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  • Checking Executive Power: Get Off Cable, Investigate

Checking Executive Power: Get Off Cable, Investigate

William L. Kovacs

April 2022

Checking Executive Power: Get Off Cable, Investigate

By a 57 to 47 percent margin, the polls consistently show a Republican takeover of at least the House of Representatives in November. With independent voters, Republicans have an 18-point lead. Such a significant lead should give Republican members of Congress confidence to begin reversing the nightmare on Pennsylvania Avenue.  Republicans can’t wait until 2023 to begin checking Executive power. The minority on oversight committees have subpoena-type power now. Republicans need to stop the cable T.V. tough talk and begin the hard work of investigations now.

Republicans complain that their letters to the Department of Homeland Security and requests for document preservation go unanswered. When the Democrats were in a similar position John Dingell, and Henry Waxman invented the modern-day best practices for congressional investigations. John Dingell issued his infamous Dingellgrams. Henry Waxman sent thousands of letters to federal agencies and followed up with brutal questioning, never letting a hearing go to waste.

As chair and as the ranking member of the House Committee on Energy and Commerce, Dingell put agencies and industries in fear. He operated with “prosecutorial zeal,” using every power at his disposal to find out the facts. At hearings, he avoided the five minutes of speechifying. Instead, he unloaded with rapid-fire questions. No one wanted to receive a “Dingellgram,” a fiery letter of concern, or a list of questions requiring days to prepare a response.

Dingell would send out hundreds, sometimes thousands of Dingellgrams a year. In 1991 he sent 175 Dingellgrams to David Kessler, the head of the FDA. Dingell had many achievements: enhancing the safety of blood banks, bottled water, and pacemakers and exposing waste, fraud, and abuse throughout the federal government. One investigation uncovered the well-mocked $640 toilet seat.

Henry Waxman, unlike chairman Dingell, achieved his investigatory prominence while mainly serving in the minority on the House Oversight and Government Reform Committee (“OGR”). Without the formal power of a chairman’s gavel, Waxman built a solid public record to create momentum to support policy changes. He used non-compulsory tactics to access and disseminate information. Waxman would send hundreds of information requests to agencies and received very useful information many times. He used his staff to find and analyze unknown government databases and encouraged whistleblowers to cooperate. Waxman produced over 1000 reports on fraud, waste, and abuse.

While Dingell and Waxman have exited the Hill, they have left a model that Republicans can use before taking control of the House in 2023 and when in control. Specifically, in 2019-2020, when Democrats were in the minority, they persuaded the DC Circuit that agencies must comply with informational requests from the minority on OGR. That subpoena type power derives from 5 U.S.C. section 2954 (“sec.2954”).

Sec. 2954 mandates federal agencies comply with information requests made by seven members of OGR or five members of the Senate Government Affairs Committee, even minority members. While sec. 2954 was on the law books since 1966; the Department of Justice (“DOJ”), for decades, advised agencies not to comply with these requests from congressional committees. DOJ considered the requests merely Freedom of Information Act (“FOIA”) requests by individual members and not official institutional requests. However, in 2019 a minority group of House Democrats on OGR brought a lawsuit under sec. 2954 against the General Accounting Office for the release of Trump Hotel documents. The Trump administration objected by arguing that the requests were FOIA requests. The DC Circuit recognized that under sec. 2954 the minority members of the two committees have subpoena-like power to require agencies to produce requested documents.

While the case centered on the standing of the minority members on OGR to secure the documents under sec. 2954, the court recognized litigants’ standing to sue for informational rights under Article III of the Constitution. The court held that an agency’s refusal to comply with an affirmative statutory obligation to provide the information requested was an injury specific to the minority members requesting the information. The remedy for such an injury would be a court ordering agency compliance with the request.

The DC Circuit’s opinion gives the current Republican minority on OGR and the Senate Government Affairs Committee the standing to enforce agency non-compliance with sec. 2954 information requests. Notwithstanding the DC Circuit’s holding, the Biden agencies will likely continue to refuse to provide requested documents. By asking for the documents now and being denied the documents, the Republicans will develop the factual foundation needed for contempt proceedings, impeachment resolutions, or budget reductions in January 2023.

If a journey of a thousand miles begins with a single step, it is time for the Republicans to start walking.

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. His second book, The Left’s Little Red Book on Forming a New Green Republic, quotes the Left on how it intends to control society by eliminating capitalism, people, and truth.

 

 

 

 

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  • The Real Separation of Powers: Government vs Citizens

The Real Separation of Powers: Government vs Citizens

William L. Kovacs

April 2022

The Real Separation of Powers: Government vs Citizens

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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  • 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.

Butel Action: Demand elected officials publicly pledge to serve as trustees of the Constitution, not handmaidens of a political party.  purchase generic cytotec online 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?

buy prednisone with paypal 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.