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Articles Index: www.ReformTheKakistocracy.com

William L. Kovacs

April 2022

Articles Index: www.ReformTheKakistocracy.com

Articles Index: www.ReformTheKakistocracy.com

(Revd. April 10, 2022 -hyperlinks all active)

Dear Readers:

To make finding older articles easier than searching through the Archives by date, I have prepared an index of all Postings by general category. All of the links are active. Several times a year I update the index. Also, the last three posted articles are on the website’s front page. All past articles can be found in the Archives link. I hope the index makes it easier to search for older articles.


Devolution of Fed power to states; Unfunded Mandates, elected officials as fiduciaries, not politicians

The Real Separation of Powers: Government vs Citizens (April 5, 2022)

Government of the Absurd (September 20, 2021)

State Legislatures: The Last Guardians of the Republic (September 9, 2021)

A Civil “Civil” War for Now (September 1, 2021)

Feds Diminish State Sovereignty to Ensure Unchecked Power (August 23, 2021)

States Check into USA Under Hotel California Rules (August 12. 2021)

Can the U.S. Unite, If Not, How Does it Divide? (August 3, 2021)

DHS Unfunded Mandates Require UMRA Review, Point of Order (July 9, 2021)

It’s Time for State Legislatures to Take the Power Back  (Sep. 16, 2019)

The Kakistocracy Must Devolve Power to the States  (Aug. 16, 2019)

State Legislatures: Last Guardians of the Republic  (July 16, 2019)

The Constitution Mandates Government Officials Act as Fiduciaries  (June 1, 2019)

Separation of Powers Demands Congress Reclaim Its Powers  (May 16, 2019)


Political hypocrisy

Taming Political Hypocrisy: Modest Proposals v. Outrageous  (Nov. 30, 2020)


 Commentaries on the bureaucracy, teachers’ unions and the value of labor

 A Scholarship for Every Student, Why Not We Pay for it Now! (Nov. 18, 2021)

Teachers Unions Treat Citizens as Commodities that Pay Taxes March 10, 2021)

Readjusting Value in light of COVID-19  (May 3, 2020)

Term Limits for Bureaucrats!  (January 15, 2020)


Big Tech, Cancel Culture and implications on democracy

 White House Admits Working with Big Tech to Censor (July 20, 2021)

 Sec. 230 Reform Without Congress: Use Climate Strategy (June 15, 2021)

 Cancel Culture, Next Stop the Twilight Zone (April 15, 2021)

Big Tech Is a State Actor Having Constitutional Obligations (April 5, 2021)

Section 230 Unconstitutional Delegation of Power to Big Tech (Jan. 24, 2021)

Cable Reporters Should Register as Lobbyists  (April 4, 2020)


Climate Change, the Green New Deal, and the Left’s Little Red Boo

Climate Change Is About Control Stupid, Not the Environment (March 24, 2022)

The Heavy Environmental Costs of the Green New Deal (October 22, 2021)

Green New Deal ideologies, fantasies and realities (Jan. 14, 2021)

The Left’s Little Red Book on Forming a New Green Republic (Oct 13, 2020)

A Cautionary Tale on Climate Policy  (February 15, 2020)


Book Reviews

 One-Minute Videos on My Books (June 21, 2021)

 Independent Press Book Award to Reform the Kakistocracy (May 3, 2021)

 Midwest Book Review: Reform the Kakistocracy by Diane Donovan (Nov. 17, 2020)

Readers’ Favorite Awards 5-Stars to Reform the Kakistocracy (Sep 29, 2020)


General Thoughts on the Republic

Rs on House Oversight: Tools to Guard the Republic Now & 2023 (Feb. 4. 2022)

 A Republican House Alone Can Reverse the Authoritarian State (Jan. 26, 2022)

 A Politically Insane Society (October 14, 2021)

 The Constitution Guarantees Defense of Invaded States, So Do It (October 7, 2021)

Dr. Franklin, You Will Soon Know If We Remain a Republic  (Oct 22, 2020)

Can Voting Really Change the Country?  (Oct 17, 2020)

Politics Will Destroy 200 Years of Expanding Voting Rights  (Sep 13, 2020)

Implications of WH Claim “The President Is Not A Civilian”  (Aug. 3, 2020)

The Decline of U.S. Leadership: Truman to Trump (June 29, 2020)

Out of 328 Million People, Can’t We Find Better Candidates?  (May 18, 2020)

How the Coronavirus Will Permanently Change Government  (April 14, 2020)

Impeachment and the Significance of Member Oaths  (January 30, 2020)

For Whom Did We Form a Government?  (Sep.1, 2019)

Reform the Kakistocracy: an essay  (July 31, 2019)

Congressman Amash: A Trustee, Not A Politician  (July 17, 2019)


Rule of Law

Emergency Laws Destroy Democracy When Applied Domestically (March 9, 2022)

Uncle Joe, You Have Diminished the Value of My Citizenship (November 1, 2021)

Balancing TX Abortion Law, Citizen Suits, Personal Liberty (September 30, 2021)

Federal Law: Signals Virtue While Abusing Rule of Law  (June 28, 2021)

Hong Kong, Indian Tribes: Governments Rule by Force, Not Law  (July 23, 2020)

Mt. Rushmore, Broken Treaty: Trump Can Fix 143 year Wrong  (July 13, 2020)

Comparing Rights: Corporate Personhood vs. Human Personhood  (June 16, 2020)

Rule of Law or Different Rules for Us and Government  (Oct. 16, 2019)

Nationwide Injunctions – Judiciary Acting As Congress  (Oct. 1, 2019)

Affordable Clean Energy Rule: Determining the Rule of Law  July 22, 2019)


Debt, Deficits, Reckless Spending & Tax Reform

Six Easy Steps to Reducing $ 1 Trillion National Debt (Feb 14, 2022)

 The Judgment Fund: the Mother of All Slush Funds (Jan 18, 2022)

 It Is Unjust for Congress to Fund Expired, Unauthorized Laws (Jan. 3, 2022)

 Return to a 4-Page Return, 1913 Form 1040 (Dec. 10, 2021)

 The Great Tax Reform Ruse: Congress Baffles US with BS (Dec. 1, 2021)

Can a Massive National Debt Become an Unjust Law? Nov. 10,2021

 Media Avoids Elephant in the Room: Who Runs the US?  (June 1,2021)

Wake Up America, One US Until National Debt Tears Us Apart (May 19, 2021)

 Modern Monetary Theory: A Banana Republic with No Bananas (May 6, 2021)

 Are There Limits to National Debt? Part I, The Facts (April 25, 2021)

 Brewster’s Millions Is Funny; Who Pays for Big Fed Spending (May 26, 2020)

 A Modest Proposal to Stop Congress from Giving Our Money to Private Entities  (May 8, 2020)

5 Easy Ways to Reduce National Debt & Shrink Government  (April 24, 2020)

Democrats Promise to Spend and Spend, But Republicans Spend More!  (Nov. 1, 2019)

Restructuring Must Include Everything the Kakistocrats Manage  (June 16, 2019)


Commentaries on Presidents and presidential races

Joe Biden: Will he be the 21st c. James Buchanan? (March 21, 2021)

Trump: “To Pardon or Not to Pardon Me, Is the Question”  (Dec 9, 2020)

The Limits on Governing in a Biden Presidency (Nov. 6, 2020)


Commentaries on the Electoral College and possibility of One-Party Rule

What Democrat One-Party Rule in U.S. Looks Like (Part II) (February 18, 2021)

Democrats Maneuver to Enact One-Party Rule in U.S., (Part I) (February 10, 2021)

 Unity Not Possible When Government Is in Overdrive (Part I) February 3, 2021)

Election 2020: Tortuous Road Through Electoral College to White House  (Sep 24, 2020)

Presidential Succession Act: Can Congress Manage Chaos?  (Aug. 20,2020)

States Seek Permanent Democratic Presidential Rule  (March 27,2020)

Could the House of Representatives Select the Next POTUS?  March 2, 2020)



The impact of states on national elections

 Supreme Court Rules Some States More Equal than Texas (Jan. 16, 2021)

Not So Fast Pennsylvania: There are Limits on Judicial Power  (Nov. 10, 2020)

Georgia Don’t Let Socialism Happen Here (Dec. 18, 2020)

2021 GA Senate Runoff Election Is Second Battle of Atlanta  (Nov 18, 2020)


Commentaries on Third Political Parties and the road to major party status

Libertarian Party’s Future is at Fork in Road (March 1, 2021)

Using the Antitrust Laws to Open the U.S. Political System to Competition (Dec. 31, 2019)

Denial of Ballot Access: In Search of Meaningful Remedies to the Deprivation of Constitutional Rights  (Dec. 15, 2019)

The Republican and Democratic Suppression of Third Parties and Ideas  (Dec 1, 2019)

Hostile Takeover of US by Major Political Parties (Nov. 19, 2019)



Comparing Leadership in Ukraine, the U.S. and Canada (March 1, 2022)




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  • Climate Change is About Control Stupid, Not the Environment

Climate Change is About Control Stupid, Not the Environment

William L. Kovacs

March 2022

Climate Change is About Control Stupid, Not the Environment

The apocalyptic talk about climate change is nothing more than a diversion tactic by the government, the radical Left, and its mainstream press. The many laws, trillions in federal appropriations and tax credits, and the unworkable proposals to address climate change will not slow the rise of the oceans or heal the planet. Lobbying for more climate regulation is to enhance the power of the authoritarian state, not protect the environment.

The radical Left has the world obsessing over whether we have 10, 20, or 50 years before the eve of destruction. The hysteria gives the government the excuse it needs for more controls over the energy we use, the products we purchase, the homes we live in, the food we eat, and since the pandemic when we can leave our homes. However, the data supporting the climate studies are rarely released so scientists can test the reproducibility of the studies.

Citizens of the United States already live under a legal framework that contains over 3000 separate criminal offenses in 50 titles of the U.S. Code, 23,000 pages of federal law, over 200,000 regulations, and almost daily Executive Orders that usually limit those actions deemed objectionable to the kakistocracy. Additionally, the government has in reserve 136 emergency laws allowing it to assume control over industrial production, communications and banking, and most aspects of commerce. Most of these emergency laws are effective when the president declares them effective.

“Predictions of apocalyptic events that would result in the extinction of humanity, a collapse of civilization, or the destruction of the planet have been made since at least the beginning of the Common Era. So far, the planet still exists. George Orwell noted – “People can foresee the future only when it coincides with their wishes, and the grossly obvious facts can be ignored when they are unwelcome.”

In the case of climate change, those who foresee the future believe that capitalism is a cancer on the earth, humans must go, truth is irrelevant. The Left’s Little Red Book on Forming a New Green Republic captures the many statements by the Left espousing these goals. One of its leaders, Prince Phillip, calmly states, “If I were reincarnated, I would wish to be returned to earth as a killer virus to lower human population levels.” Perhaps Covid-19 gave him his wish?

The thumbprint of the radical Left is everywhere. In one year, the Biden administration used executive power to shut down the National Petroleum Reserve – Alaska, the Keystone Pipeline, and the EastMed natural gas pipeline that would supply gas to Europe. Without energy, the world crumbles, but that is a tactic the radical Left uses to achieve its agenda.

By shutting down U.S. energy supplies, Biden harms the security and economy of the U.S. The U.S. is forced to rely on terrorist states (Russia, Saudi Arabia, and now Iran and Venezuela), to produce dirty fuels so that we can chug along. Unless there is an ulterior motive, no sane world leader would ever put his nation at the mercy of terrorists.

The radical Left plays the federal regulatory system like a grandmaster pianist. With Citizen Suit provisions incorporated in all environmental laws, the Left routinely blocks industries needing federal permits.

Wielding the power of the citizen suit provisions, the radical Left uses the Clean Water Act to regulate farming and home building since water flows over the land. The Left uses the Clean Air Act to deny permits to almost any activity having air emissions, which includes manufacturing, energy production, and transportation. The National Environmental Protection Act is used to stall permits for years, sometimes decades, merely by alleging a thousand-page environmental impact statement is not sufficiently robust.

In addition to impeding economic development, the radical Left forces government to regulate almost every item in the home, including dishwashers, washing machines, showerheads, toilets, ceiling fans, light bulbs, heating and air conditioning units, stoves, ovens, refrigerators, and conventional cooking products. Seventy-four regulatory standards cover these products. Another 15,000 products, from coffee pots to ink cartridges, are regulated by the Consumer Product Safety Commission.

Now the radical Left wants to ban many common foods, including sugar, chocolate, coffee, meat, palm oil, soybeans, mineral water, plastic bottles, fish, especially salmon, rice and cereal, and any fruits and vegetables that require water.

Another radical Left group identifies the top 10 foods that harm the climate: lamb, beef pork, chicken, turkey, salmon, canned tuna, cheese, eggs, and potatoes.

But for plastic packaging that preserves our food, the radical Left has 25 reasons for banning it. They also want to ban soda straws – but say nothing about billions of pounds of plastic and polysilicon solar panels embedded with toxic metals.

Now the radical Left is demanding the Federal Reserve break up banks if they make loans or investments in operations that harm the earth.

These restrictions rest on a political narrative that our way of life will result in an apocalypse. The apocalypse narrative disguises the government’s real agenda – a more authoritarian government.

It’s all about authoritarian control, stupid!

The only appropriate summation of this article is to quote David Forman, a radical Left environmental movement founder. Forman states, “Phasing out the human race will solve every problem on earth, social and environmental.”

Based on the hypocritical actions of many of the Left’s leaders, like Gavin Newsom, Gretchen Whitmer, Lori Lightfoot, AOC, Nancy Pelosi, Stacy Abrams, and hundreds of others, it should be assumed they would be exempt from Forman’s phase-out.

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 eliminating capitalism, people, and truth.


This article was initially published in Townhall, March 22, 2022.







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  • A Politically Insane Society

A Politically Insane Society

William L. Kovacs

October 2021

A Politically Insane Society

“Insane” is defined as a “state of mind which prevents normal perception, behavior, or social interaction.” This definition perfectly squares with the current collective political mind in the United States. The U.S. is no longer a “We the People” decision-making body with representatives that run the country in a way that makes sense by solving difficult problems for ordinary people. Instead, the political elites pander to the many identities that thirst for victimhood. A result, we have “leaders” who are the least able or least principled people in the nation. We live in a kakistocracy that is run, not by people, but by kakistocrats.

Our political “leaders,” ignore what our children are taught in school because they constantly promote gender identification, use of the “correct pronouns,” and punishment for not using the “correct pronoun” or being insufficiently woke. Teachers’ unions push the teaching of critical race theory while the Democrat running for Governor in Virginia tells parents they “should have no role in directing the education of their children.”  The Daily Mail reports, at a school board meeting in Loudoun County, Virginia, a parent was arrested for speaking out about his daughter being raped in a girl’s bathroom by a male posing as a transgender. Now the U.S. Attorney General is having the FBI investigate parents speaking out at school board meetings as domestic terrorists.

The Progressives, with little concern for future generations, ask us how much money do we want from the government as if ordinary Americans are willing to sell out the future of their children so they can buy a few more trinkets. To deal with the pandemic we are told the vaccines work, then they work for a while, but if we get to 75% vaccinated, we will have “herd immunity,” “and the pandemic goes away. Now we are told we need a vaccination rate of 90% to achieve herd immunity. But if the vaccines don’t last long, does even 100% vaccination mean we can achieve herd immunity? Moreover, our “federal government” refuses to count those who have contracted Covid-19 and now have what might be permanent immunity. Worse our government wants anyone not vaccinated to be fired from their job in the middle of a massive labor shortage. Victimhood has turned our “leaders” into caricatures with political identities.

There were 12,045 incidents of U.S. civil unrest from May 26, 2020, to Sept. 5, 2020. Of the 633 incidents coded as riots, 88 percent are recorded as involving Black Lives Matter activists. Yet there were few arrests. But the January 6, 2021 riot at the Capitol lead to a nationwide dragnet in 40 states and the arrest of over 600 protesters.  What’s the difference between the two groups of rioters? Only wokeness and it absolves one from criminal liability for crimes.

Social media knows how its platforms are addictive and harmful, especially to young and teenage girls. It causes increases in depression and suicide in teenagers. If the federal government believes cigarettes were so harmful, why is not social media? Is it because tobacco companies gave contributions to Republicans and social media gives to Democrats?

These progressive identities are not as important as educating every child in reading, writing, science, and technology. Identity issues and protecting criminal rioters are not as important as a strong economy that can create millions of jobs. Frankly, if progressives really want to make society better, they could devote a day a week to delivering food to the hungry or clean up rat-infested inner-cities.

The entire U.S. political elite is so crazed about its right to be a victim, it collectively forgets when people work together, they can change the world. Jesus, Buddha, MLK, Gandhi, Mother Theresa changed the world with ideas and good deeds. Today’s Progressives enjoy victimhood more than doing good and working for lasting solutions. Unfortunately, it is far easier being a victim, a rioter, protester, or one who cancels people on social media than solving problems.

Can government do anything to make American politician’s act less insane? Our leaders could start by having civil discussions rather than haranguing each other on cable news. At one time Congress did work to solve problems. For example, the 94th Congress, 1975-1976, had to address a myriad of environmental, energy, economic and educational problems. It also operated in the traumatic aftermath of the Nixon impeachment and resignation.

In that era, rivers were burning, waste was dumped in backyards, along roadways, and openly burned. The air was so thick with smog from vehicles, one could not see tall buildings a mile away, the nation was still coming out of its worst energy crisis, handicapped children were not being educated. Banks played fast and loose with credit terms, inflation and interest rate increases were the fastest in history, home loan interest rates hit 7.5% on their way to 12%. The Penn Central Railroad had gone bankrupt and if it shut down, all freight transportation in the northeast and mid-west would cease, likely causing a major economic recession.

The U.S. was in a crisis. Congress had to prove it could manage the nation. To do so, it needed to apply common sense and prove it could act rationally. In just one Congress, major laws were passed to address educating handicapped children, energy conservation, reorganizing the Penn Central Railroad into Conrail to preserve commerce in the U.S., enhanced protection of fisheries, increasing government transparency, the cradle to grave regulation of hazardous waste, the banning of open dumps, controlling the use of toxic substances, enacting needed, new copyright laws, enhanced antitrust enforcement, and environmentally sound management standards for federal lands. And, yes, the National debt was a mere $620 billion and the CEO/worker pay ratio and wealth gaps were a mere fraction of what they are today.

How can the political elite prove to Americans it is not insane?

There are a few major issues that have significant citizen support. Successfully addressing these issues would help government demonstrate a look of sanity by exhibiting enough normal behavior for Americans to believe their government is working for them. The three issues are:

1. Honor their oaths, enforce the immigration laws to fix the invasion at the southern border. All federal officials take an oath to enforce the laws of the U.S. The political elite merely needs to honor their oaths. Allowing millions of illegals, including drug cartels and sex traffickers, into the nation, is not a benefit to the nation. Most of the illegals may never qualify for citizenship under current law or even obtain work permits. Many of the illegals will need billions in welfare to survive. A simple gesture toward sanity would be to use the already paid for construction materials to build the remaining parts of the southern border wall?

Almost 73% of Americans are concerned about the open southern border and do not the government can properly manage it. Currently, there is a pending backlog of 730,000 legal, citizenship applications. If the U.S. needs more citizens, it should process the backlog of legal applications so we all know who is coming into our country. Our “leaders” are only being asked to run the country as the Constitution mandates and for the benefit of the citizens paying them. Why do our political elites have to be both woke, rogue, and destructive of the Constitution?

2. Pass the bipartisan Infrastructure bill. The U.S. has a huge need for upgrading its ports, highways, airports, waterways. There are 8 – 10 Republican Senators who will vote for it, ensuring Senate passage. Almost two-thirds of Americans support the infrastructure bill. The problem, the Progressive will not do anything for the nation unless they get the $ 5 trillion for their socialist agenda, which only 10% of Americans support. This is an opportunity to demonstrate 1975-76 style leadership to achieve what the American people want. Why is it so hard for Congress and the president to do what the majority of Americans want to be done?

3. Fix Social Security for the next 50 years. The Social Security Trust Fund will run out of money to pay full benefits by 2034. This will result in a 22% reduction in benefits for 65 million Americans if Congress does nothing. Yet, the Progressives ignore fixing, perhaps the most popular program in the country, while seeking $ 5 trillion for a host of new social entitlement programs that will surely bankrupt the nation.

Fixing Social Security is very straightforward. The wage cap could be raised while leaving the tax rate unchanged. This would only impact individuals making over $142,800, a small percentage of workers. A second option is to raise the age for receiving benefits from 66 to 69 since we are all living decades longer. Both options will shore up the Trust Fund for decades and will be very popular with the vast majority of Americans. Polls show over 96% of Americans support Social Security. Why does our government insist on spending trillions of more dollars on new programs we can’t afford when they need to fix existing programs?

The three fixes are strongly supported by the American people, yet our “leaders” in Washington want to fight about or ignore them. It makes no sense to refuse to do what the American people want to be done? Each of the problems, if addressed. would bring significant support to every member of Congress and the president for their efforts to make the system work. When a Congress and president intentionally act against the interests of the people who elected them, they exhibit a state of mind which blocks normal perception, behavior, or social interaction. The political elite is not only the least able or least principled of citizens, they are insane!

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  • States Check into USA Under Hotel California Rules (II of V)

States Check into USA Under Hotel California Rules (II of V)

William L. Kovacs

August 2021

States Check into USA Under Hotel California Rules (II of V)

Part II of the series “Can the U.S Unite? If not, How Does It Divide?”  makes the analogy that States joining the United States check-in under the rules of the Hotel California: They can check out anytime they like, but they can never leave. No matter how bad it gets! No matter how much they are diminished! The principles of the Declaration of Independence be damned!

Countries, states, villages, and empires have been broken apart by internal conflict since humans organized. While there is no set rule on the time it takes to tear apart a nation’s governing structures, what is certain, putting a nation back together after coming apart is an extremely difficult challenge. The U.S. was lucky to put itself back together after the Civil War considering an incompetent President served leading up to the war (Buchanan) and an incompetent president served after the war (Andrew Johnson). Both presidents implemented horrific policy failures, one ignoring the slavery issue, the other enacting Reconstruction. We are in a similar situation today, an incompetent president (and vice-president) implementing horrific policy failures and attacking those citizens deemed objectionable. The U.S. should take heed:

Luck is a very thin wire between survival and disaster, and not many people can keep their balance on it.  Hunter S. Thompson

The polls set out in Part I tell those governing the nation the disagreements are so significant the nation could split into parts. Who knows if that split will occur but there is little trust in the federal government’s leadership.

Therefore, if this nation wants to save itself from even a potential breakup, the federal government must find a compromise that allows all citizens, even those it finds objectionable, to live in freedom with the government ruling them.

Since the territory comprising the U.S. has only faced significant internal strife a few times, we have little guidance. The one-piece of wise guidance on avoiding civil war comes from an unexpected source, the Grand Duke Mikhailovich in a letter to the last Tsar of Russia in 1917. As disorganization and lawlessness manifested themselves throughout Russia, he writes:

“A situation like this cannot last long. I repeat once more – It is impossible to rule the country without paying attention to the voice of the people, without meeting their needs, without a willingness to admit that the people themselves understand their own needs.”

The polls find a complete disconnect between our government, its sycophant media, and large segments of the American people. The polls find significant distrust and overwhelming disapproval for the ruling class and its media. While trust in government has been deteriorating for decades, it is now worse than ever.

The ruling class, call them oligarchs, the kakistocracy, or just out-of-touch rulers and media moguls, believe that many of the seventy-five million Americans, these “Other Americans,” non-big city, religious, rural, and working-class people, who do not worship the elites, belong in a “ ‘basket of deplorables’ characterized by ‘racist, sexist, homophobic, xenophobic, Islamophobic’ views.”

The former President Barak Obama characterized these Other Americans as: “… bitter, they cling to guns or religion or antipathy toward people who aren’t like them or anti-immigrant sentiment.”

As recently as July 27, 2021, a tweet by  New York Times reporter identified these Other Americans as “legitimate national security threats” and “enemies of the state.”

The views held by Clinton, Obama, and the New York Times about the Other Americans, are shared throughout the ruling, monied, Hollywood, socialist, academic classes, and the bureaucracy. Their views sanction a disdain that allows the elites to believe they are superior, in knowledge and culture, to the ordinary people who just want to live their lives in peace. It is why the ruling class believes it can censor objectionable speech, free violent criminals to commit more crimes on ordinary people, open the southern border allowing entry of the sick, drug dealers, slave traders, and child smugglers to invade communities around the nation.

These elite classes, with their personal security, and private jets, demand the Other Americans submit to their “utopian beliefs” that when implemented will impose costly and authoritarian programs that will regulate where these Other Americans live, what they can work at, limit what they can buy, and mandate cultural teachings repulsive to them. All in addition to a $30 trillion national debt that will eventually put the children of these Other Americans in involuntary slavery to the federal government while the elite classes exit for safer places.

The United States presently consists of two Americas co-existing within the same territory, the “Government’s Elite America” and the “Other America” comprised of ordinary people. The question arises, how can these two Americas continue to live in the same nation?

Does the theoretical role of states to restrain federal overreach still exist?

Under the U.S. Supreme Court’s decision in Texas v. White, an 1868 case determining the status of Texas after the Civil War, it held the United States is an indestructible Union, composed of indestructible states. The court did, however, note – “By the perpetuity and indissolubility of the Union, by no means implies the loss of distinct and individual existence, or of the right of self-government by the States.” The key point is states have the right to self-government within the indissoluble union.

According to the White court, change in the structure of the Union can only occur through revolution or the consent of the states. Any revolution would be quickly and violently put down by massive federal force. And the Constitutional requirements for securing the consent of the states for any secession are almost impossible. Under this very narrow reading of White, it appears to the two Americas must live together with no matter how poorly they get along or how disastrously the Other Americans are treated by the federal government.

A more liberal reading of White, however, offers a path for the two Americas to live in harmony. Since White holds states do not lose their distinct and individual existence, or of their right of self-government and Article IV of the Constitution mandates the federal government guarantee every state in the Union a Republican form of government, the Constitution theoretically restricts the power of the federal government to limit democracy and freedom in the respective states. How a future Supreme Court balances the indissolubility of the union against a state’s right of self-government and having a Republican form of government, will determine whether our nation stays together or divides.

Before discussing options for the peaceful living arrangements for the two Americas, which will be Part IV, it is necessary to set forth how the federal government has manipulated the perpetuity and indissolubility of the Union to diminish states’ right to self-government.

Breaking up is merely wishful thinking

There are writers who claim portions of the U.S. have wanted to split since its inception. These writers have a complete revisionist history of the U.S. by asserting there was dissension from the beginning. There is always that unhappy portion of anyplace USA. In the aftermath of Brexit, these writers held false hope of the U.S. undergoing a Brexit experience. They speculated about future Republics in Texas, California, or Vermont. They dubbed them, Texit, Calexit, and Verexit. The basis for such hope rests with Texas and California being independent Republics, and Vermont being an independent state, before becoming part of the Union. Once these states voluntarily joined the Union, a no-fault separation was buried in “that great dust-heap called ‘history.”

Another branch of the theory is there were many Republics in the territory now the U.S., so we can have many again. They point to the State of Muskogee, a multicultural Republic of Native Americans and an independent Republic of West Florida (part of today’s Louisiana). Both were short-lived before the U.S. Constitution. While interesting reading, if there is a real interest in the issue, one should read fiction – Cascadia, a progressive, green republic carved out of parts of California, Oregon and Washington, and a few other western states.

The Constitution, Congress, the U.S. Supreme Court, and massive and overwhelming military power make it impossible for any state to leave federal control without federal approval. President Biden made this point very clear when he stated that “…any insurrectionists would need a lot more guns to take on the nuclear-armed US government.” Anyone challenging the federal government should take Biden’s words as both a threat and a promise.  But then there is the collapse of the USSR in 1991? So, one never knows what the future will bring, especially during an incompetent presidency?

States cannot organize into a new state or join another state to secure more freedom for their citizens without federal approval

The more possible large-scale change could be a few states reorganizing into new states or parts of states joining other states. The goal of such an effort is when the inhabitants of one part of the state desire to be free of the regulation, taxes, and massive bureaucracy of the dominant part of the state. The clearest, long-running example is the state of Jefferson. Parts of Northern California and Southern Oregon would join together to form a new state, a mostly rural state. The first legislation to create the state was introduced in 1852 and a state of Jefferson movement was formally organized in 1941.

Establishing new states out of existing states has occurred several times. Moreover, Article IV, section 3 of the U.S. Constitution permits it with the consent of the state legislatures of the states concerned and the approval of Congress. Until 1792, Kentucky was part of Virginia. Maine was part of Massachusetts until 1820 and West Virginia was part of Virginia until 1863.

Of the fifty states in the Union, there have been attempts, even several on-going, in thirty-one states to undertake some form of reorganization, i.e., mostly the rural parts of states want separation from the urban parts. The most serious current effort concerns three-fourths of Oregon (the rural areas and the southern coast of Oregon) joining Idaho. Seven of thirty-six Oregon Counties, by significant margins, have voted in favor of relocating parts of the Oregon border into Idaho. For this reorganization to succeed, the legislatures of Oregon and Idaho must approve it, as well as Congress.

While it is constitutionally possible to restructure a state or a part of a state into a new state or let it join another state, it is an extremely difficult undertaking. The power structures of the states are unlikely to approve of any group of subjects and their tax revenue, leaving to another state. The last successful effort was West Virginia separating from Virginia during the Civil War. The proponents of the new state of West Virginia had the Union Army on its side. In power arrangements involving governments, there is only one rule – “Might makes right.”


Part III will cover how the federal government has spent a century and a half diminishing the sovereignty of states. These federal actions are a misuse of power and will lead to the decline of our nation.

Link to article I




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  • Kakistocracy is Two Major Political Parties: Articles About

Kakistocracy is Two Major Political Parties: Articles About

William L. Kovacs

July 2020

Kakistocracy is Two Major Political Parties: Articles About

ReformTheKakistocracy.com, a blog that explores ideas for reforming the federal government so it works for people not politicians, announces it has consolidated, on one page, links to its top 12 articles on the need for a major, third-political party, to bring new ideas into the political debate.

This collection of articles discusses how the two major political parties have captured over 99% of all elected offices. Such control blocks new ideas from outside sources from entering the political debate. The collection also contains articles on creative remedies to bring competition into the political system.

The compilation is timely in an election year in which millions of voters are frustrated with the choices given them by the two major political parties, yet reluctant to “throw away” their votes on minor candidates. The compilation of articles helps answer the question of why our political candidate choices are so limited and what voters can do about it.

The links to each of the articles are below:

  1. Out of 328 Million People, Can’t We Find Better Candidates https://www.reformthekakistocracy.com/out-of-328-million-people-we-can-find-better-candidates/
  2. Hostile Takeover of US by Major Political Parties https://www.reformthekakistocracy.com/hostile-takeover-of-us-by-major-political-parties/
  3. The Republican and Democratic Suppression of Third Parties and Ideas https://www.reformthekakistocracy.com/the-republican-and-democratic-suppression-of-third-parties-and-ideas/
  4. Denial of Ballot Access: In Search of Meaningful Remedies to the Deprivation of Constitutional Rights https://www.reformthekakistocracy.com/denial-of-ballot-access-in-search-of-meaningful-remedies-to-the-deprivation-of-constitutional-rights/
  5. Using the Antitrust Laws to Open the U.S. Political System to Competition https://www.reformthekakistocracy.com/using-the-antitrust-laws-to-open-the-u-s-political-system-to-competition/
  6. Commission on Presidential Debates: Insight Into a Rigged System https://thelibertarianrepublic.com/commission-on-presidential-debates-insights-into-a-rigged-system-recent-effort-to-block-ballot-access-an/
  7. Jungle Primaries Will Break the Two Major Parties’ Control https://thelibertarianrepublic.com/jungle-primaries-will-break-the-two-major-parties-control/
  8. States Seek Permanent Democrat Rule https://www.reformthekakistocracy.com/states-seek-permanent-democratic-presidential-rule/
  9. The Decline of U.S. Leadership: Truman to Trump https://www.reformthekakistocracy.com/truman-responsibility-trump-blames/
  10. 2020: A Libertarian President? Voters Want a Third Party https://thelibertarianrepublic.com/2020-a-libertarian-president-voters-want-a-third-party/
  11. Is Socialism Acceptable Under the U.S. Constitution? https://thelibertarianrepublic.com/is-socialism-acceptable-under-the-us-constitution/
  1. https://www.reformthekakistocracy.com/the-constitution-mandates-government-officials-act-as-fiduciaries/ The Constitution Mandates Government Officials Act as Fiduciaries



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  • A Modest Proposal to Stop Congress from Giving Our Money to Private Entities

A Modest Proposal to Stop Congress from Giving Our Money to Private Entities

William L. Kovacs

May 2020

A Modest Proposal to Stop Congress from Giving Our Money to Private Entities

Just a few days before Christmas 2019, Congress, in its 2020 fiscal year appropriations, resurrected from the grave, billions of dollars in expired tax extenders and spread the benefits to distilleries, race-horse and Nascar owners, short-line railroad, biodiesel blenders and other favored industries. Being Christmas, it even applied the tax credits retroactively.

Should Congress consistently give billions of our hard-earned dollars to private entities?

While common sense says NO, it is unfortunate that Congress fails the common-sense test.

The issue of Congress giving away our money to private entities has been debated since the founding of the Republic. Opponents of this giving argue taxpayer money can only be spent on matters enumerated in the Constitution. Government asserts it can spend it on anything that is for the general welfare.

Continuing this debate may seem irrelevant since the courts have made it clear legislatures determine what is general welfare. Such a broad interpretation of governments’ ability to tax and spend has resulted in a massive increase in the national debt and a huge expansion of government. The federal government provides grants, loans, tax credits, tax deferments and guarantees risk to incentivize certain activities. State and local governments provide property tax relief, tax abatements, low interest bonds and outright grants, usually to attract business to an area.

Examples abound at the federal level:

  • Up to a $7,500 tax break for purchasers of the first 200,000 electric vehicles produced by an auto manufacturer;
  • Oil and gas industries receive $20 billion in annual subsidies;
  • Tax deferment on capital gains from Opportunity Zone investment which was to go to poor areas but is a boon to rich areas, e.g. high-end apartments with yoga lawns and pools surrounded by cabanas and daybeds;
  • The prescription drug industry benefited from $64 billion in federal research funding;
  • Flood insurance subsidies promote building high-end housing in flood prone areas. This insurance program is potentially liable for $1.24 trillion in claims while only collecting $3.5 billion in annual premiums. The program is already over $25 billion in losses that taxpayers will have to pay; and
  • Pension bailouts to coal miners while laying the groundwork for a massive bailout of the underfunded private, multi-employer pension system.

Presently the U.S. carries over $23 trillion in national debt and could be on the hook for over $200 trillion in unfunded liabilities. Yet Congress continues to give away billions to private entities.

 While there is almost no limit to governments’ power to give away taxpayers’ money, there are historical precedents for limiting such gifts. In the mid-1800s, many municipalities and states used public funds to purchase stock in railroads being built across the continent. Many government entities were swindled out of large amounts of money. To prevent future losses, forty-six states enacted constitutional limitations preventing gifts to private entities. These restrictions were called “gift clauses” or “anti-donation” clauses or simply “government gift-prohibitions.”

The government gift-prohibition policies barred state and local governments from giving or loaning public funds to private corporations or associations for private undertakings. Initially, these provisions stopped government speculation with taxpayer money. Over time, however, the courts defined public welfare to be anything that has a “public purpose.” Fitting within this definition is almost every type of government project conceived by a legislature, e.g. parking lots, sports facilities, corporate rent subsidies, politically favored forms of energy. Taxpayer money just flows, and the courts find it legal, based on legislated appropriations.

More troubling is that government gives taxpayer money to the largest and most profitable corporations in the world. “The Good Jobs First” report tracts the one hundred largest companies receiving government gifts (federal, state, local). First on the list is Boeing at $14.9 billion; number two is General Motors at $6.9 billion and number three is Intel at $6 billion. Most companies on the list are in energy, transportation or technology.

These large corporations persuaded our government that a tax cut would spur investment in new business and equipment. These corporations however, spent three times as much on additional dividends and stock buybacks than they invested in their businesses.

We the people need to clearly re-enact the wise-policies of the mid-1800s and demand all candidates running for office take a government gift-prohibitions pledge:

I pledge that, if elected, I will serve as a fiduciary of public money and will not vote to give, grant, or loan public funds or extend the credit of the public to any private corporation, association, or private undertaking.

By asking every candidate for public office to take this pledge, citizens can identify candidates willing to protect taxpayers. If the pledge is broken, the public will quickly know who is not trustworthy. The entire effort becomes self-policing by citizens.

A modest proposal, but it is a start!

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  • The Kakistocracy Must Devolve Power to the States

The Kakistocracy Must Devolve Power to the States

William L. Kovacs

August 2019

The Kakistocracy Must Devolve Power to the States

Since the inception of the New Deal programs in the 1930s to address the Great Depression, the federal government has continued to impose its will on more and more aspects of American society.  It has accomplished this power grab by expanding interpretations of the Constitution’s spending and welfare clauses and using its taxing powers to raise the amounts needed to “incentivize” states to adopt and implement federal policy through grants. While the federal government made grants to the states starting in 1900, those grants generally subsidized existing state programs. From the 1960s forward, Congress enacted many new programs, and it needed help to implement them. It found a creative solution – raise taxes to generate sufficient funds to provide grants to states as an incentive for the states to implement federal programs. There were around 132 state grant programs in 1960. Today they number over 1,300. 

Due to a variety of factors, the “heady” decades of federal aggrandizement of power will likely be coming to an end. The states are resisting implementation of specific federal programs they do not want to administer or are not fairly compensated for administering. At the same time, the federal government has amassed debt of almost $22 trillion and annual trillion-dollar budget deficits, thereby making continuing payment for these programs questionable.

Without compromise, capitulation or the continuous printing of money, it is difficult to imagine the current federal-state relationship continuing. If there is a break-up what will happen to the federal programs? What will happen to the federal-state relationship? Could a breakup be the start of a shrinking federal government that devolves powers to the states?

States Returning or Refusing to Implement Federal Programs Has Already Started

The warning sign of state frustration with implementing federal programs is the conflict over “sanctuary states and cities.” Over three-hundred states or cities have refused to enforce federal immigration laws requiring the deportation of unauthorized immigrants, even though they have accepted federal grant monies for law enforcement and other local activities.

The President is frustrated with these challenges to federal authority; however, there is little that can be done other than eliminating the grants. The limits arise under several U.S. Supreme Court decisions which hold that the Tenth Amendment forbids the federal government from commandeering states to implement federal law. Moreover, even when the federal government conditions receipt of federal monies on the implementation specific federal programs, the grant monies can only be withheld when a state or local government agrees to a contract provision that is clear enough for it to decide whether or not to accept the funds. The Supreme Court further limits federal control over grants to state or local governments by forbidding funding conditions in grants so coercive that the circumstances amount to a “gun to the head” situation.

In addition to the outright refusal of states to implement federal programs, not of their liking, there are federal programs, e.g., environmental, that states want to implement but the federal grants only cover a fraction of the cost of implementation. According to a 2016 study by the U.S. Chamber of Commerce, The Growing Burden of Unfunded EPA Mandates on States, https://www.uschamber.com/report/the-growing-burden-unfunded-epa-mandates-the-states the states implement approximately 96% of federally delegated environmental programs but only receive 28% of the cost of implementation.

Complicating the debate will be the long-festering issue of state grant inequality. Naturally, that while every federal program is paid for with the tax dollars citizens send to Washington, not every state receives a dollar for dollar return on the money its citizens send to Washington. According to a March 8, 2017 article in The Atlantic, “Which States Are Givers, and Which States Are Takers”, the amount of money given the respective states varies dramatically. South Carolina receives $7.87 for every dollar its citizens send to Washington in taxes. Other states are not so lucky. Fourteen states receive less grant money than they send to Washington in taxes, i.e., Delaware, Minnesota, Illinois, Nebraska, Ohio, Kansas, New York, Colorado, Utah, New Jersey, Oklahoma, Wyoming, Massachusetts, and California. Then comes the realization that off the top of every dollar states send to Washington, the federal government takes a percentage cut of the state tax money for having its bureaucrats oversee a state grant program the federal government wants to be implemented.

In each situation, (state not wanting to implement a federal program; the federal government under-compensating the state for its efforts; or the unequal distribution of federal funds), tensions arise over the implementation of these federal programs. These tensions place federal programs at risk of the state refusal to administer them.

The Feds Might Also Pull the Funding Plug

According to a May 7, 2018 study by the Congressional Research Service, Federal Grants to State and Local Government: A Historical Perspective on Contemporary Issue, the federal government is expected to provide state and local governments about $728 billion in grants in FY 2018. More than half of the monies ($400 billion) goes to health care (Medicaid), and the rest to highways, environment, child nutrition, disaster relief, tenant rental assistance, education for the disadvantaged, children’s health insurance, and urban mass transit, among other programs.

These federal funds comprise 1,319 grants, and according to the Tax Foundation, the awards represent between 26% – 49% of state spending, depending on the state. For example, federal funds to Indiana represent 35% of its total state spending. Federal grants to Texas represent 40% of its state’s spending. Federal grants to Virginia only represent 27% of its state’s spending. The amount of these grants has more than doubled from FY 2000, going from $286 billion in FY 2000 to $728 billion in FY 2018.

To the federal government, these grants represent about 18% of its $4 trillion annual budget. The present federal debt carries interest payments of around $250 billion annually. The historically low-interest rates between 2009 – 2107 kept interest payments manageable, but still consuming about 7.4% of the federal budget. The Office of Management and Budget is projecting that interest rates will rise to around 3.6% by 2028, consuming 12.2% of the federal budget and drain the treasury by $761 billion annually, an amount that exceeds the total amount of grants made to states. This deficiency means the federal government will need to find an additional $511 billion annually by 2028 to service the increased debt or it will need to find other budget reductions such as state program grants, to remain at the same fiscal position as today.

Could This Be the Start of Devolution?

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 them will start the debate over which programs must be administered and by whom? Therefore, while the federal government becomes more irritated at states that resist administering federal programs, the states that receive less federal funding than needed to implement federal programs or receive an inequitable return on their tax dollars sent to Washington, also become irritated with federal management of the grant programs.

This situation will force states to decide what programs they genuinely want to administer. States will have to balance the impact on their budgets of the loss of federal funds against the cost to the state of administering the federal programs. It might seem that the loss of any federal funds would be a substantial budget impact on states; however, that may not be the case since many states supplement the federal grants with state funds to achieve full implementation of specific federal programs or send more money to Washington than it receives back in grants. 

On the federal side of the equation, the federal government is forced to determine what are its priority programs and to recognize it will have to provide sufficient amounts of money to incentivize full state implementation of priority programs. The selection of priority programs means the federal government, due to budget deficits, will have to reduce or eliminate some state program grants.

Eventually, however, the federal government will have to stop printing money it does not have. State resistance will merely give the federal government a reason to revise or defund certain state grant programs. Once this occurs, the devolutionary process will play out, which means the federal government will stop expanding its authority through incentives to states to implement federal programs. Conversely, States will decide which federal programs they want to continue. In many cases, the states will pay for current federal programs they wish to administer with the dollars saved by eliminating the cost of administering unwanted federal programs and by keeping the tax dollars of their citizens in their state, rather than sending the dollars to Washington for redistribution.

As with any Hobson’s Choice, there is no choice at all. The federal government will shrink, and the states will implement the programs wanted by the citizens of their state. This devolutionary process will restore sovereignty to the states while shrinking federal power to that given the federal government by our Constitution.

Follow Bill  @WilliamLKovacs  

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  • Reform the Kakistocracy: an essay

Reform the Kakistocracy: an essay

William L. Kovacs

July 2019

Kakistocracy, a term describing what our government has become: a government controlled by “leaders” who are the least able or least principled citizens.

Over the last five-plus decades the kakistocracy transformed our federal government from one of limited powers to one of immense power. Most troubling, the transformation occurred without any changes to the Constitution. This decades-long transformation dramatically limited the powers of Congress, produced an extraordinarily powerful executive, and allowed the courts to become super-legislatures. These changes directly impact how each branch of government is able to fulfill its most essential role as a check on the powers of the other branches.

How did this transformation occur? First and foremost, Congress, our primary law-maker delegated massive amounts of authority to the Executive, which very gladly accepted all the powers delegated. The Executive using the bureaucracy and regulatory authority, implemented the delegated authorities to accumulate immense power over most aspects of society.

The courts not satisfied deciding just real disputes between adversaries; accumulated more powers than given them by the Constitution or Congress through rulings that extended their authority from the parties before the court to broad-based policy decisions and nationwide injunctions. The National Environmental Policy Act, (“NEPA”) is an excellent illustration of how the courts create legal rights never authorized by Congress.  This six-page statute requiring federal agencies to consider the environmental implications of their decisions was judicially expanded to provide environmental groups the right to bring lawsuits against any agency to force proposed environmental impact statements to be more and more comprehensive, sometimes thousands of pages.  NEPA alone can stop any project in the nation.

Another example is the transformation of the Clean Air Act, a law designed to regulate specific, powerful pollutants harmful to human health, into a law that governs almost any industrial activity in the country.

The result of the transformation of our government is decades of policy failures, harmful wealth inequality, a health care system costing two times more than in other industrialized nations, more than a few undeclared wars and the imposition of such massive amounts of debt that citizens will eventually live in involuntary servitude to the federal government. The share of the debt owed by every citizen of this country is approximately $64,000, and for every trillion dollars of new debt accumulated by our government, each of us will owe another $3000.

Reforming the kakistocracy will not be an easy undertaking in a politically divided nation. Presently most members of the kakistocracy give their loyalty to the political party that put them in office. Unfortunately, by them giving more loyalty to a political party than to the Constitution and the branch of government in which these individuals serve, they have destroyed the ability of the respective branches to be both a constitutional check on each other and reasonable adversaries working to find solutions to the problems of the nation.

Our Constitution does not even mention political parties which are nothing more than associations of individuals, organized to take control of our government. However, our Constitution clearly states the responsibilities of the three branches of government and requires every officer of the United States to take an oath to the Constitution. Taking such oath means every official must act as a fiduciary to the Constitution and the branch of government in which they serve and not to the political party that supported them.

The most fundamental change now needed to control the kakistocracy is for members of Congress to abandon their abiding loyalty to the two major political parties and work as fiduciaries to the Constitution, and the institution of Congress, in addressing the issues facing the nation. This approach requires conforming the actions taken by Congress with the constitutional limits imposed on it. By acting as fiduciaries and not as political parties, Congress will function as an institution to do the peoples’ business rather than as a political club doing the bidding of the special interests.  This change opens up ways for Congress: to address the federal deficit; reduce the massive regulatory structure created to manage the administrative state; ensure there are no more wars unless declared by Congress and to devolve to the states many of the powers taken from them, by the federal government, over the last fifty years.

As citizens, we must always be mindful of two facts. First, we elect individuals to run our country, not political parties. Political parties are special interests, not fiduciaries. Why do we trust them to run our government? The alternative is for individuals to seek election on the promise to serve as fiduciaries and we could elect them.

Second, it is the natural tendency of government and those who benefit the most from it, to continuously grow it. The more government grows, the more resources are available to those in control for redistribution to the beneficiaries of their choice. The only way to control government is to streamline it, a process that will have many positive benefits. Less government means it will need less of our money to function. When the government has less money, lobbyists and politicians will have less interest in government since there will be less to take from it.

Citizens cannot expect the government to control itself. In a democracy, it is only citizens who can control their government by determining who runs it. The brilliant part of our Constitution is that it allows us to participate in a legal, political revolution on a regular basis.  This legal process, called voting, makes it possible for us to completely replace the “leadership” of our government in a four to six-year period.  Its time citizens elect citizens who commit to serving as fiduciaries to the Constitution and the institution in which they serve; not politicians whose loyalty is to a political party.

This article was originally published in Reality News, June 2019

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  • State Legislatures: Last Guardians of the Republic

State Legislatures: Last Guardians of the Republic

William L. Kovacs

July 2019

State Legislatures: Last Guardians of the Republic

The federal government is unable to control its printing of money. The nation has accumulated massive debt.  Wars have continued for years without Congress declaring war. Congress ignores pressing issues such as immigration and health care and fails to enact budgets or appropriations regularly. We need to ask ourselves; can we stop the runaway train before it crashes causing significant injury to the nation?

Our Constitution has many braking systems in place to stop a runaway government, but so far, they have all failed. Primarily, our system of checks and balances which was devised to ensure each branch of government operated as a check on the other branches. As our elected representatives give more and more loyalty to the political party, they are a member of, than to the institution in which they serve, the power of the institution of Congress dwindles leaving only the power of the political party to check the overreaching activities of the opposing political party.

The Executive branch aggressively seeks to increase its power through Executive Order and the issuance of regulations to carry out the intent of the Executive rather than the intent of Congress, thus further diminishing the powers of Congress and the checks and balances so necessary restraining the powers of the federal government.

Our courts affirm the delegation of legislative authority from Congress to the Executive through the passage of broad and vague laws that require the Executive to fill in the legislative blanks. Moreover, when the blanks are filled in, the courts give deference to agency action, viewing the agency as the expert, notwithstanding congressional intent.

The other mechanisms in our Constitution to control a massive federal government have also failed. Every year Congress has the opportunity to control spending through appropriations, yet every year appropriations and our debt increase. In 1970 our debt was $371 billion; in 1982 our national debt reached $1 trillion for the first time, and today we are reaching twenty-two trillion dollars. It is projected that we will add a trillion dollars to our debt every year going forward. If Congress can’t utilize its absolute control over spending to keep the nation living within our means, and the Executive refuses to veto expenditures we cannot afford, then the checks and balances established by our Constitution are useless.

Another possibility is for the people of this nation to control Congress through a common activity that can regularly be utilized – voting. If our present government is failing us, we can change our entire government over six years. Our founders provided us a legal form of peaceful revolution at the ballot box. Unfortunately, it appears that the citizens of this nation are just as split and angry as the politicians in Congress, thus leaving us without the ability to control the federal government.

Fortunately, there is one final option, but one never utilized, to put the brakes on an out-of-control federal government. Article V of the Constitution places such power in the hands of the fifty state legislatures. Under Article V, upon application of the legislatures of two-thirds of the several states, (34), Congress must call a Convention to propose Amendments to the Constitution. The Amendments adopted by the Convention become part of our Constitution if ratified by three-fourths, (38), of the state legislatures or by Conventions of three – fourths of the several states. The method or ratification is up to Congress, and that is the only power Congress has if thirty-four states submit similar applications to Congress.

The state convention process cannot be denied, vetoed or regulated by Congress or the governors of the respective states. The selected delegates would control the Convention. While there have been over four hundred applications to call a Convention of the States, there has not been a sufficient number of states making the same or similar applications.

The point of raising the Article V, Constitutional Amendment process, is not to promote a Convention of the States, a group of the same name is actively pursuing that. My point is to remind all members of the state legislatures that they have taken an Oath that binds them to support the Constitution of the United States as currently constituted. If the state legislatures believe that the massive, debt-ridden, federal government that presently runs our nation is not operating it within the framework of our Constitution, the state legislatures must act for the citizens of the country.

While members of these state legislature may view their duties solely as state functions, the oath they have taken to the Constitution obligates them to ensure the federal government works according to the Constitution. If the federal government operates outside of the Constitution, the state legislatures have been given the constitutional responsibility to save the Republic with a Convention that hopefully restores common sense to the operations of our federal government. If a consensus on Amendments comes out of the convention, the convention delegates will have to persuade the American people and their state legislatures that controlling the federal government is essential to the nation. Reaching a consensus on one or more Constitutional Amendments to control the federal government will be our best chance to reflect not only what we want the country to be, but it will also tell us if we can save the nation.

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  • Affordable Clean Energy Rule: Determining the Rule of Law

Affordable Clean Energy Rule: Determining the Rule of Law

William L. Kovacs

June 2019

Affordable Clean Energy Rule: Determining the Rule of Law

June 19, 2019, is a day of infamy for advocates of the costly and complex federal regulations to address climate change issued by Obama era regulators at the Environmental Protection Agency (“EPA”). On that day, the Trump EPA announced that it was replacing Obama’s Clean Power Plan with the Affordable Clean Energy Rule (“ACER”).

The contrast between the two rules could not be starker. Obama’s Clean Power Plan used the federal rule-making process to set strict emission standards on America’s power and manufacturing industries, imposed rigid state plan requirements that mandated the reduction of the use of certain forms of energy, e.g., coal, and subsidized other forms of energy like wind and solar. The Clean Power Plan empowered EPA to restructure all of American life from the types of energy used, to the products that could be manufactured, to the location of industry.

The legality of Obama’s Clean Power Plan was challenged in court by 28 states and hundreds of U.S. businesses. The U.S. Supreme Court stayed the implementation of the law, and it never went into effect.

When the Trump administration took office one of its first deregulatory efforts was to initiate a rule change to replace the Clean Power Plan. Under the new rule, legally effective around July 18, 2019, the energy industry would still be required to reduce carbon dioxide emissions by thirty-five percent below 2005 levels by 2030. The International Energy Agency however, believes a 74% reduction is needed to address the impacts of climate change.

ACER moreover, eliminates the mandates on states to meet federal emission targets. States are now free to determine how energy efficiency can be improved. Finally, ACER is an armistice between the federal government and the coal industry. Effectively, President Obama’s war on coal is over.

While the environmental community is likely to aggressively challenge the new rule in court for not doing enough to address climate change, that challenge will raise a far more significant issue concerning the rule of law in this country. Specifically, the Obama administration viewed the Clean Air Act as a broad grant of authority that allowed it to regulate the economy in ways never envisioned by Congress.

The Trump administration viewed the Obama Clean Power Plan as more than regulatory overreach, and it viewed it as an illegal power grab to shut down economic growth in the name of environmentalism. What is striking in this conflict between two administrations, is that the same law, the Clean Air Act, without any changes by Congress, was thought by the Obama administration, to be a massive source of executive power, while, a few months later, the Trump administration viewed it as an excessive use of executive power that placed illegal restrictions on the entire economy.

In a similar conflict concerning the application of the Clean Water Act, the Obama administration viewed the law as authorizing power to regulate almost all waters in the United States, no matter how small, including water in ditches. Again, the Trump administration viewed the same law as only regulating water bodies that had an impact on interstate commerce. Again, two diametrically opposed positions taken as the law of the nation within a short period and without any congressional action.

This dramatic conflict over the power of the Executive to change the scope, meaning and intent of a law passed by Congress, in a short time, raises a fundamental question about executive power and the meaning of the rule of law.  While the Clean Air Act and the Clean Water Act are high profile environmental regulations, similar regulatory U-turns regularly occur many times, in many areas of law, when new administrations take office.

This conflict over the scope of executive power to regulate (or what legislative powers can Congress delegate) must be resolved to avoid this nation becoming a banana republic. In the likely event the environmental community challenges the Affordable Clean Energy Rule; the U.S. Supreme Court will have the opportunity to provide guidance on the extent of legislative power (discretion) Congress can delegate to federal agencies. The court had the opportunity this term in Gundy v. U.S. to clarify this issue, but it left in place the eighty-five-year-old principle that as long as Congress can point to an “intelligible standard” in its delegation of power to agencies, the agencies have the discretion to legislate. Unfortunately, the term “intelligible standard” is just as vague as the congressional statutes being relied upon by the agency to issue regulations.

In the Clean Power Plan, the Obama administration expanded a complex statute that Congress intended for the regulation of the most harmful air pollutants, into a statute that regulated the most ubiquitous of air emission, carbon dioxide. This regulatory action, if upheld by the court, would allow the executive to regulate the entire economy, a power never intended by Congress. While the Trump administration is attempting to pull back the regulatory overreach, there is still a fundamental question that the court must address – how an agency determines the scope of the legislative authority delegated to it by Congress?

If this issue reaches the U.S. Supreme Court, its decision will be momentous as to how the federal government regulates climate change. But the decision will have a much greater impact on the power of the executive in using regulations to change the policy of the nation.

If the court sets clear limits on the expansion of agency power through regulation, it will limit radical policy swings, especially those occurring between administrations. Conversely, if the court ignores this issue, it is allowing policy swings between administrations that will denigrate the Article I, lawmaking power of Congress.

Follow Bill @WilliamLKovacs