James Madison once wrote: "I believe there are more instances of the abridgment of freedom of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations." And so it is with those "certain unalienable rights" mentioned by Thomas Jefferson.
The Constitution is the supreme law of the land. No law, executive order, rule, or regulation may supersede the Constitution. Only a Constitutional amendment may change a Constitutional right. Therefore, any violation of the Constitution must be a very serious breach of the law -- a violation much more serious than a breach of the laws passed by Congress.
In fact, a law, executive order, rule or regulation contrary to the Constitution cannot be a valid "law." And, in The Federalist Papers No. 78, Alexander Hamilton tells us exactly that:
"There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid."
One sentence there sums it up nicely: "No legislative act, therefore, contrary to the Constitution, can be valid." When government violates the Constitution, government then becomes an illegal entity and relinquishes its Constitutional authority. This places the burden of correction squarely on the shoulders of the people.
We should look to recent decisions of the U.S. Supreme Court to properly define the legal jurisdiction and balance of power between the different branches and levels of governments today. Recently, the Court has been clarifying the relationship between State governments and an overreaching federal bureaucracy. Lately there have been some important developments in the case law. Below is a short compilation of some of the applicable opinions of the Supreme court.
In Alden et al. v. Maine(1) the Supreme Court admonishes:
"The text and the structure of the Constitution protect various rights and principles. Many of these, such as the right to trial by jury and the prohibition on unreasonable searches and seizures, derive from the common law. The common-law lineage of these rights does not mean they are defeasible [capable of being annulled -- ed.] by statute or remain mere common-law rights, however. They are, rather, constitutional rights, and form the fundamental law of the land. . . .
"By the same token, the contours of sovereign immunity [of the States] are determined by the founders' understanding, not by the principles or limitations derived from natural law. . . .
"The Constitution, after all, treats the powers of the States differently from the powers of the Federal Government. As we explained in Hall: 'In view of the Tenth Amendment's reminder that powers not delegated to the Federal Government nor prohibited to the States are reserved to the States or to the people,' the existence of express limitations on state sovereignty may equally imply that caution should be exercised before concluding that unstated limitations on state power were intended by the Framers. . . .
"The Federal Government, by contrast, 'can claim no powers which are not granted to it by the constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication. Martin v. Hunter's Lessee, (1816); see also City of Boerne v. Flores, (1997); United States v. Lopez, (1995). . . .
"We believe, however, that the founders' silence is best explained by the simple fact that no one, not even the Constitution's most ardent opponents, suggested the document might strip the States of the immunity. . . .
"Our historical analysis is supported by early congressional practice, which provides contemporaneous and weighty evidence of the Constitution's meaning. . . .
"By 'splitting the atom of sovereignty,' the founders established 'two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.' Saenz v. Roe, (1999), quoting U.S. Term Limits, Inc. v. Thornton, (1995) (concurring opinion). 'The Constitution thus contemplates that a State's government will represent and remain accountable to its own citizens.' When the Federal Government asserts authority over a State's most fundamental political processes, it strikes at the heart of the political accountability so essential to our liberty and republican form of government."
In New York vs. U.S.(2), the Supreme Court explains why the federal government may not order States to act:
"States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government's most detailed organizational chart. The Constitution instead 'leaves to the several States a residuary and inviolable sovereignty,' (The Federalist No. 39), reserved explicitly to the States by the Tenth Amendment. . . .
"Whatever the outer limits of that sovereignty may be, one thing is clear: The Federal Government may not compel the States to enact or administer a Federal regulatory program. . . .
"Congress has vast power but not all power. When Congress legislates in matters affecting the States, it may not treat these sovereign entities as mere prefectures or corporations. Congress must accord States the esteem due to them as joint participants in a federal system, one beginning with the premise of sovereignty in both the central Government and the separate States. Congress has ample means to ensure compliance with valid federal laws, but it must respect the sovereignty of the States. . . .
"Although the Constitution begins with the principle that sovereignty rests with the people, it does not follow that the National Government becomes the ultimate, preferred mechanism for expressing the people's will. The States exist as a refutation of that concept. In choosing to ordain and establish the Constitution, the people insisted upon a federal structure for the very purpose of rejecting the idea that the will of the people in all instances is expressed by the central power, the one most remote from their control. . . .
"We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. ... The allocation of power contained in the Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments' regulation of interstate commerce. . . .
"But whether or not a particularly strong federal interest enables federal regulation, no Member of the Court has ever suggested that such a federal interest would enable Congress to command a state government to enact state regulations. No matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to require the States to regulate. . . .
"Where Congress exceeds its authority relative to the States, therefore, the departure from the constitutional plan cannot be ratified by the 'consent' of state officials. An analogy to the separation of powers among the Branches of the Federal Government clarifies this point. The Constitution's division of power among the three Branches is violated where one Branch invades the territory of another, whether or not the encroached-upon Branch approves the encroachment. ... The constitutional authority of Congress cannot be expanded by the 'consent' of the governmental unit whose domain is thereby narrowed, whether that unit is the Executive Branch or the States."
The U.S. Supreme court continued on with that thought and slapped the federal government's overreaching regulatory hand yet again in Printz, v. U.S.(3)
"Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear 'formalistic' in a given case to partisans of the measure at issue, because such measures are typically the product of the era's perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day. . . .
"We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the State's officers or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. . . .
"The Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs. ... We warned that this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations, 'The Federal Government,' we held, 'may not compel the States to enact or administer a federal regulatory program'."
And so is the supreme law of our land today.
According to the United States Supreme Court, State governments are sovereign entities. Which means, except for that short list stipulated within the Constitution, the federal government should not and may not coerce or order State governments to pass or enforce any law, rule or regulation.
The Constitution of the United States also gives citizens the means of protection of our State and individual rights. Article VI states:
"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, anything in the Constitution or laws of any State to the contrary notwithstanding."
Any other law or State Constitution notwithstanding, all judges in every State shall be bound to rule according to the U.S. Constitution -- and, hence, the interpretation of the U.S. Constitution by the U.S. Supreme Court. This, then, includes the Court cases cited above.
Actually, current federal law encourages citizens to take overbearing federal regulatory agents and bureaucrats to court. The law of interest is 5 USC 706, which describes the scope of judicial review allowed of federal agencies:
"To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall --
"(1) compel agency action unlawfully withheld or unreasonably delayed; and
"(2) hold unlawful and set aside agency action, findings, and conclusions found to be --
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error."
We should pay close attention to section 2, parts A and B. "The reviewing court shall" . . . "hold unlawful and set aside agency action, findings, and conclusions found to be" . . . "arbitrary, capricious, an abuse of discretion" or . . . "contrary to constitutional right, power, privilege, or immunity."
Congress wrote this law and a President signed it. Therefore, at one point in time anyway, we can assume that they meant it to be enforced. That being the case, we citizens have cause for some very serious discussion with the federal regulatory bureaucracy.
"The reviewing court shall . . . hold unlawful and set aside agency action . . . contrary to constitutional right." This simply means, all courts “shall” enforce Constitutional rights -- all of the rights, Constitutional provisions and Supreme Court opinions stated above. By extension, this also means that each and every elected official, in all levels of government, is also bound by their oath of office to do the same.
Because, there is also a federal law barring "conspiracy against rights" (18 USC 241) that can be very applicable here:
"If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
"If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured --
"They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death."
So, if a regulator, without legal jurisdiction in an area (such as within the boundaries of a State), conspires "to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, . . . they shall be fined under this title or imprisoned not more than ten years, or both."
There is also a "deprivation of rights under color of law" statute (18 USC 242), which, under general conditions, applies better to government agents overstepping their authority:
"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, . . . shall be fined under this title or imprisoned not more than one year, or both . . ."
According to Analysis and Interpretation of the Constitution of the United States, Annotations of Cases Decided by the Supreme Court of the United States,(4) prepared by the Congressional Research Service of the Library of Congress (page 920), State courts are also bound to enforce all of the above:
"The Constitution, laws, and treaties of the United States are as much a part of the law of every State as its own local laws and constitution. Their obligation is imperative upon the state judges, in their official and not merely in their private capacities. From the very nature of their judicial duties, they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely according to the laws or Constitution of the State, but according to the laws and treaties of the United States -- the supreme law of the land.
"State courts are bound then to give effect to federal law when it is applicable and to disregard state law when there is a conflict; federal law includes, of course, not only the Constitution and congressional enactments and treaties but as well the interpretations of their meanings by the United States Supreme Court."
We see, therefore, that State courts have jurisdiction to hear local matters that pertain to illegal acts of federal agents just as federal courts do. This means, a local judge may also rule on 5 USC 706 and enforce 18 USC 241 and 242 when a local citizen has been harmed by unconstitutional (illegal) actions of federal regulators. Because the State courts are often much more responsive than federal courts, that would seem to be the best place to bring such local matters.
This, of course, applies to all actions of federal officials not authorized to the federal government by the Constitution or added by treaties (such as FCC). States are sovereign units of government and cannot be required to pass laws and regulations in support of federal programs, including the new Obamacare scheme.
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1.Alden et al. v. Maine No. 98-436 (1999)
2. New York vs. U.S. et al 488 U.S. 1041 (1992)
3. Printz, v. U.S. 95-1478, 1997)
4. http://www.gpoaccess.gov/constitution/index.html
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