The Federal Regulatory Nightmare is Unconstitutional

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The Federal Regulatory Nightmare is Unconstitutional

Fed­eral reg­u­la­tions place an enor­mous bur­den on our econ­omy. They are stran­gling every indi­vid­ual and busi­ness with red tape. Ear­lier this year the Com­pet­i­tive Enter­prise Insti­tute released this report detail­ing the exact size of this reg­u­la­tory night­mare. Here are some high­lights from that report.

  • The total cost of reg­u­la­tory com­pli­ance for 2015 alone was $1.885 trillion
  • The cost per house­hold that year was $15000
  • 80000 pages of fed­eral rules and reg­u­la­tions were added to the fed­eral reg­is­ter that year
  • There are about 60 dif­fer­ent fed­eral agen­cies writ­ing regulations

The vast major­ity of these reg­u­la­tions vio­late sev­eral fun­da­men­tal clauses of the United States Constitution.

All of these reg­u­la­tions are writ­ten by depart­ments of the Exec­u­tive Branch or by inde­pen­dent agen­cies. This vio­lates Arti­cle I Sec­tion 1 which states:

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.

The leg­isla­tive branch has been derelict in its con­sti­tu­tional oblig­a­tions. For the past sev­eral decades both houses of con­gress have writ­ten laws which have del­e­gated leg­isla­tive power to these reg­u­la­tory agen­cies. Con­gress does not have the author­ity to del­e­gate leg­isla­tive author­ity to any­one. They are not granted that power. John Locke, one of the pri­mary influ­ences of the framers of the Con­sti­tu­tion, was quite clear on this when he wrote his Sec­ond Trea­tise on Government:

The Leg­isla­tive can­not trans­fer the Power of Mak­ing Laws to any other hands. For it being but a del­e­gated Power from the Peo­ple, they, who have it, can­not pass it over to oth­ers. The Peo­ple alone can appoint the Form of the Com­mon­wealth, which is by Con­sti­tut­ing the Leg­isla­tive, and appoint­ing in whose hands that shall be. And when the Peo­ple have said, We will sub­mit to rules, and be govern’d by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the peo­ple be bound by any Laws but such as are Enacted by those, whom they have Cho­sen, and Autho­rised to make Laws for them. The power of the Leg­isla­tive being derived from the Peo­ple by a pos­i­tive vol­un­tary Grant and Insti­tu­tion, can be no other, than what that pos­i­tive Grant con­veyed, which being only to make Laws, and not to make Leg­is­la­tors, the Leg­isla­tive can have no power to trans­fer their Author­ity of mak­ing Laws, and place it in other hands.

Reg­u­la­tions writ­ten by these reg­u­la­tory agen­cies are treated as the law of the land even though they are never passed by both houses and signed by the pres­i­dent. This is in vio­la­tion of Arti­cle 1 Sec­tion 7 of the Con­sti­tu­tion, which defines the for­mal leg­isla­tive process.

The US Con­sti­tu­tion cre­ated a lim­ited fed­eral gov­ern­ment with only clearly defined pow­ers, which are spelled out in Arti­cle 1 Sec­tion 8. All other pow­ers are left to the indi­vid­ual States. This is declared in the Tenth Amendment:

The pow­ers not del­e­gated to the United States by the Con­sti­tu­tion, nor pro­hib­ited by it to the States, are reserved to the States respec­tively, or to the people.

These reg­u­la­tions vio­late the Tenth Amend­ment because they grant the fed­eral gov­ern­ment the author­ity to reg­u­late in areas not con­tained in the pow­ers enu­mer­ated in Arti­cle 1 Sec­tion 8.

The fed­eral gov­ern­ment treats these reg­u­la­tions as if they are the law of the land, in vio­la­tion of the Supremacy Clause, which is Arti­cle 6 Sec­tion 2:

This con­sti­tu­tion, and the laws of the United States which shall be made in pur­suance thereof; and all treaties made, or which shall be made, under the author­ity of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the con­sti­tu­tion or laws of any state to the con­trary notwithstanding.

Because these reg­u­la­tions vio­late sev­eral pro­vi­sions of the Con­sti­tu­tion, they are not in pur­suance of the Con­sti­tu­tion; there­fore they are not the law of the land.

Since all of these reg­u­la­tions already vio­late sev­eral arti­cles of the Con­sti­tu­tion, a con­sti­tu­tional amend­ment pre­vent­ing the fed­eral gov­ern­ment from imple­ment­ing this reg­u­la­tory night­mare is not the solu­tion to this con­sti­tu­tional cri­sis. Thomas Jef­fer­son pro­posed the solu­tion to this cri­sis when he wrote the Ken­tucky Res­o­lu­tions of 1798. The States must refuse to imple­ment these uncon­sti­tu­tional reg­u­la­tions and the States must refuse to help the fed­eral gov­ern­ment imple­ment them.

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Federal regulations place an enormous burden on our economy.  They are strangling every individual and business with red tape.  Earlier this year the Competitive Enterprise Institute released this report detailing the exact size of this regulatory nightmare.  Here are some highlights from that report.

  • The total cost of regulatory compliance for 2015 alone was $1.885 trillion
  • The cost per household that year was $15000
  • 80000 pages of federal rules and regulations were added to the federal register that year
  • There are about 60 different federal agencies writing regulations

The vast majority of these regulations violate several fundamental clauses of the United States Constitution.

All of these regulations are written by departments of the Executive Branch or by independent agencies.  This violates Article I Section 1 which states:

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.

The legislative branch has been derelict in its constitutional obligations.  For the past several decades both houses of congress have written laws which have delegated legislative power to these regulatory agencies.  Congress does not have the authority to delegate legislative authority to anyone.  They are not granted that power.  John Locke, one of the primary influences of the framers of the Constitution, was quite clear on this when he wrote his Second Treatise on Government:

The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others. The People alone can appoint the Form of the Commonwealth, which is by Constituting the Legislative, and appointing in whose hands that shall be. And when the People have said, We will submit to rules, and be govern’d by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands.

Regulations written by these regulatory agencies are treated as the law of the land even though they are never passed by both houses and signed by the president.  This is in violation of Article 1 Section 7 of the Constitution, which defines the formal legislative process.

The US Constitution created a limited federal government with only clearly defined powers, which are spelled out in Article 1 Section 8.  All other powers are left to the individual States.  This is declared in the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

These regulations violate the Tenth Amendment because they grant the federal government the authority to regulate in areas not contained in the powers enumerated in Article 1 Section 8.

The federal government treats these regulations as if they are the law of the land, in violation of the Supremacy Clause, which is Article 6 Section 2:

This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

Because these regulations violate several provisions of the Constitution, they are not in pursuance of the Constitution; therefore they are not the law of the land.

Since all of these regulations already violate several articles of the Constitution, a constitutional amendment preventing the federal government from implementing this regulatory nightmare is not the solution to this constitutional crisis.  Thomas Jefferson proposed the solution to this crisis when he wrote the Kentucky Resolutions of 1798.  The States must refuse to implement these unconstitutional regulations and the States must refuse to help the federal government implement them.

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