Carthage Must Be Destroyed!

By Rich Kozlovich  

 

Editor's Note:  I originally published this on January 8, 2014 and some of the links not longer work.  RK 

In 2013 the United States Congress was criticized for not getting things done. The Congress “only” passed 65 new laws. Of course we have to understand that one year they passed over three hundred new laws.

What is really important to understand is when new laws are passed the baton of power is passed to the permanent bureaucracies, whose function is to make even more laws called – “rules”! In 2013 there was an average of 56 new regulations resulting from each law passed totaling 3659 new laws called – “rules”! That multiplier has been as low as 12 per new law, but that was in 2006 when Congress passed 321 new laws. If you average out the multipliers over the last ten years the average multiplier is 25.36.

So what’s the rest of the story? Last year the states passed over 40,000 new laws. If we make a broad assumption that the average multiplier applies to the states we now have a potential of 1,014,400 new laws called – “rules!” Rules created by unaccountable bureaucrats, with their own agendas and views of reality, and who, generally speaking, went to college and then into government.

During the first five years of the Obama administration regulatory costs increased by $500 billion dollars, “with $112 billion in regulatory compliance costs in 2013 alone, and predicted that the burden would continue to increase this year to as much as $143 billion”.  The federal registry, where all the regulations are listed, contain 80,224 pages this year alone.  It’s estimated that in ten years at the current rate of regulatory growth there will generate approximately 900,000 new pages of regulations, which will be on top of the approximately 800,000 pages of regulations passed in the previous ten years.

All of these regulations do one thing for sure - create jobs – for non-productive bureaucrats.  It took government employees 10.38 billion hours to do “the paperwork for the federal government in 2013, and will take 78,000 full-time employees to complete the additional paperwork.”

We also have to look at who benefits from laws and the regulations they generate.  In this kind of hyper-regulatory, high tax economy many of these laws and regulations are promoted by businesses that want to make it harder for companies that will be, or are, competitors.  As a “all aspects of business, entrepreneurship degenerates into “bribery and diplomacy.” Instead of focusing on creating value for customers, entrepreneurs spend their time lobbying for favors or to avoid penalties, trying to discern the government’s next move, anticipating or adapting to the newest regulations.”  But this was to be expected from a party that loves big government and “more” laws and regulations - all the better to control our lives.  What about the administrations that have been considered conservative, anti-big government and opposed to all these regulations?  There were more regulations passed during George W. Bush’s administration than any president since Richard Nixon.  Furthermore this idea there is some invisible divide between the left and the so-called right regarding regulations and the promotion of the all powerful state is an illusion.   

“The modern regulatory state is a bipartisan enterprise: During the half-century before President Obama's election, the greatest growth in regulation came under Presidents Richard Nixon and George W. Bush.  And the Bush administration set the stage for many of the Obama initiatives that Republicans are now attacking. Dodd-Frank's policy of designating some financial firms as "too big to fail" is a codification of the Paulson-Bernanke bailout approach of 2008. It was the Bush Treasury Department that first proposed a financial consumer-protection agency, and the Bush Environmental Protection Agency that first proposed regulating greenhouse gases under the Clean Air Act. The Obama energy rules were authorized — and in some cases, such as the light-bulb ban, required — by a 2007 statute that President Bush vigorously championed.”

What about Richard M. Nixon?  Nixon as a strange man and still an enigma to many, and understandably so, because Nixon was the first to advocate what was called a New Federalism, which would ‘devolve’ power to state and local governments.  But he was the first one to jump on the environmental band wagon promoted by the first Earth Day in 1970.  He believed this was a precursor of public concern and he wanted to benefit from it politically.   

Eventually he passed the Clear Air Act, the Clear Water Act the Endangered Species Act, and the National Environmental Policy Act, requiring environmental impact statements for federal projects.   He created the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA).  All of which create virtual lava flows of scientifically dubious regulations, creating outrageous burdens on the American people, and the American economy.   Furthermore, all these laws and agencies give rise to lawsuits by activists that plague economic development with legal costs, studies and delays. 

What is the cost of all these federal regulations to the nation’s people?  One point eight trillion dollars a year!  And I have no idea what kind of costs of all these state laws impose on society.  So what is the solution - at least at the federal level?

No one can fix this piecemeal because it is a foundational issue and until that foundational problem is recognized it will never be solved. So what is that foundational issue? Passage of the 16^th and 17^th amendments in 1913, which laid the foundation for our doom. 

The 16^th amendment gave the federal government the right to tax income.  This gave them the right to confiscate an unending amount of society’s money, [called their fair share] and spend it like drunken sailors. That turned the federal government into an insatiable beast that can never be fed to satisfaction, creating debt that is threatening the stability of not only the nation, but the world.

The 17^th amendment changed how Senators are chosen. The Founding Fathers were determined to prevent the federal government from becoming an all too powerful entity that was centralized and out of control. In order to do this they created a government that wasn’t supposed to do very much creating a true balance of power between the central government and the state governments. In those days the word ‘state’ didn’t mean province, it meant an independent nation. So the Senators were chosen by the state governments to be ambassadors to the federal government in order to stop power grabbing by the central government.

After passage of the 17^th amendment they would be elected by popular vote, exactly what the Founding Fathers wanted to avoid, because that was already what the House of Representatives was for. That amendment destroyed the balance of power - the 10^th amendment notwithstanding. As long as the 17^th exists the 10^th is meaningless, and by misusing the Commerce Clause of the U.S. Constitution the federal government can overturn any and all local authority, and individual rights guaranteed under the Constitution.

“The deterioration of the Constitution’s separation of, and balance of, powers means that regulators and bureaucrats now make most laws……The executive branch increasingly imposes its will: President Obama and his administration repeatedly say they are not going to wait for Congress…...”

What about the Supreme Court?  Don’t they understand how the Commerce Clause is being misused?  Until the Rehnquist court in 1995 SCOTUS never saw a law that exceeded Congress’s power under the Commerce Clause for sixty years.  In fact, they held the view that no matter how slight the impact might be on commerce it would now be subject to federal control.  If there ever was a system for abuse and tyranny this was it, and now the states were powerless to do anything about it. 

Roman Senator Cato the Elder was born in 234 BC and believed that Carthage was too dangerous to be allowed to exist. Therefore he gave speeches ending in the phrase [no matter the topic of the speech] “Carthago delenda est”, “Carthage Must be Destroyed". 

The 16th and 17th amendments are our modern Carthage – too dangerous to exist.   This is foundational. The only fix is the repeal of the 16th and 17th amendments.   After that - everything else will fall into place.   But first we must be willing to recognize the 16th and 17th amendments really are the enemy - our modern Carthage! 

Sedecim et septemdecim delenda est!

Proposition 12, the Constitution, and Good Government

Gary M. Galles  – October 25, 2022 @ American Institute for Economic Research

our years ago, California voters approved Proposition 12, in which a “yes” vote was promoted to “establish minimum space requirements based on square feet for calves raised for veal, breeding pigs, and egg-laying hens and to ban the sale of (a) veal from calves, (b) pork from breeding pigs, and (c) eggs from hens when the animals are confined to areas below minimum square-feet requirements.”

That proposition has been challenged, however, as unconstitutional on the basis of something missing from that proposition, namely, where it would apply. A California state law would have to apply to those industries nationwide, for producers who wish to sell anything to California consumers. And the Supreme Court has agreed to hear that challenge, based on what is called the “Dormant Commerce Clause” (because it gives exclusive jurisdiction over interstate commerce to the federal government, which excludes state interference with such commerce, even if no federal law has been passed on a topic). Oral arguments in National Pork Producers Council v Karen Ross will take place October 11.

It is important to note that there would be no federal constitutional violation if the proposition applied solely to producers of those products located in California, as one might well have expected was the case, given the lack of attention to that detail in the “yes” campaign. But California does not have the right to legislate for producers located in other states, which almost all of them are. 

While the state comprises a substantial proportion of the U.S. market for pork, California imports 99.87 percent of its pork. That would mean Proposition 12 would have virtually no effect on the California producers they have legitimate jurisdiction over, and a massive effect on producers nationwide, over whom it has no legitimate jurisdiction. Very few of those producers meet the standards promulgated, which have cost those producers around $300 million. Because pork production and distribution is highly integrated, and California is a major market, the effects would extend to virtually every pork product sold everywhere in the country. The state would even send California Department of Food and Agriculture agents throughout the country to enforce those regulations. Further, 15 other states opposed Proposition 12 as a violation of their sovereignty.

It is hard to think of a more blatant violation of the Constitution’s Commerce Clause’s denial of state power over interstate commerce. That is why Elizabeth B. Prologar, the Solicitor General of the United States, “has come down on the side of the Interstate Commerce Clause and the pork producers.” That clause arose from many state regulations that had burdened interstate commerce under the Articles of Confederation, abuses which led to a call to the Constitutional Convention. Further, overturning state restrictions on interstate commerce (following the traditional meaning of regulate as “to make regular” or “to remove impediments”) were the sole applications of the Commerce Clause for America’s first century. And given the very tenuous bases under which the Supreme Court has invoked the Commerce Clause as a source of federal supremacy in the past, such as in Wickard v. Filburn, any sort of judicial consistency would put Proposition 12 well outside constitutional limits.

The Federalist Papers also support this interpretation. Federalist 11 describes the proposed federal power as a “prohibitory regulation, extending… throughout the states.” Federalist 42 describes its purpose as “the relief of the States…from the improper contributions levied on them by [other states].” Further, in 1785, a committee headed by James Monroe recommended amending the Articles of Confederation to give Congress “sole and exclusive” power to regulate commerce. James Madison in his Journal made clear that nationwide regulations on commerce (which Proposition 12 would impose) were a power solely granted to Congress.

Proposition 12 not only oversteps California’s regulatory powers under the U.S. Constitution, it also violates the political principle that those who will be forced to abide by laws should have a voice in them. Pork producers, as well as related producers and workers, in every other state would be forced to abide by laws that they had no say in, because a majority of voters in California, where its burdens would be virtually insignificant, approved forcing others to pay the price to give them what they want. What it most brings to mind is its inconsistency with an important phrase that played a big role in the creation of America: “No taxation [or regulation] without representation.”

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Gary M. Galles

Dr. Gary Galles is a Professor of Economics at Pepperdine.

His research focuses on public finance, public choice, the theory of the firm, the organization of industry and the role of liberty including the views of many classical liberals and America’s founders­.

His books include Pathways to Policy Failure, Faulty Premises, Faulty Policies, Apostle of Peace, and Lines of Liberty.

Books by Gary Galles

Blast From the Past: Carthage Must Be Destroyed!

By Rich Kozlovich  

Editor's Note: I originally published this on Wednesday, January 8, 2014.  I've now updated this to meet today's reality.  While my National Debt Counter still shows 29 trillion, the claim now is we're 30 trillion dollars in debt.  Both are unacceptable and will doom the nation if not stopped and reversed.  RK

In 2013 the United States Congress was criticized for not getting things done. The Congress “only” passed 65 new laws. Of course we have to understand that one year they passed over three hundred new laws.

What is really important to understand is when new laws are passed the baton of power is passed to the permanent bureaucracies, whose function is to make even more laws called – “rules”! In 2013 there was an average of 56 new regulations resulting from each law passed totaling 3659 new laws called – “rules”! That multiplier has been as low as 12 per new law, but that was in 2006 when Congress passed 321 new laws. If you average out the multipliers over the last ten years the average multiplier is 25.36.

So what’s the rest of the story? Last year the states passed over 40,000 new laws. If we make a broad assumption that the average multiplier applies to the states we now have a potential of 1,014,400 new laws called – “rules!” Rules created by unaccountable bureaucrats, with their own agendas and views of reality, and who, generally speaking, went to college and then into government.

During the first five years of the Obama administration regulatory costs increased by $500 billion dollars, “with $112 billion in regulatory compliance costs in 2013 alone, and predicted that the burden would continue to increase this year to as much as $143 billion”.  The federal registry, where all the regulations are listed, contain 80,224 pages this year alone.  It’s estimated that in ten years at the current rate of regulatory growth there will generate approximately 900,000 new pages of regulations, which will be on top of the approximately 800,000 pages of regulations passed in the previous ten years.

All of these regulations do one thing for sure - create jobs – for non-productive bureaucrats.  It took government employees 10.38 billion hours to do “the paperwork for the federal government in 2013, and will take 78,000 full-time employees to complete the additional paperwork.” 

 

We also have to look at who benefits from laws and the regulations they generate.  In this kind of hyper-regulatory, high tax economy many of these laws and regulations are promoted by businesses that want to make it harder for companies that will be, or are, competitors.  As a result “all aspects of business, entrepreneurship degenerates into “bribery and diplomacy.” Instead of focusing on creating value for customers, entrepreneurs spend their time lobbying for favors or to avoid penalties, trying to discern the government’s next move, anticipating or adapting to the newest regulations.” 

But this was to be expected from a party that loves big government and “more” laws and regulations - all the better to control our lives.  What about the administrations that have been considered conservative, anti-big government and opposed to all these regulations?  There were more regulations passed during George W. Bush’s administration than any president since Richard Nixon.  Furthermore this idea there is some invisible divide between the left and the so-called right regarding regulations and the promotion of the all powerful state is an illusion.   

“The modern regulatory state is a bipartisan enterprise: During the half-century before President Obama's election, the greatest growth in regulation came under Presidents Richard Nixon and George W. Bush.  And the Bush administration set the stage for many of the Obama initiatives that Republicans are now attacking. Dodd-Frank's policy of designating some financial firms as "too big to fail" is a codification of the Paulson-Bernanke bailout approach of 2008. It was the Bush Treasury Department that first proposed a financial consumer-protection agency, and the Bush Environmental Protection Agency that first proposed regulating greenhouse gases under the Clean Air Act. The Obama energy rules were authorized — and in some cases, such as the light-bulb ban, required — by a 2007 statute that President Bush vigorously championed.”

What about Richard M. Nixon?  Nixon was a strange man and still an enigma to many, and understandably so, because Nixon was the first to advocate what was called a New Federalism, which would ‘devolve’ power to state and local governments.  But he was the first one to jump on the environmental band wagon promoted by the first Earth Day in 1970.  He believed this was a precursor of public concern and he wanted to benefit from it politically.   

Eventually he passed the Clear Air Act, the Clear Water Act the Endangered Species Act, and the National Environmental Policy Act, requiring environmental impact statements for federal projects.   He created the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA).  All of which create virtual lava flows of scientifically dubious regulations, creating outrageous burdens on the American people, and the American economy.   Furthermore, all these laws and agencies give rise to lawsuits by activists that plague economic development with legal costs, studies and delays. 

What is the cost of all these federal regulations to the nation’s people?  One point eight trillion dollars a year!  And I have no idea what kind of costs of all these state laws impose on society.  So what is the solution - at least at the federal level?

For anyone trying to research just how many regulations become attached to any federal law, I wish you luck, and a lot of time.  You will find it's very difficult. Take for instance the Community Reinvestment Act of 1977 (CRA) passed by Jimmy Carter and ultimately the cause of the housing bubble that collapsed in 2008 causing a worldwide recession. 

As best as I can tell there were 25 regulations attached to that law, but that's deceptive because under each regulation there are Subparts and Appendices, which expands the impact of each regulation.   In effect, each regulation, or rule, becomes part of a maze of rules and regulations all presented as "explanations". 

The ultimate and actual number of regulations? Who knows, and personally, I doubt anyone knows for sure.  Rule 25 of CRA had five Subparts and two Appendices.   That's seven additional components, i.e. "explanations", which are in reality new laws passed by unelected bureaucrats. 

Let's assume that's that's typical for each CRA regulation, which I'm sure it isn't, we can now multiply those 25 regulations by seven and we get 175 "explanations"  Those "explanations" are now what we are absolutely required to follow in order to comply with one rule of one new federal law.  When you get involved with environmental laws, the numbers are off the charts, and hard to track, and I'm sure there are far more than five Subparts and two Appendices attached to each regulation, however, for analysis purposes, let's call this the "seven parts per regulation rule"!

In 2020 there were 178 federal laws passed with 3354 regulations.  That's about 19 regulations per law, but that doesn't include the Sections, Subsections and Appendices, which no one lists.  You have to actually find the law and follow the "eyes rolling back into your head" tedium to get that answer.

However, if we make a bit of a broad assumption using the "seven parts per regulation rule" for each regulation that turns those 19 regulations into 133 "explanations" that are in fact laws.  If there are an average of 8 it becomes 152.  Nine becomes 171.  Suppose the actual number is fifteen? That translates into 285 "explanations" that "must" be followed to be in compliance with federal law.  That makes them de-facto laws never passed by Congress, and the "administrative state" is now in charge, not Congress.  Do you doubt that? 

If you analyze this chart we find since 2003 Congress passed 3319 laws.  The bureaucrats created 65,582 rules averaging 25 rules per law.  If we use the "seven parts per regulation rule" we now have 459,074 explanations that are often contradictory, absolutely complicated, and invariably, more interpretations, clarifications and explanations will follow as the years go by.  If we make an assumption it could be 15 parts per rule, we get a mind boggling 983,730 "explanations".  All of which are in fact mandatory, and worse yet: 

At least 4,450 federal crimes are embedded in those laws and regulations (with some 500 new crimes added per decade) – often for minor infractions like failing to complete or file precisely correct paperwork for selling orchids or importing wood for guitars. Neither inability to understand complex edicts, lack of knowledge that they could possibly exist, nor absence of intent to violate them is a defense, and the “crime” can bring military swat teams through doors, and land “violators” in prison for months or years.

The administrative state’s battle for dominance over the Congress and the nation is pretty much a fait accompli!

No one can fix this piecemeal because it is a foundational issue and until that foundational problem is recognized it will never be solved. So what is that foundational issue? Passage of the 16th and 17th Amendments in 1913, which laid the foundation for our doom. 

The 16th amendment gave the federal government the right to tax income.  This gave them the right to confiscate an unending amount of society’s money, [called their fair share] and spend it like drunken sailors. That turned the federal government into an insatiable beast that can never be fed to satisfaction, creating debt that is threatening the stability of not only the nation, but the world.

The 17th amendment changed how Senators are chosen. The Founding Fathers were determined to prevent the federal government from becoming an all too powerful entity that was centralized and out of control. In order to do this they created a government that wasn’t supposed to do very much creating a true balance of power between the central government and the state governments. In those days the word ‘state’ didn’t mean province, it meant an independent nation. So the Senators were chosen by the state governments to be ambassadors to the federal government in order to stop power grabbing by the central government.

After passage of the 17th Amendment they would be elected by popular vote, exactly what the Founding Fathers wanted to avoid, because that was already what the House of Representatives was for. That amendment destroyed the balance of power - the 10th Amendment notwithstanding. As long as the 17th exists the 10th is meaningless, and by misusing the Commerce Clause of the U.S. Constitution the federal government can overturn any and all local authority, and individual rights guaranteed under the Constitution.

“The deterioration of the Constitution’s separation of, and balance of, powers means that regulators and bureaucrats now make most laws……The executive branch increasingly imposes its will: President Obama and his administration repeatedly say they are not going to wait for Congress…...”

What about the Supreme Court?  Don’t they understand how the Commerce Clause is being misused?  Until the Rehnquist court in 1995 SCOTUS never saw a law that exceeded Congress’s power under the Commerce Clause for sixty years.  In fact, they held the view that no matter how slight the impact might be on commerce it would now be subject to federal control.  If there ever was a system for abuse and tyranny this was it, and now the states were powerless to do anything about it. 

Roman Senator Cato the Elder was born in 234 BC and believed that Carthage was too dangerous to be allowed to exist. Therefore he gave speeches ending in the phrase [no matter the topic of the speech] “Carthago delenda est”, “Carthage Must be Destroyed". 

The 16th and 17th amendments are our modern Carthage – too dangerous to exist.   This is foundational. The only fix is the repeal of the 16th and 17th amendments.   After that - everything else will fall into place. But first we must be willing to recognize the 16th and 17th amendments really are the enemy. 

Our modern Carthage! 

Observations From the Back Row, 4/6/11

By Rich Kozlovich

Ninth Circuit Rejects Commerce Clause Challenge to Endangered Species Act.  A federal appeals court has rejected a conservative legal group's argument that federal protections of an endangered species violate the Commerce Clause.

A unanimous panel of the U.S. Court of Appeals for the Ninth Circuit upheld the federal protections of delta smelt, a small fish endemic to California, against challenges from the Pacific Legal Foundation, which argued that the protections diminished water exports from the Delta.

The federal protections of the fish were created pursuant to the Endangered Species Act. The Pacific Legal Foundation argued that the fish are "purely intrastate species," with no "commercial value," and therefore the federal government regulations to protect the fish were "invalid exercises of constitutional authority [under the Commerce Clause]."

The Ninth Circuit panel disagreed, writing in part, that “Congress has the power to regulate purely intrastate activity long as the activity is being regulated under a general regulatory scheme that bears a substantial relationship to interstate commerce." Citing the Eleventh Circuit, the panel ruled that "the Endangered Species Act is a general regulatory statute bearing substantial relation to commerce."

My Take - How much do you want to bet the founding fathers (you know, the people who wrote the Commerce Clause) didn’t believe that.  Below are links that list the insanity of ESA over the last week.  And this wasn't all of them.  RK

• Feds may protect rare sunfish found only on Limestone County.
• The US Fish and Wildlife Service announced Monday that “the meltwater lednian stonefly warrants protection under the Endangered Species Act
• Endangered plant scrub Lupine is in recovery plan.
• Endangered ‘Mameng,’ a protected species, openly traded
• Killer whales eat Bluefin Tuna
• National Campaign to Boycott Endangered Bluefin Tuna Coming to Las Vegas Sushi Restaurants
• Sea lions' appetite for salmon has lawmakers out for blood
• In the United States, Hawaii has more endangered species than any other state.
• Delist the prairie dog.
• Critical habitat for snowy plover may more than double under new proposal.
• Flying squirrel returns to ESA list
• Parkway plants to be relocated.
• Wolf bills and wolf settlements. Wolves are a big problem…
• Cattlemen seek solutions in face of wolf return.
• Model airplane show hinges on scrub jay protection.
• Butterfly boosters hope second time’s a charm.
• Critical habitat for the Chiricahua leopard frog proposed.
• Dog ban at Plymouth
• Solar projects and 140 endangered tortoises
• Nature conservancy protection of warbler habitat.
• First razor clam dig for April approved.
• Cattlemen seek solutions in face of wolf return.
• Palm Oil….it doesn’t end there.
• Expand the carbon tax, invest in transit, pass an Endangered Species Act and protect more old growth forests.
• Dwarf wedgemussel, the creeper, triangle floater, Eastern pond mussel and the slimy sculpin!
• The U.S. Fish and Wildlife Service is gathering information to determine if four species found on South Sound prairie habitat should be listed under the federal Endangered Species Act.
• Water deliveries to the plaintiffs' almond, pistachio and walnut operations were reduced due to Endangered Species Act restrictions on major irrigation projects in the state.
• The Parnell administration grew so weary of the continuous battle with the federal government that it established a position for a lawyer who deals solely with issues involving the Endangered Species Act. ...

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