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  • R.I.P. Rule of Law, How Bad Can It Get?

R.I.P. Rule of Law, How Bad Can It Get?

William L. Kovacs

August 2023

R.I.P. Rule of Law, How Bad Can It Get?

With the exception of the Civil War, the people of the United States have generally lived in a rule-of-law society, one in which all persons are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated. Regrettably, by living so long in good fortune, the people of the U.S. have not put serious thought into what happens when the rule of law dies. The Biden administration’s recent creation of a two-tier system of justice bluntly informs us that while the nation has been blessed with a civil society for 247 years, we are not protected from a bad ending. The theory of the rule of law may be eternal, but its application in the U.S. now appears transient.

Why are the actions of the federal government today more harmful to democracy than in the past?

While there has always been corruption in the federal government, it has never been systemic until the Biden administration. The House of Representatives Committee on Oversight and Accountability sets out the timeframe of corruption from 2013 to 2023. It includes Biden’s corrupt dealings with China, Ukraine, Romania, and Kazakhstan. Biden’s Department of Justice and its surrogate investigative arm, the Federal Bureau of Investigation (“DOJ”), have indicted and are attempting to imprison former president Trump, Biden’s primary rival in the 2024 election. This all follows four years of the Trump presidency, during which the DOJ lied to the FISA courts about the Trump administration and concocted the false Russian collusion narrative that led to the sham impeachment of Trump.

The most horrifying conduct of Biden’s special counsel is his effort to criminalize Trump’s right to speak, think and have confidentiality in his discussions with lawyers. This conduct is an attempt to criminalize all speech that is different from the government’s sanctioned speech.

There is also the DOJ’s attempt to give a sweetheart, no jail time, deal to Hunter Biden by ignoring his conduct as a tax cheat, drug addict, money launderer, and unregistered foreign agent. Even the day before Devon Archer was to give testimony before the House Oversight Committee, DOJ informed him to report to prison before giving testimony. This was an overt attempt at witness intimidation. While the list of crimes by the Biden administration will fill volumes in the history books, the existential question is – how much harm can the Biden administration do to the nation if its conduct continues?

How bad can Biden’s corruption get? Really bad!

Keep in mind the federal government has sovereign immunity. It cannot be sued without its consent. It will not prosecute itself for criminal conduct. Yes, corrupt officials can be prosecuted but only if the DOJ seeks to prosecute them. The Hunter Biden saga illustrates the power DOJ to destroy the rule of law in the United States. DOJ intentionally delayed prosecuting Hunter Biden for almost a decade, thereby allowing the statute of limitations to expire on the most serious tax evasion charges. And, finally, when a Republican House of Representatives pushed the DOJ into prosecuting Hunter Biden, DOJ indicted him on misdemeanor charges and, in a faux plea agreement, sought no jail time. It also attempted to give him complete immunity for all other crimes.  Fortunately for the nation, judge Noreika uncovered DOJ’s deception and refused to accept the sham plea deal.

The significant point in DOJ’s coverup is that it has the sole power to determine who will be prosecuted and what laws will be enforced. Congress can investigate DOJ actions, but it cannot force it to act in accordance with the law or to apply our laws equally. The courts can only hear matters before them. Nothing requires the federal government to prosecute any specific crime. The president can fire corrupt DOJ officials, but what if those officials are carrying out the president’s orders? Yes, the House of Representatives can impeach the president for treason, bribery, and other High crimes and misdemeanors, but if the Senate refuses to convict the president, all his corruption continues.

What does this mean?

President John Adams described our Republic as “A government of laws, not of men.” In the 21t c. those words are pure poppycock. The United States is a government of individuals holding personal power, wealth, and privilege. These individuals will undertake any action, including criminal conduct, to protect themselves the country be damned.

While the proper role of a government official should be as a trustee to the Constitution and a fiduciary to the institution in which they serve, few officials follow that path. Most hold power as politicians that give loyalty only to those helping them maintain their office. It is this loyalty to party and donors that undercuts the principle of separation of powers in the Constitution. There are no checks on power; there is only the Republicans checking the power of Democrats and Democrats checking the power of Republicans.

How can the power of the Executive branch be controlled?

The most effective mechanism for ensuring limited government, but the least likely to be acted upon by our officials, would be for each branch of government to constantly check the power of the other branches, notwithstanding political party affiliation. Absent an effective check on power, there are a few options for restraining corruption:

1.  The most practical approach to controlling corruption in the Executive branch is if one House of Congress is controlled by a party in opposition to the president. That House of Congress can refuse to fund a corrupt government, notwithstanding the fact that part of the government will shut down. The House of Representatives has a clear choice, to fund corruption or to shut down the corrupt agency.

To appropriate money, the House of Representatives and the Senate must agree on the amount of money the government needs, and the president must sign the appropriations into law. But if one House of Congress refuses to appropriate any money to fund a part of the government, that part of the government will be discontinued without passing a new law. This crude process is the only way to control a corrupt government.

2. Congress should grant Use Immunity to those with knowledge of corruption in the Executive branch. By granting use immunity to corrupt officials, corrupt officials can be forced to testify without fear of future punishment for the new information they provide. Securing the truth may be the only mechanism to make the federal government honest and eventually workable.

3. The only real power “We the people” have to control government is our power to vote for members of Congress. We do not vote for the President; that is done by the electoral college and a convoluted quilt of state voting laws, state Secretaries of State, and judicial proceedings. The Supreme Court is appointed, as are the millions of nameless bureaucrats that make laws daily by regulating almost every aspect of society.

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 members of Congress every two years and elect a Congress that is a trustee of the Constitution and a fiduciary to the institution in which they serve. Only by electing a Congress willing to constantly check the powers of the other branches of government can citizens ensure that at least one branch of government, Congress, functions as the Constitution intends.

Electing a Congress that obeys the Constitution is the only failsafe mechanism given to the people to ensure we remain a Republic. If the people of the U.S. continue to elect a Congress that gives it loyalty to politics rather than the Constitution, the nation dies.

So how bad can a corrupt government be?

In the final analysis, John Adams was wrong. We are not a government of laws. The Biden administration and its DOJ have transitioned the United States into a government of men. Rather Thomas Jefferson, Adams’ nemesis, had it correct when he stated, “The government you elect is the government you deserve.” There is little in our Constitution to control a government that is willing to corrupt our constitutional system for personal benefit. So, we must all recognize as citizens the government we elect only functions as well as the individuals we elect.

So how bad can it (the federal government) get without the rule of law? Pick your worst nightmare, and don’t leave any possibility out for being too terrifying. As a nation of men, not laws, we are all subject to the power of narcissists exercised for personal political advantage. History has proven such insanity can result in inhuman outcomes.

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

 

 

 

 

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  • Biden’s “Rule of Law” Administered by a Team of Criminals

Biden’s “Rule of Law” Administered by a Team of Criminals

William L. Kovacs

April 2023

Biden’s “Rule of Law” Administered by a Team of Criminals

The United States, for centuries touted itself as a Rule of Law society. Citizens believe we are all equal before the law, including government officials. This concept is described as “the law is the king,” “no man is above the law,” or “we are a government of laws, not men.”

Unfortunately, the rule of law is neither a rule nor a law. It is a myth. The Biden administration exposes the myth by its every action. The most recent example is the IRS whistleblower who got tired of trying to bring the truth about Hunter Biden’s foreign payments and tax cheating to the top Justice Department (“DOJ”) officials. It appears the DOJ refused to speak with the whistleblowers, however, after listening to a top DOJ official perjure himself before Congress, the whistleblower brought evidence of the DOJ corruption to Congress.

There is the Secretary of Homeland Security, contrary to thousands of hours of video evidence and testimony by border patrol agents and media outlets, who tells Congress the southern border is closed and secure.

The most disturbing corruption, however, is the damage done to the integrity of the U.S. election system by the Biden campaign and its “patriotic CIA officials.” It now appears the letter signed by the fifty-one high-level U.S. security officials was false when sent. It was a lie to the American people in order to influence the 2020 presidential election. While Trump lost the election by receiving fewer votes than Biden, Trump was right that election crimes cost him the election. The crimes were revealed by former CIA acting chief Mike Morrell. He admitted that the letter signed by the “51 intel experts” claiming the Hunter Biden laptop story was Russian misinformation was the real misinformation. Morrell organized the signatures on the false letter to help Biden win the 2020 presidential election.  Morrell hoped he would get the top CIA position. Unfortunately, Biden’s patronage was rewarded to Antony Blinken, Secretary of State, for initiating the letter.

The Biden administration’s list of lies, deceptions, and direct interference with criminal investigations prove there is no rule of law in the U.S. The federal government is operating as a criminal syndicate.

Most concerning, however, is other than the undefined, vague limits placed on the government by the Constitution or laws passed by Congress, there is scant mention of how our legal system applies to the operation of government when it acts illegally, even tyrannically. The fact is the federal government is not held accountable other than occasionally being voted out of office. It operates for its own benefit. The doctrine of Sovereign Immunity protects those running government from being subjected to citizens seeking recourse against it for unlawful actions or even crimes.

As with the rule of law, Sovereign immunity is not written into our Constitution. It is merely a doctrine that was not even recognized by the U.S. Supreme Court until 90 years after the ratification of our Constitution. While the Supreme Court protects federal power by applying the doctrine, it struggles to articulate any constitutional foundation for its use. The doctrine currently holds that the federal government cannot be sued without its consent. It bars all lawsuits against the federal government or its officers unless Congress enacts a law that clearly expresses its intent to lift the bar.

With absolute immunity from suit, unless otherwise legislated, there are few mechanisms to hold the United States government accountable for its illegal actions. The government waives some civil immunity in matters for small claims on its purse, such as torts, and breaches of contract. It sets out specific mechanisms so citizens believe they can secure monetary relief against illegal government actions. The Government Accountability Office, however, notes the waiver of sovereign immunity is not enough to assume the victim will be paid. Specifically, there can be no payment without a congressional appropriation.

Since the government is immune from liability without its consent, the only control over the Executive branch is another branch of government that checks the powers of an abusive branch. When all branches of our government are controlled by one party, the Biden administration proves, there is no rule of law since there is no viable check on abusive power.

When at least one part of the government is controlled by the opposition party, there is at least a slim chance of discovering a little of the government’s illegal activity. Unfortunately, unless the President agrees to hold the federal government accountable for crimes or Congress is able to check the powers of the abusive Executive officials, most likely through impeachment, there are no other mechanisms for holding the federal government accountable for its crimes.

The House of Representatives can always impeach an Executive that acts illegally; however, removing a corrupt Executive is unlikely since it requires a two-thirds vote of the Senate. Unless the President’s party votes to convict, the Executive remains in office, and the criminality can continue unchecked.

Certainly, citizens can speak out, protest, demonstrate, and complain about government corruption.  In the end, however, citizens will be ignored if the government wants to ignore them. Or arrested if the government wants them arrested, as illustrated by the FBI sending twenty heavily armed FBI agents, with weapons drawn, supported by a fleet of armored vehicles, to arrest a pro-life activist at his home in a small Pennsylvania town while playing with his seven children in the front yard. The crime was not disclosed by the FBI, but press reports suggest the person was arrested for pushing a man who was verbally harassing one of his young children. State authorities refused to prosecute the alleged “crime.” The person claiming to be pushed filed a criminal complaint in state court but failed to show up at trial. The case was dismissed.

Dismissing one case is fruitless if the FBI continues to target as domestic terrorists, objectional groups like pro-life advocates, Catholics attending Latin mass, and parents who speak out at school board meetings.

The only power “We the people” have to control corruption in the federal government is our right to vote. It is extraordinarily powerful. By electing a Republican House of Representatives, Americans are witnessing the exposure of corruption by those who lead the nation. Unfortunately, exposing corruption has its limits since the Biden administration determines who is a criminal and who it will prosecute.

The stakes in the 2024 election are very high. If the Biden administration and the Democratic Senate are not voted out of office, the corruption of the Biden administration will continue unchecked until at least 2029.  Who knows what the state of the Republic will be after eight years of unchecked corruption?

 

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

 

 

 

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  • Rule of Law: Federal Government Master, Citizens Servants

Rule of Law: Federal Government Master, Citizens Servants

William L. Kovacs

April 2023

Rule of Law: Federal Government Master, Citizens Servants

The U.S. is in its 118th Congress, and the nation, for the first time in its history, appears weak to the world, divided at home and in unmanageable debt. If the U.S. is to reclaim its standing as an extraordinary nation, every citizen needs to reflect on how the federal government changed the Constitution. The federal government is now the master, and its citizens are the servants. Citizens have exchanged positions with the government by electing Congresses that are unwilling to act as an institutional check on the President. The result, the rule of law is what the President determines is the law.

Moreover, since the founding of the Republic, the Supreme Court has been aggressively complicit in this power grab. It has approved almost every law expanding federal power and protecting the federal government’s abuse of power. The expansion of federal authority has created a legal system that exempts the government from the laws it imposes on citizens.

The rule of law is not a rule or a law.

Citizens believe we live in a rule-of-law society, and we are all equal before the law, including government officials. This concept is described in many ways, such as “the law is the king,” “no man is above the law,” or “we are a government of laws, not men.”

We are taught these concepts, so we believe our government will be fair to us. Moreover, if our government breaks the law, it will receive the same treatment under our legal system as any lawbreaker. A very comforting concept to the naïve. The “rule of law” is not a law of any kind. It is not part of our Constitution, and it has no binding effect on anything. It is merely a clever phrase or, more appropriately, a fable repeated to make the government sound fair and accountable while persuading citizens to obey its every command.

Other than the undefined, vague limits placed on the government by the Constitution or laws passed by Congress, there is scant mention of how our legal system applies to the operation of government when it acts illegally, even tyrannically. The fact is the federal government is not held accountable other than occasionally being voted out of office. It operates for its own benefit. The doctrine of Sovereign Immunity protects those running government from being subjected to citizens seeking recourse against it for unlawful actions or even crimes.

Sovereign immunity is not written into our Constitution.

Sovereign immunity is not written into our Constitution. It is merely a doctrine that was not even recognized by the U.S. Supreme Court until 90 years after the ratification of our Constitution. While the Supreme Court protects federal power by applying the doctrine, it struggles to articulate any constitutional or statutory foundation for its use. The doctrine currently holds that the federal government cannot be sued without its consent. It bars all lawsuits against the federal government or its officers unless Congress enacts a law that clearly expresses its intent to lift the bar.

With absolute immunity from suit, unless otherwise legislated, there are few mechanisms to hold the United States government accountable for its illegal actions. The government waives its civil immunity in matters for small claims on its purse, such as torts, breaches of contract, copyright violations, tax disputes,  and violations of civil rights when government officials are acting under the color of law. By establishing the Court of Federal Claims and the Judgment Fund, the government sets out specific mechanisms for citizens to seek monetary damages or injunctive relief against the government. The Government Accountability Office, however, notes the waiver of sovereign immunity is not enough to assume the victim will be paid. Specifically, there can be no payment without a congressional appropriation.

Since the government is immune from civil and criminal liability, the only control of the federal government is another branch checking the powers of an abusive branch. When the respective branches of our government protect each other, the federal government is the master of the nation and its citizens the servants.

Examples of the federal government’s abuse of law.

The corruption of the U.S. legal system through the assertion of sovereign immunity is clearly illustrated when the Executive issues illegal orders and the president’s party in Congress has sufficient votes to block all checks on Executive power. In this circumstance, the Executive is literally free to violate the law with impunity as Congress protects Executive overreach. President Biden proves this point daily by refusing to enforce immigration laws. Such avoidance fosters open illegal immigration and drug and sex trafficking into the country.

Another example is the President’s son. Based on the information on his son’s personal laptop, the President is very likely personally compromised and has perhaps compromised the national security of the nation due to direct dealing with nations hostile to the U.S. Yet, the Department of Justice protects the president and his son by refusing to prosecute massive wrongdoing that would put the average citizen in prison for years. Due to the Executive’s control over who is prosecuted, the government is free to do whatever it wants, and citizens have no legal mechanism to restrain it.

A Navy officer took photographs of a nuclear submarine he worked on and was imprisoned for improperly handling national security secrets. During the same time period, a presidential candidate of the same party as the sitting President maintained an illegal secret server in her home. The unprotected server illegally received classified security information, which placed our nation’s secrets at risk of being obtained by foreign governments. The candidate was never prosecuted.

Congress issues a subpoena to the DOJ for information on its false filings before the Foreign Intelligence Surveillance Court. The DOJ refused to provide Congress with the documents to avoid embarrassment and likely the acknowledgment of its criminal activity. By refusing to provide such information, the constitutional checks on the other branches of government are rendered meaningless by the Executive branch.

The FBI regularly demanded Twitter, a private company,  ban what it deemed misinformation on its site, notwithstanding the fact that it was the FBI spreading the misinformation. While these actions are a violation of the First Amendment rights of citizens and perhaps direct election interference, the Executive will never prosecute itself or its corrupt agents carrying out his demands.

The most recent is the Trump series of prosecutions. No matter how negative one may think of Trump, prosecutions based on “Get Trump” are, as Professor Dershowitz asserts, a very significant threat to civil liberties, due process, and the constitutional rule of law.

Without an Independent Congress, there is no power to check an abusive Executive or even a tyrant.

Unless the President of the U.S. agrees to hold the federal government accountable for crimes or Congress is able to check the powers of the abusive Executive, most likely through impeachment, there are no other mechanisms for holding the federal government accountable for its crimes. The House of Representatives can always impeach an Executive that acts illegally; however, removing the Executive is unlikely since it requires a two-thirds vote of the Senate. Unless the President’s party votes to convict, the Executive remains in office, no matter the criminality of the conduct.

Certainly, citizens, we can speak out, protest, demonstrate, sometimes complain at government meetings, or send nasty letters to our elected officials. In the end, however, they will be ignored if the government wants to ignore them. Or arrested if the government wants them arrested, as illustrated by the FBI’s efforts to intimidate parents seeking answers from the Loudoun County School Board that covered up the actions of a sexual predator who assaulted a student in their school.

Citizens could emulate the peaceful resistance or nationwide strikes that Mahatma Gandhi led in India. Unfortunately, if peaceful resistance is undertaken, it is likely, the federal government will use the tactics of the British Empire by brutally attacking citizens. A recent incident supports this proposition. In a small Pennsylvania town, twenty heavily armed FBI agents, with weapons drawn, supported by a fleet of armored vehicles, arrested a pro-life activist at his home while playing with his seven children in the front yard. The crime was not disclosed by the FBI, but press reports suggest the person was arrested for pushing a man who was verbally harassing one of his young children. State authorities refused to prosecute the alleged “crime.” The person claiming to be pushed filed a criminal complaint in state court but failed to show up at trial. The case was dismissed. The FBI, however, targets certain groups, like pro-life advocates, Catholics attending Latin mass,  and parents who speak out at school board meetings, asserting them to be domestic terrorists, yet, leftist radicals who burn down cities are never prosecuted. The federal government views these arsonists as exercising free speech rights.

The only power “We the people” have is our vote for Congress.

The only power “We the people” have to control the federal government is our power to vote for members of Congress. We do not vote for the President; that is done by the Electoral College and a convoluted quilt of state voting laws and state Secretaries of State. All federal judges are appointed, as are the millions of nameless bureaucrats that make laws every day by regulating almost every aspect of society.

Our right to vote for members of Congress is extraordinarily powerful. It is a legal mechanism for a peaceful revolution. Citizens have the power to vote out the entire House of Representatives every two years and all elected officials over six years. To restrain the federal government, citizens must elect a Congress that is a trustee of the Constitution and a fiduciary to the institution in which they serve. Only by electing a Congress that is willing to check the powers of the other branches can Congress protect citizens. Until “We the people” elect a Congress that checks Executive power and judicial super legislating, we are accepting that –the federal government is our master, and we are its servants.

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

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  • Federal Law: Virtue Signaling While Abusing Rule of Law

Federal Law: Virtue Signaling While Abusing Rule of Law

William L. Kovacs

June 2021

Federal Law: Virtue Signaling While Abusing Rule of Law

There are probably more well-deserved jokes about the U.S. Congress than any institution in the world. Will Rogers quipped “When Congress makes a joke it’s a law, and when they make a law, it’s a joke.” Rogers perfectly captures how the actions of Congress are more often virtue signaling than efforts to ensure a rule of law society.

“Virtue Signaling” describes “…the act of showing support of doing something ‘virtuous’ because it makes you look good to your peers, rather than because you truly believe it.” While virtue signaling is part of the DNA in most organizations and cable news, it is front and center in Congress. Unfortunately, members of Congress find greater ego satisfaction virtue signaling to supporters than doing the hard work needed to enact carefully crafted laws that will be effectively implemented. While there are thousands of examples of the disconnect between what is enacted into law and the real-world policies of the U.S., the laws outlawing child labor, forced labor, and illegal immigration are excellent examples of the disconnect.

Child Labor

Virtue Signaling – Congress signaled great virtue when it enacted Section 307 of the Tariff Act of 1930 to prohibit the importation of goods made, in whole or in part, by the forced labor of children. With more virtue signaling, Congress in 2005 assigned the Department of Labor the responsibility to reduce the likelihood of these goods being imported into the U.S.

Abuse of Rule of Law – Unfortunately, still today, many of our most in-demand products are made by the forced labor children and are being imported into the U.S. Wise step, a recruitment software company, in an article, identifies the 28 companies that still use child labor. Most of the companies are top brand names but more interesting is the breadth of industries still using child labor to produce products for American consumers. The industries include chocolate making, food production, fashion, apparel, sneakers, toys, and cell phones.

Forced Labor

Virtue Signaling – Forced labor, commonly referred to as “slave labor,” is defined by section 307 as “All work…extracted from any person under the menace of any penalty for its non-performance which the worker does not offer himself voluntarily.” While the statute prohibits any product mined, produced, or manufactured, wholly or in part, by forced labor, it has little enforcement due to a clause that allows the U.S. to waive enforcement if it lacks the resources (i.e., money) to conduct inspections or the products are no longer made in the U.S. but wanted by consumers.

Abuse of Rule of Law – As to the lack of inspection resources, Congress merely fails to appropriate the money for inspections. As to products no longer made in this country, U.S. business decades ago exported its manufacturing base to acquire cheap labor.

Having two self-fulfilling reasons for not enforcing prohibitions on forced labor, the federal government rarely used its section 307 enforcement powers; only 60-75 times between 1930 and mid-1980 and 27 times between 1991-1995. There were no enforcement actions between 2000-2016. In 2016 Congress removed the exemption clause. Since then, there have been 16 enforcement actions.

Immigration and Illegal Immigration

Virtue Signaling – Congress enacted a comprehensive Immigration and Nationality Act that is several hundred pages long. It addresses everything from application forms, different aspects of travel for the different status categories, to visas and foreign entry, to detention procedures. Literally, every step of the legal immigration process is established so that foreign citizens can apply to the United States for citizenship or permission to work. The law is supplemented by regulations, policy manuals, memoranda, and Handbooks, comprising tens of thousands of pages on how to become a U.S. citizen. It appears nothing is left unsaid by the bureaucrats.

Congress has been legislating on citizenship issues since 1790. While Congress has legislated many inconsistent policies over the years, e.g., exclusion at various times of Chinese, Communists, idiots, alcoholics, preferences for nurses at times, and countless other categories of exclusion or preference, it has always had detailed policies on legal entry into the country.

Abuse of Rule of Law – Notwithstanding the countless immigration policies and procedures for legally entering the U.S., President Biden, without any change in law, promised good treatment to undocumented immigrants crossing our Southern border, in violation of U.S. law. He also reinstituted catch and release policy in which these unauthorized citizens are caught and immediately released into the interior of the country, making it impossible to ever find them. For all intents and purposes, these undocumented people are now permanent residents of the U.S., they just lack paperwork.

In the month of March 2021, alone, there were 172,000 persons in this category. Estimates are that 6000 people, per day, are now entering, the U.S., the highest in our history, without complying with our immigration laws.

These unauthorized entrants include drug cartel members, and gang members with indentured servants, sex traffickers and drug dealers, and those sick with Covid-19.

The Rule of Law Is a Fiction in the U.S.

The United States continuously signals virtue claiming to be a Rule of Law society. We have comprehensive laws regulating or prohibiting child labor, indentured servitude, sex trafficking, drug smuggling, and have a process for legal entry into the country. Actually, the U.S. has tens of thousands of laws that regulate most aspects of society, from low-flush toilets to the ethical treatment of animals. We have more laws than any other country in the world. In short, we constantly signal our virtue to the world.

Unfortunately, we have a government that randomly and arbitrarily implements the laws of the nation. We have a big business community that regularly skits the law for extra profit. We openly allow illegal entry into our country of people who are the worst of the lawbreakers, i.e., drug dealers, cartel operators, sex traffickers, and those who enslave others.

The U.S. government should be honest with the laws it enacts. It could legalize certain drugs and prostitution. It could increase the number of work permits for foreign labor. Taking these steps would make our laws consistent with our actions. But the U.S. won’t do any of this. In the end, the federal government wants a massive number of laws so it can prosecute, regulate or eliminate those it finds objectionable.

Tacitus warned us that “The more corrupt the state, the more numerous the laws.” By that definition, we are the most corrupt nation on earth. Congress needs to eliminate all unnecessary laws and enforce the necessary laws. In more colloquial language, Congress needs to stop virtue signaling and start being responsible lawmakers. Having reasonable laws that are obeyed is the basis of the rule of law society and engendering respect for our institutions.

 

 

 

 

 

 

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  • Rule of Law or Different Rules for Us and Government

Rule of Law or Different Rules for Us and Government

William L. Kovacs

October 2019

Rule of Law or Different Rules for Us and Government

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

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

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

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

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

A few examples put this disparity into perspective.

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

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

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

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

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

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

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

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