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Who Makes our Laws?
One of the most frustrating things to the
American Colonists was living under laws which
did not have their consent when enacted by either
the British Parliament or the British King.
Americans decided, then, that this would never
happen in their new government “of the people”
and they took special precautions to make sure it
didn’t. The following explanation of the Founders’
creative effort is taken from our book The Making
of America.
The Founders considered the power to
make laws to be the most significant part of the
governmental machinery. It was for this reason
that the Congress was made the central power
plant for the entire system. Not only were the
House and the Senate given the exclusive power
to make the laws for the United States, but they
were also given the responsibility of monitoring
the entire system and initiating new laws
wherever needed.
There was no intention, however, to make
Congress a supreme power unto itself. The
Founders carefully hedged it up with various
checks and balances so that the people would not
be subject to the uninhibited tyranny which they
had been forced to endure under the British
Parliament.
The first sentence of the Constitution
following the Preamble reads:
“All legislative powers herein granted shall
be vested in a Congress of the United
States, which shall consist of a Senate and
House of Representatives.”
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This provision gives every American the
right not to be subject to any federal law unless
it has been reviewed and approved by a majority
of the people's representatives. As originally
conceived, the American lawmaking procedure
was just about as foolproof as the Founders could
make it. All laws were to be carefully scrutinized
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from several positions.
● The House scrutinizes proposed laws as
the representatives of the people
● The Senate scrutinizes proposed laws as
the representatives of the states
● The President scrutinizes proposed laws
from a national viewpoint
● The Courts scrutinizes new laws in terms
of the Constitution
With so much good scrutiny concerning
proposed laws, it was no doubt expected that the
proper procedure would remain strictly within its
prescribed limits, particularly in view of the
statement in Article I, section 1, that all
lawmaking authority would be vested exclusively
in the Congress. However, that is not what
happened.
Temptation of the Executive Branch
to make laws by executive order
and administrative decree
The expansion of the executive branch into
the lawmaking business has developed
gradually. Ever since the Interstate Commerce
Commission was developed in 1887, various
governmental agencies have been issuing edicts
known as "administrative law" which are
enforceable in the courts just as much as the laws
of Congress. The Congress has also passed
broad enabling acts and delegated to the
executive branch the power to issue "executive
orders" which are enforced as "laws" even though
they are never officially approved by Congress,
but are simply published in the Federal Register.
Today more laws are imposed on the American
people by these unconstitutional and irregular
means than are passed by Congress.
The idea of the President issuing executive
orders as enforceable laws has gone through
several stages:
 The Constitutional Stage. In the
beginning, the President or his cabinet
officers issued executive orders to their
departments. These were simply
administrative orders and affected only the
administrators and agencies of the
government. In other words, they did not
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affect the public as the laws of Congress
do. Gradually, however, these executive
orders began to increase in number and
scope of influence. They began to affect the
general public and not just the internal
operations of government. Executive orders
thus passed from the constitutional stage to
the "strong President" stage.
The "Strong President" Stage. The
transition to this new stage is indicated by
the number of executive orders issued by
the various Presidents. For example,
President Cleveland issued only 71
executive orders, McKinley issued merely
51. However, when President Theodore
Roosevelt came into office, he issued 1,006!
From this point on, each President looked
upon executive orders as a tool to demonstrate
the power of the President to take "independent
action." President "Teddy" Roosevelt held to the
view that he could do anything not specifically
prohibited by the Constitution. He missed the
Founders' doctrine of enumerated powers, which
said he could do nothing except that which the
Constitution authorized. As he proceeded to
follow his own interpretation of his constitutional
powers, Theodore Roosevelt broadcast
executive orders in every direction. He greatly
expanded the authority of the presidential office
and wrote:
"I decline to adopt the view that what
was imperatively necessary for the
Nation could not be done by the
President unless he could find some
specific authorization to do it. My
belief was that it was not only his right
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but his duty to do anything that the
needs of the Nation demanded unless
such action was forbidden by the
Constitution or by Law. Under this
interpretation of Executive power I did
and caused to be done many things
not previously done by the President
and the heads of the Departments. I
did not usurp powers, but I did greatly
broaden the use of Executive power."
The World War I Stage. Under the
exigencies of the First World War,
President Woodrow Wilson used the war
powers to impose administrative law and
executive orders on almost every phase of
American life. For example, the Food
Administration, the Grain Corporation, the
War Trade Board, and the Committee on
Public Information were all set up by
executive orders without being specifically
or individually authorized by Congress. On
the basis of "implied authority," the
President used his broad war powers to
range across the entire economic and
industrial horizon of America. The strict
interpretation of Article I, Section 1, has
never been the same since.
The New Deal Stage. This covered
both the Depression era and the World War
II years. Between them, the use of
executive orders became so broad that
legislative powers emanating from the
President and the executive branch
became a permanent part of the life-style of
America. These executive orders became
so numerous that in 1935 Congress passed
the Federal Register Act, which required
the publication of all executive orders in the
Federal Register and their subsequent
filing with the U.S. Archives. The State
Department previously had custody of
these orders and began numbering all
available orders in 1907. However, it is
estimated that the unnumbered orders lying
in government files may be as many as
15,000 to 50,000.
To gain some idea of the quantity of orders
being poured out on the public as well as on
government agencies, the official count by
January 1985 had reached 12,498! Executive
orders usually cite some authority for their
issuance, but many of these would be totally
irrational to the Founders of the nation.
In the early 1930s the Congress became
nervous about delegating so much of its
lawmaking power to the executive branch, and
 so it began monitoring the various agencies to
make certain they were issuing executive orders
in harmony with the original intent of Congress.
However, in 1984 the Supreme Court declared
that it was a violation of the separation-of-powers
doctrine to have the Congress monitoring the
administration of the executive branch.
Amazingly, the court did not say that it was a
violation of the separation-of-powers doctrine to
have the Congress delegating its lawmaking
powers to the executive branch in the first place.
Temptation of the Judiciary to "write laws"
When the courts get into the law-making
process, it is excused under the convenient
euphemism called "judicial activism." This occurs
in two phases. One is "judicial legislation," which
is usurpation of authority from the legislative
branch, and the other is "judicial administration,"
which is usurpation of authority from the
executive branch. This is often done under the
aegis of necessity because the federal courts
complain there are social needs which are not
being met by the states or the Congress and
therefore the courts feel compelled to take action.
This kind of reasoning would have shocked the
Founders, but it has been employed repeatedly
by the Supreme Court on the ground that the
judiciary is merely carrying out "established public
policy." This is a dangerous crutch to sustain
judicial activism, since slavery was once
"established public policy." Policies are set by
Congress, not the courts. The court's arena
relates to "laws" and "rights," not policies.
The increase in judicial activism has been
creeping upward for years, but it leaped into a full
gallop during the administration of Chief Justice
Earl Warren. The court not only began handing
down decisions in terms of "social necessity" and
"established public policy," but it began reversing
previous Supreme Court decisions by the bushel
basket. It also became heavily involved in
administrative duties, including the administration
of state school systems, state prisons, and state
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employment policies.
Even earlier, the court unlawfully laid the
foundation for what turned out to be an
amendment to the Constitution in the 1936 Butler
case, where "general welfare" was twisted to
allow special welfare, and the federal budget
jumped from six billion to six hundred billion in
one generation.
The Warren court then went on to wipe out
the right of the states to deal with subversion and
internal security, declaring -- without any action
by Congress whatever -- that the federal
government intended to preempt this authority. It
reduced to virtual extinction the states' residence
requirements for voters, made the states elect
their state senators on the basis of population
instead of senatorial districts, imposed federal
standards of procedure on local police, sustained
executive orders imposing federal standards of
air, water, speed, safety, and health on the states,
and otherwise made serious invasions into the
sovereign and exclusive domain of the states. As
with the executive branch, much of the judicial
activism was with good intentions and high moral
aspirations. But the delivery system was wrong,
the administrative system was wrong, and the
results were corrosive and corruptive to the
constitutional system.
This accelerated usurpation of unconstitu-
tional authority by the courts was anticipated by
Thomas Jefferson. He saw hints of it even in his
own day. He saw it as a gravitational force pulling
power away from the states and concentrating it
in Washington. He wrote in 1821 the following:
"It has long, however, been my opinion
... that the germ of dissolution of our
federal government is in the
constitution of the federal judiciary ...
working like gravity by night and by
day, gaining a little today and a little
tomorrow, and advancing its noiseless
step like a thief over the field of
jurisdiction, until all shall be usurped
from the States, and the government of
all be consolidated into one. To this I
am opposed; because when all
government shall be drawn to
Washington as the center of all power,
it will render powerless the checks
provided ... and will become as venal
and oppressive as the government [of
George III] from which we separated."
Our present situation with immigration
and naturalization threatens total
disregard for Constitutional law
Even though these above-described
 violations have existed for decades and
have been seen in administrations of both
the Democrats and Republicans, yet the
present situation seems to take the tyranny
of the executive to another level. President
Obama has said on several occasions: “If
Congress doesn’t do it, I will do it by
executive order.” This is a willful threat to
take law-making from the people into his
own hands. This is akin to our forefathers’
complaint against King George III as listed
in the Declaration of Independence:
He has combined with others to
subject us to a jurisdiction foreign to
our constitution, and
unacknowledged by our laws; giving
his assent to their acts of pretended
legislation:
For suspending our own legislatures,
and declaring themselves invested
with power to legislate for us in all
cases whatsoever.
Only Congress was given authority to
make laws dealing with immigration and
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NATIONAL CENTER FOR CONSTITUTION
AL STUDIES
www.nccs .net - (800) 388-4512 - 37777 W Juniper
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ers
naturalization. (See Article I, Section 1,
Clause 4 of the Constitution.) It is true that
the president has the power to grant
pardons or reprieves. A group pardon is
called amnesty. Constitutionally, the
president may grant amnesty to people who
have broken our immigration laws, but that
can only go as far as relieving them from
prosecution under the law. He cannot make
them citizens (with citizenship rights such as
voting, etc.) or even grant them permission
to stay in the country. These are matters of
law which only the peoples’ representatives
may deal with through the law in a manner
which is clearly spelled out and defined in
the Constitution.
Hopefully, when the new Congress is
sworn in in January, they will take seriously
their pledge to support and defend the
Constitution of the United States.
Sincerely,
Earl Taylor, Jr.
The Making of America
The Substance & Meaning of the Constitution
This book is a well-organized approach to
understand the Founders’ original intent of each
provision in the US Constitution. It serves as a
wonderful reference book and is commonly used as
an in-depth study of the Constitution. It is a
valuable addition to anyone’s “I Love America”
shelf.
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Rd, Malta ID 83342