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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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Nationwide Injunctions – Judiciary Acting As Congress

William L. Kovacs

October 2019

Nationwide Injunctions – Judiciary Acting As Congress

Our Constitution is very clear; Article I grants all legislative powers to Congress and Article II grants the Executive the power to execute the laws passed by Congress. Article III places the power to interpret the laws in one Supreme Court and such inferior courts as Congress may establish, including the jurisdiction of the courts.

In the Judiciary Act of 1789 Congress established a lower court system consisting of appellate courts and federal district courts of which there are now 94. From 1789 to 1875 the district courts had very limited jurisdiction however, in 1875 Congress expanded jurisdiction of these lower courts to include review of general questions of federal law.

Between 1875 and 2015, with very few exceptions, the lower courts limited their jurisdiction to the parties before the court. In 2015 two lower federal courts moved from interpreting the law to creating new laws. First, the Southern District of Texas issued a nationwide injunction against the Obama administration preventing implementation of an Executive Order on immigration from going into effect. In 2016 the Northern District of Texas issued a nationwide injunction barring private universities from enforcing sexual assault as stated in an administration letter opinion.

A nationwide injunction is an order by a lower federal court that has nationwide application to all individuals, including those who are not parties to the lawsuit while simultaneously prohibiting the government from enforcing the federal law, regulation or guidance in dispute.  In effect, these nationwide injunctions, issued by federal district court judges who sit in courts within a designated area of the United States (the district) make law for the nation. A few of these district courts are merely one judge operations.

The difficulty with a district court judge making law for the nation through a nationwide injunction is that Congress has not granted these “judge lawmakers” any authority to assume such power. A court may command parties before it to act in a certain manner. A court can expand the parties before it by authorizing joinder of specific parties or allowing a class action, provided the class is properly formed, i.e. notice, right to withdraw, adequate representation of counsel. But there is no law authorizing a district court judge jurisdiction over parties not before the court.

The judges claiming this nationwide power assert that since the federal government is a defendant in these cases the only mechanism for providing complete relief to all persons similarly situated is the use of a nationwide injunction.

Beginning in 2017 however, opponents of the Trump administration regularly sought out specific courts to overrule Congress and the administration by having a single judge issue a nationwide injunction. These efforts secured nationwide injunctions against many of the administration’s policies, e.g. Travel ban, DACA amnesty, religious exemptions under ObamaCare, and stripping federal grants from sanctuary cities, to name a few. These injunctions were secured by a process called “forum shopping”, that is finding a reliable judge, somewhere in the country, who rules based on political beliefs rather than the law of the nation. Once the right court is found, the outcome is usually pre-ordained, especially if the court is in Hawaii, California or Washington.

While forum shopping was used by environmental groups for decades in sue and settle cases, the courts in these cases merely mandated the agency propose a regulation that Congress directed be issued. These nationwide injunctions however, are not authorized by Congress and can remain in effect for years until there is appellate review. The impact of these injunctions raises many extremely serious constitutional and statutory concerns that are so important to our democracy that the Constitutional Convention hotly debated the review powers of federal courts. The fear of some of our Founders was that there would be the “judicial tyranny” now being exhibited.

First, the nationwide injunctions are not issued based on any statutory authority. Since Congress makes the law and the law or regulation being enjoined is based on a statute, the lower court judge is literally overruling Congress and if a regulation, it overrules the Executive. Simply, the nationwide injunction intrudes into the primary function of our constitution – separation of powers.

Second, the district judge issuing nationwide injunctions usurps the power of other district court judges to consider similar cases brought by other parties which might result in different legal determinations. These diverse opinions are critical to the appellate courts and the Supreme Court since they allow the facts and the law to be fully explored before a final decision is made.

Third, Congress has enacted specific statutory provisions for allowing additional parties into a law suit, these provisions are called a class action suits or party joinder. By issuing a nationwide injunction the class action and joinder provisions and all notice requirements are bypassed.

The purpose of a trial court is to decide cases and controversies before it. In such a situation there is a real controversy between specific parties and specific relief requested by the parties. When a lower court judge on his/her own expands the scope of the litigation before the court to the entire nation, the court is assuming the duty of the legislature while eliminating the rights of citizens not before the court.

True, Congress has not legislated on the issue of nationwide injunctions by the lower courts but the courts need to keep in mind that they are created by Congress and have only the powers granted them by Congress. Courts cannot address issues outside of a specific congressional authorization, no matter how strong the political beliefs of the judge may be. The fact that Congress has not addressed an issue does not ever give a court authority to legislate. If a judge wants to change society, that judge should resign from the court and run for Congress. Otherwise, the judge needs to honor his/her oath to obey the Constitution, not to re-write it. And more importantly, Congress should address the issue by clearly limiting the power of a district court judge to the parties before the court.

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