Another Little Civics Lesson on the Three Branches of Government

Today’s civics lesson is on the three branches of government: legislative, executive, and judicial. This seems basic, but there are people who need reminding that the legislative branch writes the laws and budgets the money; the executive branch carries out the laws; the judicial branch adjudicates on lawbreaking and settles disputes.

Article I, Sections 1 and 7, of the Constitution

Why the need for the lesson today? Because of the hue and cry about an executive branch out of control—because it wants to reduce the regulatory burden.

Here’s an example from an “educator” in my school district (I do not know her, so I have deleted name and school identifiers).

Libs of TikTok discovered this example of a local Texas educator

First of all, authoritarians don’t, by definition, make people freer. So there must be something wrong in the perception of what’s happening. I think the misperception is that the regulatory agencies are independent, and therefore are a check on the power of the executive. That’s not accurate.

Regulatory agencies are part of the executive branch. But in many ways they are a perversion of all three branches, combining lawmaking authority with prosecution and adjudication of rulebreakers: all three separate branch authorities in a single agency—like a monarchy, or your common tyranny.

Regulatory agencies are formed when Congress, the legislative branch, decides that something is too complex for them—or for any non-expert—to understand and make rules on, so they dump their lawmaking duties into the agency and set it up to rule unilaterally.

To break that down, what Congress has done is relinquish its lawmaking duties to the agency, which will be—not a part of the legislative branch, but of the executive branch. The “law” the legislature set up was something like, “this agency will do anything outlined in these 998+ pages, plus anything they deem necessary to regulate this aspect of life for Americans.” And then that agency, with its experts in charge, will write myriad rules and regulations—too many for any person to be familiar with.

And, just to clarify, a just law must be known and declared to the people, so that compliance is possible; otherwise, it’s just a capricious ruling power—a tyranny.

Then the agency—because the assumption is, no typical judge would have the expertise to understand how and whether an accused violator had even done something wrong—creates its own internal judiciary to carry out sentencing, which could be anything from assessing a fine, denying property rights, shutting down a business, on up to incarceration for criminal actions. And up until recently, there wasn’t much an accused violator could do to appeal such a ruling.

You may remember that the Chevron deference was eliminated by the Supreme Court last summer. In the 1984 Chevron decision, the Supreme Court had decided that regulatory agencies were the "experts" in their field, and the courts should just defer to their "interpretation" of the law—thus the term “Chevron deference.” It was a bad decision. It meant that a regulatory agency could come in, inform you that you were in violation and were therefore a criminal, and they might sentence you on the spot. You didn’t get a jury trial; you often didn’t get to mount a defense. And you probably couldn’t appeal to anyone but the “judge” inside the agency.

The Loper case, which led to the Chevron deference being overturned, concerned a fishing company, Loper Bright Enterprises, which was being charged $700 per day by the National Marine Fisheries Service (NMFS) to monitor their company. Federal law never authorized NMFS to charge businesses for this monitoring “service.” NMFS just started charging the exorbitant fee in 2013. And it put any but the most lucrative businesses into bankruptcy. So it was about time they were challenged.

SCOTUS could have ruled narrowly, on just this NMFS case. But they broadened the ruling, to allow challenges to essentially all regulatory agency tyrannies—in other words, to throw out Chevron deference.

As Tom Woods commented at the time, 

Whenever something like this happens, when a wicked but seemingly irreversible feature of American life is suddenly overturned, it should lift our spirits: things we assume are forever may not be so forever after all.

The opposition to freedom has been clamoring on about the danger of weakening the regulatory state ever since.

And right now, with the Trump administration challenging—and cutting budgets and authority to—these agencies, the opposition is apoplectic. But their claim that this is authoritarian overreach is exactly opposite of true. What we are seeing, at last, is an administration willing to reduce centralized authority and tyrannical, unconstitutional regulatory agencies—and put lawmaking power back into the hands of the legislative branch where it belongs.

Madison, from Federalist #62, which Sen. Lee refers to below

So, that’s my opinion. But, while writing this I happened to hear Senator Mike Lee talk about this very thing with Glenn Beck on his Thursday radio show. The specific conversation was about the REINS Act, or Regulations from the Executive in Need of Scrutiny Act, which is a proposed law that would require congressional approval for major regulations issued by federal agencies before they can take effect. Here’s some of that conversation:

ML: The REINS Act, bottom line, is that it requires what the Constitution already mandates. In Article I Sections 1 and 7 we read that you cannot make a federal law without Congress. And that to pass a federal law, that requires a couple of things. First, bicameral passage, meaning passage of the same bill in the House and in the Senate. Secondly, you have to present that to the President, who can then sign it, veto it, or acquiesce to it.

Now—and it should be simple, right? Because Article I Sections 1 and 7 make that clear. And yet, for the last 85 years or so, Congress has been in a death spiral of delegating its lawmaking powers. In short, we will say things like, “Well, we should have good law in area X, and hereby delegate to agency Y the power to make good law in that area.” That’s nonsense. That makes the work easier for members of Congress, and it insulates members of Congress from political accountability, but in the wrong way.

GB: But even more, does it not violate my right to representation? No taxation without representation?

ML: 100%. Because these people who make most of your laws—measured by weight, volume, regulatory compliance costs, you name it—are now made by men and women not of our own choosing. This is a real problem.

Remember that Madison said, in Federalist 62, he said in effect, “It will be of little avail to the American people that their laws may be written by men of their own choosing, if those laws be so voluminous, complex, and ever-changing, they can’t know from one day to the next what the law says and what it requires.” We now live in that dystopian nightmare, Glenn. 100,000 pages a year—is what these bureaucratic pinheads put out every year.

And not only are they so everchanging you can’t know what the law says from one day to the next, they’re not even written by men and women of our own choosing. This is tyranny of the sort that would have made King George III blush with envy. These guys are tyrants. And we’ve got to take it back. It is Congress’s fault; Congress must fix that. Congress may fix it, and must fix it, by passing the REINS Act.

It is Congress’s fault. But it is also the fault of presidents who signed those bills to create administrative agencies—over 400, and only now for the first time is that number going to go down instead of up. And it is the fault of a judiciary who also allowed their power to be usurped and did not declare unconstitutional what these agencies have been doing.

For those concerned about the constitutional
authority of DOGE, Mike Lee clarifies.

So, no, we are not about to “lose our democracy”—unless what you define as democracy is a bureaucratic tyranny, rather than the will of the people. Finally, we have an administration acting to recover from this rule by bureaucrat.

As Elon Musk said recently, 

“If the people cannot vote and have their will be decided by their elected representatives in the form of the President and the Senate and the House, then we don’t live in a democracy. We live in a bureaucracy.”

For those in fear that a loss of regulations leads to a loss of safety or some other fear, I’ve written about that a few times:

·        Regulation—Too Much of a Bad Thing, April 5, 2011 

·        Regulatory Tyranny, August 26, 2013  

·        SCOTUS Finale, July 6, 2024  I linked to this above, with the Tom Woods quote. The middle section talks about the repeal of the Chevron deference.

·        Vote for Freedom, Faith, and Family, October 21, 2024 This was a “why vote for Trump as a person of faith” piece, but quotes Sen. Mike Lee saying very close to what I quoted him saying in today’s piece. 

That ends today’s lesson. I’m sure there will be plenty more to review about our Constitution in days to come.

No, We Haven’t Evolved Beyond Our Constitution

This past week the Constitution turned 234 years old, signed September 17, 1787. I’d like to take a look at how well it is aging.

"Scene at the Signing of the Constitution of the United States" by Howard Chandler Christy
image found on Wikipedia

Back in the day, there were some things our founders probably couldn’t have imagined: cars, subways, trains, airplanes, rockets to space, satellites, electricity, lightbulbs, radio, telephones, television, computers, cell phones, internet. I was alive for the landing on the moon. I went through college doing term papers with the footnotes at the bottom of the page—where I had to roll the paper down to the right location on the typewriter to type the note, then roll back up to type the rest of the page, and hope it all fit. If it didn’t, I’d have to type the whole page over, correcting any errors with white out (a little bottle of white paint you brushed on over the typo). When we got really advanced, we used erasable bond paper, which smeared badly, so you had to be really careful, and then you had to get a Xerox copy to turn in, because teachers didn’t like the thin texture of the paper or the smearing.

Computers were around, even when I was in high school (or before), but they were large, room-sized devices that you fed programming cards into. Personal computers came out, in rudimentary forms, shortly after college.

illustration of technological progress found here

I remember one person with a mobile phone during college. It was connected to his car and was the size of a large brick, required a large antenna, and also did not have a very clear sound. I didn’t see a need for a cell phone until we moved to Houston in 1998. I didn’t have a “smart phone” until two phones ago (phone life is longer for me than for most at 3-5 years).

So all this technology surrounding us has changed. But have humans changed?

There’s a prejudice against older generations, a feeling of self-importance current generations have, where we think those people back then were primitive—not just technologically, but in their thinking as well. I think there’s a word for it, but I can’t come up with it right now. Presentism is close, the assumption that past generations are bad for not holding the same cultural morals as are held in present culture. But that’s not quite it.

Anyway, while we may think we’re better for all our technological advances, there have been tradeoffs. We’ve mostly let go of basics, like how to sustain ourselves during a famine, or how to treat ourselves in the absence of a hospital, or how to dispose of waste. Maybe even how to make cheese. Specialization has meant letting go of general knowledge, much of which was widely known by past generations but has been lost to us. Think about something as simple as going to the bathroom, where we find easy access to toilet paper and soap and water. I’ve experienced camping, but I bring along comforts of home, plus maybe some hand sanitizer.

The point is, technology doesn’t equal human advancement. Humans are still human. Even evolutionists talk in time lengths of millions of years, not the mere handful of millennia of recorded history. Humans today are flawed in the same ways as our ancestors—but maybe with the technology to spread the harm further.

So, here’s what our founding fathers—and all wise people throughout history—knew about human nature: Humans are imperfect. Among the imperfections are:

·         Pride

·         Selfishness

·         Deceitfulness

·         Manipulation

·         Cheating

·         Greed

·         Thievery

·         Prejudice

·         Short-temperedness

·         Impatience

·         Laziness

·         Tendency toward violence

·         Lust

·         Power mongering

I haven’t covered them all, of course. But they include the problems brought up in the Ten Commandments. They include the 7 Deadly Sins. They include human weakness depicted in stories, and from life over the centuries—regardless of what technology the people may have had. Ancient Greeks and Romans faced the same human weaknesses. So did people through the Dark Ages and the Renaissance. And in Ancient Israel, Ancient China, Ancient India, or Ancient anywhere.  

portraits of Greek philosophers Sokrates, Antisthenes, Chrissipos, and Epikouros
in the British Museum

The last one on that list, power mongering, is particularly important when we’re talking about government. There’s a scripture used in my faith to warn against abuse of power:

We have learned by sad experience that it is the nature and disposition of almost all men, as soon as they get a little authority, as they suppose, they will immediately begin to exercise unrighteous dominion. (Doctrine & Covenants 121:39)

James Madison put it this way in Federalist No. 51,

If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government that is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

Mark Twain said it this way, in A Connecticut Yankee in King Arthur’s Court, Chapter 10, “Beginnings of Civilization”:

Unlimited power is the ideal thing when it is in safe hands. The despotism of heaven is the one absolutely perfect government. An earthly despotism would be the absolutely perfect earthly government, if the conditions were the same, namely, the despot the perfectest individual of the human race, and his lease of life perpetual. But as a perishable perfect man must die, and leave his despotism in the hands of an imperfect successor, an earthly despotism is not merely a bad form of government, it is the worst form that is possible.

Humans are flawed. Even (especially) in 2021. If you’re looking at some human evolution since 1787, you’re probably not going to find any measurable progress. At all.

People are not angels. Until they are, there needs to be limits placed on the authority anyone is granted.

The question is, then, is there any reason to think the Constitution is outdated? Insofar as it addresses ways to protect us from human flaws like lust for power, then, no; it is definitely not outdated.

The Constitution, which we’re celebrating, is an instrument for limiting government in a way intended to give individuals as much freedom as possible while limiting their ability to harm one another—which is what government is instituted to do.

The Preamble is the mission statement. As opposed to the loosely governing Articles of Confederation, which weren’t doing their necessary governing job, the Constitution was set up by “We the People of the United States”:

In Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity….

Constitution detail, image from Wikipedia

The first purpose is to get the separate states more unified, to do the things a nation needs to be able to do—things like make treaties with other nations, establish trade with other nations, keep the peace among the member states, etc.

General Welfare does not mean a national-level charity giveaway program. It means promoting what is in the best interest of the nation as a whole, rather than favoring one state or region over another.

Does every nation have to have an identical constitution to this one in order to flourish? Not necessarily. But what they would have to do is meet the principles—the ways of dividing and balancing power so that the good could be done that needs doing by a federal government, while leaving freedom to the people and the local jurisdictions.

Our three branches of government separate the lawmaking duties, the executive duties (i.e., the carrying out of the laws), and the judicial duties (i.e., the judging according to the laws). And the lawmaking duties are further divided into state representation in the upper chamber and population representation in the lower chamber, which have to deliberate and come to agreement on any laws enacted. It's not meant to be easy.

Around this time of year last year, I wrote a 4-part series on the Constitution, with an introduction and then covering the first three articles:

·       Try Reading the Constitution, Part I 

·       Part II: Article I—Legislative Branch 

·       Part III: Article II—Executive Branch 

·       Part IV: Article III—Judicial Branch 

The point here was that the Constitution is readable and understandable—no lawyer or judge needed to interpret it. And we ought to be reading it and understanding it.

It’s hard to know at this point whether We the People will be able to take corrective action so that our country will once again be governed by our basic law, the Constitution. There are so many egregious violations right now. And the laws are only good for a people that respect them and adhere to them. Otherwise we just have tyranny of the most powerful—as most of historical mankind has had to deal with.

As with the treatments available for a certain virus, treatments for our beloved Constitution on life support are denied, as though they don’t exist. We may have to start small—at our school board races, and our local government. Stop tyranny there by our constant vigilance. And then work with others to stop tyranny at every level all the way up.

We’re going to have to be better, to overcome our human flaws, so we merit the help I hope God is willing to give. I believe He’s willing to give it, because He gave the help to our founders back in 1787 to come up with this Constitution. It’s a miraculous governmental instrument that leads to freedom, prosperity, and civilization—every time good people try it.