Posted Dec. 10, 2000 12:19AM EST
On Monday, December 4th, Constitutional Attorney, T. David Horton, was guest on the Sweet Liberty broadcast. We discussed the various and on-going court cases in Florida; the excessive power of the courts, state-created agencies, etc. David asserts that the ongoing court cases could all be rendered moot, if the Florida State Legislature exercises its power and passes a simple resolution according to the mandates of the federal constitution.
Audio is available of the entire broadcast. Following are excerpts of that conversation.
JP: ... I've never seen anything so crazy in my life, David.
DH: Well, this is part of the process of litigation. And thats one reason why your listeners might be interested... that there is a way around all of this problem, found directly in the U.S. Constitution.
It says that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled...", unquote. And that authority is independent of any other authority.
In other words, this is something that derives from the Constitution. In order for a State, through its legislature, to be deprived of the right to pick the Electors, there needs to be a Constitutional Amendment.
Now, if the State has provided for the selection of Electors. - lets say in the case of Florida - by popular election, and for some reason the popular election does not become final because there are too many law suits and too much pushing and pulling... that does not discharge the obligation of the State Legislature, under the U.S. Constitution, to provide the Electors for the selection of the president.
And therefore, I think the legislature is thinking along these lines, and they should be encouraged to proceed because it illustrates a couple of points. Number one, that the Constitution provides for the contingencies that have troubled everybody for the last two weeks or so. It provides that the legislature shall select. Now if the Electors had already been selected in a manner prescribed by the legislation that would discharge the States obligation.
Since that hasnt happened, the obligation of the State legislature to make sure that Florida electoral votes are counted, has the power to designate the Electors who will cast those electoral votes. So, I think that the President of the Senate, for example, has been advised by his attorney that a resolution is what the legislature ought to do, instead of a bill that would require the signature of the governor. And I think this is correct, because it says that the legislature shall do it. It doesnt say "the legislature shall do it if the governor approves". It just says, the legislature shall do it.
And the way a legislature does something is either by joint or concurrent resolution. So if the state of Florida.. or the legislature of the state of Florida wants to put an end to all of this pushing and pulling they can enact a joint or concurrent resolution of the legislature of the state of Florida, which would go something like this:
Be it enacted by the Legislature of the State of Florida;
I. The Legislature finds that:
1. The Constitution of the United States of America provides in Section 1, Article II, Clause 2: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled..."
2. This mandate has not been carried out in a manner that is final because of pending and threatened litigation.
3. In order for Floridas electoral votes to be counted, the Electors must be designated by the legislature in accordance with the direction of Section 1 of Article II of the Constitution of the United States of America.
II. The Legislature does therefore resolve, ordain and decree, that the following Electors be certified for the State of Florida, in accordance with the authority provided in Article II, Section 1, of the Constitution for the United States of America.
1. (There would follow 25 names that would be the same names that have already been certified by the Secretary of State).
Now, if that is done, that puts a whole additional string on Floridas bow so far as exercising the electoral votes are concerned.
JP: So, in other words, are you saying then, that none of those law suits would mean a tinkers damn?
DH: Well, the law suits would - at best - become moot. If there is not another attempt by Judicial Officers who have no legislative power to usurp legislative power.
JP: Like the State Supreme Court.
DH: This is one example. But theyre merely one example. The principle thing to bear in mind... that is one of the reasons that courts are likely to overstep is that they are not held accountable. They are NOT held accountable by the Legislature which has the power under most Constitutions to impeach them.
JP: This is true of any state court, isnt it?
DH: Well, nearly any state court has a temptation which hopefully they frequently resist.
JP: What I mean is... that what you just said... we know they dont have the power to legislate from the bench and very often it appears that they attempt to do that
JP: What Im asking is, that in any state, the state legislature can... or does it have to BE in their State Constitution...
DH: The State Legislature can impeach a State Judge for usurping powers that are denied the court - that judge - under the Constitution, because it consists of a form of sedition against the lawful government of the State, when you have judges playing legislators. And changing the statutes, which have to be changed in a certain way... and under most State Constitutions, they must be changed only by a bi-cameral legislature. Which means that you have to have two completely separate and independent branches exercising the legislative power because it is so powerful and important that the Constitutions dont entrust it to one branch alone.
JP: Is Nebraska a uni-cameral...
DH: That is the soul exception where a legislative power is vested in a single body. But there, they have adopted all kinds of cross-checks and balances that most legislative bodies dont have because they have another legislative body that is itself a check and balance. In Nebraska they have checks and balances that are internal to their legislature that most legislative houses dont need because they have another body that serves substantially the same purpose.
(Short discussion on bi-cameral versus uni-cameral legislatures, being the right of each state to choose)
DH: More particularly "state sovereignty", because the State is the Sovereign Block out of which our Constitution is built. It is by the States that formed the federal agencies, its not the other way around.
(Short discussion on state autonomy verses state sovereignty... the people being sovereign under Creator)
DH: Sovereignty inheres in the State itself. Now, you find some State Constitutions that say that sovereignty inheres in the people. But it inheres in the people only as an organized political body, exercising its powers in the manner provided by its constitution. The actual sovereignty - the sovereign entity - that has the authority, for example, to enter into a Constitution - a compact - with other sovereignties, is the state itself. And we, being Citizens of a sovereign state, have such power as... we originate all of that power, I suppose, in the last analysis... but once it is organized into a formal government, then the sovereignty is ordinarily exercised by the agencies that are created by the State Constitution. For example, the sovereignty frequently is exercised by the exercise of legislative power, because that is a sovereign power, and it will be exercised in most states by two branches of the legislature and it ordinarily requires the signature of the governor as well.
JP: It is my understanding that a State Constitution cannot be repugnant to the U.S. Constitution. Do you concur with that?
DH: State Constitutions are compatible with the federal constitution, because they create the federal constitution. Now if a State Constitution tries to change something in the federal constitution its doing something that it will lack authority to do. And theres really not that much danger of a state trying to change the federal constitution.
JP: Well, not trying to change the federal constitution but... for example, when the states began having their Constitutional Conventions... around 68... the one [s] that were promulgated by the Council of State Governments and the ACIR... many of the State Constitutions dropped their border definitions. It appears, David, that that was done intentionally to comply with regionalism.
DH: There are moves afoot to try to trick the states into not only abandoning their sovereign powers but surrendering the whole constitutional structure. And these efforts are ongoing and that is one reason why it is important for the Florida legislature... if it WILL, to consider returning articles of impeachment against the members of the Florida State Supreme Court. Because they avowedly and very boldly undertook to exercise legislative power. And if any State starts using its legislative power to correct the excesses of its Supreme Court... OR the excesses of federal agencies attempting to usurp powers that belong to the state, then it greatly improves the picture so far as constitutional government is concerned.
Because there is NOTHING that cant be reached by the state legislative power. They can correct not only the violations of the constitution by the Florida Supreme Court, but they can correct the manifold violations of every provision of the constitution that occur every day in every state by federal agencies exceeding the scope of the authority granted to them by the states, in the Constitution. The problem has not been that there arent plenty of violations to correct. The problem has been that most States are befuddled into thinking that they get run by Washington, D.C. The press tells them this every day.
But those who read the Constitution instead of the local fish wrap, will find that the Constitution says that there wouldnt be any federal agencies if it werent for the sovereign act of the State working in conjunction with its sister states in delegating a few powers... to the Congress, for example. And a few other powers to the Judiciary.
And those limitations of powers, which are made by three special or limited agencies of government in Washington... those special powers indicate that there are to be no other powers other than those specifically listed. And that principle is not only in the general nature of the Constitution itself, but is specifically spelled out again in the 9th and 10th Amendments. Which expressly provide that if a power isnt listed, they dont have it. If it isnt in Article 1, Section 8, the Congress doesnt have that power.
Yet they presume to exercise all kinds of power, largely by distributing the largess of our taxes in all kinds of areas that the Constitution forbids. And this is one reason why there is so much attention given on who is going to be president. Because there has been so much usurped power and usurped economic power exercised in Washington, that it is too much honey to expect the flies not to be attracted to it.
JP: And it would be incorrect - I believe - to say that the executive branch has usurped the power of the Congress. It appears to me that the Congress has sat on their hands and allowed the Executive to take over legislative duties.
DH: Yes. The Executive has been the prime mover in most federal legislation. I had occasion to watch the Congress in Washington for about fifteen years before I figured out how to escape to Nevada - and I dont recall - but with one exception - a single piece of major legislation that did not originate from the federal bureaus who used our tax dollars, to lobby their bills through our Congress to give them power over our lives. And nearly all of it is in flat violation of the Constitution.
JP: When you say the bureaus, are you talking about the federal agencies.
DH: I talked to the Governors office about a year ago. Told her I was writing a report and I told her I wanted to understand our Executive Orders... how they get passed. The way it was explained to me... this was very frightening. That an agency head - that would be for example, the State Department of Environmental Protection or any of the State Agencies that were created as mirror images of the federal agencies... and these heads of agencies recommend an executive order. And then the governors Chief Counsel... and here in Pennsylvania hes a member of the Uniform Law Commission... hes a Uniform Law Commissioner. The Chief lawyer looks it over, and decides, and then advises the governor of whether he should sign it or not. So the whole thing is being done by bureaucrats and lawyers. And you wont take this personally, will you? These lawyers that are swarming around and through Florida... David... its almost sinister to me.
DH: This is one reason for urging the legislature to use its legislative power. To cut through all of the folderol and double-talk and misrepresentation that generally attends a lot of these special interest litigations. And just flat do what the Constitution says.
And if the legislature starts actively doing what the Constitution says, youre going to find a lot more state bureaucrats and even federal bureaucrats who are going to say, "well maybe we ought to go by the Constitution, too. Not just for novelty, but because this is the proper thing for us to do and we may get our hands slapped if we dont.
JP: That sounds like a fantasy to me.
DH: Its the kind of thing where if there are articles of impeachment addressed to the members of the State Supreme Court for exceeding their powers, this will remind everyone that they must look to the Constitution and see what the Constitution tells them to do. Then they need to do it. And when that happens, theres a lot less litigation; a lot less suppression and a lot less mis-government and greatly economized governmental expenditures.
JP: I find from my own interaction with certain state legislators in the past that they dont seem to understand what their legislative.... what their true power is..
DH: This is true and a lot of it is due to the fact that they are chloroformed by the temptation to try to do something for people by way of throwing money at various problems.
JP: Or to get re-elected?
DH: Yes, well not just that, but also to be "good guys", and to be sweet and loveable and things like that.
The problem is that, particularly in the federal legislature they lack absolutely any authority to spend a dime for many of the programs that they have thrown billions at.
And if the state legislature starts to look at its Constitution and the federal Constitution and starts to go by it, its going to do a lot to reduce the burgeoning size of state government as well as federal activity, because the feds... if a state bureaucrat gets slapped down, lets say, for exercising some alphabet soup power that they dont have authority to exercise...
JP: By the intent of the legislature. Ive noticed that when they create these agencies, they either give them the authority within that bill that creates the agency, or the pass another bill... and it gives the agencies the power to promulgate rules and regulations according to the intent of the legislature. And they way, way... it seems, David, that the legislation is worded so broadly that it can be interpreted almost any way you want.
DH: Well, thats one reason why it is so dangerous and pernicious to have so much legislative power initiated and exercised by bureaucrats. Because they have the capability, if they could just lobby general phrases through the legislature, they have the capability of applying those in a very oppressive manner and in a manner that makes them completely unaccountable to the average citizen. Because they have the whole state budget to back them up. And the individual has to pay all those taxes and doesnt have any money left to fight them.
JP: Before we moved here [to Pennsylvania] I found out who our state rep was and called him about a situation... about how you can have 50 acres of land and not be able to get a permit to build a home on it... One thing he did admit to me at the time -- we were talking about the Department of Environmental Protection here -- he said, "we have begun to realize that weve given way too much power to these agencies, and we cannot get bills even moved out of committee to dis-empower them".
Im going to say something here, and I know youll agree with me... Our state legislators are woefully uninformed, and when they do try to stand up and do something that is right, they get shot down by the media and by legislative leaders. The legislative leaders... what Ive noticed is that usually theyve been hand picked and promoted up to their leadership positions. And if enough people began to interact with... meet with their state legislators and begin to inform them and educate them, that so much of whats happening today could just be stopped. And they would know that they would have the people behind them.
DH: Thats truly important. Because they are exposed and vulnerable to the press to the point where they need to have contact with their constituents in order to gain confidence enough to go ahead and say, "Now, why are we letting state bureaucrats set legislative policy? Were not supposed to do that. Lets stop it!" And they can stop it. If the influence of the bureaucracy is so powerful in the legislature that any attempt to curb the power of the bureaucracy can be blocked by them [bureaucrats], then you need to clean house in the legislature.