W. Cleon Skousen. What Happens When the Wrong People Write the Laws? [From Law & Order, October 1976]

The American founding fathers would be shocked and angry if they knew how the law-making process had been altered in the past 200 years. In fact, most Americans would be amazed to discover that some of their most cherished elements in the Constitution have been rendered virtually meaningless by a gradual erosion of principles which have decayed at a sharply accelerated rate in recent years.

Nothing more dramatically demonstrates what has been happening than the power to make laws which the Constitution gave exclusively to Congress. Under Article I, Section 1, we read:

All legislative (law-making) powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives.

Note that there is no provision whatever for the Supreme Court to hand down rulings which constitute new regulations or rules of personal conduct. There is no provision for the President to issue executive orders which constitute new laws. Nothing is said about administrative bodies proclaiming regulations which fix prices, control business operations and deeply affect the relations of individuals in conducting their private affairs. And most certainly there is no provision for a vast conglomerate of governmental regulatory agencies issuing whole encyclopedia sets of highly complex regulations which threaten heavy fines and imprisonment for violators.

Yet all of these things are now a part of America’s Bi-Centennial life-style and one cannot help wondering how it all came about. The answer is that we are deliberately abandoning the principles of a republic.

Why Do They Call the U.S. a “Dwindling” Republic?

There was one thing the founding fathers had over their modern descendants — they knew their history. As a result, they structured a Constitution which had a built-in capacity to endure on the long-haul providing future generations of Americans had the good sense to keep its principles in their historical perspective. This is what Benjamin Franklin meant when he was asked by a woman what the Constitutional Convention had provided for the people, and he replied: “A Republic, if you can keep it!”

Webster’s Dictionary defines a republic as “a state or nation in which the supreme power rests in all the citizens entitled to vote and is exercised by representatives Elected directly or indirectly by them and Responsible to them.” Therefore, anytime the people begin to find themselves governed by those whom they did not elect and find their affairs regulated by officials who are not responsible to them, their form of government has ceased to be a genuine republic. This is particularly true where the non-elected administrators of government are writing their own rules and provisions designed to give them the legal basis for the regulations by which they impose their will upon the people.

Already Americans are beginning to feel the oppressive weight of this heavy-handed bureaucracy. Every week the mails to Congress are burdened with vehement complaints which in many cases are similar to those charged against King George III. Like this one: “He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.”

Early Americans had one word to describe their complaints: “Tyranny!”

The Founders’ Formula for the Prevention of Tyranny

Every school child knows that the framers of the American Constitution relied upon two basic principles to avoid future governmental tyranny. One was called the “separation of powers,” and the other was called, “checks and balances.” But what these same school children are not taught and most of their parents have never suspected is that both principles have been largely abandoned.

As Professor Kenneth Culp Davis states in his text on Administrative Law, “In our theoretical discussions we should frankly recognize that we have abandoned the basic idea that executive, legislative, and judicial power should be separated from each other in order to protect us against tyranny.” 1

In other words, we have deliberately combined these three functions in administrative agencies and we are getting exactly what James Madison and the other founders warned us against:

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands whether of one, a few, or many, and whether hereditary, self-appointed, or elected, may just pronounce the very definition of tyranny.” 2

Of course, the abandonment of separation of powers also meant the abandonment of checks and balances in those same areas. That is why the Constitutional safeguards against abuse by governmental agencies is not functioning as it should. That is also the major reason why Americans are spending tens of millions fighting the governments in the courts and writing millions of letters to Congress each year pleading for relief.

Congress Never Should Have Delegated Its Law-Making Powers

When the founding fathers granted power to Congress to make all the laws which they knew would become the supreme law of the land, they never authorized nor intended that Congress would delegate that power. Certainly they would have been alarmed if they had known that this power would be delegated to non-elected administrators in the executive branch of government. That is precisely what Parliament and King George did to provoke the Revolutionary War.

Since the sovereign authority of government is in the people and the people have placed the power in Congress to make laws, that power must not be handed over to strangers whom the people did not elect and who are not directly responsible to the people nor removable by the people.

John Locke put it this way, “The legislative (branch) neither must nor can (it) transfer the power of making laws to anybody else, or place it anywhere but where the people have.” 3

Since sovereign authority to govern is originated in the people themselves, the Congress serves as an agent of the people. Under the law of agency, an agent cannot delegate the performance of a duty which is uniquely attached to the agent’s own special qualities or capabilities and therefore involves a relationship of special trust bestowed upon the agent by his principal. An artist who had contracted to paint a portrait would be an example. The agency relationship between the Congress and the people is similar. The Supreme Court has stated this principle time and again: “That Congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” 4

Nevertheless, in spite of this fixed position in principle, the Court has gradually made exceptions until the whole concept has ceased to have meaning.

How the Law-Making Powers Began Drifting

from the Congress to the President

In 1813 the Supreme Court sustained Congress in passing an act which allowed the President to fix the time when the law would go into effect if certain conditions were found to exist. 5

In 1912 the Supreme Court sustained an act which authorized the President to negotiate a commercial agreement with foreign governments and fix tariff rates at whatever level the President felt was best for the country. 6 Note that this allowed the President to establish tariff rates without any further approval or guidance from Congress, and his executive order had the force of law upon the American people seeking to import goods from abroad.

An even wider latitude was granted the President when the Supreme Court approved a case in 1928 which turned on whether or not the Congress could delegate to the President the task of determining the cost of production in certain foreign countries as compared to the United States and then raising or lowering the tariff rates at his discretion. 7 The court went a long way in opening up the dikes by asserting that Congress was simply securing the “assistance” of the Executive Branch “according to common sense and the inherent necessities” of the case.

In 1935 the court ruled in the Panama and Schecter cases that the Congress had gone too far in its delegation of law-making power, but the very next year it held in the Curtiss-Wright Export Case that in foreign affairs, at least, the President had the inherent authority to prohibit the sale of arms to belligerents and impose criminal penalties on violators whether the Constitution had provided for it or not. 8 This gave foundation for the wide-open decision which sustained the 1970 Lend-Lease Act giving the President “a carte blanche authority to furnish military supplies to the Allies at his own discretion.” 9

By 1970 the pattern of having Congress simply “point the way” and then allow the Executive branch to write the actual regulations had become so routine that a Democratic Congress turned over to a Republican President the power to set up price controls and virtually manacle American commerce under the so-called Economic Stabilization Act. S.H. Friedelbaum comments on this reckless and unprecedented delegation of law-making power: “… the 1970 legislation contains no declaration of purpose other than the cryptic title designation, cost of living stabilization. The standards supplied, if anything, are more vague than those found in the wartime statute. Congress in 1970 authorized the president to issue orders and regulations as he may deem appropriate in order to provide for the making of such adjustment as may be necessary to prevent gross inequities. No administrative agency is designed or created. Instead the president is permitted to delegate the performance of any function under the act to any federal department or agency ‘as he may deem appropriate’.” 10

This act constituted the high water mark of unconstitutional delegation of law-making power in the United States. In addition, it seemed to create a climate of total resignation by both the public and the Congress that this unfortunate trend is the wave of the future. Actually the wave has been rising rapidly during the past three decades and this is vividly demonstrated in a brief review of not only the surrender of law-making power by the Congress to the President but by the equally serious usurpation of authority by the Presidential office in issuing “Executive Orders.”

The History of Presidential Executive Orders

The issuing of executive orders by the President has gone through three stages. The first stage was entirely Constitutional. It consisted of orders to the various departments of government outlining the means by which acts of Congress would be carried out. During this stage the executive orders were designed to implement and enforce the law, not make new law.

The second stage involved executive orders which began to assert elements of power over the nation at large and not merely the departments of government. Presidents Cleveland, McKinley and Theodore Roosevelt all participated in flexing their administrative muscles by issuing executive orders. Cleveland issued 71, McKinley 51, and Theodore Roosevelt 1006! Teddy Roosevelt had a “strong President” interpretation of his Constitutional prerogatives. Instead of limiting his activities to the “enumerated powers” he decided he had the power to do anything not specifically forbidden by the Constitution. He said later: “Under this interpretation of Executive power I did and caused to be done many things not previously done by the President and the heads of the Departments. I did not usurp powers, but I did greatly broaden the use of Executive power.” 11

This, then, set the stage for the explosion of executive orders which President Wilson employed during World War I. Based on “implied authority” under the war powers provisions of the Constitution, he used executive orders to set up the Food Administration, the Grain Corporation, the War Trade Board, and the Committee on Public Information without their being specifically or individually authorized by Congress.

The third stage came with another upsurge of executive orders during the great depression and World War II. In a sense this was an extension of the second stage but it was characterized by such a volume of executive orders that it is officially referred to as the “New Deal Stage.” Executive Orders became so numerous that Congress passed the Federal Register Act in 1935 which required the publication of all Executive Orders in the Federal Register and their subsequent filing with the U.S. Archives. The State Department previously had custody of these orders and began numbering all they could find from 1907 on. However, it is estimated that the unnumbered orders lying in government files may be as many as 15,000. To gain some idea of the quantity of orders being poured out on the public as well as governmental agencies, the official count of registered Executive Orders by 1974 had reached 11,766. 12

From the standpoint of the founding fathers, both stage two and stage three of this historical development were unconstitutional and in direct violation of the provision that “All legislative powers herein granted shall be vested in a Congress of the United States….” It will be recalled that in 1928 the Supreme Court justified the delegation of law-making power from the Congress to the President on the ground that it was “according to common sense and the inherent necessities” of the case. 13 It has been in this same spirit that Presidential Executive Orders have been tolerated with very little resistance.

As the nation moved away from the fundamental precepts of a republic and turned more and more to centralized government just as socialist countries have done all over the world, the inflation of power in the Executive branch has expanded tremendously at the expense of the Congress and the individual states. No doubt this trend will continue until the majority of the people realize that Blackstone was right when he said: “In all tyrannical governments … the right both of making and enforcing the laws is vested in one and the same man, or one and the same body of men; and wherever these two bodies are united together, there is no public liberty.” 14

The Constitutional Remedy

Fortunately, there is a Constitutional solution to the problem when the majority of the people have finally decided that enough is enough. It simply consists of electing a body of men and women to the United States Congress who are dedicated and committed to restoring the fundamental principles of government enunciated by the founders in the original Constitution. Such a Congress would begin phasing out the ominous cloud of regulatory agencies with their stacks of self-serving rules and debilitating, freedom-destroying mandates. Such a Congress would seek to restore fiscal responsibility and refuse to spend any more of the next generation’s inheritance. That future Congress will no doubt return to the States and local governments the conglomerate of social and economic responsibilities which it found impossible to carry out from Washington successfully. Such action will greatly simplify the pattern of government on the federal level, reduce the burden of federal taxes, and invigorate the whole structure of American industry and enterprise.

Some may doubt that such a reversal is possible, but time is the great political physician. History says the change will come. The American temperament was not designed to endure political aggrandizement or authoritarian bureaucracy for long.