We Need a Constitutional Convention, Part 1

Published July 23, 2015

Reckless government spending and an uncontrollable federal debt have created an unavoidable monetary disaster ahead.  The door to unlimited federal spending was opened by President Nixon in 1971 when he severed the last link between the dollar and gold by ending foreign central banks’ ability to exchange dollars for U.S. gold.  Politicians realized that more spending produced more votes to keep them in office; and with no limit on federal spending, the mountain of debt just kept on growing. 

Attempts have been made to limit federal spending through a balanced-budget process.  Unfortunately, our government has become so structurally corrupt that Congress will never reduce spending.  It is  politically impossible to elect dedicated, knowledgeable people in sufficient numbers to achieve this. Congress passed laws in 1978 and 1985 to balance the budget, but later Congresses ignored them.   Constitutional amendments were introduced in 1982, 1986, 1990, 1994 and 1995, and Congress voted down every one of them, even the particularly toothless ones in 1994 and 1995. Congress has proven worthless as far as reducing spending.  It is not about to trim its own power.  That power must be taken away!  There is fortunately a way to do this: a Constitutional Amendment by a new constitutional convention called by the states.

The Constitution provides two methods for initiating amendments to that document.  The first, which has been utilized for all amendments in our history, provides for Congress to initiate proposed amendments; but our Founders were wise enough to provide an alternative if that should be necessary.  The second method is through a constitutional convention called by the states.  Amendments proposed by either method must then by ratified by three-fourths of the state legislatures in order to become part of the Constitution.  Now is the time to utilize this second procedure to achieve a balanced budget amendment that the first method has failed to provide.

A balanced-budget amendment should be accompanied by an amendment to close the door to unlimited spending that was opened by Nixon in 1971, which made the dollar a pure fiat currency.  There is no limit to the amount of money politicians can spend if money is backed by nothing, but they cannot spend unlimited amounts of money backed by material asset such as gold.

A balanced budget amendment and gold convertibility are vital, but they alone will not tame Congress’ profligate spending.  One reason is that Congress can use unfunded mandates to push costs onto state and local governments that do not show up as federal spending. Obamacare (Affordable Care Act) and the Dodd-Frank Act imposed 86 unfunded mandates on state and local governments.  One of the worst offenders is the Obamacare’s “Essential Health Benefits; Exchanges: Eligibility and Enrollment” requirement.  Even the Obama administration admits this will add more than 12.8 million hours of paperwork to state and local governments and cost them $336.9 million annually.  This amounts to 251,000 hours per state for this one ACA paperwork requirement.  According to the Bureau of Labor Statistics (BLS), there are 33,600 state compliance officers to ensure conformity with laws and regulations.        

Originally, the Constitution provided that state legislatures would determine U.S. Senators.  That was the only structural link between the state and federal levels of government, but it was destroyed by the Seventeen Amendment, which established popular election for senators.  That eliminated the states’ ability to restrain federal spending and increased the incentive for spending to gain popularity with  voters to win elections.  Over time this process enlarged the scope and power of the federal government and essentially reduced the states to mere departments of Big Government.  They can do only what Washington allows, or demands, and in a manner Washington prescribes.  Today it is generally overlooked that the states created the federal government, not the other way around. They are not junior partners or subsidiaries.  Lacking the power to print money, the states have to pay the cost of unfunded federal mandates through taxes.  The federal government should be prevented from forcing the states to do this.  State taxes should go for purposes determined by state legislatures; federal taxes, for federal purposes.  Therefore, we need a Constitutional Amendment stating that Congress shall have no power to require state tax increases or how taxes are spent within the state; the cost of all federal mandates thrust upon the states must be paid by the federal government.

We also need a constitutional amendment to reverse the Supreme Court declaration in the United States v. Butler, 1936, decision that “the power to authorize appropriations of public money for public purposes is not limited by the direct grants of legislative power in the Constitution.”  If the government has no power to act beyond those direct grants, it should have no power to spend beyond them either.

We also need a constitutional amendment to reassert that the federal government shall henceforth be limited to the Constitution’s grants of power, which it has repeatedly violated.  All three branches, the executive, legislative and judicial, have been increasingly guilty of expanding their roles beyond their Constitutional authority, failing to respect—indeed, destroying—the separation of powers and violating the Tenth Amendment, which states: “The powers not delegated to the United States, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Constitution vests all legislative power in Congress.  The executive branch lacks any authority to  change not only the health care law but any law.  Yet President Obama has usurped Congress’ legislative authority many times, at least two dozen times in just the Obamacare law by unilaterally rewriting parts of it to change the date it became effective, delay the employer mandate, allow people to keep health plans that don’t meet that law’s standards, etc.  And the Supreme Court likewise violated (in King v. Burwell) the separation of powers by usurping the legislative power of Congress through substitution of its own views rather than the clear meaning of the words “established by the state” that Congress had used in writing the law.” (The Court “interpreted” that phrase to mean health care exchanges “established by the state or federal government,” although that is clearly not what the Congress meant.)

Actually, the problems with Obamacare, and a myriad of other laws, would never have occurred if the Constitution had been followed because it grants no power over health care or medicine or insurance to the federal government.  It also grants the federal government no power over agriculture, education, social welfare, labor relations, the environment, business subsidies, stimulating employment, or regulating the economy.  All of those fields were “reserved to the states respectively, or to the people.”

Federal regulations in all these fields for which there is no authorization in the Constitution have resulted in the regulatory agencies exercising legislative, executive and judicial functions.  In 2014 for every law passed there were 16 new regulations: 224 new laws and 3,554 new regulations.  EPA accounted for about half of these, for which the government budgeted $8,200,000,000 for 15,500 EPA employees.  But the regulations imposed a “hidden tax” of $1.88 trillion in lost economic activity and higher prices for Americans.  That’s about 29 percent of the average family income and exceeds what the average family spends on health care, food and transportation.  As of December 31, 2014, President Obama’s administration has added 21,000 new regulations that occupy 468,500 pages in the Federal Register   According to the American Action Forum “Since President Obama took office, his regulators have added $35 billion in unfunded regulatory costs and at least 75 million paperwork burden hours on state and local governments.”

Jonathan Turley, a George Washington University law professor, writes, “Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency….The fourth branch now has a larger practical impact on the lives of citizens than all other branches combined.” He notes that in a typical year federal judges conduct about 95,000 adjudicatory proceedings, including trials, while the federal regulatory agencies complete more than 939,000.

Today there are more than 4,500 criminal laws and perhaps more than 300,000 relevant federal regulations, according to the Heritage Foundation.  “Congress continues to criminalize at an average rate of one new crime for every week of every year…Congress should not delegate the power to establish crimes to unelected officials in federal departments or agencies.  Common sense and limited-government principles demand that only elected Members of Congress make those decisions.” 

EPA has arrogated to itself the powers of the legislative and judicial branches.  Its regulations have  extended the Clean Water Act and the Clean Air Acts far beyond the meaning intended by Congress and even in defiance of two Supreme Court rulings (SWANCC v. Army Corps of Engineers, 2001 and Rapanos v. United States, 2006).  For example, it has expanded the meaning of “navigable” waters, which meant channels of navigation for interstate commerce.  Now EPA says it includes swamps, prairie potholes, drains, seasonal depressions wet for only a few weeks—or even a few days—a year, and ditches and culverts hundreds of miles from traditional navigable waters.  It has assumed the power not only to write legal requirements but to judge guilt or innocence and criminalize even unintended violations—even to the extent of imposing jail sentences.  In a previous book, The Trojan Project, I give several examples of this, one of these being the experience of Ocie Mills and his son Carey.

They were trying to build a house on two lots Mr. Mills owned and on which they dumped clean sand.  They thought their action was acceptable because they already had permission from Florida and Florida officials had told them no federal permit was necessary.  But the federal environmental police arrested them for not having a federal permit to dump a “pollutant” into “navigable waters of the United States under the Clean Water Act of 1972.”  Twenty-one months in the slammer!

After serving a full 21 months in prison, Mr. Mills failed to get his conviction overturned on appeal.  Judge Roger Vinson acknowledged that the site of dumpling was dry land, clearly not even a wetland much less a “navigable water.”  And he deplored the twisting of wording “worthy of Alice in Wonderland” to stretch the meaning of “navigable water” to include dry land; but he said the court had to apply the law as it exists and that it clearly gives the regulatory agency the authority to make this determination.      

That kind of abuse will not be eliminated by “better regulation.”  There will always be regulators and other government officials who will expand, ignore, or reinterpret a regulation in order to insinuate their own views, as hundreds of examples demonstrate.  The only solution is to eliminate all such regulation, to forbid the federal government from any action beyond its enumerated powers in the Constitution.        

Some readers will be aghast that the elimination of the federal EPA will result in great environmental degradation.  Quite the contrary says Jay Lehr, Ph.D. and director of science at the Heartland Institute.  He helped write the Water Pollution Control Act (later renamed the Clean Water Act), Safe Drinking Water Act, Resource Conservation and Recovery Act, Surface Mining and Reclamation Act, the Clean Air Act, the Comprehensive Environmental Response Compensation and Liability Act, and others.

Lehr now favors abolition of the EPA and replacing it with a Committee of the Whole of the 50 state environmental agencies.  He notes these state agencies, having long been given primary responsibility for implementing environmental laws and EPA fiat rulings, have more than “30 years experience and the talent to do the job without the oversight of 15,000 federal employees.” And 80 percent of the cost of EPA’s budget could be eliminated.  He also notes the Committee of the Whole 50 states would be “less vulnerable to lobbying and intimidation by national politicians, activists, and special-interest groups than are their counterparts in Washington, D.C.” 

Lehr writes, “Beginning around 1981, liberal activist groups recognized EPA could be used to advance their political agenda by regulating virtually all human activities regardless of their impact on the environment.  Politicians realized they could win votes by posing as protectors of the public health and wildlife.  Industries saw a way to use regulations to handicap competitors or help themselves to public subsidies.  Since that time, not a single environmental law or regulation has been passed that benefitted either the environment or society.” [emphasis added.]  He notes that the politicized and unscientific course that EPA has taken has been documented in twenty books with titles such as         Regulators Gone Wild,

            Out of Bounds, Out of Control,

            Hoodwinking the Nation,

            Science Left Behind: Feel-Good Fallacies and the Rise of the Anti-Scientific Left.

To be continued.