Regulation Red Tape

Federal Regulations Continue to Strangle our Constitutional Liberty

According this report released by the Competitive Enterprise Institute, the total cost of our current federal regulatory behemoth for 2015 alone reached a staggering $1.885 trillion. Most often these costs are passed down by business directly to consumers costing the average household almost $15000.

In 2015 a total of 80,000 pages of rules and regulations were added to the Federal Register. Not only do these regulations place an enormous financial burden on businesses, but the sheer volume and often conflicting nature of these regulations makes doing business difficult. All too often businesses fold under the burden placed on them and an unknown number of businesses never even open their doors.

The dirty little secret very few talk about is that the vast majority of these federal regulations violate several provisions of the Constitution.

There are currently 60 different federal agencies writing regulations. Most of these agencies are part of the executive branch, while the rest are independent agencies created by law which operate outside of the three branches of government. According to Article 1 Section 1 of the Constitution:

“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.”

Article 1 Section 1 is violated because regulations are written by either executive branch agencies or independent agencies not the legislative branch. In many instances congress writes laws delegating to these agencies the power to write regulations; however Article 1 Section 1 is quite clear — only congress has the power to write laws. Congress does not have the power to delegate legislative power. John Locke, who is a primary influence for the framers of the Constitution, discussed this topic when he wrote his Second Treatise on Government:

“The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others. The People alone can appoint the Form of the Commonwealth, which is by Constituting the Legislative, and appointing in whose hands that shall be. And when the People have said, We will submit to rules, and be govern’d by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands.”

Each of these regulations are given the full force law, just like laws that are written by congress and passed through the formal legislative process as defined by Article 1 Section 7 of the Constitution. Regulations are never passed by both houses of congress and signed by the president therefore granting them the same status as formal laws violates Article 1 Section 7 of the Constitution.

The Constitution created a federal government with a limited number of well defined powers. These powers are clearly enumerated. According to the 10th Amendment, powers that are not specifically granted to the federal government remain with the States or the people. Regulations most often deal with issues that are not among these enumerated powers therefore they violate the 10th Amendment.

Article 6 Section 2 of the Constitution, known as the Supremacy Clause, defines what the law of the land is. According to this clause, only laws that do not violate the Constitution and treaties are considered the law of the land. Regulations written by executive or outside agencies are not listed in this clause, therefore they are not the law of the land.   The fact that regulations violate other clauses of the Constitution disqualifies them as the law of the land.

Unfortunately the Supreme Court refuses uphold the Constitution and declare regulations unconstitutional, and congress refuses to reclaim its authority as the sole legislative body. Fortunately Thomas Jefferson proposed a solution when he wrote The Kentucky Resolutions in 1798. His solution is called nullification. According to the principle of nullification, States have the power to declare usurpations of the Constitution by the federal government null and void. James Madison proposed the same solution when he wrote the Virginia Resolutions.

Jon Fournier

Jon Fournier is a strict constitutionalist who has studied the Notes on the Debates in the Federal Convention, the transcripts of the State ratifying conventions, The Federalist Papers, The Anti-Federalist Papers, and the writings of the framers of the Constitution. He has also studied economics through the writings of Adam Smith, F A Hayek, Ludwig von Mises, and Milton Friedman.

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