State Power V Federal Regulatory Power

By KrisAnne Hall, JD

If the book Demise of the American Republic were ever written, the history of the Supreme Court would likely occupy a bulk of its pages. Two opinions from the Supreme Court of the United States (SCOTUS) serve to illustrate this point. These opinions may appear rather innocuous on the surface; however, they are anything but harmless.

The great task of SCOTUS, according to James Madison, (aka Father of the Constitution) was for it to be an “IMPENETRABLE BULWARK” in protecting State rights and the Liberties of the people.  Let me be blunt – It Has Failed. In two SCOTUS decisions, Pliva v. Mensing and American Electric Power v. Connecticut the Supreme Court has chosen to place Federal Regulatory Law above these Rights & Liberties.

Some may ask; “doesn’t the Supremacy Clause establish federal law above State law to be the proper order of things”  No, it actually does not.  Article 6 clause 2 of the Constitution, known as the Supremacy Clause reads as follows:

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.

It is true that the drafters of the Constitution knew that if the laws of the United States were not held to be supreme over the laws of the States, they, according to Alexander Hamilton, “would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY.” (Fed.#33). Without a degree of supremacy, compliance to federal law would be completely voluntary and wholly unenforceable. However, there is a distinct limit to the authority of federal laws.  Alexander Hamilton goes on to say,

“But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution;…” (Fed.#33).

What Hamilton was saying is that the Supremacy Clause only makes Federal Law supreme when that Federal law is consistent with and established pursuant to the Constitution. When it is not thusly established, it is an “act of usurpation.”

You see, federal law is not the “supreme law of the land,” that position belongs to the Constitution.  Anything (e.g. law-regulation-executive order-supreme Court opinion) that is not made “in pursuance to the Constitution” is null and void.  Hamilton makes this abundantly clear in Fed. #78:

“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.”

And Hamilton was not alone.  James Wilson, delegate for the State of Pennsylvania, argued that all congressional power was limited and defined by the Constitution and any transgression of that Supreme Law rendered the acts of Congress void and of no force.

“…the power of the Constitution predominates.
Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.”

By the consent of 3/4 of the States, this principle became law in Article 6 clause 2 of the Constitution.

Unfortunately, usurpation of rights, abuse of authority, and violation of the Supreme Law of the land is exactly what has happened at the hands of the SCOTUS. It has, through its opinions, supported the unconstitutional authority of a body, other than Congress, to establish law outside the authority of the Constitution and then given that body supremacy over State reserved powers.

There is no Constitutional basis for the federal EPA or FDA to impose authority over the States. First, the power exercised by these agencies are powers not expressly delegated to the federal government, they are powers reserved to the States.  Secondly, these are Executive branch agencies (see EO 13575 sec. 3); law making is reserved through the Constitution to the Legislative branch.

When the SCOTUS chooses to assert that regulations, which are established by an unconstitutional agency, are supreme over the States via the Supremacy Clause, as they did in Pliva v. Mensing and American Electric Power v. Connecticut, they are usurping the States’ reserved power.

Furthermore, James Madison stated in the Federalist Papers 45:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” (emphasis added)

History and facts dictate that we must consider the intent of the Founders when properly interpreting the Constitution.  That is why Hamilton specifically said, “…every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.”  The term “tenor of the commission” is a direct reference to the intent of the drafters.

Madison establishing that the federal government has no Constitutional authority to establish a law that deals with the ordinary course of affairs, concerning the lives, liberties, and properties of the people. That is a duty reserved to the State.  Hamilton is saying, since Madison is explaining that is our intent, the federal government is therefore bound by it.

However, the executive branch through these Federal Agencies, have imposed regulation after regulation that create restrictions and levy fines on the people of the States that have nothing to do with war, peace, negotiations, and foreign commerce.

Our founders established separation of powers because they had seen a history of over 700 years of tyranny usurping the rights of the people. They knew what it looked like, and they knew what it would take to prevent it and defeat it. They established the Legislative branch to be separate from the Executive branch, so that one man could not impose laws upon a people based upon his will; and they established a Judicial branch to check them both.

These unconstitutional regulations along with the subsequent SCOTUS opinions are acts of tyranny with which our founders were intimately acquainted.

Our founders knew that without the proper checks and balances, the executive branch would have the power to destroy liberty. They also anticipated the attempt to circumvent these checks. James Madison stated in his Speech to Congress – June 8, 1789:

In other instances [the Constitutions lays] down dogmatic maxims with respect to the construction of the government; declaring, that the legislative, executive, and judicial branches shall be kept separate and distinct: Perhaps the best way of securing this in practice is to provide such checks, as will prevent the encroachment of the one upon the other…independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. (explanation and emphasis added)

This is why judicial appointments are so important.  It is not enough for our Senators to appiont “conservative” justices, we must demand appointment of justices dedicated to the principles and proper application of the Constitution.

But what do we do when the “independent tribunals of justice” have failed in their duties as guardians of the rights of people? The fantastic thing about our founders was they understood human nature. Alexander Hamilton stated that “experience is the oracle of truth; and where its responses are unequivocal; they ought to be conclusive and sacred.” Our founders learned from their own history that people would become inattentive to their rights; that tyranny would attempt to reassert itself as it had time and time again. Knowing this, James Madison continued with his speech in 1789  explaining there is a more powerful check of federal power than the courts:

Beside this security there is a great probability that such a declaration in the federal system would be enforced; because the state legislatures will jealously and closely watch the operation of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people’s liberty. (emphasis added)

According to James Madison, the primary job of our State Legislatures was to be guardians of the people’s liberty against federal encroachment.

This is now our greatest hope to save the sovereignty of our States. Our Legislators must understand that this is the time when they must stand against these unconstitutional agencies and their unauthorized intrusion on the rights of States, which is to say the rights of the people. We must again establish ourselves as the engaged citizen government that was demanded by our founders in order to keep this Constitutional Republic. We must reassert ourselves as the leaders of our nation and remind the legislators that they are representatives of the people, working for the people, not celebrities vying for camera time and re-election.