THE REVOLUTION WE NEED
The 2013 Federal Register (note the small stack on top)
[This Monday’s Archive was originally published on July 17, 2014. Please read it in tandem with the “First Amendment and Chevron” section in Skye’s Links last Thursday. We have a majority of Supremes that want to get rid of as much of the administrative state as they can. If we get the rulings we need, then their implementation is The Revolution We Need.]
TTP, July 17, 2014
From the time of the Ancient Greeks, this time of year has been known as the “dog days,”[1] when the heat and humidity caused “the seas to boil, wine to turn sour, dogs to go mad, and men subject to burning fevers, hysterics, and frenzies.”
Much of the US is certainly not experiencing such climate misery this week, with record low summer temps from Arkansas to Minnesota. But in terms of what is happening to our country politically, economically, culturally and morally, these are indeed the Dog Days of America.
And there doesn’t seem to be any relief in sight. Zero, rather than backing off in the midst of his growing unpopularity and unending scandals is “just getting started,” according to Bryan Preston. He’s “going Soviet.”
Yesterday (7/16) in testimony on Capitol Hill, liberal law professor Jonathan Turley warned that Congress Must Act Against Obama’s Overreach Or Face Self-Destruction:
“A dominant presidency has occurred with very little congressional opposition. Indeed, when President Obama pledged to circumvent Congress, he received rapturous applause from the very body that he was proposing to make practically irrelevant. Now many members are contesting the right of this institution to even be heard in federal court. This body is moving from self-loathing to self-destruction in a system that is in crisis.”
Turley thus encouraged the House to pursue suing Zero. Others testifying at the hearing, such as Rep. Tom Rice (R-SC) and constitutional law expert David Rivkin, predict victory in the lawsuit against Obama.
Championed by Speaker Boehner, the lawsuit in federal court against President So-Sue-Me is definitely a step in the right direction towards the Revolution We Need. Yet it is only a baby step, and its target is personal, not institutional.
That is, the illegal, tyrannical, and unconstitutional acts of Zero’s Imperial Presidency are not the cause of America’s current crisis – they are the culmination of it. The Reign of Zero is simply the apotheosis of a crisis that’s been building since the 1880s.
The crisis we face now is a cancer that has been growing slowly and steadily for 126 years, until finally under Zero it has metastasized perilously close to terminal stage. Which means that if Zero were to vanish tomorrow, the cancer would still be there.
We need radical surgery to cure it, a Revolution. It can certainly be peaceful – by no means need it be violent. If it were to devolve into violence, that would be perpetrated by the Left. We would need our guns for defense, not for aggression. For the Revolution We Need is a legal one that attacks the crisis at its foundation.
So – what is the target of the Revolution We Need? It is not Zero. It is what makes him and his Imperial Presidency possible. It is what is destroying any basis for Constitutional Government. Indeed, it is eating our Constitution alive. It is a medieval atavism in modern guise. It is…
The Administrative State.
Before we launch a thousand words of explanation, let’s start with a picture of it. Above is a photo sent out by Senator Mike Lee (R-UT), captioned:
“Behold my display of the 2013 Federal Register. It contains over 80,000 pages of new rules, regulations, and notices all written and passed by unelected bureaucrats. The small stack of papers on top of the display are the laws passed by elected members of Congress and signed into law by the president.”
Here’s the bottom line: Almost every single one of these thousands and thousands of rules and regs are illegal and unconstitutional. They have no force of law and there is no legal duty to obey them. They are edicts of the administrative state, not laws.
Only that small stack on top are laws – for only Congress has the constitutional authority to create laws: Article I Section 1 reads, “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.”
All means all. The executive branch has no authority whatever to create laws, only to execute or administer the laws Congress passes. The Constitution expressly – via the word all – forbids Congress to “delegate” its legislative authority to another branch, i.e., to either the executive or judicial. Note this means that courts have no more authority to create laws than executive branch agencies, which is none at all.
The case against the Administrative State has been made in a new book, Is Administrative Law Unlawful? by legal historian and Professor of Constitutional Law at Columbia, Philip Hamburger.
This is no amateur screed. This is for real, a work of serious scholarship by one of the best legal minds in the country. It will take serious study to get through it, tempered by the professor’s clear writing in non-legalese. Its 648 pages of reasoned argument cannot be adequately summarized here, just a sample of salient points:
*Federal administrative law is not a necessary response to modern circumstances, but merely the repackaging of the ancient desire for absolute power beyond lawful constraints. It exists outside the bounds of the Constitution as an entirely anti-constitutional regime.
*It is composed of the three basic elements of absolute power: it is extralegal – apart from and outside the law; it is supralegal – above the law, demanding the subservience of courts (which judges now automatically grant); it is consolidated – it makes its own laws, has armies of often-armed bureaucrats to execute them, and has its own judicial system to impose fines and imprisonment (without due process or trial by jury).
*Administrative law with its scores of thousands of illegal rules is an atavism, a return to pre-constitutional modes of despotism. It has replaced the rule of law in America with the rule of edict and command. It is thus a profound threat to and denial of American
liberty. As its edicts are not made by any representative legislative body, there cannot be any legal obligation to obey them.
*Executive branch agencies pass their edicts with no regard to whether or not Congress “delegated” them the power to do so, and with no fear whatever of judicial review. Congressional delegation and judicial oversight are now fictions. Administrative edicts are now the primary mode by which the federal government controls Americans.
How we got to this pathetic state goes back to the late 19th century, when German or Prussian ideas of state power and Ordnung (order) became all the rage among American academics (one of whom was Woodrow Wilson).
This was made real by Congress creating the Interstate Commerce Commission in 1887, with its members having judicial power. Objections by members of Congress that in a “free country, men could not be lawmakers, judges, and sheriffs,” and that the ICC “belongs to despotic governments and not free republics” were ignored.
That was the camel’s nose under the tent. Freedom in America has been on a downhill slope ever since. This is what Hamburger calls Prussification, the ideal of Ordnung:
“The obligation of law is very different from obedience to the state. Traditionally (in America), the law was to be obeyed because it enjoyed obligation – because it rested on the power of the people to govern themselves through law made by themselves or their representatives.
Under the administrative regime (that we have in America now), however, executive commands must be obeyed simply because they are the will of the state, backed by its compulsion. This is Prussification.
OK – got it. What do we do now? There is a lot of loose talk about “another 1776,” a “Second American Revolution,” etc., that is just that – talk. Or it’s hyper-macho talk about guns, and how we’ll fight to the death with our AR-15s against SWAT teams and Blackhawks.
The Revolution We Need cannot be some inchoate rebellion against the Fascist Police State that America is very fast becoming. And we want to do everything we can to avoid it becoming violent. Thus it needs to have a quite specific focus and goal, and it needs to be as peaceful as possible.
The goal, after reading and absorbing Is Administrative Law Unlawful?, is obvious. It is:
The abolishment of the Administrative State.
We have to get rid of it. We have to eliminate almost all of those 80,000 pages of rules you see in the picture above, we have to terminate the existence of the executive branch agencies that issued them – the EPA, the FDA, the ICC, and all the other fiefdoms of fascism destroying our constitutional liberties.
How? Hamburger offers but one initial suggestion, but it is critical. Change the language. Stop calling administrative edicts “laws” – for they are not. Stop calling administrative hearings “courts” – for they are not, they are extralegal Star Chambers. Stop calling the bureaucrats administering these hearings “judges” for they are not – they are hacks who have no legitimate constitutional authority over you.
Language is important, but action is more so. Thus the next step is what counts. Peaceful Civil Disobedience – on a massive scale. Violate some bureaucratic edict and you don’t get a jury trial. You get a hearing by some schmuck demanding you address him as “Your honor.” Screw his honor, for he has none. He’s not a real judge and it’s not a real trial.
Oh, but you can’t get a real trial until you’ve “exhausted your administrative remedies.” They can go straight to Hell with their “administrative remedies.” You want a jury trial and that’s the end of it.
True enough, if you’re by your lonesome, the State will ruin your life. But if thousands of folks do the same – now we’ve got the Revolution We Need.
Remember how the lunacy of Prohibition was repealed: juries all over the country started refusing to convict, no matter what the evidence.
There are tens and tens of thousands of illegal executive branch alphabet agency edicts pretending they are laws. You have no legal constitutional obligation to obey them. If and when your obedience to adhere to one of them is commanded, then the Revolution We Need begins with you.
[1] . The origin of the term: The Greeks called the brightest star in the sky Seiros – the searer, the scorcher – Latinized now to Sirius. 2,500 years ago, it rose at sunrise in mid summer – which it no longer does due to the earth’s axial wobble causing equinox/zodiacal precession.
Sirius is the main star in a constellation the Greeks called Kyon and the Romans Canis, the Dog, named after the magical dog Laelaps that Zeus gave to Europa. Laelaps would always catch its quarry, so Europa had it hunt the magic fox of Teumessa which could never be caught. Zeus then placed Laelaps in Canis Major, big dog, and the Teumessan fox in Canis Minor, little dog, so the chase would continue unresolved for eternity.
The lectionary (calendar of when certain scriptures are to be read) of the 1611 King James Bible states that the Dog Days begin on July 6 and end on September 5.