false hope of punishment?

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. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at [email protected]