Tactical Civics™, Loper Bright, and Adventures in the Regulatory Jungle

Jul 04, 2024

Apparently, I missed an excellent discussion in a recent Tactical Civics™ Zoom discussion of Chapter 11 of my book, The Great We-Set™, discussing sections 5 and 6 of our reform law, The Constitutional Courts Act. Below, I simply reproduce the discussion verbatim.

As you will see, these comments are from an erudite, careful Tactical Civics™ member who as a former employee of the NRC, has legitimate concern for safety and national security and we applaud this person's care, concern, and willingness to engage.

We do not wish to besmirch this intrepid member (labeled 'Member A' for this discussion) in the least.

And we don't wish to be too lengthy or technical. But we do want to be clear, and many of you members do understand and appreciate this sort of discussion among rational, self-governing people.

So. Make of it what you will.

-DMZ-

:::

Section 5

a) No ‘administrative law’ tribunal in these United States shall bind any citizen; b) No administrative adjudicator shall be referred to as ‘judge’; c) No administrative tribunal shall be referred to, or refer to itself, as ‘court’; d) No administrative process or tribunal shall describe its processes in terms such as ‘order’, ‘subpoena’, ‘warrant’, or ‘the record’, which are reserved for constitutional judiciary.

:::

DMZ Opening General Comment:

We are here only seeking to correct longstanding oxymoronic categorization of administrative outfits as “administrative law courts” run by “administrative law judges”. Since we clearly separate the administrative and judicial functions in our Constitution, 'administrative law' is a perfect oxymoron (the two words are antitheses).

The recent SCOTUS decision in Loper Bright merely overturned its earlier decision in Chevron, in which it gave away our farm. So don't celebrate; the regulatory state is still massive, powerful, and almost entirely unaccountable to the People. The SCOTUS reversed itself just a little bit with its Loper ruling; that doesn't rid us of the massive cancer. That is not the job of federal courts, but of We The People; specifically, the CVRS as we explain in my booklet The Banished Bureaucrat.

This proposed legislation has no connection to the safety and security issues raised below, about administrative branch oversight concerning life safety. Similar concerns will proliferate as relates to Artificial Intelligence, hacking, nanotech, financial crimes of great impact, and other dangers raised by technology. Thus, if We The People fail to nip this hurricane in the bud, the lawless 'expert' Fourth Estate will continue growing like a cancer with no end in sight until We The People apply logic and enforce the strictures in the Constitution as written. As Scalia famously said, "The Constitution says what it says, and it doesn't say what it doesn't say".

Obviously, it's human nature for careerists in every government agency to make strident appeals for their agency, whether on cogent, rational grounds or otherwise.

This reform law only restores common sense and the English language, viz: In Article II, We The People empower our presidents and their long, long retinue of bureaucrats and specialists to administer things, including vital, life-threatening things.

THAT DOES NOT MAKE THEM ARTICLE III (JUDICIAL) FUNCTIONS.

Our Article III judiciary works just fine, but a growing horde of DC 'experts' and careerists have built so many bridges and tunnels around it that the People groan under the burden.

Regulatory agencies bake and eat all their own pies using the People's money without the People's oversight. They always employ the argument, "we're the experts, senator; you don't know this stuff". So they built an illegitimate system of 'courts' that are NOT courts, with functionaries who have no accountability to the Boss...the American People.

As our system stood before the rise of the ever-growing administrative state, when an issue rose to life-safety level, it was brought to an actual court of law, per Article III of the Constitution, with subject matter experts testifying. As constitutional law professor Philip Hamburger has argued for decades, we can return to that lawful, rational constitutional judiciary as soon as we can somehow de-fang and de-horn the huge administrative state!

The constitutional and ethical matter is not rocket science, even when the subject matter is... well, rocket science.

Member A:

Some administrative agencies, such as the Nuclear Regulatory Commission (NRC) regulate the use of dangerous material that can cause mass injury and fatality if handled improperly. Since such material can be properly regulated only by those possessing scientific and/or special technical expertise; Congress is incapable of providing proper oversight of these areas.

For example, the typical congressman or woman has no knowledge about nuclear science, therefore, he or she is incapable of writing appropriate laws for regulating nuclear power plants or for regulating nuclear pharmacies in hospitals. However, even if he or she was capable of writing such laws, the House of Representatives undergo re-election every 2 years and the Senate every 6. Thus, Congress is too unstable to bring a constancy to the oversight of nuclear material.

As for judicial acts related to administrative agencies, it is important that some agencies retain this authority. For instance, NRC scientists inspect nuclear power plants and may issue fines or move to revoke a power plant operator’s license. In response, the power plant operator may wish to challenge that decision in court. A typical Supreme Court justice would not understand nuclear regulations, nor would the justice understand the technical issue that the power plant operator is challenging. Thus, it is necessary that a judicial body comprised of personnel with nuclear expertise be given authority to adjudicate the power plant operator’s lawsuit and either uphold or overturn the NRC’s sanction.

DMZ:

Non sequitur. Surely you’re familiar with expert witnesses. Creating unelected, unaccountable 'expert courts' is a blatant violation of our Constitution.

Member A:

Thus, for certain areas as described above, administrative law tribunals should remain and have the force of law. Also, within this context, it seems proper for those who oversee such cases to be referred to as administrative law judges. Additionally, administrative law judges have legitimacy only if they have the authority to issue orders, subpoena witnesses, etc., in adjudication and enforcement of the cases they oversee.

DMZ:

But that’s the classic logical fallacy, Petitio Principii. 'Begging the Question'...using your premises as your conclusion. If we refer only to the Constitution as hammered out by its framers and a plain application of the English language in our Section 5, your appeal above is non sequitur. It does not follow.

Member A:

Suggested Language
In view of the above, the following language is suggested. Of course, the below language is draft and intended to give an idea of what the language can look like (it is expected it will need “tweaking”).

a) Federal agencies regulating highly technical and/or scientific functions (e.g., nuclear power) which require special skills, knowledge, and abilities that are not typically possessed by congresspersons or the Supreme Court, shall remain in operation in order to ensure the safety and security of the public.
b) Such agencies shall retain the ability to provide oversight of the use of dangerous material and enforce such oversight through the issuance of regulations, fines, orders, and subpoenas to appear before tribunals designed specifically for adjudicating cases involving the use of highly dangerous materials.
c) federal agencies whose:
(i) functions are inherently unconstitutional; or
(ii) are not highly technical/scientific requiring special skills, knowledge and ability to regulate such that they can be regulated directly by Congress and adjudicated directly by the Supreme Court; or
(iii) are duplicative of other agencies shall be reviewed for elimination.

DMZ:

Wait. The existence of administrative agencies is not in view here; we deal with that in our Non-Enumerated Powers Sunset Act, calling for teams of seven volunteers per US congressional district, which by then should number 6,800+ small districts as the founders intended with Our First Right.

Those 47,000+ citizens will surely include dozens of subject matter experts in any given field, who will surely speak up when the CVRS is reviewing or voting for elimination of any federal budget line item whether agency, program, office, or project. When 50% plus one of those 6,800+ review teams votes to defund something after all the research and consideration they deem proper, that’s the end of it. Period.

The present, lawless situation is regulatory bureaucrats say in essence, "You can't shut us down or even oversee us without OUR approval!", to which the American People now respond, "No! YOU cannot do anything you like, without OUR approval and funding!"

:::

Section 6

Pursuant to provisions of Section 3(f) above and the proposed Return of Sovereign Lands Act, 24 months after enactment of this legislation and thereafter, it shall be a federal felony for any agency, agent, bureau, department, officer, contractor or other representative of the government of these United States to claim, own, maintain or operate a purported U.S. court or detention facility that is not located within the land or property stipulated in Article I, Section 8, Clause 17 of the U.S. Constitution.

:::

Member A:

It is our understanding that certain areas such as Guantanamo Bay were deliberately chosen so as to prevent potential terrorists from utilizing the civilian court system of the United States and gaining certain constitutional privileges that seem inappropriate to extend to them. Being foreign enemies, it was thought more appropriate that potential terrorists be treated as enemy combatants subject to military tribunals, and the only way to ensure this was to keep them off U.S. soil.

DMZ:

Where in the US Constitution do We The People grant authority to our servants in government over ONE SQUARE INCH of land other than the specific areas we stipulate in Article I, Section 8, Clause 17? That is the only land that can be called "U.S. soil" where federal courts can exist (to adjudicate suits, torts, crimes, or threats).

Do you see the self-refuting nature of your appeal for "foreign courts"? Say some thug or cartel of thugs says, under color of law, "We need to take care of this bad person/business in a land far, far away. You know, a foreign land where federal government has no lawful authority to be. That way we can handle it properly. All by law, of course."

Foreign courts, by definition, are not American courts under the U.S. Constitution. Whoever creates and runs those foreign camps is violating our highest law. Do you see that?

I know that you don't think the whole world is the oyster of the 'experts' and war industry personnel who run their own system of 'tribunals' in open violation of our Constitution.

I also know that you agree that, when they are briefed on the issues, the American People will not allow, support, or trust any such outlaw schemes.

Member A:

Suggested Language: Pursuant to provisions of Section 3(f) above and the proposed Return of Sovereign Lands Act, 24 months after enactment of this legislation and thereafter, it shall be a federal felony for any agency, agent, bureau, department, officer, contractor or other representative of the government of these United States to claim, own, maintain or operate a purported U.S. court or detention facility that is not located within the land or property stipulated in Article I, Section 8, Clause 17 of the U.S. Constitution; excepting lands acquired to detain and try alien enemy combatants (e.g., terrorists). It seems appropriate that American citizen terrorists and/or traitors would be tried under the U.S. Constitution.

DMZ:

No; now you're digging your hole deeper. Several hundred million Americans are presently witnessing the total lawlessness of the federal government, now at the point of near-destruction of our rule of law. So it's ironic that you employ the term 'terrorists' and 'traitors' because most of those work in Washington DC today.

So what 'terrorists' do you mean? Do you mean people like the January 6 ‘terrorists’? Or ‘terrorists’ like the mothers who stand up to school boards for promoting pornography in grade school? Or 'terrorists' like anyone that NSA or FBI targets because they own certain firearms, or gather in public places wearing MAGA caps, or because they question a demonstrable bioterror operation under the guise of ‘pandemic’ or a demonstrably stolen election?

[The members mention the SCOTUS decision overturning its Chevron ruling.]

Member B: In light of the SCOTUS ruling…I'm wondering whether you'd still want me to bring it to Zuniga's attention?

Member A:

The language I proposed specifies that only the agencies possessing the following qualities should retain ability to regulate within their disciplines:

"...highly technical and/or scientific functions (e.g., nuclear power) which require special skills, knowledge, and abilities that are not typically possessed by congresspersons or the Supreme Court, shall remain in operation in order to ensure the safety and security of the public."

“Safety and security” refers to citizens’ personal safety as well as the nation being made secure from foreign threats that could overthrow or destroy the nation. The agencies called out in the article do not provide for the safety and security.

For instance, OSHA requiring workers get the jab did not advance the safety and security of the nation. And neither do the other examples (e.g., the ATF deciding a piece of plastic is a gun and the NCRS deciding a small puddle was a wetland) meet the definition of ensuring the public’s safety and security from foreign threats.

It's important for us to remember that the government protecting “the common defense” is in the Constitution’s preamble. Regulating and protecting nuclear power plants is one way for the government to provide for the common defense, since our nuclear power (along with its classified information) in enemy hands would spell disaster for the United States as a nation.

DMZ:

These United States are not a 'nation'; they together constitute a constitutional republic. As for threats to the People and the Republic, the most immediate ones all originate in Washington DC.

In other words, while your concern is for foreign threats, the individual citizens who collectively comprise the sovereignty, and the States that together comprise this republic are dealing with unmitigated attacks from Washington DC, which very demonstrably works for industry and very wealthy families, and their law firms who draft most federal legislation. If you would like a reading list of books authored by former operatives of what I call the DCCP, I will be happy to provide one, in addition to the 72 works synopsized in Appendix J of my book, The Great We-Set™

As to the recent SCOTUS 6-3 decision in Loper Bright, I agree that it killed 'the Chevron doctrine' (basically what you are lobbying for here; that regulatory agencies should be their own courts, too) on which the regulatory state had grown to cancerous proportions.

I concur with Clarence Thomas's concurring opinion, stating that the Chevron doctrine was inconsistent with the Administrative Procedures Act and with the Constitution’s division of power among the branches of government. The Chevron doctrine, he posited, requires judges to give up their constitutional power to exercise their independent judgment, allowing the executive branch "to exercise powers not given to it.”

Tongue in cheek, I also concur with Gorsuch's concurring opinion: “[t]oday, the Court places a tombstone on Chevron no one can miss. In doing so, the Court returns judges to interpretative rules that have guided federal courts since the Nation’s [sic] founding.”

Gorsuch then put in a plug for the federal courts, as if speaking truth...“all today’s decision means is that, going forward, federal courts will do exactly as this Court has since 2016, exactly as it did before the mid-1980s, and exactly as it had done since the founding: resolve cases and controversies without any systemic bias in the government’s favor.”

Suuuuure, Neil. Alas, history doesn't bear that out, big guy.

Member A:

If you think about it, how many agencies have functions that provide for the nation’s safety and security against foreign threats, yet they are so technologically or scientifically complex their functions cannot be reproduced by Congress? Almost none! Besides NRC, perhaps the Department of Energy is another. Perhaps the Securities and Exchange Commission is another (I don’t see how Congress could reproduce that function, yet our financial/economic health is something our enemies would love to destroy).

It seems clear that the vast majority of agencies (OSHA, NCRS, Department of Education) are not necessary for the nation’s safety and security against foreign threats, so they need to be severely restricted in their functioning (because they might provide some common benefit that the States could not easily provide) or they need to be eliminated altogether. Although it will be a meticulous process to review them all and determine which should be restricted or eliminated, it would be foolhardy to wipe them all out with one broad brush. Let’s attack this very real problem of bureaucratic, non-constitutional government overreach without shooting ourselves in the foot.

So, yes, the language along with the explanation should be forwarded to Zuniga, and if it would help, I’d be happy to be part of any conversation to help explain this position.

Thank you for your considered response. When you get the time to do so.

DMZ:

And thank you for the deep dive and careful consideration, albeit heavily influenced by your former career at the NRC. My responses are not intended to be pugilistic; only as clear as I can make them. Even after the late SCOTUS reversal of its Chevron decision that led to the massive growth of the Deep State in the first place, you have not made your case for the arrogant, oxymoronic ‘administrative law’ machine’s serial violation of Article III.