The Liberty Amendments: Restoring the American Republic (14 page)

Fast-forward to 2009: carbon emissions, a very small fraction of greenhouse gas emissions (GHGs), became the target of, among others, the environmental movement. But Congress refused to pass new legislation expanding the CAA’s coverage to include greenhouse gases, for they are not pollutants. Nevertheless, then–EPA administrator Lisa Jackson, admitting the CAA was not an “ideal tool,” decided she would use the more than forty-year-old statute for curbing carbon emissions. As such, she and the president were bypassing Congress. Congress chose to do nothing about it.

The CAA’s provisions are not designed for carbon regulation. For example, a program operated under the CAA known as the Prevention of Significant Deterioration (PSD) mandates specific pollution thresholds for triggering regulatory requirements.
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These thresholds are detailed in the statute itself. Therefore, if
a power plant emits 250 tons per year of a pollutant, the PSD program obligates that power plant to take costly steps to remediate the pollution.
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Congress considered the merits of setting the threshold numbers and passed a statute setting those numbers. Hence, Congress does have the practical capacity to do such things. When the EPA decided to use the CAA as legal justification for instituting regulations relating to greenhouse gas emissions, the EPA was obligated to comply with that law’s provisions. Greenhouse gases are emitted by stationary sources, even HVAC systems, numbering in the millions.
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All of these sources emit GHGs in excess of 250 tons per year. Since the PSD program was expanded at the instigation of the EPA and not by statute, the EPA would logically have to regulate these millions of stationary sources.

But realizing the impossibility of the task, Jackson noted that the CAA was not the proper law for regulating GHGs. Consequently, she decided the EPA would discard existing statutory law and set new regulatory thresholds for GHGs. When challenged, the D.C. Circuit upheld the changes, deferring to the EPA’s authority.

Another example: On March 22, 2010, Congress passed Obamacare, a bill some 2,700 pages long.
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An analysis by Peter Ferrara of the Heartland Institute concludes the law establishes more than “150 new bureaucracies, agencies, boards, commissions and programs” that “are empowered to tell doctors and hospitals what is quality health care and what is not, what are best practices in medicine, how their medical practices should be structured, and what they will be paid and when.”
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The Congressional Research Service reported, “The precise number of new entities that will ultimately be created . . . is currently unknowable.”
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The regulatory burden and cost will be enormous.
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And during the early stages of the law’s implementation, the executive branch has already issued twenty thousand pages of regulations and thousands more to come.
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Initial Internal Revenue Service regulations alone amount to 159 pages.
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When Congress passed Obamacare it attempted by statute to confer fundamental legislative powers on the executive branch, and even sought to prohibit future Congresses from altering its unconstitutional act. Specifically, Congress created the fifteen-member Independent Payment Advisory Board (IPAB), which ostensibly is responsible for controlling Medicare costs. The board submits a proposal to Congress, which automatically becomes law, and the Department of Health and Human Services must implement it, unless the proposal is affirmatively blocked by Congress and the president. Even then, it can be stopped only if the elected branches agree on a substitute. Obamacare also attempts to prohibit citizens from challenging the board’s decisions in court. Moreover, Obamacare seeks to tie the hands of future Congresses by forbidding Congress from dissolving the board outside of a seven-month period in 2017, and only by a supermajority three-fifths vote of both houses. If Congress does not act in that time frame, Congress is prohibited from even altering a board proposal.
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Apart from all the rest, the abuse of power by one Congress and president in attempting to reorganize the federal government and redraft fundamentally the Constitution outside of the amendment processes, with the intention of binding all future Congresses in perpetuity and leaving citizens with no political or legal recourse, is simply sinister. But it underscores the Statists’ contempt for the Constitution and self-government.

Shortly thereafter, on July 21, 2010, the same Congress passed, and the president signed, the Dodd-Frank Wall Street Reform and Consumer Protection Act, aka Dodd-Frank, supposedly intended to protect the consumer from risky decisions by financial institutions.
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The law is as offensive to the Constitution as Obamacare, again violating separation of powers and insulating broad policy-making decisions from the citizenry.

For example, under Dodd-Frank, Congress established the Consumer Financial Protection Bureau (CFPB), which has open-ended power to prevent certain financial institutions from committing or engaging in “unfair,” “deceptive,” or “abusive” practices respecting a consumer financial product or service. No statutory definition for “unfair” or “deceptive” acts or practices is provided. The CFPB has exclusive authority to prescribe rules, issue guidance, conduct examinations, require reports, or issue exemptions, with little legal recourse by those affected by its decisions.
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Moreover, Congress has no appropriating authority over the CFPB, for the law authorizes the CFPB to fund itself by unilaterally claiming funds from the Federal Reserve Board. The director of the CFPB alone determines the amount of funding the CFPB receives from the Fed. The law also prohibits explicitly the House and Senate appropriations committees from even attempting to “review” the CFPB’s budget. And the director receives a five-year term. He can be removed by the president only “for inefficiency, neglect of duty, or malfeasance in office.”
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In addition, Congress established the fifteen-member Financial Stability Oversight Council and granted it broad executive powers. It has open-ended discretion to designate nonbank financial institutions “systemically important,” from which flows wide-ranging regulatory authority over these businesses. The law
actually prohibits aggrieved parties from challenging the legal sufficiency of the council’s actions and conclusions in court.
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The delegation of colossal power to an administrative state, authority the Constitution grants to individual branches of the federal government, violates the separation-of-powers doctrine, including Congress’s legislative authority and power over the public purse, and presidential prerogatives in determining whether to fire an executive branch employee; it also thwarts the public’s ability to participate in major legal, social, cultural, and economic decisions affecting their lives through the grant and expansion of lawmaking power in bureaucratic fiefdoms largely immune from legislative oversight and input. Plain and simple, this is further evidence of the dissolution of constitutional republicanism.

It would seem counterintuitive for Congress to surrender its own power to executive branch entities of its own making, and for a president to surrender his own decision-making authority to an administrative state. But if the purpose is to centralize and concentrate power in the federal government, in defiance of our founding principles and the Constitution—as the Statists have preached and promoted actively for more than a century—then the frequent and broad delegation of lawmaking power to a permanent, ever-present federal bureaucracy, insulated from public influence, makes perfect sense.

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The proposed amendment eschews the issue of delegation per se, the total reversal of which would seem impossible at this point, but importantly, it returns final decision-making authority respecting laws (regulations and rules) with significant economic impact to Congress, thereby restoring a critical element of separation
of powers under the Constitution and reinvigorating representative government. The proposed amendment sunsets every executive federal department and agency and obligates Congress to determine the efficacy of each entity every three years. It also establishes a permanent joint committee, which makes final determinations respecting the most economically costly federal regulations. The proposed amendment does not prevent Congress from otherwise abolishing or creating federal departments or agencies, modifying their missions, or affecting their directions, policies, and funding. However, given Congress’s abandonment of its core constitutional duty, thereby gutting the fundamental nature of representative government, the proposed amendment is among the only ways to rebalance the legislative function of the federal government.

The proposed amendment embraces the Framers’ original plan: Congress legislates, not administrative agencies within the executive branch. It obligates Congress to undertake the duties intended by the Framers and set forth in the Constitution, prohibiting it from delegating and abdicating final authority over major laws.

SECTION 1: Congress’s power to regulate Commerce is not a plenary grant of power to the federal government to regulate and control economic activity but a specific grant of power limited to preventing states from impeding commerce and trade between and among the several States.

SECTION 2: Congress’s power to regulate Commerce does not extend to activity within a state, whether or not it affects interstate commerce; nor does it extend to compelling an individual or entity to participate in commerce or trade.

T
HE
C
ONSTITUTION
’
S
C
OMMERCE
C
LAUSE
states that Congress shall have the power “[t]o regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes.”
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The proposed amendment focuses on that part of the clause respecting Congress’s power to regulate commerce among the several states and addresses the federal government’s ever-expanding involvement in and interference with private economic activity and property rights. It is at first essential to understand what the Framers meant by these words and the Framers’ purpose.

In 1996, the late constitutional scholar and Harvard law professor Raoul Berger explained that

[t]he focus on trade alone was not fortuitous; the Framers were fastidious in their choice of words. For them, “trade” did not, for example, include agricultural production, which plainly was “local.” In the Convention, George Mason said that the “general government could not know how to make laws for every part [state]—such as respects agriculture.” And [Alexander] Hamilton wrote in
Federalist
No. 17 that “the supervision of agriculture and of other concerns of a similar nature . . . which are proper to be provided for by local legislation,
can never be desirable
cares of a general jurisdiction.” In
Federalist
No. 12, he adverted to the “rivalship that once subsisted” between agriculture and commerce. . . . Hamilton referred separately in
Federalist
No. 36 to “agriculture, commerce, [and] manufactures” as “different . . . kinds” of “wealth, property, and industry,” not as fused in commerce. In sum, the Founders conceived of “commerce” as “trade,” the interchange of goods by one State with another.
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Berger added:

The Founders’ all-but-exclusive concern was with exactions by some states from their neighbors. [James] Madison said, “It would be unjust to the States whose produce was exported by their neighbours, to leave it subject to be taxed by the latter.” [James] Wilson “dwelt on the injustice and impolicy of leaving New Jersey[,] Connecticut &c any longer subject to the exactions of their commercial neighbours.” That the Commerce Clause was meant to remedy this mischief is clear. Madison stated that it was necessary to remove “existing & injurious retaliations
among
the States,” that “the best guard against [this ‘abuse’] was the right in the Genl. Government to regulate trade
between
State and State.” [Roger] Sherman stated that “the oppression of the uncommercial States was guarded agst. by the power to regulate
trade between
the States.” And Oliver Elseworth said that the “power of regulating trade between the States will protect them agst each other.” Given the jealous attachment to state sovereignty, the absence of objection that the Commerce Clause invaded State autonomy indicates that such an intrusion was simply unimaginable. [Thomas] Jefferson accurately reflected the Founders’ views when he stated in 1791 that “the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a state . . . which remains exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another state, or with foreign nations. . . . ” That no more was intended was made clear by Madison in
a letter to J. C. Cabell: “
among
the several States” . . . grew out of the abuses of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government. . . .
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In 2001, Commerce Clause expert and Georgetown University law professor Randy E. Barnett undertook an extensive examination of the original meaning of the Constitution’s Commerce Clause and the Framers’ intent. Having also returned to the Constitutional Convention and the
Federalist Papers
, as well as the state ratification debates, Barnett “found . . . that the term ‘commerce’ was consistently used in the narrow sense and that
there is no surviving example of it being used in either source in any broader sense.
The same holds true for the use of the word ‘commerce’ in the
Federalist Papers
.”
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