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  • Devolution of Power: Rolling Back the Federal State

Devolution of Power: Rolling Back the Federal State

William. Kovacs

March 2024

Devolution of Power: Rolling Back the Federal State

In my new book, Devolution of Power: Rolling Back the Federal State to Preserve the Republic, I address a question more and more citizens are asking: Can a distrusted federal government unite and govern this polarized country? If not, how do we divide?

Readers should not quickly dismiss the idea of devolving federal domestic powers to the states. First, the federal government is de facto bankrupt. Within a decade, it will be forced to substantially reduce or eliminate the subsidies it gives states to implement over a thousand programs the federal government lacks the constitutional authority or resources to implement. The loss of state subsidies will be the catalyst that ignites the devolution of federal powers to the states.

Second, the federal government and the states had a workable power-sharing relationship until the Great Depression. Moreover, until the early 1900s, the collective budgets of the states were larger than the federal government, and states managed most of the nation’s domestic policies. Since 1980, however, there has been a massive explosion of federal power, evidenced by the fact that 97% of the national debt has been accumulated under the last seven presidents. For the federal government to again be a viable governing entity, it must shrink itself so it can competently manage the essential needs of the nation.

If it is constitutional for the federal government to accumulate power by taking it from the states, it is constitutional for the federal government to return many of these domestic powers to the states.

Devolving power to the states is possible since the U.S. federal government is not the United States, although it acts as its ruler. Instead, it is an instrumentality of the people established to manage their governmental affairs. None of our federal officials are granted power as individuals. They are merely volunteers elected as representatives to temporarily manage our government.

Unfortunately, since the federal government’s creation, the individuals acquiring federal power have skillfully blended the powers of the three federal branches into two competing power structures not established by the Constitution. These power structures are called political parties. As such, citizens are no longer protected by the Constitution; they are protected by Democrats or Republicans, depending on which party controls the government apparatus.

Polls show only 20% of citizens trust the U.S. federal government to do what is right most of the time. Almost half of Americans believe the nation is as close to the edge of a Civil War as it was in 1861. Political commentators, mainly on the political Left, pontificate the U.S. will divide into red and blue states or red states will secede from the Union or reform state boundaries. These commentators would welcome unrest in the red states. They fully grasp that the federal government will use all the emergency powers Congress delegated to it and any force necessary to maintain its stranglehold on every aspect of national life. Americans were given a glimpse of these powers in Covid.

Devolving many domestic federal powers to the states may be the only alternative governing mechanism to keep the Union together. It would allow citizens of the respective states greater freedom to live under policies reflecting values closer to where they live rather than national values imposed on them by a distant government and powerful national advocacy groups that do not understand or care about the needs of citizens. In this new governing structure, the federal government would focus on its essential responsibilities to protect the nation, manage activities that directly (not incidentally) impact interstate commerce, defend the dollar’s value, and reduce the national debt. The states would manage most of the nation’s domestic policies, e.g., crime and punishment, labor and environmental standards, energy production, abortion, economic development, permitting, and immigration other than naturalization.

How the U.S. is governed should concern every American since we live with the consequences of the federal government’s massive debt, regulatory sclerosis, continuous wars, open borders, and a declining ability to protect the nation. In our complex society, the cooperation of all levels of government is needed to make society function efficiently for its people. It’s time the federal government stopped worrying about accumulating power and control over citizens and focused on what benefits citizens.

While commentators in the UK, Scotland, and New Zealand have written about devolving federal power to better manage government, the topic is just now being addressed in the United States.

Unlike many books on government reform, Devolution of Power is not just a list of complaints that leave readers seeking solutions. It provides a roadmap for promoting freedom by unwinding the massive accumulation of federal power by returning many domestic functions to the states. It addresses how to restructure a federal government before it collapses the nation by:

  • Identifying the federal government’s apocalyptic flaws,
  • Setting out mechanisms for trimming the national debt and the federal bureaucracy,
  • Providing options for rolling back federal power,
  • Outlining a restructuring plan to devolve federal power to the states and
  • Describing the character traits needed by elected officials to restore trust in government.

The book laments how Congress has fallen into irrelevancy by delegating its most important powers to the president, including declaring war and national emergencies, unauthorized spending, and ignoring the unconstitutional consequences of presidents making new laws by regulation and Executive Order. The book argues that only when Congress regains control over its legislative and spending powers will it understand it created a federal government too big and complex to govern the nation. At that point, the restructuring process can begin.

A fundamental premise in the book is that until our elected officials rekindle John Locke’s idea that no power is granted personally to any government official, every official must serve as fiduciary, not a self-interested politician. To serve as a fiduciary, elected officials must give all their loyalty to the institution they serve and not to the political party that helped elect them. Only by being loyal to the institution they serve can they check the abuses taken by the other branches of government. Only by actively defending our Constitution’s separation of powers structure, no matter who is in charge of the other branches, can our elected officials restrain government and promote the rule of law.

In the final analysis, Devolution of Power argues that the citizens of the U.S. must understand they are responsible for their government and what it does. Citizens do not have the “just following orders” defense since they elect the individuals who manage their government. The citizens of the U.S. are now confronted with an “either/or” situation. Either citizens elect a government of fiduciaries that limit the power of the federal government, regardless of political affiliation, or they must accept living under an all-powerful federal government that is organized around corruption, deception, and eventually brutal tyranny.

William L. Kovacs, author of Devolution of Power, has served as senior vice president for the U.S. Chamber of Commerce, chief counsel to a congressional committee, chairman of a state environmental board, and a partner in law D.C. law firms. He testified before Congress forty times in his career and participated in hundreds of federal rulemakings. His book Reform the Kakistocracy won the 2021 Independent Press Award for Political/Social Change. 2019, Kovacs received the Albert Nelson Marquis Lifetime Achievement Award from Marquis Who’s Who.

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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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  • Trust Is Government’s Most Important but Disregarded Asset

Trust Is Government’s Most Important but Disregarded Asset

William L. Kovacs

October 2022

Trust Is Government’s Most Important but Disregarded Asset

Trust is a simple concept; it is the assured reliance on the character, ability, strength, or truth of someone or something. In simple terms, it means the person or institution does what it states it will do. The United States government has a hard time persuading a majority of its citizens to trust it. The lack of trust in the federal government is seriously eroding its creditability. If it continues to grow, it will impact the federal government’s ability to govern the nation.

The government of the United States has massive assets. It owns 27% of all the land in the country, and through the use of eminent domain, it can acquire whatever other lands it desires. It has trillions of dollars to spend on its wishes while passing its debt to future generations, so it does not burden the current “taking generation.” It controls a well-armed military and an overly arbitrary Federal Bureau of Investigation, to keep any dissent in its place, down to parents at school board meetings. Through the doctrine of sovereign immunity, the Supreme Court holds the federal government “can do no wrong,” therefore it is immune from suit and accountability unless it allows some commoner to sue it.

Yet, having these many powers and riches to do what it wants, and to be free of legal challenges, is not making the lives of citizens  better.

The Pew Research Center’s study of trust in government from 1958-2022 found only two in ten Americans in 2022 trust the government in Washington. In 1958 seventy-five percent of Americans trusted the federal government to do the right thing almost always or most of the time.

Trust is the foundation of democracy. The philosophical theories underlying democracy believed that it was only by persuading man to trust the benefits of civil society (primarily the protection of property) that man was willing to abandon his state of nature, that wild, primitive state untouched by civilization. When trust in government is lost, it is hard to ensure the continuation of democracy.

In a civil society, humans renounce individual power and comply with the rules of the community by trusting the community will safeguard them and subject offenders to punishment. When the bonds of civil society break, people no longer feel protected from their enemies, which can include government.

As a radically polarized country, Democrats have more trust in government when they control government, just as Republicans have more faith in government when they control it. This situation leaves half the nation in perpetual distrust of those who rule the country.

The seeds of this distrust are sown by those who seek public office. These office seekers do not seek office to be our servants. They seek it to be our masters. They do not have loyalty to the Constitution and the rule of law. Their loyalty is to their brand, and the political party and interest groups that help elect them. To these office seekers, being a federal office holder is about being a ruler of the people, not a trustee of the Constitution. This misguided loyalty destroys our Constitutional structure by ignoring the separation of powers mandate to ensure each branch of government is an independent check on the other branches to limit the powers of government.

Institutional integrity is lost when the powers of the several branches of our government become blended due to party affiliation. Once in this situation, the rights of the people are only protected by Republicans or Democrats, depending on who is in power and who they want to protect. In this situation, Congress generally diminishes itself by allowing the Executive to legislate through Executive Order, rulemaking, arbitrary enforcement, or non-enforcement of the laws.

As our public officials abandon strict adherence to the separation of powers structure of the Constitution, government separates itself from the people. The new structure replaces the sovereignty of the people with the authority of government officials.

Our government officials:

  • saddle future generations with such massive amounts of debt; they are placing these generations into involuntary servitude to the government;
  • enforce a two-tier system of justice in which justice is administered according to political beliefs, not according to the actions of individuals;
  • mislead, misinform, and lie to the public so frequently that the public can no longer decipher facts from conspiracy theories;
  • impose laws on the people that they do not follow; as such citizens observe hypocrisy, not leadership; and
  • by rewarding friends (saving Hunter Biden) and punishing enemies (raiding Trump’s residence), one-half the public views only corruption.

How can citizens have faith in a government that acts in this manner? John Locke believed these government actions put it in a state of war with its people. Locke writes, “Whensoever, therefore, the legislature [government] shall transgress this fundamental rule of society… [by] this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people who have a right to” establish a new government.”

Today the government of the United States is in a perpetual state of war with half the people of the nation. The United States truly depicts Lincoln’s “House Divided.” While a congressional election in a few months may restrain some of the hostility directed at many citizens, it will not be sufficient to heal the nation. Over the next few elections, the country needs to elect representatives who seek to be our servants, not our rulers. Only when citizens elect Representatives who pledge to serve as fiduciaries to the nation and trustees of the Constitution, will we have a government that restores trust in the government.

While the government must have the trust of the people, the actions U.S government are at war with fifty percent of its population. This makes trust impossible.

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  • To Whom Does an Elected Official Owe a Duty of Loyalty?

To Whom Does an Elected Official Owe a Duty of Loyalty?

William L. Kovacs

October 2022

To Whom Does an Elected Official Owe a Duty of Loyalty?

As the 2022 elections for Congress approach, citizens should ask to whom an elected official owes a duty of loyalty. Are these candidates merely politicians seeking office to enhance their brand by leading the opposition against Americans who think differently? Or are these candidates seeking office to serve as fiduciaries to the Constitution? In a dangerously polarized nation, the answer leads to dramatically different forms of governance. The current political strife leads to deceit, distrust, and conflict. Electing fiduciaries should lead to trust that our institutions work for the people.

For 256 years, the U.S. has elected representatives, but their duty of loyalty to whom or what is vague. Of course, all take an oath to the Constitution and represent constituents, but such responsibilities are so abstract they are meaningless.

The writings of John Locke, Edmond Burke, and James Madison reflect a fundamental belief that no power is granted to our representatives as individuals. These representatives are fiduciaries that must act to achieve the public good. As fiduciaries, they cannot act beyond their legal authority and must administer laws impartially. Unfortunately, today this view is rejected by what Madison terms “factions,” groups of citizens united in a common interest adverse to others in the community.

These factions are today’s political parties and interest groups that build their brand, raise massive amounts of money and acquire power by preaching division. The academic literature supports this self-interest by arguing that public officials cannot be fiduciaries since it would be impossible to give loyalty to the many diverging interests confronting elected officials.

While divergent ideas are essential and constitutionally protected, the fiduciary’s duty of loyalty does not apply to individuals, groups, or political parties. Instead, it applies to the Constitution’s separation of powers structure that allows society’s many contestable issues to be debated rationally to foster a consensus around the public good. The process includes a Congress that formulates laws after listening to all sides of a debate; an Executive administers those laws, and courts resolve the controversies between branches.

For this structure to work, each branch of government has an independent duty to act as a check on the other branches. This tension is necessary to achieve the public good. Unfortunately, when elected representatives function as politicians, they distort the constitutional structure by placing their loyalty to political parties and interest groups ahead of the institution they serve. Displaced loyalty diminishes the Constitution.

Since our Constitution is held in trust by our elected representatives, for the American people, it is protected when these officials vigorously defend the powers and duties of the branch they serve. Such defense is the best mechanism to ensure government is limited to the powers given it by the Constitution.

Today’s political climate illustrates this point. We have one political party controlling Congress and the Executive. We have an Executive making new laws, (student loan forgiveness), or refusing to enforce existing law (immigration). While the Executive’s party in Congress may have a majority of members in its caucus, at times, it still may lack the votes needed to authorize the Executive’s actions. In instances when the Executive acts without congressional authority, his party in Congress generally has the power to block the minority party from preventing the Executive’s arbitrary accumulation of power. As an end run around the Constitution, the politicians in Congress, rather than dealing with the difficulties of the legislative process, abandon their oath to uphold the separation of powers by allowing the Executive to make law through regulation, Executive Order, or simply not enforcing laws.

In theory, the Constitution works well. In practice, however, the constitutional mandate of separation of powers is regularly abused. When Congress ignores its duties to defend the separation of powers, it limits the ability of the constitutional structure to fully allow the multitude of interests a voice in the debate needed to achieve a governing consensus. For several decades party-line voting (Democrats vote one way; Republicans oppose) has become the norm. In the 1960s, party-line voting was around 60%, but by the Trump administration, it reached 90%. Without letting the structure of the Constitution work, these representatives breach their fiduciary duty to the Constitution by allowing the Executive to enhance its power by diminishing the power of Congress.

When loyalty to political parties and interest groups eliminates the separation of powers protections in the Constitution, citizens must rely on the interest groups named Democrats or Republicans for protection. Today such actions are arbitrary political power. Tomorrow it could be tyranny.

This article was first published in TheHill.com

William L. Kovacs, author of Reform the Kakistocracy, winner of the 2021 Independent Press Award for Political/Social Change, and former senior vice president at the U.S. Chamber of Commerce.

 

 

 

 

 

 

 

 

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  • The Real Separation of Powers: Government vs Citizens

The Real Separation of Powers: Government vs Citizens

William L. Kovacs

April 2022

The Real Separation of Powers: Government vs Citizens

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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  • FOR WHOM DID WE FORM A GOVERNMENT?

FOR WHOM DID WE FORM A GOVERNMENT?

William L. Kovacs

September 2019

FOR WHOM DID WE FORM A GOVERNMENT?

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

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

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

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

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

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

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

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

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

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

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

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

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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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  • The Constitution Mandates Government Officials Act as Fiduciaries

The Constitution Mandates Government Officials Act as Fiduciaries

William L. Kovacs

June 2019

The Constitution Mandates Government Officials Act as Fiduciaries

A fiduciary is a person who has a duty, created by a voluntary undertaking, to act for the benefit of another in matters connected with such effort. Government officials voluntarily seek and assume positions in our government. They freely take an oath to support the Constitution. When they voluntarily assume the responsibility of managing our government, we entrust them with our money, our property and liberty, the fair implementation of our laws, and the defense of our country.

Government officials must never act for personal benefit or the benefit of the political party that supported them. Such actions are a breach of fiduciary duty. These are significant responsibilities that, if not correctly executed, can create massive abuses that inflict great harm on our people and nation.

Government officials having fiduciary obligations is a controversial topic. There are more than a few well-crafted law review articles that argue the fiduciary duty standard cannot be easily transferred from trust or corporate law to the public law. These scholars argue in the public arena there is simply no way to determine who is the beneficiary of a government officials’ duty of loyalty. There are too many beneficial interests and legal relationships that are qualitatively different, for a rational trust policy to be constructed.

These law review articles provide excellent straw-men examples of the unworkability of imposing a fiduciary relationship between government officials and diverse laws to be administered, constituents, institutions to be served, and political parties since there is no consensus on what interests are to be protected. The reasoning seems to be that since validly enacted laws, regulations, and orders are constitutional, the exercise on a fiduciary duty must encompass all actions of the government, or the fiduciary duty cannot be imposed on the government official.

This “too much complexity argument” misses the critical point by jumping to the conclusion that to be a fiduciary the government official must be a fiduciary to every constituent for all validly enacted laws, regulations, orders, and other government actions.  That is not what our Constitution mandates. Our Constitution is clear; the Oaths Clause refers to the operation of the framework of the Constitution. As such, all actions must be consistent with its structure of limited government held in check by the separation of powers between the three branches of government. Therefore, the fiduciary duty merely reaffirms what the Oaths Clause imposes – loyalty must be to the operation of our Constitution and the institution in which one serves.

To ensure a limited government, each branch must continuously operate as a check on the other branches. For this to occur, the fiduciary duty of each member of our government is to the branch in which they serve and not to a political party that may have helped them achieve their employment.

When this system of checks and balances fails, it is a breach of fiduciary duty on the part of those officials in our several branches of government. This breach of fiduciary duty occurs when members of the government are more loyal to the political parties supporting them than to the branch of government in which they serve. Our Constitution establishes institutions of government to protect us by having each branch check the powers of the other branches of government. Unfortunately, today members of our government work as Republicans or Democrats and not for the institution in which they serve. The goal of these Republicans or Democrats is to achieve the overall interests of their political parties. Just look at Congress and the large number of party-line votes and how each party connives to best the other. Look the Executive who usually only works with the political party of which he is a member to deliver the votes needed to carry out the Executive’s wishes. Alternatively, look at the courts and all the judge shopping that goes on to ensure that the court where the filing occurs agrees with the political position of the party filing the lawsuit.

When political parties so control the power structure that they replace the functioning of the institution with the goals of a political party, we citizens have our rights greatly diminished. We are then only protected by political parties, and cannot depend on the respective institutions of government for protection.

We citizens need to continually remind ourselves that political parties are nothing more than special interest organizations created for one purpose – to control the government of the United States. Political parties have so successfully organized that one of the two political parties many times, controls all aspects of our government. When in control they make whatever laws or regulations they wish to enact, subject only to whatever political power the opposing party may have to limit the majority’s power. In this instance, the institutions of our government are irrelevant.

If a president wants an illegal war and his party controls Congress, then it is war; notwithstanding the War Powers clause of the Constitution. If the president wants to create laws by regulation instead of going through Congress, and the opposing party in Congress cannot stop it, then the rules become law even if Congress never intended its law to be so expansive.

While their many examples of how political power trumps institutional power, what is clear is that if members of Congress were operating as fiduciaries to the institution that checks presidential or judicial overreach, rather than as a political machine, Congress would check the executive or judicial branches of any constitutional overreach. Also, vice versa for the other branches. Such checks are not available when our institutions operate to achieve the goals of a political party rather than functioning as an institution that checks the powers of the other branches.

When our government officials work to help the political parties control our government instead of working to protect the constitutional powers of the institution in which they serve, our government officials breach their fiduciary duty to the Constitution and the citizens of the nation. Our government officials cannot have divided loyalty between a political party and our Constitution. Such divided loyalty does not provide citizens the same protections as if the members of our government remained loyal to the institutions in which they serve.

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  • Separation of Powers Demands Congress Reclaim Its Powers

Separation of Powers Demands Congress Reclaim Its Powers

William L. Kovacs

May 2019

Separation of Powers Demands Congress Reclaim Its Powers

Nothing in our Constitution can be more explicit in intent and meaning than the first sentence which reads: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

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

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

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

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

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

Once in this state of helplessness, Congress has only one power to control the courts or administrative state; that is the power of the purse.  Under our Constitution “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”  If a party is in control of the Executive and both houses of Congress, the will of the Executive generally prevails. However, if a minority party controls one house of Congress, it can withhold the monies needed to run the parts of the administrative state it believes are acting improperly. While withholding the funds to operate the administrative state is viewed by many as abhorrent; it is the only constitutional power that Congress can exercise that cannot be blocked by the other branches. If Congress cannot withhold monies to fund the administrative state out of fear of political backlash, then it is a useless power for controlling the administrative state.

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

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