The recent SCOTUS decisions on vaccine mandates, gun regulation, abortion, and the EPA are flawed from a strict constructionist perspective. Rather than striking down 20th century theories underpinning decisions which unconstitutionally expanded the powers of the executive branch and the federal government in general, respectively, the Court instead tried to set limits to the ways in which those doctrines could be applied.
Still, insofar as these decisions represent a change in direction, rather than the last word on these issues, they may provide a roadmap out of the political acrimony that is tearing American society apart.
The legislative power
In ruling against President Biden’s vaccine mandates and the EPA’s “Clean Power Plan,” the Court makes reference to a long-ignored principle called the “nondelegation doctrine,” which posits that Congress has no authority under the Constitution to delegate its legislative power to the executive.
In other words, when the Constitution says, “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,” it means no legislative powers are vested in the executive.
Strictly applied, this principle would mean striking down the New Deal, root and branch. Although there were examples of limited rulemaking by executive branch regulatory agencies prior to the 1930s, it was FDR’s coup that created and empowered to legislate the myriad “alphabet soup agencies” within the federal government.
Rather than such a radical change, the Court merely set limits to how far beyond legislation passed by Congress and signed into law by the president regulatory agencies can go in making legally enforceable rules themselves.
The “glass half empty” way to look at this is that the Court has further established that the executive branch can legislate – just “not too much.” The opposite view, as expressed by constitutional scholar Kevin Gutzman, is that these precedents represent the first indications of the Court turning away from 84 years of bad precedent and back towards a constitutionally limited government.
(For my discussions on this subject with Gutzman, see Episodes 1, 28, and 94 of Tom Mullen Talks Freedom).
The significance of this question cannot be understated. Garet Garret called the New Deal a “revolution” for good reason – it effectively transformed the U.S. government from its previous republican form to a new, soft form of fascism, with an executive branch issuing fiat commands instead of a legislature representing a diverse constituency writing laws.
Everyone is worried about “our democracy.” The left believes Donald Trump is trying to destroy it by challenging the results of the 2020 presidential election, aided by state legislatures controlled by his party passing stricter voter identification and ballot verification laws.
The right believes the Democratic Party is trying to destroy democracy by stuffing ballot boxes with illegitimate votes and flooding the country with undocumented immigrants who will either vote illegally themselves or have children who will eventually vote Democrat.
They all agree on one thing. Our democracy is in peril, and it must be saved.
Certainly, if there was enough fraud to change the results of any election, that is a problem. But what is tearing our society apart is not destruction of our democracy, because we don’t live in a democracy. And it isn’t just a republic, either. All “republic” means is that the people elect representatives to perform the various functions of government. North Korea is a republic; China is a republic. Neither are countries in which most Americans would want to live.
No, what made the American system better was not its democratic elections or republican form but it’s anti-democratic safeguards. The Constitution allows for representatives to be elected democratically – although only the House of Representatives was originally by direct vote of the people – but the rest of its provisions are there to protect us from democracy.
The bicameral legislature, presidential veto, separation of powers, and strictly enumerated powers are all intended to protect individuals from what democratically elected representatives might do.
The Bill of Rights is completely anti-democratic. Its articles say the democratically elected Congress shall make no law regarding the establishment of religion, shall not infringe the rights of free speech, or to bear arms. They say the democratically elected executive shall not conduct unreasonable searches, punish you without due process, etc.
The key to all the so-called “checks and balances” in the Constitution is they set up adversarial processes that must occur before power is exercised.
Older readers may remember the Schoolhouse Rock cartoon, “I’m Just a Bill.” It attempts to educate youngsters on all the hoops a bill must jump through to become a law. While clever, the problem with its tone is the strong implication that the bill failing to become a law is regrettable, even tragic.
That the Constitution makes it difficult to pass a law is a feature, not a bug.
The popular sentiment that Congress “isn’t getting anything done” springs from the same misconception. When a bill is proposed and subsequently either dies in committee or fails to pass a general vote, Congress did indeed “get something done.” It vetted the proposition to require or prohibit some human activity by force and (usually wisely) declined to do so. That’s as much “getting something done” as passing the bill – and usually ages better.
Yet, while still professing fidelity to the Constitution, federal legislators have passed many laws allowing the executive branch to bypass this entire process and effectively legislate by fiat. If you’re wondering how President Trump could levy a tariff (a tax) on imports without a law passed by Congress, it’s because Congress passed the Trade Act of 1974, effectively allowing the president to exercise this power exclusively delegated to Congress if, in his sole judgment, “any existing duties or other import restrictions of any foreign country or the United States are unduly burdening and restricting the foreign trade of the United States.”
The National Emergencies Act similarly transfers legislative power to the president by his merely declaring an emergency to exist. Worse yet, the “state of emergency” doesn’t end until the president declares it is over or Congress passes a joint resolution to end it – which can be vetoed by the president!
As I’ve written before, the entire New Deal constitutes an unconstitutional transfer of power from the legislature to the executive by allowing regulatory agencies to not only write their own regulations (legislate) but often usurp the judicial power by deciding disputes in their own administrative courts.
That’s why President Biden can mandate vaccines for businesses with over one hundred employees without new legislation from Congress. He can simply have OSHA require it through “regulation” – a euphemism for the executive branch legislating.
Needless to say, Congress cannot assign powers exclusively delegated to itself to another branch of the government, no matter how many legal or logical acrobatics Supreme Court justices have performed saying they can. There would be no need for Article V of the Constitution if Congress could merely override the separation of powers or other constitutional constraints with legislation. And the Constitution certainly provides for emergencies. There is no emergency more serious than war, for which the Constitution clearly provides.
Yet, no one blinks an eye when a president decides to bomb Syria (name one that hasn’t lately) without a declaration of war and in violation of the War Powers Resolution which specifically limits the president’s power to “introduce the United States Armed Forces into hostilities” to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” [emphasis added]
The list of violations of the Constitution’s limitations on power and separation of those powers it does grant is too long to cover here. But they all have one thing in common: they eliminate adversarial processes capable of overriding the will of majority – of overriding democracy – to preserve liberty.
Everyone recognizes the political climate in the United States is toxic and many legitimately fear it will become violent. This isn’t because democracy is diminished. Rather, it is because the people of these states have tolerated the erosion or elimination of most restraints on democracy built into our Constitution.
My own view of the Constitution is much closer to Lysander Spooner’s than Madison’s or Jefferson’s. But as I said four years ago, the limits it places on federal power, especially in terms of the separation of powers between the federal and state governments, could prove useful in easing the pressure before the boiler explodes. While peaceful, full-scale secession from both the federal and state governments might be the philosophical ideal, it is much less likely than a “soft secession,” accomplished by simply enforcing the Constitution’s limits on federal government power.
That soft secession has already begun, although most of those seceding probably don’t realize they are doing so. Over half the states have nullified federal marijuana laws by passing state legislation legalizing their use for medical purposes, recreation, or both. Many blue state cities have declared themselves “sanctuary cities,” refusing to enforce federal immigration laws.
Most recently, Texas passed a law prohibiting abortion once a fetal heart rate is detectable, or more accurately clarifying laws prohibiting abortion never taken off the books after Roe v. Wade.
None of the federal laws or regulations in question are constitutional. They were all merely passed by Congress or enacted by executive edict and then, in some cases, “discovered” to be constitutional by the Supreme Court. Madison himself said regulating immigration was a power “no where delegated” to the federal government. And whether one considers abortion healthcare or homicide, the federal government isn’t given power over either.
Most people in red states have a visceral hatred for sanctuary cities, just as most in blue states hate the Texas abortion bill. And that’s just the point. These are matters that can only be dealt with locally. No supermajority of states ever has or ever will consent to the federal government imposing one policy in these areas over all the states.
The response to Covid-19 has followed the trend. In 2020, there was an increasingly diverse policy response as the pandemic progressed, with some states imposing severe lockdowns and mask mandates while others imposed less severe restrictions or none at all. South Dakota led the way in refusing from the start to close businesses or issue stay-at-home orders, followed by Florida in September 2020 and Iowa and Texas in early 2021.
As for President Biden’s vaccine mandate (announced but not yet written), Florida and Texas have already banned the mandates within their states, while South Dakota governor Kristi Noem took the most libertarian approach in neither mandating nor banning vaccine mandates for private businesses. Meanwhile, New York’s governor Kathy Hochul has ordered all healthcare workers in her state to get the vaccine and is prepared to call in National Guard personnel to replace those who don’t comply.
Many fear violent conflict resulting from state nullification of federal laws or regulations. But we haven’t seen that over nullification of marijuana prohibition and we wouldn’t likely see it when state governments take similar action on other issues.
Rather than a recipe for violence, more widespread soft secession from the present, unconstitutional system would allow the two dominant political tribes to stand down from their current, confrontational posture. And it would allow the rest of us to at least “pick our poison” in terms of which less-than-ideal system we would prefer.
Most important, it would save us all from what we have now: democracy run amok.
An Atlanta, Georgia, charter school announced last week its intention to discontinue the practice of having students stand and recite the Pledge of Allegiance during its schoolwide morning meetings at the beginning of each school day, opting to allow students to recite the pledge in their classrooms instead. Predictably, conservatives were immediately triggered by this “anti-American” decision, prompting the school to reverseits decision shortly after.
The uproar over periodic resistance to reciting the pledge typically originates with Constitution-waving, Tea Party conservatives. Ironically, the pledge itself is not only un-American but antithetical to the most important principle underpinning the Constitution as originally ratified.
Admittedly, the superficial criticism that no independent, free-thinking individual would pledge allegiance to a flag isn’t the strongest argument, although the precise words of the pledge are “and to the republic for which it stands.” So, taking the pledge at its word, one is pledging allegiance both to the flag and the republic. And let’s face it, standing and pledging allegiance to anything is a little creepy. But, then again, it was written by a socialist.
But why nitpick?
“One Nation”
It’s really what comes next that contradicts both of the republic’s founding documents. “One nation, indivisible” is the precise opposite of the spirit of both the Declaration of Independence and the Constitution (“under God” wasn’t added until the 1950s).
The government in Washington, D.C., is called “the federal government.” A federal government governs a federation, not a nation. And the one persistent point of contention throughout the constitutional convention of 1787 and the ratifying conventions which followed it was fear the government created by the Constitution would become a national government rather than a federal one. Both the Federalist Papers and the Bill of Rights were written primarily to address this concern of the people of New York and the states in general, respectively.
Trump Derangement Syndrome rages on, the latest symptoms flaring equally based on causes both legitimate and ridiculous.
A key characteristic of the syndrome is its ability to evoke the same outrage over the president retweeting a harmless (and let’s admit it, funny) meme as threatening to destroy an entire nation. The breathless apoplexy over absolutely everything Trump-related, down to the shoes his wife wears while traveling, has desensitized Trump’s supporters to behavior even they should be concerned about.
It is true Trump has inspired new levels of hostility — even for politics — but Americans have been hating the president for this entire century, which is no longer in its infancy.
Bush may not have been “literally Hitler,” but he was Hitler nonetheless to the Democrats, just as Obama was “literally Mao” to conservatives.
But the proud American tradition of hurling invectives at the president isn’t nearly as ominous as the trend towards violence. Both the right and the left have mobilized armed groups, not just carrying signs but ready for violence. In fact, violent resistance is the far-left Antifa’s stated raison d’etre.
Trump Derangement Syndrome rages on, the latest symptoms flaring equally based on causes both legitimate and ridiculous. A key characteristic of the syndrome is its ability to evoke the same outrage over the president retweeting a harmless (and let’s admit it, funny) meme as threatening to destroy an entire nation. The breathless apoplexy over absolutely everything Trump-related, down to the shoes his wife wears while traveling, has desensitized Trump’s supporters to behavior even they should be concerned about.
It is true Trump has inspired new levels of hostility — even for politics — but Americans have been hating the president for this entire century, which is no longer in its infancy. Bush may not have been “literally Hitler,” but he was Hitler nonetheless to the Democrats, just as Obama was “literally Mao” to conservatives. But the proud American tradition of hurling invectives at the president isn’t nearly as ominous as the trend towards violence. Both the right and the left have mobilized armed groups, not just carrying signs but ready for violence. In fact, violent resistance is the far-left Antifa’s stated raison d’etre.
US Government Power Has Never Been Higher
It isn’t that the three men who have held the office since 2001 are monsters. Anyone who paid attention when Bush, Obama, or even Trump was caught in a quiet moment “off the record” would have to admit that they seem like reasonably likable people. That’s the rub. Government makes nice people do terrible things, things even they themselves would have considered barbarous before taking office.
Unfortunately, most Americans do not bat an eye at the worst offenses committed by the presidency, namely the killing of millions in undeclared wars of choice with nations who have never attacked the United States. But Americans on both the right and the left are increasingly feeling the effects of ceding power over domestic affairs to Washington and the executive branch in particular. The stakes of presidential elections are much higher now that Washington doesn’t just regulate interstate commerce, but regulates the minute details of how businesses are run, how crops are grown, what local public schools teach and even what signs they put on their restrooms.
Thought for the day: Here’s a compromise I’d be willing to make with the left on the USA imitating a European welfare state: We’d imitate Switzerland. That means:
An extremely limited central government with very low central government taxation (about 11% of GDP)
Each canton/state decides how generous its welfare benefits will be and taxes its citizens accordingly. There is no national health care or centrally-mandated benefits.
Firearms are not only considered a right, but a responsibility (although we wouldn’t mandate militia service – we have plenty who would volunteer)
Nonintervention in foreign affairs in the proud Swiss tradition that even WWII was unnecessary (which it was)
The latest much-ado-about-nothing crisis passed, with a result that should seem familiar. In 2008, Americans were told that if the TARP bill (a $787 billion taxpayer-funded welfare handout to large banking institutions) wasn’t passed, the stock market would crash and massive unemployment would follow. After an unsuccessful first attempt to pass the bill amidst angry opposition from constituents, the bill passed on a second vote. Subsequently, there was a stock market crash followed by massive unemployment.
This time, our political/media cabal told us that if Congress was unable to pass a bill to raise the debt ceiling, that the government would not be able to meet its short term obligations, including rolling over short term bonds with new debt. U.S. debt would be downgraded from its AAA status, and a default would be imminent. After the melodrama, Congress passed the bill raising the debt ceiling. Standard and Poor’s subsequently downgraded U.S. Treasury debt anyway, and deep down everyone knows that a default is coming as well, one way or another.
We are seeing the end of a paradigm. Thomas Kuhn argued in The Structure of Scientific Revolutionsthat anomalies eventually lead to revolutions in scientific paradigms. His argument holds equally true for political paradigms as well.
A paradigm is a framework within which a society bases its beliefs. For example, people at one time believed that the forces of nature were the work of a pantheon of gods. Sunlight came from one god, rain from another. The earth was a god, as was the moon. With nothing to disprove the premises of the paradigm, it persisted. People went on believing that sunlight and rain were the work of sun and rain gods because there was no compelling reason for them to believe otherwise.
However, within any paradigm there are anomalies. Anomalies are contradictions – phenomena that cannot be explained within the framework of the paradigm. People have a startling capacity to ignore or rationalize away these anomalies. While it may defy logic to continue to believe that rain comes from a rain god even after evaporation and condensation has been discovered and proven, people would rather ignore the anomalies and cling to the paradigm than face the fact that the paradigm is false.
Once there are too many anomalies, the paradigm fails, and a new one must take its place. This new paradigm renders the old one absurd, even crazy. At some point in the future, people will look back on the political paradigm of the 20th and early 21st centuries in just this manner. There is at least one thing that will be quite obvious to them: centralized government is insane.
Consider the premises upon which this present paradigm relies: All facets of society must be planned and managed by experts. The judgment of the experts trumps the rights or choices of any individual. The choices made by the experts will result in a more orderly society and greater happiness for the individuals who comprise it. There will be better results from one small group of experts controlling everyone than multiple groups of experts controlling smaller subgroups of society.
Of course, libertarians reject every one of these assumptions on its face. A free society does not tolerate “planning” or “management” by anyone. All choices are left to the individual, as any attempt to plan or manage his affairs amounts to either violation of his liberty, looting of his property, or both. However, let’s assume that the first three assumptions of the present paradigm are valid and merely examine the last. Even that does not hold up to scrutiny.
Suppose an entrepreneur starts a business. At first, his market is local. He opens retail outlets that are managed by store managers. The entrepreneur is the CEO of the company and manages the store managers. Even at this point, the CEO must trust day-to-day decisions to his managers. He has no time to make everyday decisions as he tries to grow his business. The managers do this for him and he concentrates on strategic goals.
His business is successful and soon he begins opening outlets outside of the original market. He now has a need for regional managers to manage the store managers. He manages the regional managers and leaves the details of how they operate within their regions to them.
The business continues to grow. With retail outlets in every state, there are now too many regions for the CEO to manage directly. The CEO appoints executive directors to manage larger regions, each comprising several smaller ones. There is an executive director for the west coast, another for the Midwest, and another for the east coast. Of course, the CEO has the assistance of his corporate vice presidents who manage sales, operations, human resources, and other company-wide functions from the corporate office.
Now, suppose that one day the CEO decides to fire the executive directors, the regional managers, and the store managers. He will now have the salespeople, stock clerks, and cashiers for thousands of retail outlets report directly to him and his corporate vice presidents. Would anyone view this decision as anything but insane?
As silly as this proposition sounds, this is a perfect analogy for how we have chosen to organize society for the past century. The paradigm rests upon the assumption that every societal problem can better be solved if the CEO and his corporate staff manage the cashiers and the salespeople directly. Like all failed paradigms, anomalies are piling up that refute its basic assumptions.
This paradigm assumes that centralized government can provide a comfortable retirement with medical benefits for average Americans, yet Social Security and Medicare are bankrupt. It assumes that a central bank can ensure full employment and a stable currency, yet the value of the dollar is plummeting and unemployment approaches record highs (especially when the same measuring stick is used as when the old records were set). It assumes that the national government’s military establishment can police the world, yet the most powerful military in history cannot even defeat guerrilla fighters in third world nations. It assumes that the central government can win a war on drugs, yet drug use is higher than at any time in history. It assumes that experts in Washington can regulate commerce, medicine, and industry, yet we get Bernie Madoff, drug recalls, and massive oil spills.
Hundreds of years ago, the prevailing medical science paradigm assumed that illnesses were caused by “bad humors” in the blood. Based upon that assumption, doctors practiced the now-discredited procedure known as “bleeding.” They would literally cut open a patient’s vein in an attempt to bleed out the bad humors. As we now know, this treatment often killed the patient, George Washington being a notable example. Most rational people today view the practice of bleeding as nothing short of lunacy.
Ironically, this is a perfect analogy for the paradigm of centralized government. The very act of a small group of experts attempting to manage all of society drains its lifeblood. It is the un-coerced decisions of millions of individuals that create all of the blessings of civilized society. It is the attempt by a small group of people to override those decisions that is killing society before our very eyes. Someday, people will look back on our foolishness and laugh as we do now at the misguided physicians who bled their patients to death. The present paradigm is dying. The revolution has begun.
An Atlanta, Georgia, charter school 
Trump Derangement Syndrome 
Trump Derangement Syndrome
Thought for the day: Here’s a compromise I’d be willing to make with the left on the USA imitating a European welfare state: We’d imitate Switzerland. That means:
The latest much-ado-about-nothing crisis passed, with a result that should seem familiar. In 2008, Americans were told that if the TARP bill (a $787 billion taxpayer-funded welfare handout to large banking institutions) wasn’t passed, the stock market would crash and massive unemployment would follow. After an unsuccessful first attempt to pass the bill amidst angry opposition from constituents, the bill passed on a second vote. Subsequently, there was a stock market crash followed by massive unemployment.