• Home
  • 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.

 

 

 

 

 

 

 

 

  • Home
  • 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.

dotingly 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.

  • Home
  • Trump: “To Pardon or Not to Pardon Me, Is the Question”

Trump: “To Pardon or Not to Pardon Me, Is the Question”

William L. Kovacs

December 2020

Trump: “To Pardon or Not to Pardon Me, Is the Question”

President Trump’s 2020 election loss raises the question – Will he pardon himself before leaving office? It would free him of all legal liability for any past federal criminal acts he might have committed. Such liability or defending himself against charges of wrongdoing is certainly a real possibility. Many Democrats are seeking criminal action against President Trump after he leaves office. Congressman Bill Pascrell (D-NJ) recently stated Trump and his worst enablers “…must be tried for their crimes against our nation and Constitution.”

The pardon power in the Constitution is straightforward: “The President shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”  It contains no limitations such as “a president cannot pardon himself.” Why not pardon himself, family, and friends before walking out the door? Why not use the pardon power to give himself a long, peaceful life after the White House? Trump and his family would be free of alleged conspiracies with Russia, tax evasion, or any other federal crimes.

New York state would likely still pursue him for business crimes but such crimes are civil violations or if criminal, complicated document crimes, requiring proof of intent. Crimes usually settled by a check and a harsh-sounding press release.

Whether a president can pardon himself has never been determined. Once he pardons himself, however, unknown consequences will follow. It will also be irrevocable, uncertain and could be Trump’s real hell.

While the few words of the pardon power do not contain any limits, the Constitution has many clauses that must be read together. Every clause is related to and limited by some other part of the Constitution.

For example, Article I reads: “All legislative powers herein granted shall be vested in Congress.” Certainly today, legislative powers are delegated to a president that makes law through regulation, Executive Order, and now seemingly with tweets. Congress holds the power to declare war, yet it the executive, without congressional declarations of war, has taken us into several wars for the last seventy years.

While the role of the courts is to interpret the meaning of the Constitution as it applies to controversies, many times the Court has “discovered” massive federal powers in the Constitution that our founders did not write. The Supreme Court has bestowed the absolute power on the federal government to declare “sovereign immunity;” thereby exempting itself from lawsuits and associated damages for harm it causes. The Supreme Court upheld the constitutionally of the Affordable Care Act by magically finding it a tax, a characterization rejected by Congress. U.S. history is replete with judicially imposed constitutional changes from civil rights, to property rights, to abortion. Predicting what the Supreme Court will do with a pardon power case is unpredictable.

What is likely, however, is that the scope of presidential pardon power will be balanced against the president’s obligation to “take Care that the Laws be faithfully executed.” This faithful execution of law means the president, as the nation’s chief law enforcement officer, must enforce the law. He may not break the laws he enforces. Allowing a president to break the laws he enforces, nullifies the “take care” clause of the Constitution. If a president can pardon himself, he nullifies one of the primary duties of his office.

Worse, however, if the president pardons himself for violations of law, the pardon itself may establish a continuing violation of law by obstructing justice, i.e. the interference with the orderly administration of law and justice. Granting himself a pardon would be viewed as a continuation of obstructing justice. Were such pardon deemed to be “faithful execution of the law,” presidents would be “above all law.” They would be supreme rulers, exempt from the law.

It is likely, for similar reasoning, then-President Richard Nixon left to his successor Gerald Ford, the power to grant him a pardon in accordance with the law. President Trump faces the same existential dilemma as Nixon; if he leaves office without a pardon, he risks vengeful Democrats wanting to prosecute and imprison him for what could be the rest of his life.

Trump has two choices, resign and hope a president Pence gives him a pardon, or serve out the rest of his term and hope a president Biden pardons him. It may be a step too far for Trump to resign and expect a pardon from President Pence. Unlike Gerald Ford, who put the healing of the country ahead of his political future, a President Pence is unlikely to put his presidential ambitions at risk for Donald Trump.

This leaves a pardon to a president Biden. A person promising exactly what President Ford delivered, bringing unity to a divided nation. President-elect Biden has signaled he is a transition president, likely only to serve one term. Biden is perfectly positioned to make “This is the time to heal America,” happen.  Pardoning Trump would be the overt action that tells 70 million Trump voters, it is time to heal a divided America.

The John F. Kennedy Library Foundation bestowed on President Ford its Profiles in Courage Award for his bold actions to bring the nation together. Will a President Biden have the courage to heal a divided nation or is his talk of “unity” just more talk?

 

 

 

 

  • Home
  • Politics Will Destroy 200 Years of Expanding Voting Rights

Politics Will Destroy 200 Years of Expanding Voting Rights

William L. Kovacs

September 2020

Politics Will Destroy 200 Years of Expanding Voting Rights

Politicians have voting “ass-backward.” They believe voting is about them and their exalted role as our “rulers.” They believe voters are cheap commodities that pay taxes so the government can give their money to its friends.

It is highly likely that politicians will screw up the 2020 presidential election. Republicans want us to vote early (by mail) and often (in-person). Democrats want to mindlessly flood the U.S. with blank ballots that can be completed by anyone. Both sides believe chaos works to their advantage.

Nothing can be further from the truth! Voting is too important to be determined by politicians.

Voting is for citizens to choose fellow citizens to operate their government for the sole benefit of citizens. Voting is the only tool a citizen has to control a government with massive powers that can be used against us.

In the 2020 elections, officials may be unable to count all the mail-in ballots before the electoral college voting deadline of December 14, 2020. Lawsuits will challenge millions of ballots for every minor deviation, e.g. smudges, signatures looking different than ten ago when one registered. These challenges will all be in the name of a “fair election.”

Perhaps Democrats believe Biden can be selected president by the 2021 House of Representatives. The Republicans may believe a repeat of 2000 elects Trump, since only the nine members of the U.S. Supreme Court vote. Whoever is selected, elected or ordered to be president will be perceived illegitimate by at least half the country. Worse, citizens’ belief in the integrity of the voting process will be destroyed. Such harm will rot the nation!

buy Pregabalin online uk A brief history of voting places its importance in perspective

The right of citizens to vote is merely a cryptic mention in the text of the Constitution, requiring the House of Representatives “…be chosen every second year by the people of the several States.” Initially, citizens did not vote for Senators; they were elected by state legislatures. Citizens still do not vote for the president, that is the job of the electors selected by state legislatures. Judges were never elected; they are political appointees.

The U.S. Supreme Court explains, the Constitution “does not protect the right of all citizens to vote, but rather the right of all qualified citizens to vote.” Politicians and courts determine who is qualified.

“The U.S. Constitution did not originally define who was eligible to vote, allowing each state to determine who was eligible.” After several centuries of living under our Constitution, we the people are still expanding the list of “qualified voters.”

Voting is really a question of power – if one can vote, one can influence how the government works. Since the beginnings of this nation, those possessing the legal right to vote fought to preserve their power to rule by preventing others from securing the right to vote.

Initially, only white men with a certain amount of property could vote. Beginning in the 1820s property requirements began to recede for all white men, including white immigrants. After the Civil War, the 13th, 14th, and 15th Amendments to the Constitution abolished slavery and guaranteed citizenship to all born or naturalized citizens.

These rights were short-lived in that after the election mess of 1876 (Tilden v. Hayes), Democrats traded the presidency away for the removal of northern troops in the South, thereby disenfranchising free blacks through poll taxes, literacy tests, Jim Crow laws, Black Codes and military-style hate armies such as the White League, Red Shirts, and the KKK.

In the late 1880s, Native Americans were gradually given citizenship and the right to vote. In the 1920s women secured the right to vote. In the 1940s Chinese immigrants were given citizenship and the right to vote.

In the 1960s, with the enactment of new Civil Rights laws, many of the restrictions on black voting were made illegal. Eventually, with the draft and the war raging in Viet Nam, the 26th Amendment to the Constitution was ratified giving citizens 18 to 21 years of age the right to vote. The chant at the time was “Old enough to fight, old enough to vote.”  In 1986 citizens living overseas on military bases were given the right to vote.

no prescription cytotec on line pharmacy The struggle for voting rights continues

The struggle to secure the right to vote continues today over access to polling stations, long lines and limited hours to vote, the security of mail-in ballots, voter identification, accommodations for the disabled, seniors, the homeless, felons, and for minorities, especially in poorer communities.

Historically, it is the government that restricts voting. Voting is a struggle because it is immensely important to those holding the power to rule us. The outcome of voting determines who will make and enforce our laws, the amount of tax we pay and who pays, who gets services, who goes to jail, and who remains free for committing the same “crime”.

How voters feel about government and what they can do about it

Polls tell us 71% of likely voters believe the U.S. is on the wrong track. Yet, in 2016 only 139 million citizens out of 250 million citizens of voting age, a 55.7% turnout. That means 111 million eligible voters did not care enough about what the government is doing to vote. The low percentage turnout shows disrespect to all who fought over the centuries to secure for us, the right to vote. These non-voters are invisible citizens at a time when every citizen must be counted.

To all eligible voters – be relevant – Vote in the 2020 election. Minimize the tendency of government to screw up the election by taking time to follow the directions, if voting by mail, and vote as early as you can to take the stress of the system. Urge your neighbors to vote. Be a poll watcher. Citizens, always keep in mind – if you do not vote for the government you want, politicians will impose on us what they want.

  • Home
  • Rule of Law or Different Rules for Us and Government

Rule of Law or Different Rules for Us and Government

William L. Kovacs

October 2019

Rule of Law or Different Rules for Us and Government

The rule of law is a centuries old concept that all members of society, citizens as well as government officials, are equally subject to the laws established by their duly elected government. This concept is described in many ways such as “the law is the king”, “no man is above the law”, or “we are a government of laws, not men.” We are told these concepts so we believe our government will always be fair to us and if our government breaks the law, the government official or the government itself, will receive the same treatment under our legal system as we would receive for similar activity. Very comforting as a concept. But keep in mind the “rule of law” is not a law of any kind and it has no binding effect on anything. It is merely a concept or more appropriate, a fable repeated by governments to make themselves sound accountable.

The U.S. Constitution places limits on the powers of government and how the government must treat us should they want to act against us, which is the requirement of due process, a procedural right. Additionally, Amendment XIV of the Constitution establishes that the government cannot deny any person within its jurisdiction equal protection of the laws. Note, it requires the government to treat persons equally when the government acts against them. Other than limits placed on the government by the Constitution or laws passed by Congress, there is scant mention of how our legal system applies to the operation of government when it acts illegally.

Cementing this disparity of how government relates to its citizens, is that after our Constitution was ratified the federal courts adopted from English courts the doctrine (not a law) of sovereign immunity, i.e. “The King Can Do No Wrong”, which means that no one can sue the federal government without its consent. While the federal government has given its consent to be sued on specific matters (e.g. torts, breaches of contract, copyright violations, open records laws, and violations of civil rights when government officials are acting under color of law), the doctrine of sovereign immunity usually bars citizens from taking legal action against the illegal operations of government.

Our legal system operates on two separate tracks. The first is the law imposed upon ordinary citizens for which we are prosecuted for violating. And since the government has hundreds of thousands of laws it can always find a violation of some law by a person it wants to prosecute.

The second track is the one under which government operates. This second track, due to sovereign immunity, can only enforced if there is a specific statute that allows citizens to enforce it, or by political means, i.e. voting or impeachment. Otherwise, the nation’s courts do not recognize the right of citizens to have standing in a court of law to sue their government unless the government grants that right.

A few examples put this disparity into perspective.

A Navy officer took photographs of a nuclear submarine he worked on and was imprisoned for improperly handling national security secrets. During the same time period a presidential candidate maintained an illegal a secret server in her home that illegally received classified security information and by not properly protecting it the security secrets were obtained by other governments. Because the presidential candidate was closely tied to the sitting president, she was not ever seriously investigated; yet alone prosecuted.

The Federal Bureau of Investigations investigates the alleged criminal activity of one presidential candidate but not the alleged criminal activity of the other presidential candidate who had the backing of the sitting president.

The Department of Justice (“DOJ”) files misleading and dubious applications with a national security court and obtains a court order to spy on American citizens, a felony, if falsely obtained. DOJ and the court both refused to even investigate these illegal actions. If any of us filed a false application with any court we would be subject to criminal prosecution.

Congress issues a subpoena to the DOJ for information on false filings before a national security court. The DOJ refuses to provide Congress with the documents to avoid embarrassment and likely the acknowledgement of criminal activity. By refusing to provide such information the constitutional checks on the other branches of government are eliminated. Imagine what would happen to any of us if we refused to comply with a federal subpoena?

And there is a story in the Washington Times about a senior FBI official who lied to the DOJ Inspector General about accepting free tickets to a professional sporting event. He told the FBI he paid for the tickets, yet he received them free. The DOJ decided not to prosecute, yet several citizens working on the Donald Trump campaign were prosecuted for lying.

The moral of this article is that the government has truly separated itself from us. Government operates in a netherworld of secrecy, deceit, arbitrariness, and finding targets to attack. The government can usually act any way it wants to act, and there is little we can do since we are barred by the doctrine that the “government can do no wrong” and the courts will not grant us standing since they believe we have not been harmed by government’s actions. We are merely citizens without the ability to hold our government accountable.

We, the people, only have control over the parts of the government we elect. We need to fully embrace the only real power our founding fathers gave us, the right to vote which is a legal mechanism for revolution. With our votes we can vote out all elected officials over four years and hope that the new government officials will establish a government that willingly stands before us as accountable servants of the Constitution. Unfortunately, such accountability, under the current legal structure, is voluntary.

This article was first published in The Reality News, November, 2018.

 

 

  • Home
  • FOR WHOM DID WE FORM A GOVERNMENT?

FOR WHOM DID WE FORM A GOVERNMENT?

William L. Kovacs

September 2019

FOR WHOM DID WE FORM A GOVERNMENT?

This question was first asked at the Constitutional Convention. While there is the occasional politician who asks it during a campaign, the question is mostly rhetorical.  Our politicians really do not want a response since it is clear that our government today is formed for politicians and political parties to control the resources of the nation. What’s worse, is that we are accepting of a government that now views itself as our principal; not our agent.

We have allowed our federal government to grow form one of limited powers to one of massive power that occupies almost every cavity of human existence. It is a government that cannot pass necessary appropriation bills, control its debt, or even determine when it is appropriate to declare war. We give our government $4 trillion a year to operate, but it is never enough. We now have $22 trillion of debt, which is about $64,000 of debt for every person in the nation, including infants born today. Each person’s share of the debt increases by $3,000 for every additional trillion dollars of debt. At what point will our debt put us into involuntary servitude to the federal government? Another rhetorical question since our government views taxes as an obligation of citizenship.

Since “We the People” bear the blame for allowing this reversal of roles to occur; it is our duty to fix the situation. We owe this to posterity. But how? Reading a newspaper, or listening to the media or politicians or surfing the web; there is only negative chatter, personal attacks, and many factual inaccuracies. There is rarely a discussion of how to address these issues and when?

In my opinion articles I promise never to complain about an issue without at least discussing ways to address it. In future articles I will talk about one issue at a time and offer solutions to address that issue. For this article however, let me offer a few general suggestions.

First, we don’t expect enough from our elected representatives. They may be politicians but we must mandate they be trustees. In James Madison’s “The Federalist 46” he argued that the federal and state governments are in fact trustees of the people; not some amorphous entity called a “government”. Since government only operates through people, it is our representatives that must be the trustees. Each trustee owes its duty of loyalty to the Constitution and to the branch of government in which they serve. Such loyalty cannot be divided, nor can the trustee put personal or political benefit before that of the beneficiary. By acting with loyalty to the institution in which they serve, each elected official will ensure there is a real separation of powers in our government. This protects us from tyranny, big government and preserves liberty.

Action: Demand elected officials publicly pledge to serve as trustees of the Constitution, not handmaidens of a political party.  Breach of the pledge establishes a violation of their oath to support the Constitution.

Second, we must all remember that political parties are nothing more than associations of individuals organized to take control of government, our resources and liberty. Why should two associations of individuals, i.e. Republicans and Democrats, be able to manipulate the laws of the nation to allow them control of our government?

Action: Demand a public commitment from elected officials to speak out against political parties gaming the voting process and limiting who can represent citizens, by constantly filing lawsuits or initiating party-centric legislation to deny independent and smaller party candidates a place on the ballot.

Thirdly, Article I of our Constitution provides that “All legislative Powers herein granted shall be vested in a Congress…” Unfortunately, Congress over the last eighty-five years has delegated to the executive the power to fill in the blanks in the broad and vague laws it passed. This gives the executive the power to make, by regulation, many of the laws of the nation. Also, the lower courts, through the use of nationwide injunctions, make national policy through court order. Other than the Supreme Court, the lower courts are creatures of Congress. While Congress has not granted the lower courts specific power to issue nationwide injunctions, Congress has stood silently as the lower federal courts act as super-legislatures.

Action:  Congress must reclaim from the executive and the courts its full Article I power. It must clearly legislate the return of such powers. If the executive vetoes these enactments and Congress cannot override the veto, Congress has exclusive control over the appropriations process, which it must use to return the nation to one of separation of powers between the branches of government.

 Citizens have options for reclaiming our government from the politicians, we just need to start using them.

This article was originally published in the July 18,2019 edition of The Libertarian Republic.

  • Home
  • Separation of Powers Demands Congress Reclaim Its Powers

Separation of Powers Demands Congress Reclaim Its Powers

William L. Kovacs

May 2019

Separation of Powers Demands Congress Reclaim Its Powers

Nothing in our Constitution can be more explicit in intent and meaning 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.”

To fulfill this Article I, constitutional mandate, Congress needs to act as an institution that both legislates and checks the powers of the Executive and the courts when those institutions legislate in ways not intended by Congress.  Such actions require an institution comprised of members who act as fiduciaries to the Constitution and who are loyal to the institution in which they serve.  At all times, these members must be willing to provide the checks on the other branches of government to ensure Congress is the primary lawmaker.

When members of Congress become more loyal to the political parties of which they are members than to the Congress to which they are elected, Congress morphs from a constitutional bulwark into a political association, which is nothing more than a corporation whose mission is to control the government of the United States.  Even more insidious is when members of Congress and the Executive are of the same party. In this situation members of Congress generally give all loyalty to the Executive, thus abdicating their primary role as a check on the powers of the other branches of government.

Notwithstanding the declarative constitutional statement on the powers of Congress in Article I of our Constitution, we find ourselves living in an age in which Congress has delegated its legislative powers to the federal administrative state to determine what Congress intended. With such delegated authority, administrative agencies impose by regulation the intent of the Executive rather than the intent of Congress.

Compounding this travesty, the federal courts, for decades, grant great deference to the decisions of the administrative state. In cases in which a statute is vague, and the agency fills in the blanks, the court views the agency action proper since the court considers the agency as the expert. In other situations where the record is large, complex or in need of understanding science or economics, the court upholds agency regulations if the agency can point to any part of the administrative record that establishes the agency decision rational, notwithstanding the intent of Congress.

Moreover, the courts on more than a few occasions legislate by issuing orders that expand laws in ways never intended by Congress.  These actions place our Congress in a state of helplessness unless it can muster a super-majority of its members to overrule court decisions; an almost impossible task.

Once in this state of helplessness, Congress has only one power to control the courts or administrative state; that is 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 a party is in control of the Executive and both houses of Congress, the will of the Executive generally prevails. However, if a minority party controls one house of Congress, it can withhold the monies needed to run the parts of the administrative state it believes are acting improperly. While withholding the funds to operate the administrative state is viewed by many as abhorrent; it is the only constitutional power that Congress can exercise that cannot be blocked by the other branches. If Congress cannot withhold monies to fund the administrative state out of fear of political backlash, then it is a useless power for controlling the administrative state.

To address this failure, we citizens must demand that every member of Congress pledge to support and defend the institution of Congress; not the political party of which it is a member.  Only by making and keeping such pledge can the government official act as a check on the other branches of government, as intended by our Constitution.  If a person seeking election to Congress cannot make and keep this pledge, citizens should withhold their vote from that person, which is our real power to control the Kakistocracy.

Follow Bill @WilliamLKovacs