Over at National Review Online, Jim Lacey has done everyone a favour by illustrating the utter contempt the federal government has come to have for the document that gives it its very life – the U.S. Constitution.  He draws a hideous picture of an executive branch engaged not in some occasional rule-making of a trifling sort, which would be bad enough, but in hyper-legislating, an unconscionable violation of the separation of powers between the Congress (in whom the power to write federal laws has been solely vested) and the executive branch:

‘The first Federal Register was issued in 1936. It contained eleven pages! For the first 147 years of the nation’s existence under the Constitution we somehow managed to get by with only eleven pages of regulations.  . . .  By 2008 the Federal Register contained 31,879 documents and 79,435 pages, while the Code of Federal Regulations comprised 163,333 pages in 226 individual books. Rules have been accumulating at a rate of nine pages a day since 1936.’


This unrestrained law writing by executive agencies, this ‘metastisizing’ of the regulatory state, as Mr Lacey rightly calls it, has occurred under the watch of both Republicans and Democrats and with the blessing, implicit or explicit, of all three branches of the federal government.

So what does Mr Lacey propose as a solution to this problem he is rightly grieved over?

‘. . . every regulation must be presented to Congress before it takes effect. Congress must vote to approve or disapprove every regulation within 90 or so days of its submission by the regulatory body. No vote, no regulation.  . . .

‘Such a requirement will make Congress accountable for everything it enacts.  . . .  The Constitution gave the power to make laws to Congress. Congress needs to reclaim that power.’

Yes, in a perfect world, the U.S. Congress would reclaim its Article I, Section 1 legislative powers from the executive branch (which Congress has illegally, yet willingly, delegated up till now).  But the world is not perfect; it is, as C. S. Lewis described it, ‘bent.’  Even if one Congress did pass a law resembling the one Mr Lacey describes, there is nothing to prevent future Congresses from changing it or repealing it; or that would prevent the executive branch from merely ignoring it.

As Thomas Jefferson and others of his cast of mind perceived, the branches of the federal government would do a poor job of limiting one another’s excesses.  For an expansion of power for one branch usually means an expansion of power for all branches, and the lust for power is tremendously difficult for man to restrain.

The check on this tyrannical executive law writing will have to come from outside the federal government – from the states, the cities, the counties/parishes, and other public and private organisations; and from courageous individuals, all of which accords quite nicely with the Ninth and Tenth Amendments.

Some model nullification language might go something like this:

The legislative power of the federal government has been granted by the States exclusively to the U.S. Congress in Article I, Section 1 of the U.S. Constitution.  Hence, all rules and regulations promulgated by any agency or individual of the executive branch of the federal government purporting to have the force of law shall hereafter be considered advisory only unless approved by both chambers of the U.S. Congress and authorised by one or more of the enumerated powers delegated by the States to the U.S. Congress.

Where such advisory rules and regulations of the federal executive branch conflict with state or local laws, the latter shall be adjudged superior.

If one were interested in nullifying only certain executive regulations, the language could easily be modified for such a circumstance.

Whether this specific language be acceptable or no, what is imperative is that no one place his trust in the federal government to limit its own powers.  Such limitations, as stated above, will have to come most often from outside Washington, D.C.  Thus, the issue ultimately lies with us, the citizens of the states, with the strategies we choose to employ to preserve our ancient liberties.  We cannot afford to slumber.  We must remain vigilant.  Always.

Walt Garlington
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