It’s crucial to remember, however, that a prior liberal/Progressive SCOTUS created the regulatory powers of the Administrative State. These court-created powers lasted for many decades and greatly diminished Congress’s powers to control the Administrative State.

To prevent a return to an all-powerful, court-sanctioned Administrative State, it is imperative that Congress seizes this period of anticipated regulatory sanity to codify and expand the court’s decisions. The role of congressional action in preserving this victory cannot be overstated. After being absent from the regulatory reform debate for decades, Congress must now actively protect the benefits of these recent decisions.

The three SCOTUS decisions are excellent examples of how, in the absence of Congress, the federal judiciary can allow regulators to take on the trappings of a “Star Chamber” that can only be dismantled by a future court.

In Loper Bright Enterprises v. The Secretary of Commerce, the court reversed the forty years of deference courts gave to federal agencies under Chevron vs. NRDC. Chevron’s legal and economic impact is gargantuan. At the time of the Chevron decision in 1984, the federal bureaucracy had issued approximately 65,000 regulations since the beginning of the Administrative State. After Chevron, the tentacles of the Administrative State expanded to control almost every aspect of society, including the products made, the information provided, and the energy it used. By 2023, the bureaucracy had issued 215,500 regulations costing the economy approximately $2 trillion to implement annually.

The courts dutifully applied Chevron’s deference. Seventy future SCOTUS  decisions relied upon it, and it was cited in 17,000 lower court decisions. By removing agency deference, SCOTUS returned agency rulemaking power to Congress’s original intent, formulated in its Administrative Procedure Act (“APA”)—that judges, not bureaucrats, make independent interpretations of the law.

In the second case, SEC vs. Jarkesy, the court struck down the power of federal agencies to act as regulators, judges, and executioners, which could impose substantial civil penalties without providing the defendant’s Seventh Amendment right to a jury trial.

While Jarkesy sought judicial review in a federal court, the SEC forced him to adjudicate the matter in-house. The agency’s administrative law judge levied a $300,000 fine on Jarkesy and ordered the disgorgement of $685,000 in illicit profits for violations of the anti-fraud provisions in federal securities law. Jarkesy petitioned the Fifth Circuit Court of Appeals for judicial review, arguing that he had the right to a jury trial since the SEC sought penalties. The federal appellate court agreed with Jarkesy.

The Supreme Court upheld the appellate court’s finding. It is reasoned that when an agency seeks to impose civil penalties, the action is in the nature of punishment. Since punishment at common law was imposed by courts holding jury trials, Jarkesy was entitled to a jury trial.

The ruling in Jarkesy is significant because federal agencies hire several thousand ALJs to hear evidence and make judicial decisions. These administrative proceedings are very costly to defendants but are more comfortable for agencies since the outcome is determined by their paid-for, in-house “judges.”

Loper and Jarkesy build upon  WVA v. EPA, the case in which SCOTUS formulated its Major Questions Doctrine requiring an agency to establish statutory authority when transforming long-standing policy into a dramatically new one. EPA historically applied section 111 of the Clean Air Act only to specific energy sources at particular locations. Suddenly, the EPA “discovered new authority” and authorized itself to determine what types of electrical power could be generated and distributed to the nation. SCOTUS found that EPA lacked the statutory authority to transform its facility-by-facility approach to clean air regulation into the power to regulate the entire electricity grid. The critical aspect of its ruling is that when federal agencies suddenly change long-established policies, the agency must prove Congress granted them such authority.

In the three cases, SCOTUS reversed long-established positions that agencies could fill in the legislative blanks in the law, force citizens into trials controlled by agency-paid judges, and unilaterally extend regulatory powers to “newly discovered activities.”

The dramatic change in the court’s judicial philosophy exhibited a newfound respect for Congress as it searched for its congressional intent or any constitutional support for agency activity

For those familiar with our Constitution and congressionally written laws, it’s clear that vagueness is omnipresent in most texts. This understanding should raise concerns about the potential for a future SCOTUS with a liberal/Progressive majority to reverse the current limits. Such a reversal could allow agencies to once again operate as unsupervised lawmakers, thereby potentially making them supreme in the lawmaking process. This potential imbalance underscores the need to preserve the recent SCOTUS decisions.

While conservative Republicans in Congress for decades voiced concerns over the growth of the regulatory state, they could not secure the votes to restrain the system created by the liberal/Progressive SCOTUS.

Only the 115^th Congress seriously attempted to reform the APA and, by implication, the Administrative State through the proposed Regulatory Accountability Act (“RAA”). The RAA sought to reform the rulemaking process to ensure final rules were based on sound facts and law, inadequate science could be challenged, major rules were subject to on-the-record hearings with cross-examination, and courts, not regulators, interpreted the law.

The House passed the RAA several times. A Republican Senate even voted it out of committee; however, Senate leadership under Mitch McConnell, a patron of the Administrative State, refused to bring the legislation to the floor. This effort was Congress’ first and last serious attempt to reform the Administrative State since its creation in 1946.

In the final analysis, agencies will fight to the last rulemaking proceeding to expand their regulatory powers. The Biden administration recently proved the truth of the assertion by forgiving additional student loan debt after a conservative SCOTUS declared such actions beyond the powers granted to the Executive by Congress. While the current SCOTUS has significantly limited the power of agencies to make new laws without congressional authority, a future liberal/Progressive court could reverse these limits. It is up to Congress to place statutory limitations on an agency’s power to make laws without authority from Congress. Such action is necessary if Congress is to reclaim and retain its constitutional role as the nation’s sole legislative authority.

William L. Kovacs, author of Devolution of Power: Rolling Back the Federal State to Preserve the Republic. Received 5 stars from Readers’ Favorite. His previous book, Reform the Kakistocracy, received the 2021 Independent Press Award for Political/Social Change. He served as senior vice president for the U.S. Chamber of Commerce and chief counsel to a congressional committee. He can be contacted at wlk@ReformTheKakistocracy.com

The post SCOTUS Ignites a Regulatory Reform Revolution appeared first on The Libertarian Republic.

 Colorado’s bogus legal theory failed, so New York invents a new crime.

Initially, Colorado and Maine attempted to deny Trump ballot access by asserting that he was an ineligible presidential candidate since he had violated the insurrectionist clause of the Fourteenth Amendment. The U.S. Supreme Court unanimously struck down their claims, empathically holding state power does not extend to federal officials and candidates “Because federal officers ‘owe their existence and functions to the united voice of the whole, not a portion, of the people.’”

Subsequently, New York tried a different approach: indictment. It twisted its legal system to give voters nationwide the appearance of providing a fair trial while it schemed to deprive Trump of his constitutional rights. New York’s goal was to tarnish Trump’s reputation, to tilt the election to the blue-state candidate.

It has been less than four months since the U.S. Supreme Court unanimously struck down Colorado’s attempt to remove President Trump from the ballot. During that time, New York invented a new crime to bring against Trump. It was a combination of a misdemeanor business records violation for which the statute of limitation had run and an alleged crime of miscategorizing an expense for a non-disclosure agreement as a legal expense. This unprecedented move was clearly aimed at undermining his candidacy and influencing the election outcome.

New York then staged a trial that transformed a misdemeanor into a felony and convicted Trump of the invented crime. The New York trial court record is replete with examples of how the state, acting through a biased and conflict-ridden judge and a prosecutor campaigning to “Get Trump,” flagrantly violated the former President’s constitutional right to due process to keep him from campaigning in the federal election for President of the U.S.

At trial, New York failed to inform Trump of the alleged crime, denied him the right to put on expert witnesses on election law, and failed to require the jury to unanimously find him guilty of a specific crime as mandated by the Constitution’s Sixth Amendment. New York’s injustice is further compounded by the judge’s “Gag Order” that prevents the former President from freely speaking about the case during the presidential campaign. The Gag Order was continued even after the jury was dismissed, clearly an effort to restrict Trump’s campaign.

The 2024 election is on November 5^th.

With the 2024 election just around the corner, the urgency of the situation cannot be overstated. New York’s threat to our federal election can only be resolved by one or more red states petitioning the U.S. Supreme Court to exercise its original jurisdiction over issues involving conflicts between states. If the U.S. Supreme Court does not immediately address New York’s election interference, it could permanently disrupt a “uniquely important national interest” by allowing voters in different states to believe Trump is a criminal and should not hold office.

Since the votes cast in each state are affected by the votes cast in all states, “An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times.”

This disruption could nullify the votes of millions and change the election result, leading to a chaotic and uncertain future. As the Supreme Court noted in the Colorado case,  “Nothing in the Constitution requires that we [United States] endure such chaos.” The potential consequences of inaction are too grave to ignore.

The red States have a direct path to the U.S. Supreme Court to block New York’s election interference.

Article III, Section 2, Clause 2 of the U.S. Constitution reserves a special place in the nation’s operation for states to protect the Republic from the unconstitutional election interference of states seeking to subvert the integrity of national elections. The Supreme Court, as the ultimate arbiter of the Constitution, plays the essential role in upholding this principle. The relevant part of Article III, sec 2, clause 2:

In all Cases affecting Ambassadors, other public ministers, and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original jurisdiction.

This right is so significant to the functioning of the Union that Congress codified and expanded it at 28 U.S.C. sec. 1251(a) to ensure this protection is straightforward and can be immediately exercised by states.

28 U.S.C. 1251(a) reads:

• The Supreme Court shall have original and exclusive jurisdiction over all controversies between two or more states. [emphasis added]

Moreover, New York’s election interference violates the rights of the voters of all states to have a fair election by denying a presidential candidate the Privileges and Immunities protections of the Fourteenth Amendment. The Supreme Court noted:

No state shall make or enforce any law which shall abridge the privileges or immunities citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As the guardians of national elections, the red states have a crucial role to play. They can directly challenge the state of New York’s unconstitutional conduct in the U.S. Supreme Court, thereby upholding our Republic’s integrity and all citizens’ rights.

The Court’s process for handling cases under original review.

While section 1251(a) states that the ‘Supreme Court shall have original and exclusive jurisdiction, the Court views such power as discretionary. Therefore, the red states must file a ‘motion for leave to file a bill of complaint,’ a formal request for permission to present a legal case. The justices will then decide whether to accept or reject the complaint based on the merits of the case and the potential impact on the nation’s electoral process.

Historically, these state vs. state cases involved water rights, boundary disputes, and commercial fishing. The Court has rejected cases involving goods made by convicts, one state prohibiting state employee travel to another state, and inheritance taxes imposed on residents of other states. The last major state vs. state case was Florida vs. Georgia (2021): the Court rejected Florida’s claim that Georgia consumed more than its fair share of water since Florida did not prove by clear and convincing evidence a severe injury caused by Georgia.

Fortunately, an extensive trial court record for the red states makes the case ready for Supreme Court review.

By having original jurisdiction, many of these state vs. state cases arrive at the Supreme Court without the benefit of a lower court decision setting forth the facts and law relied upon by the parties. As a result, the Supreme Court must appoint a Special Master who gathers evidence, takes sworn testimony, and rules on the evidence. This process can take years for the Special Master to complete his report. The Special Master submits a report to the Supreme Court in a manner similar to an appellate court decision. The Court decides to accept or reject the Master’s report.

In the case of the Red States vs. New York, there is no need for a Special Master since a comprehensive trial record is available to the Court. Moreover, the questions before the Court are all matters of law, not fact, since all the facts are contained in the trial court record. From that record, the Supreme Court can determine if the state of New York unconstitutionally used its legal system in a manner that interfered with the elections in other states.

While the Supreme Court has adjudicated presidential election controversies, e.g., Bush v. Gore, it involved private parties. However, the Court has never ruled on a controversy in which a group of states alleged another state interfered with a national election. Red States vs. New York is an opportunity for the Court to set limits on election interference by states since these types of state actions are capable of repetition.

Post Script

While state vs. state election interference claims rest within the Supreme Court’s original jurisdiction, New York and the actions of other blue states, e.g., Colorado and Maine, to keep Trump off the ballot may also violate numerous federal civil rights statutes, giving former President Trump standing to sue the individuals in those states, acting under color of law, who conspired to keep him off the ballot and/or interfere with the election. These statutes are 42 U.S.C. 1983 (deprivation of civil rights, privileges, and immunities), 42 U.S.C. 1985 (conspiracy to prevent Trump from holding office, obstructing justice, and depriving him of his privileges and immunities), and 42 U.S.C. 1986 (allows Trump to sue those who had the power to prevent violations of his civil rights but were negligent in not preventing them, i.e., the Governor of New York. The Civil Rights statutes may also apply to individuals such as the fifty-one intelligence officials who knew the Hunter Biden laptop was authentic but claimed it to be Russian disinformation to smear Trump and elect Biden. Also, under 42 U.S.C. 1986, the FBI agents may be sued for their negligence in failing to stop the false statements by the fifty-one intelligence officials that interfered with the 2020 election.

William L. Kovacs, author of Devolution of Power: Rolling Back the Federal State to Preserve the Republic. Received 5 Stars from Readers’ Favorite. His previous book Reform the Kakistocracy received the 2021 Independent Press Award for Political/Social Change. He served as senior vice president for the U.S. Chamber of Commerce and chief counsel to a congressional committee. He can be contacted at wlk@ReformTheKakistocracy.com

The post Red States Can Sue NY for Election Interference in SCOTUS appeared first on The Libertarian Republic.

In addition to funding wars, Congress appropriates trillions of questionable dollars to anyone in the U.S. to address COVID-19 and green technology without any evidence of effectiveness or need.

At least $18 trillion of our $34 trillion national debt can be attributed to some combination of undeclared wars, misinformation, and lies. Every taxpayer is left with the $260,000 tab that accompanies federally created inflation, decaying schools, rising interest rates, declining wages, sagging productivity, labor strikes, supply chain problems, increasing taxes, open borders, and terrorists in the homeland. These problems are not music to the ears of Americans who “get another day older and deeper in debt.”

The unfortunate aspect of this situation is that as much as one-half of the national debt might have been avoided by honesty from our presidents and a Congress willing to debate the critical issues of the day.

$18 trillion of policy mistakes that could have been avoided by a serious debate in Congress and good quality information.

 Vietnam (1965-1973). The U.S. was not attacked in the Gulf of Tonkin as it claimed, yet that lie was our excuse for waging a war against North Vietnam that killed 58,220 American soldiers, wounded 153,303, and another 1,643 are still missing. The war cost U.S. citizens $168 billion in the 1960s-1970s, which would be over $1 trillion today. The costs of that war continue today, with around $22 billion in compensation for injured veterans and lifetime benefits for their families. U.S. involvement in the war ended in 1973, but the U.S. withdrawal was a roadmap to its disgraceful surrender in Afghanistan.

 Afghanistan and Global War on Terror (2001 to 2022). After terrorists crashed airplanes into the Twin Towers in NYC and the Pentagon on September 11, 2001, the U.S. invaded Afghanistan, the home of the terrorists. The global war on terror began and lasted for two decades. The U.S. stayed at war in the Middle East 18 years after President Bush declared “Mission Accomplished.”  Its cost is estimated at $8 trillion and over 900,000 deaths. Even after the war ended, the U.S. estimates $2.2 trillion for the future care of our veterans. After two decades of fighting in Afghanistan, the U.S. disgracefully abandoned the war and the hundreds of thousands of Afghans who worked to help the Americans. The U.S. also left $7.12 billion worth of equipment for the terrorists to use against us.

The Iraq War (2003 – 2011). The Iraq War was the result of the U.S. Intelligence Agencies falsely telling the American people Saddam Hussein had Weapons of Mass Destructions (“WMD”). Hussein did not have any WMD. Rather, the war was President Bush’s obsession to remove Hussein from power to correct what he believed was a mistake by Father Bush not to invade Iraq and eliminate Saddam Hussein. The cost of the Iraq war was $1.8 trillion and cost 550,000 lives.

Ukraine War (2022-present). So far, the U.S. has spent $115 billion on the Ukraine war with Russia. Presently, the U.S. Senate wants to give Ukraine another $60 billion. While the history of the Ukraine War is not written, there is considerable controversy over the U.S. role in the 2014 coup that overthrew the pro-Russian president Viktor Yanukovych. The U.S. and the EU certainly wanted a friendly Ukrainian government. The toppling of the Russian-friendly ruler and the installation of a pro-western ruler of Ukraine led to Russia invading and taking Crimea from Ukraine in 2014.

Complicating Ukrainian politics, in 2016, after a new Ukraine president was installed,  then Vice President Biden threatened to deny Ukraine $1 billion if the president of Ukraine did not fire Special Prosecutor Shokin, who was investigating Burisma, a corrupt company that paid large sums of money to Hunter Biden to lobby the Obama administration to force Ukraine to end the investigations of its corruption. Now President Biden has forcefully stated he will support Ukraine for “as long as it takes.” The final cost of war is unknown, and the cost of rebuilding Ukraine will be in the hundreds of billions.

Additional Wars (1950-2022). In addition to four major undeclared wars, the U.S. has been involved in the Korean War, Laotian Civil War, Permesta Rebellion, Lebanon crisis, Bay of Pigs, Dominican Civil War, Korean DMZ conflict, Cambodian Civil War, Lebanese Armed Forces, Grenada, Libya, Tanker war, invasion of Panama, Somali, Bosnian and Croatian wars, Kosovo war, intervention in Yemen, intervention in North-West Pakistan, second intervention in Somali Civil War, Ocean Shield, Operation Observant Compass (Uganda), intervention in Niger, Syrian Civil War, second intervention in Libya, Operation Prosperity Guardian (Red Sea conflict).

Cost of Covid (2019-2022). The federal government spent over $4.6 trillion during the Covid pandemic. Most of the money went to individuals and corporations to keep them afloat during the government-mandated shutdown and to Big Pharma for the vaccines that were never properly tested. There is considerable conflict over the usefulness of the Covid vaccines. Moreover, there are many who believe the lockdowns, school closures, fraud, lost productivity, and the rise in mental health cases will cost the U.S. many trillions in the future. The OECD estimates the cost of the lost learning in the U.S. will be $14.1 trillion. Congress never received any information from either Trump or Biden on the origins of COVID-19.

The Inflation Reduction Act (2023). The IRA is not about reducing inflation in any manner. It was about funding green technology. The IRA tax credits for anything “green” incentivized more pigs to show up at the trough than CBO estimated. Within months after the program started, Goldman Sachs raised its estimated cost of the credits to  $1.2 trillion for the same time period. The original forecast missed the cost of the credits for electric vehicles by $379 billion; energy manufacturing, $156 billion; renewable electricity production, $82 billion; energy efficiency, $42 billion; hydrogen, $36 billion; biofuels, $34 billion; and carbon capture, $31 billion.

Governments Make Mistakes; unfortunately, the U.S. federal government does not learn from them.

 The total cost of these few policy mistakes is well over $18 trillion. As to the wars, Congress never declared any of them. As to Vietnam and Iraq, the American people were simply lied to.  As to the COVID cover-up, the most disconcerting fact is that the federal government continues to refuse to tell citizens the origins of COVID-19 or provide scientific studies to support the mandated vaccinations, lockdowns, closures, or other police state tactics.

The U.S. federal government appears to be incapable of learning from its mistakes. The U.S. involves itself in war after war, yet Congress rarely debates the need for the war before the president sends money, equipment, troops, or some combination of war assistance to the fight. The U.S. federal government passes society-changing policies like COVID and IRA and appropriates trillions to implement them with few, if any, members of Congress or the president even reading the summaries of the laws.

The American people deserve more for the $6 trillion they send to Washington each year and the $34 trillion the federal government borrowed in our name. Asking Congress to perform its constitutional responsibility to declare war before the president sends troops and/or equipment to fight the war is not unreasonable. Demanding the Executive to provide the science underlying major public health emergency orders is not unreasonable. Demanding our leaders tell us the truth, rather than lies, about what the government is doing is not unreasonable. Unfortunately, Congress and the president seem very content with living in a state of undeclared wars, perpetual misinformation, and lies.

William L. Kovacs has served as senior vice president for the U.S. Chamber of Commerce, chief counsel to a congressional committee, and a partner in law D.C. law firms. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at wlk@ReformTheKakistocracy.com

The post Half the National Debt is from Wars, Misinformation and Lies appeared first on The Libertarian Republic.

Unfortunately, this simple statement often achieves its goal of obstructing efforts by Congress to obtain information. While Congress may be upset with the response, many times, it is cowed into accepting presidents can protect their people from being investigated for criminal conduct. Fortunes, however, can be reversed. If Republicans win the White House with a presidential candidate who sincerely wants to uphold the rule of law, restore justice to the legal system and hold the “Deep State” accountable, that president can make it happen.

The leading Presidential candidates for the Republican nomination have promised to fire the FBI director and clean house at the Department of Justice. If a Republican wins the presidency in November 2024, FBI Director Wary and AG Garland will resign long before they can be fired. So, candidates, please, stop pandering. No one will be fired. All pablum, worthless and oversimplified promises.

Suppose a new president truly wants to clean up the deep, dark, corrupt state at the DOJ and FBI. In that case, the Republican president need only waive Executive Privilege and issue an Executive Order declassifying all investigatory materials sought by the current Republican House of Representatives. Let Congress bleed the truth out of those subverting the Constitution.

Executive compliance is simple. When Congress requests documents, the Executive should order them produced. When testimony is sought, provide it without asserting objections. Cooperate with the Republican House to find the truth.

Since the Nixon administration, presidents have asserted Executive Privileges thirty times to block congressional investigations. Presidential assertions included protecting the president’s brother (Billy Carter), girlfriends (Monica Lewinsky), mismanagement of funds (Solyndra), foreign affairs (Benghazi), gun running (fast and furious), and the Watergate tapes. Democrat and Republican administrations act as if providing Congress with requested information concerning an investigation will somehow diminish their manhood.

Finding and eliminating corruption is for the benefit of the nation. Hiding corruption does not assist the president in the faithful execution of the law. The DOJ/FBI’s long-running minuet of never sharing information with congressional committees is a mechanism of deceit, not of protecting the independence and effectiveness of law enforcement, the identities of informants, avoiding pre-trial publicity, or interfering with prosecutorial discretion. The Supreme Court has long recognized the “…implied power [of Congress] to investigate and to compel the production of information” from the Executive branch.

“Executive Privilege for presidential communications is limited to the quintessential power and nondelegation of Presidential power, and those are the core functions in the Constitution.” It should only be asserted to preserve those core constitutional functions. Claiming it beyond the core constitutional functions is a delaying tactic that often allows illegal conduct to continue.

As to declassifying all documents related to alleged criminal activity in the Executive branch, no president should ever be intentionally or unintentionally covering it up. The American Bar Association writes, “Under the U.S. Constitution, the president as commander in chief is given broad powers to classify and declassify such information, often through executive orders.” While there are procedures for declassifying the materials, a president, except for certain materials such as nuclear secrets, has almost total control to declassify records by Executive Order. Presidents at all times have the power to put sunlight on government corruption. When they choose not to expose corruption, it is an intentional coverup.

Unfortunately, since the Nixon administration in the early 1970s, the Executive branch has forced Congress to issue subpoenas to secure requested documents. Presidents achieve their goal of protecting corruption by requiring years of legal battles to enforce the subpoena.

Hopefully, there will be a Republican Congress, or at least a Republican House sworn in on January 3, 2025, and on January 20, 2025, a Republican president. Between January 3, 2025, and January 20, 2025, the Republican Congress can prepare the appropriate investigative letters to the incoming president requesting the information needed to root out corruption in the DOJ/FBI. On January 20, when the Republican president enters the White House, his first order of business should be to issue an Executive Order waiving Executive privilege and formally declassifying the documents relating to all congressional investigations. These waivers should encompass all alleged DOJ/FBI corruption as described in the Durham Report, Mueller and Horowitz Reports, payments received by Joe and Hunter Biden from foreign countries, all matters associated with the development of a two-tier system of justice, efforts by the federal government to force social media companies to manipulate information distributed to the public and all other matters of high-level DOJ and FBI corruption.

By taking this approach, the president will tremendously assist the congressional investigation of the DOJ/FBI misconduct without investigating the departments he leads. If Congress finds evidence of criminal activity, it will refer the evidence to new appointees at a DOJ for appropriate prosecution.

Suppose Executive branch personnel refuse to testify or take the Fifth to protect their constitutional rights. In that case, Congress can grant the Use Immunity, which compels their testimony but provides immunity to the witness for the new information provided. A witness that refuses to testify after being given Use Immunity can be cited for contempt of Congress and imprisoned.

It’s time the federal government gets serious about corruption in government. More intriguing would be if a president followed this advice. The nation might uncover who is running the Deep State.

William L. Kovacs has served as senior vice president for the U.S. Chamber of Commerce, chief counsel to a congressional committee, and a partner in law D.C. law firms. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at wlk@ReformTheKakistocracy.com

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If punishment is the desire, Congress, as the legislative branch, can’t impose it. If Congress exposes the corruption, DOJ will not prosecute it, as evidenced by the Horowitz and Durham reports of government corruption.

Since the DOJ and FBI are impeding the congressional investigations, the only viable option left for the Committees is to secure the testimony of all relevant witnesses by granting “use immunity” to the Biden family, Hunter’s business associates, and the past and present leadership of the DOJ and FBI. Congress has this power under 18 U.S.C. sec 2005.

Once receiving use immunity, the witnesses can testify free of prosecution for any testimony concerning their criminal activity. A refusal to answer subjects the witness to Contempt of Congress and could result in imprisonment.

Congress has the sole discretion to grant use immunity. Moreover, neither the DOJ nor the courts can interfere with the grant of it. Title 18 USC sec. 6005 authorizes either House of Congress to grant use immunity once an individual refuses to give testimony or provide other information based on his privilege against self-incrimination.

Historically, Congress is reluctant to grant use immunity since it usually results in an inability of the DOJ to prosecute criminals. DOJ describes the dilemma:

Congress may now be forced to choose between granting immunity to exercise its oversight and investigative functions and forgoing a grant of immunity to allow the prosecution of key witnesses.

In the present situation, however, Congress is not facing a dilemma since DOJ is unwilling to prosecute any of the involved parties.

In the Watergate trials, like today, the DOJ refused to cooperate with Congress. The US Senate sought to grant use immunity to witnesses. DOJ asserted it, and the court has the power to block the grant of immunity. Chief Judge Sirica upheld the Senate’s power, writing:

Immunity is the fixed price which the government must pay to obtain certain kinds of information, and only the government [Congress] can determine how much information it wants to ‘buy’ in light of the fixed price.

Obtaining an immunity order from the district court is straightforward. In this instance, a duly authorized representative of the House of Representatives or the Committee seeking the testimony shall request a court order to require a witness to give testimony. The House or the concerned Committee must give ten days’ notice of the request to the Attorney General.

The district court must grant the congressional request if it finds:

1. In the case of a proceeding before either House of Congress, the request was approved by a majority vote of the members present, or
2. In the case of a proceeding before a committee, the request for such an order was approved by two-thirds of the members of the Committee; and
3. That the Attorney General was given ten days’ notice. The Attorney General can request another twenty days to “insulate from the immunity grant any incriminating data already in his files prior to the witness’s testimony.”

Once these conditions are met, the statute is mandatory. “The court shall” issue the order. Chief Judge Sirica held section 6005 casts the role of the court as ministerial, and the Attorney General is deprived of his normal discretion concerning the granting of immunity.

Judge Sirica concluded: “[There is a] power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” Quoting President Wilson, he notes the informing function of Congress should be preferred even to its legislative function.

The American people are owed the truth about corruption in their government. The House of Representatives has the power to obtain the truth. What is more important to the nation, truth or the false hope of punishment?

William L. Kovacs has served as senior vice president for the U.S. Chamber of Commerce, chief counsel to a congressional committee, and a partner in law D.C. law firms. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at wlk@ReformTheKakistocracy.com

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For decades, there have been concerns about the federal government’s growing power, size, and cost. Nothing, however, has been done to address it. It just expands. Why? Is it an uncontrollable deep state, an unmanageable bureaucracy, or just too complex? While a solution is always available, the federal government benefits significantly from the Administrative State. It opposes change.

The term Administrative State describes the power of Executive branch agencies to create, adjudicate and enforce their own rules. Congress enacted the Administrative Procedure Act in 1946 (“APA”) to exert control over the administrative State by establishing procedures for federal agencies to make and enforce regulations. Unfortunately, over time the agencies, with the help of the courts, found ways around APA restraints.

Unfortunately, Congress has been unable to substantively amend the APA in the 76 years since its enactment, notwithstanding that the federal courts have expanded agency power by granting deference to their interpretations of the law. Judicial deference is a critical component of the Executive’s regulatory power. Applying it diminishes the lawmaking power of Congress by tipping the scales in favor of Executive branch interpretations.

Today, the Administrative State is a massive collection of unelected federal officials, except the president, that has issued 212,271 rules since 1976. Its regulatory tenacles control almost every aspect of society, from the food we eat to the health information given to us. Regulatory costs are estimated at $1.9 trillion in 2021.

Can the administrative State be reformed?

The 115^th Congress made a serious attempt to reform the APA, and by implication, the administrative State, through the Regulatory Accountability Act (“RAA”). The RAA sought to reform the rulemaking process to ensure final rules were based on sound facts and law. The House passed the RAA. The Senate voted it out of committee; however, Senate leadership refused to bring it to the floor. This effort was Congress’ first and last serious attempt to reform the administrative State.

While Congress has shown little ability to control federal agencies, the courts are now recognizing that the U.S. has an out-of-control regulatory process in need of restraint.

In December 2022, the Ohio Supreme Court, in TWISM Enterprises v. Board for Registering Professional Engineers, rejected “[A]ll forms of mandatory deference.” The case involved a rule that independent contractors could not be in charge of engineering projects since they were not full-time company employees. The Ohio Engineering Board received judicial deference for its interpretation from the lower courts. The Ohio Supreme Court reversed, finding there was no statutory language precluding independent contractors from serving as full-time managers of an engineering firm. It held the principle of separation of powers precludes any mandatory deference to agency regulations that interpret a statute. Under the principle of separation of powers, only courts can interpret the law, not agencies. Deference to agencies produces “systematically biased judgments” that permit the executive branch “to say what the law means,” a clear intrusion into judicial authority.

The Ohio court also noted, “Roughly half the states in the Union review agency interpretations de novo.” The Ohio court’s decision provides the reasoning the U.S. Supreme Court needs to restore the principle of separation of powers at the federal level, a principle it abandoned in Chevron when it granted agencies almost unfettered discretion to create law.

Moreover, the U.S. Supreme Court is also moving to restrict agency lawmaking. In WVA v. EPA, the court reviewed an EPA rule that relied upon section 111 of the Clean Air Act to regulate the types and amounts of energy that could be carried on the electricity grid. Before EPA’s “new found authority,” it applied section 111 only to specific energy sources at specific locations.

Like the Ohio court, the Supreme Court examined the power Congress granted the agency. It described EPA’s attempt to assume “unheralded” regulatory power as a “transformative expansion in [its]regulatory authority” over the American economy. It concluded Congress did not grant the agency the authority to set emission caps based on shifting the percentage generation of fuels that could be carried on the grid.

Recognizing that agencies use “vague language of a long-extant, but rarely used statute[s]” to create new law,” it announced the “Major Questions Doctrine, requiring agencies to point to “clear congressional authorization” when issuing expansive rules.

The uncontrolled growth of the administrative State results from the Executive constantly seeking more power, courts that, until recently, fostered the expansion of executive power, and a Congress that has failed to provide aggressive oversight of agency actions and spending. If the courts continue to restrain the expansion of agency power, reform of the administrative State will be accomplished without Congress performing its constitutional duties.

If the U.S. Supreme Court, in its next deference case, adopts reasoning similar to the Ohio Supreme Court’s decision and it actually enforces its “Major Questions Doctrine,” it will put federal agencies back into their constitutional boxes. At that point, going forward, all that is needed to maintain our constitutional separation of powers is for each branch to do its job by constantly checking the powers of competing branches.

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Musk as well made good on a promise to bring about more transparency to Twitter. He gave journalists Matt Taibbi and Bari Weiss access to all of the internal communications regarding the suppression of the Hunter Biden laptop story.

The day before the bombshell report by Matt Taibbi, I tweeted a reply to Elon Musk requesting my previous suspended account, as well as a few friends who have been suspended for dubious reasons to have our accounts reinstated. This included my prior account Guy Squiggs, as well as Joshua Smith, the Vice Chairman of the Libertarian Party.

Taibbi’s report the following day was as shocking as it was entertaining. Elon Musk has his own spin on Occam’s Razor, the law stating that the simplest explanation is the most likely. Elon’s Razor, on the other hand, states that the most entertaining outcome is the most likely. Elon’s Razor proved accurate, as tweet #8 in Taibbi’s 36 tweet long report especially stood out to me. I, Guy Squiggs, was in that tweet. Of course I was.

In this tweet the world saw my previous account being “requested for review” by the Biden Campaign, and then being “handled.” Musk himself responded to this particular tweet asking, “If this isn’t a violation of the Constitution’s First Amendment, what is?” Then in the next tweet we learned that the same thing had happened to actor James Woods. He appeared on Tucker Carlson’s show vowing to file a lawsuit, and I will be closely paying attention.

Large Twitter accounts such as Scott Presler and Libs of TikTok were sharing screenshots of my old account which has been permanently suspended for about two years now. This disclosure for Taibbi might possibly be providing context for that suspension.

This all began on October 14th 2020, when New York Post published a bombshell exposé revealing emails recovered on a laptop that belonged to Hunter Biden. Both Twitter and Facebook heavily throttled the story and prevented it from being spread, and Twitter took the extraordinary step of locking New York Post from its Twitter account. 

Twitter cited a “hacked materials” policy, but Taibbi revealed that Twitter executives didn’t believe that reason would hold up. The materials published were no longer the property of Hunter Biden, so his consent is no longer needed. They were the property of the repair shop he abandoned the laptop at, whose owner willfully turned over this material.

Following the censorship of New York Post, with the corporate mainstream media claiming the story was Russian disinformation, I set out looking for leaks of this material. Many photos from the laptop were leaked on Parler, where I spent an unfortunate amount of time looking at Hunter Biden’s nudes so you don’t have to. One photo however really alarmed me, which I censored and shared to Twitter. This tweet can be viewed in its original integrity in the archives on wayback, despite the account being suspended.

The photo, like many released on Parler, showed Hunter exposing himself (which was censored prior to being posted on Twitter). Behind Hunter however was a balcony where a girl was sitting. She appeared to be young, but the question was how young? That was the question, and that was the tweet’s entire purpose. This was the tweet that the Biden campaign requested to be removed. It’s also still a question I think is worth an answer.

While I have always wanted my old account back, now I heavily desire its return as it is part of a profound moment in history. That account vindicates everything conservatives believed was happening against them, but only up until now could be proven. I understand that the mass reinstatement of accounts is a work in progress, but I would humbly beg Twitter to reinstate the accounts listed in my pinned tweet. I also will eagerly be paying attention to any steps James Woods takes.

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For 256 years, the U.S. has elected representatives, but their duty of loyalty to whom or what is vague. Of course, all take an oath to the Constitution and represent constituents, but such responsibilities are so abstract they are meaningless.

The writings of John Locke, Edmond Burke, and James Madison reflect a fundamental belief that no power is granted to our representatives as individuals. These representatives are fiduciaries that must act to achieve the public good. As fiduciaries, they cannot act beyond their legal authority and must administer laws impartially. Unfortunately, today this view is rejected by what Madison terms “factions,” groups of citizens united in a common interest adverse to others in the community.

These factions are today’s political parties and interest groups that build their brand, raise massive amounts of money and acquire power by preaching division. The academic literature supports this self-interest by arguing that public officials cannot be fiduciaries since it would be impossible to give loyalty to the many diverging interests confronting elected officials.

While divergent ideas are essential and constitutionally protected, the fiduciary’s duty of loyalty does not apply to individuals, groups, or political parties. Instead, it applies to the Constitution’s separation of powers structure that allows society’s many contestable issues to be debated rationally to foster a consensus around the public good. The process includes a Congress that formulates laws after listening to all sides of a debate; an Executive administers those laws, and courts resolve the controversies between branches.

For this structure to work, each branch of government has an independent duty to act as a check on the other branches. This tension is necessary to achieve the public good. Unfortunately, when elected representatives function as politicians, they distort the constitutional structure by placing their loyalty to political parties and interest groups ahead of the institution they serve. Displaced loyalty diminishes the Constitution.

Since our Constitution is held in trust by our elected representatives, for the American people, it is protected when these officials vigorously defend the powers and duties of the branch they serve. Such defense is the best mechanism to ensure government is limited to the powers given it by the Constitution.

Today’s political climate illustrates this point. We have one political party controlling Congress and the Executive. We have an Executive making new laws, (student loan forgiveness), or refusing to enforce existing law (immigration). While the Executive’s party in Congress may have a majority of members in its caucus, at times, it still may lack the votes needed to authorize the Executive’s actions. In instances when the Executive acts without congressional authority, his party in Congress generally has the power to block the minority party from preventing the Executive’s arbitrary accumulation of power. As an end run around the Constitution, the politicians in Congress, rather than dealing with the difficulties of the legislative process, abandon their oath to uphold the separation of powers by allowing the Executive to make law through regulation, Executive Order, or simply not enforcing laws.

In theory, the Constitution works well. In practice, however, the constitutional mandate of separation of powers is regularly abused. When Congress ignores its duties to defend the separation of powers, it limits the ability of the constitutional structure to fully allow the multitude of interests a voice in the debate needed to achieve a governing consensus. For several decades party-line voting (Democrats vote one way; Republicans oppose) has become the norm. In the 1960s, party-line voting was around 60%, but by the Trump administration, it reached 90%. Without letting the structure of the Constitution work, these representatives breach their fiduciary duty to the Constitution by allowing the Executive to enhance its power by diminishing the power of Congress.

When loyalty to political parties and interest groups eliminates the separation of powers protections in the Constitution, citizens must rely on the interest groups named Democrats or Republicans for protection. Today such actions are arbitrary political power. Tomorrow it could be tyranny.

This article was first published in TheHill.com

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In the United States, the Biden administration just took a big step toward creating a New Green Republic with the passage of the falsely titled “Inflation Reduction Act.”  This new law may not reduce inflation, but by pumping another $370 billion into the economy, it sets the cornerstone for the new Republic.

Will these new republics be utopias or dictatorships? While only time will tell, a few places on earth are giving us a glimpse of the future.

Sri Lanka is an island nation off the coast of India. It had been rebuilding itself for decades after years of authoritarian rule. Its agriculture yield had so dramatically increased it had become a middle-income nation until its government banned the use of fertilizers for growing crops. The nation quickly became a nightmare with people starving, a third of its land dormant, crop yields cut in half, energy shortages, and skyrocketing inflation. The people revolted.

At the same time, the Netherlands government announced plans to cut nitrogen and ammonia emissions, thereby forcing thousands of family farms to be closed. Another baffling move since Dutch farmers are the second largest food exporters in the world. The farmers launched protests similar to the Canadian truckers. The protests are ongoing.

Across the world, green governments are seeking to ban new factory farms, pesticides, and even the use of pesticides on private property, beef, turkey, chicken, and cheese. Environmentalists are even organizing a revolution against factory-made food. To some, the entire food system is a threat to the environment.

Several commentators attribute Sri Lanka’s fall to its president “being under the spell of western green elites peddling organic agriculture and seeking a high ESG” (Environment, Social and Governance) rating. Sri Lanka has a near-perfect ESG score of 98. The U.S. has a 51, down with Cuba and Bulgaria. The Netherlands has a 90.7 ESG score.

These woke-type governments are choosing “climate and ESG goals at the expense of feeding their populations and enabling citizens to keep their homes warm during the winter.” The Biden administration is also obsessed with following this path.

An ESG score is a numerical measure of how a corporation or country is perceived to perform on a wide range of environmental, social, and governance topics. The operative word in the definition is “perceived.” Unfortunately, there is a gap between what is real and what is perceived. An ESG score is simply a branding effort by authoritarian governments to secure money from international organizations.

This is where government decision-making becomes baffling. An ESG rating “explains” how a nation’s risk factors impact the long-term sustainability of the economy.  Why would a country with a growing economy and high ESG rating intentionally ban pesticides and harm the economy and health of its people? Why would the Biden administration want to eliminate fossil fuels and the 6,000 essential products made from its components to sabotage the living standards of Americans?

When decisions simply do not make sense, they simply do not make sense.

Decisions to throw a nation into turmoil actually conflict with the theoretical goal of ESG, which is to help investors assess the sustainability of a country. A nation in chaos is not sustainable under any circumstances. These arbitrary decisions more closely resemble decisions made by Caligula, the Roman emperor who gave his horse a majestic house and, to prove his absolute power, sought to appoint the horse to the high office of consul before being assassinated.

A “spell” to protect the environment should cause the bewitched ruler to protect the environment; while destroying the means to produce food or energy, the ruler forces the nation into chaos, perhaps revolution. Both outcomes destroy the environment. There must be a more existential reason.  Either it is a drive to form a utopia, or it’s the implementation of the radical environmental community’s long-held belief that humanity is a cancer on the earth, and must go.

Finding utopia has been a dream of philosophers for centuries. Their dreams are structured around a beneficial elite; religious dogma, science, communism, or totalitarianism.

If the ruler takes the utopian path, it would have to take the path described by some as the “Great Reset.”  ESG would become a “social credit system to drive ownership and production away from the non-woke or non-compliant.” It is a system in which profitable monopolies and the state rule by controlling data, artificial intelligence, genetics, nanotechnology, and robotics. Humans would only know what the elite allow them to know. All human thought would be controlled by the elite.

The major problem with the utopian model is the difficulty of feeding seven billion humans. The elite would have to develop a massive food production system which would be extremely expensive, especially with bans on pesticides and many foods. It would literally require the enslavement of much of the population. Since the cost of supporting billions of people in utopia is too high, the elite need an easier plan to control humans.

Plan B is the plan the radical community has written about for a century, the mass reduction of humans. The Left’s Little Red Book on Forming a New Green Republic is a collection of quotations from the radical left that supports this view in their own words.

The famous undersea explorer, Jacque-Yves-Cousteau noted, “It’s terrible to have to say this. The world population must be stabilized and to do that, we must eliminate 350,000 people per day This is so horrible to contemplate that we shouldn’t even say it. But the general situation in which we are involved is lamentable.”

One of the wishes of Prince Phillip, Duke of Edinburgh, President of the World Wildlife Fund International was “If I were reincarnated, I would wish to be returned to earth as a killer virus to lower human population levels.” And, our college-age students are being taught that government must focus on reducing the world population by at least 80%.

Perhaps the most honest discussion of humans being cancer on the earth is presented in a 2019 essay in “Culturico,” a Swiss Cultural platform that bills itself as fighting misinformation. “Culturico” compares humans to cancer cells. The environment is our host, and humans’ selfish, harmful actions are destroying the host, just as a tumor would destroy living organisms in our body. The platform goes through the five steps of how tumors spread cancer. The essay ends with the question, “Can we conclude that humans are a cancer? Yes, we are.”

If the environmental community believes its own writings, and there is no reason to doubt its beliefs, its long-term goal is to radically reduce the human population on this planet.

So, the next time some ruler—be it president, minister, or chief—performs a baffling act that harms a large number of people for some inexplicable reason, ask yourself what the ruler’s real intentions are. The ruler may be stupid, evil, or power-hungry, but the ruler may also be following the elite’s playbook of wanting humans gone so they can inhabit the earth without us cancer cells threatening their reign of the planet.

Image Source: YouTube WION

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From its first days, the Biden administration was using agencies to impose laws without congressional authority. The court noted it rejected the Biden administration’s use of the Occupational Safety and Health Act (OSHA) to mandate 84 million Americans either obtain a Covid-19 vaccine or submit to weekly testing. It also discussed its rejection of the Centers for Disease Control and Prevention’s asserted authority to impose a nationwide eviction moratorium to stem the spread of Covid. Recognizing that federal agencies “were asserting highly consequential power beyond what Congress could reasonably be understood to have granted,” it took up the EPA’s efforts to impose a climate change law by regulation.

The EPA and environmentalists (at times referred to jointly as the “environmental community”) sought, without any specific statutory authority, to impose a  comprehensive and costly regulatory structure to address climate change. To determine the extent of the EPA’s authority, the Supreme Court took up a case brought by the state of West Virginia, West Virginia vs Environmental Protection Agency (WVA v. EPA).

The court reaffirmed the legislative power of Congress holding that agencies cannot legislate without specific congressional authority.

To resolve the issue of whether agencies can make new laws by regulation, the Supreme Court, for the first time, announced the “Major Question Doctrine,” for analyzing an agency’s authority to regulate. The court made clear that regulatory agencies can only act on matters of economic and political significance if the agency… point[s] to ‘clear congressional authority.’”

While the Supreme Court could have narrowly resolved the controversy (EPA’s “new found authority” to impose a cap-and-trade scheme for carbon emissions) using statutory construction, it recognized that many agencies were finding “vague language of a long-extant, but rarely used, statute[s]” as authority to regulate major economic and political issues without congressional authorization. The climate debate was the perfect set of facts for clarifying the roles of Congress and agencies.

Congress consistently rejected climate legislation

The court noted, “Congress, however, has consistently rejected proposals to amend the Clean Air Act to create such a program [regulating climate change].” It cited the American Clean Energy and Security Act of 2009, the Clean Energy Jobs and American Power Act of 2009, the Climate Protection Act of 2011, and Save our Climate Act of 2011. There were many more failed attempts by the environmental community to enact a comprehensive legal structure to address climate change: The Kyoto Protocol (Senate voted 95-0 against ratification), The Paris Agreement (Lacking votes, it was never submitted as a Treaty); McCain-Lieberman, Kerry-Lieberman-Graham, and others that never received a vote. Congress clearly spoke.

Efforts to make law by litigation

Realizing Congress would not impose a massive climate change scheme on American society, the environmental community orchestrated a nationwide litigation campaign to persuade courts to impose such a system. It filed lawsuits across the nation under any statute that might relate to climate change – Clean Air Act, (186), Endangered Species and other wildlife statutes (174), National Environmental Protection Act (322), Clean Water Act (58), miscellaneous land use statutes (168), constitutional claims under the Commerce Clause (20), First, Fifth and Fourteenth Amendments (41); under state laws (464), common law (29), public trust (27) and securities and financial statutes (24). The environmental community had some successes; however, its overreach ended in a defeat for the administrative state.

Using Executive Orders to make climate law

On Biden’s first day in office, he issued several Executive Orders to address climate change. Biden further directed all executive departments to place a moratorium on oil and gas leasing programs and establish the Social Cost of Carbon to justify the high cost of the regulatory structure. A week later, Biden ordered a whole-of-government approach to address climate change. This order was followed by the SEC’s proposed climate disclosure rules which again raise the question of identifying the needed congressional authority.

The futile regulatory march to circumvent Congress ends

While the environmental community worked for decades to impose a climate change law by regulation or litigation, it was the Biden administration’s sheer arbitrary use of the regulatory process that captured the Supreme Court’s attention.

As the environmental community was suffering legislative defeat after defeat, Obama’s EPA issued an “endangerment finding” that greenhouse gases contributed to man-made climate change that may endanger public health and welfare.  This finding served as the foundation for the EPA’s Clean Power Plan (CPP) regulations, the issue decided in WVA v. EPA.  The CPP was a cap-and-trade rule. President Trump repealed the CPP and put in its place the Affordable Clean Energy rule that limited EPA’s regulatory power to available emission reduction technologies, consistent with the Clean Air Act. On Trump’s last day in office, the DC Circuit Court of Appeals vacated the Trump rule; however, before President Biden could reinstate a new CPP rule, the Supreme Court accepted the case for review.

The Supreme Court establishes regulatory sanity

While the Supreme Court held that “Congress could not have intended to delegate a decision of such economic and political significance (regulation of climate change) to an agency [EPA] in so cryptic of a fashion,” its decision limits the regulatory power of all agencies to enact major political and economic matters unless the agency can point to “clear congressional authority.”

Had the environmental community been successful in expanding the authority of agencies to regulate climate change without statutory authorization, many agencies would search for and find “long-extant authorities” to further diminish the role of Congress. By reaffirming the constitutional powers of Congress, and placing limits on the Executive’s power to legislate using the rulemaking process, the Supreme Court also solidified its role as a co-equal branch of our government.

The most gratifying aspect of the long battle over the power of EPA to regulate climate change is the ironic ending to the struggle. In the end, the EPA’s aggressive regulatory overreach resulted in limits being placed on the regulatory powers of all federal agencies.

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