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Legislation of the Year

Hundreds of bills have been enacted into law over the last few months and, of course, even more got flushed down the proverbial gender-neutral toilet. The media has blown up stories over bathrooms, counselors, Bibles, and guns, but I think one of the best bills passed this year is one you never heard of. It could prove to be very important in controlling state government. And its potential impact became even more apparent by the Fourth Circuit’s “bathroom bill” ruling this week.

Try to stay calm as I tell you that the bill made changes to the Uniform Administrative Procedures Act. How, you think, could a person like me be excited about something as boring and irrelevant sounding as administrative procedures? I’ll tell you what the bill did that is so good, but you have to understand why the regulation of administrative procedures is so important.

In case you don’t know, administrative rules and regulations issued by government agencies are increasingly subversive of representative government.

The best, most current example is what has happened with Title IX. When Congress enacted Title IX, it prohibited discrimination in educational opportunities on the basis of sex. But Congress left its job undone (as is par for the course anymore), because it didn’t spell out how the law applied in a variety of situations, like with bathrooms and locker rooms.

So the U.S. Department of Education (DOE) started promulgating regulations to “interpret” the law, and those regulations have the force of law the same as if voted on by Congress. Congress lets DOE and its other agencies run wild.

For example, for two years Congress has let the Department of Education run around telling schools that the word “sex” in Title IX really means “gender identity.” Now the Fourth Circuit Court of Appeals said that what the department has been saying goes as law unless Congress does something to change that in the future (which it won’t).

But unlike Congress, Tennessee’s Legislature has done something about agency regulations. Except in certain instances, agencies must bring their rules and regulations before the House and Senate Government Operations Committee for review. When I was in the Senate (then controlled by Democrats), they were affectionately called the Government Oops Committees, because they had no power to do anything and consequently did nothing.

That has changed in recent years as the committees have increasingly used their power to discontinue agencies to “encourage” them to make changes. That has been good, but Senate Bill 2389/House Bill 2068 literally takes some power back from the government agencies.

First, the agencies can no longer just say to the committees that they need some regulation and explain why. The agencies must “demonstrate [to the committees], by convincing evidence, that consideration of [certain] factors . . . in their totality, justifies the continued existence of an agency rule.”

Those factors now include such things as proving that “the rule is necessary and essential for the agency to serve persons affected by the rule” instead of just necessary for “public policy considerations,” the old law. The agency must show that “the rule will result in economic efficiency for persons served by the agency and persons affected by the rule.” In other words, the question now is more whether the regulation is good for us, not the agency.

But the new law also gives the Government Operations committees a new power. In the past, the committees could vote to ask the agency not to adopt a rule, but that was it. Now the committee can vote to request that the General Assembly repeal the regulation. This isn’t huge, but a vote of a 19-member committee directed to the 99 members of the General Assembly to the effect that a regulation should be repealed will carry a lot more weight in the consideration of legislation to repeal that regulation than if the legislation was simply filed by an legislator unhappy with the regulation.

The Legislature beginning to assert its control over government agencies that can pour out rules and regulations faster than citizens can keep up with them is a good first step toward restraining government and putting government back in the hands of those who are more accountable to the people, our legislators instead of bureaucrats. Thank you, Sen. Bell and Rep. Daniel for bringing this legislation.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Will the Freedom Caucus Unwittingly Betray Us?

The members of the Freedom Caucus in the U.S. House seem to favor Congressman Paul Ryan as the next Speaker. Not being a member of Congress or privy to the Freedom Caucus’ meetings, I’m sure there are things I don’t appreciate about the situation. But one of the conditions Mr. Ryan has placed on his willingness to serve is a real red flag to me.

To understand the condition that concerns me you need to know that I believe Congress, on the whole, is infected with an upside-down, unbiblical view of the nature and purpose of authority. When those who are authorized to delegate authority, as the members of Congress do when they elect a Speaker, don’t understand authority, they tend to delegate it unwisely.

Biblically speaking, all persons holding authority are also under authority. Only One person has authority in and of Himself, God. Our problem is that we have an insatiable desire to be our own god. The lure of gaining authority over others is too much for us to resist if we are not accountable to those from whom we have received whatever authority we have. That’s why Lord Acton said that absolute power (authority) corrupts absolutely.

Those who don’t understand authority often unwittingly set themselves up for a loss of freedom by not providing sufficient checks and balances on those to whom they delegate authority. And those who ask for authority who also want checks and balances (accountability) removed or limited either intentionally or unwittingly set themselves up to become tyrants. And that brings me to Paul Ryan and the Freedom Caucus.

It appears to me that at least some members of the Freedom Caucus began to chafe under Rep. John Boehner because, in part, he abused his power. Rather than using the authority he was given to serve those in authority over him, he began to use his authority to punish those Representatives who did not do his bidding. In July Rep. Meadows had had enough, and he filed a resolution to have the Speaker position vacated. Things began to unravel.

In steps Ryan, who says he will not serve as Speaker unless the power of a single member to file a motion to oust him as Speaker is changed. It sounds good and innocent. The theory is that Republicans need to be united and that can’t be done if one person can cause friction by filing an ouster motion. Yes, the Republicans need unity and Congress needs unity, but tyrants can bring unity, too!

In my opinion, our problem in Congress isn’t unity so much as it is that the members of Congress have allowed themselves to be placed under tyrants (Pellosi before Boehner) and, as a result, we, the people, are under the tyranny of Congress. We’re under the tyranny of Congress, because the members are prone to be more accountable to tyrannical speakers (and their party’s leadership) than to the voters from whom they received their authority in the first place.

What we need are members of Congress who understand that they should only delegate the authority voters gave them to a Speaker who does not fear being accountable, even to the least of them. Sometimes the accountability that a Speaker needs will only come about when one person with courage does what the cowardly majority will not do.

Paul Ryan may have intellect, be winsome, and share many values1 with the members of the Freedom Caucus, but if the Freedom Caucus wants its members to have the freedom to be more accountable to the voters and less accountable to a Speaker or to Party leadership, they need a leader who is willing to be accountable to each of them.

If the Freedom Caucus doesn’t understand this, then it may unwittingly give up its freedom (as well as ours!) to a well-meaning person who eventually may not be able to resist the temptation to abuse authority that can come when accountability is decreased. If that happens, we’ll all be right back where we started.

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NOTES

  1. I admit that I would not vote for Ryan for Speaker anyway. On November 7, 2007, Ryan voted for the Employee Non-Discrimination Act (ENDA), one of the LGBT political lobby’s top priorities. ENDA will force religious employers to violate their beliefs about homosexuality or face financial ruin by opening them up to endless lawsuits, often backed with the full power of the federal government. In my opinion, those who respect religious liberty and understand God’s moral order and the importance of God’s design for human sexuality for the health of the social order which, in turn, affects society’s economic health should not vote for him.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Will Conservatives Fall into the Same Presidential Election Trap?

A conversation I had last Friday with a leader of a national policy organization followed by the enthusiastic response that greeted U.S. Sen. Ted Cruz on his presidential campaign tour through Tennessee got me to thinking. Are conservatives going to fall, yet again, for the same line of political thinking regarding the presidential election that has failed us in the past?

Lest you think my question implies something about Sen. Cruz’s fitness for office, let me clarify. I wasn’t talking about the candidate. Rather I was referring to the political line of thinking that says if we elect the right president, he or she is going to fix some of our most egregious problems.

A case in point is the conversation I mentioned. This person with whom I spoke said that it was a bad idea to encourage multiple states to pass resolutions condemning the Supreme Court for its continuing abrogation of states’ rights and condemning Congress for not exercising its powers to protect the states they supposedly represent. He said those efforts would distract from the “real issue” that could fix the Court, namely, electing a president that would nominate good justices to the Court.

I think having a strong, conservative president is good, but I pointed out to my friend that Ronald Reagan is the presidential icon for conservatives and that it was he who gave us Justice Anthony Kennedy. The same Justice Kennedy has written majority opinions saying that natural marriage was unconstitutional after hundreds of years and that sodomy statutes were somehow unconstitutional after hundreds of years, but that Roe v. Wade’s abortion rights were too well-settled to be reversed after just 19 years.

I’m not picking on President Reagan, but I am picking on the idea that a president alone can fix the Court or fix any number of other things. The next president must have a solid, conservative Senate and House with a collective backbone, and right now he or she won’t have that.

Not having that is what got us Justice Kennedy. You’ll recall that President Reagan nominated the brilliant jurist Robert Bork. Judge Bork didn’t believe in conjuring up “spirits” and “emanations” in the Constitution for the purpose of protecting rights that, as Justice Kennedy recently opined, become “urgent in our own era,” whatever that means. But when the Senate couldn’t confirm his nomination, President Reagan had to bring it down a notch and Kennedy got nominated. He was “confirmable.”

Between a minority of 40 Senators out of 100 being able to block anything, leaving the Republican majority helpless and hapless1 and the majority leadership in the Senate being weak, moderate, or incompetent—take your pick—the next Republican president will be hamstrung.

For goodness’ sake, the Senate couldn’t even find a way to pass a bill to defund Planned Parenthood in light of all the recent revelations! Government charity and criminal activity in one fell swoop, and the Senate can’t pass a bill to stop it? You really think they’ll find a way to confirm a Justice like Robert Bork and current Justice Antonin Scalia?

And that was my point to my friend. Congress and the U.S. Senate will continue to do business as usual (and, actually, they don’t get much business done anyway) unless we the people and the members of our state legislature demand that they elect conservative leadership and take action. We have to push them; they have to know that we are not content with electing a president who can’t get anything done because of them. They have to know we are wise to their unfruitful ways.

Electing a president who has not made it clear to the electorate that he or she will nominate a hundred Robert Borks and Antonin Scalias until the Senate gives in is not going to be a president who’ll get much done.

We’ve tried the put-all-your-political-eggs-in-the-presidential-election strategy for solving America’s ills. It has failed. And, in my opinion, it will continue to fail until we make Congress do its job.

ENDNOTES:

1 I know Senators will say that requiring “cloture” on a bill ensures an opportunity for the minority to have a say and that it would violate the history and traditions of the Senate. Well, sometimes history shows that what we’re doing isn’t working in a changing environment. And I’d also note that the Tennessee Senate also requires a 2/3 vote on a motion to cut off debate, but we never had the problems the U.S. Senate has. That’s because it has a rule that says that the majority can call for a meeting of the Rules Committee to require them to set a time to cut off debate. In other words, the majority of Senators in Tennessee will not let the minority control the agenda forever, a thought that is somehow beyond the Republican majority in the U.S. Senate.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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The Amendment That Killed the Tenth Amendment

Last week I mentioned one of the reasons the states lost the rights and prerogatives that were supposed to be retained by them under the Tenth Amendment. This week I’ll point to an amendment to the Constitution that had the unintended effect of further undermining the Tenth Amendment, but more importantly, there may be a lesson we can learn from how that amendment passed that might point a way forward today.

In my commentary How We Lost the Tenth Amendment, I pointed out how the Supreme Court has increasingly encroached on the rights of the states and why Congress has failed to protect the states. But it is not just the Court that has trampled on the rights of states; Congress itself has often gotten in on the action.

The Intended ‘Checks’ on Congress

There was one very important protection given the states under the original Constitution that would have incentivized pushback against the Court and legislative restraint by Congress. It was the “election” of U.S. Senators by the state legislatures. Let me give you a real-life example of how that check might have worked.

How the ‘Check’ Worked in Real Life

As a state Senator, I remember carrying a bill to change a state law in order to comply with a federal mandate on the collection of child support, an inherently state function, like the issue of marriage recently taken over by the Court. The mandate was so egregious and contemptuous of our state law that the mild-mannered and gentlemanly former state Sen. Douglas Henry, a Democrat, slammed down his microphone after speaking against the bill and excused himself from the Senate chamber lest, in his own words, he say something he would regret. The contempt for Congress at that moment was virtually unanimous and bi-partisan!

I tell you that to assure you of this. That particular law would never have passed the U.S. Senate if those then serving in the Senate had had to come to us the next time they were up for “election.” They would have been turned out on their ear.

But here is the key point: It was an issue that the majority of Tennessee’s voters were unaware of and one that would not have damaged their chance of re-election based on popular vote.

The Amendment That Solved What Problem?

Popular vote for the members of the U.S. Senate is exactly what we got with the adoption of the Seventeenth Amendment. It replaced the selection of senators by state legislatures with direct elections

This is not to say that there were no problems with the selection by state legislatures of the members of the Senate. There were mainly two. The first was a feeling that senatorial elections were “bought and sold,” William Clark of Montana famously saying that when he bought a state legislator for the Senate, he expected him to stay bought. The second was that legislatures sometimes reached an impasse on who to select, and a Senate seat would go vacant for a while.

But do we not today feel like elections for the U.S. Senate are still all about who has the most money? Was the problem really solved, or was the pot of money needed to “buy” an election just made bigger and put more out of reach by more people because of the number of votes that now have to be “bought?” The deadlock issue was not that frequent, and the losers were the states themselves; they had a disincentive to deadlock.

A Plan Going Forward

Interestingly, the pressures that brought about the Seventeenth Amendment might be instructive in restoring some vitality to the Tenth Amendment.

The movement for the Seventeenth Amendment began in earnest in the late 1800s, but by 1910, thirty-one state legislatures had passed resolutions in support of a constitutional amendment for direct elections. That same year, the Senate was awakened to the demands of the people by seeing ten Republican senators opposed to the amendment forced out of their seats. And by 1912, twenty-seven states had called for a constitutional convention on the subject, close to the thirty-one then states needed to force the call.

Today, the call for a constitutional convention is growing louder. Tennessee’s Senate resoundingly passed a resolution for a convention last year and the House will take it up this year. Whether the convention is a good idea is a discussion for another day, but it is a means by which the states can raise their voices.

What is missing is a growing movement of states passing resolutions demanding Congress interpose itself between the states and the federal judiciary and the defeat of a few members of Congress who do not head those resolutions. Perhaps during the next legislative session we can start a “resolution movement” by passing a demand that Congress reign in the federal courts by various means. Then we can press this issue in future Congressional elections, starting next year.

I’m up for it. Are you?


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Could the Marriage Decision Spark a New Independence Day?

I confess that this year I am having a hard time with the idea of celebrating the 4th of July Independence Day. It is not because I am not thankful to God for what was done on that day, what it represents, and the blessings I’ve experienced that flow from it. On the other hand, I want to think that maybe this year’s celebration will mark a period in our history in which a new movement for independence was ignited. I hope this will help stir the flame.

What makes the celebration hard for me this year is that, in my mind and to a significant extent, the flame for liberty under law launched in 1776 has been largely snuffed out by the judicial branch of government, and the federal judiciary in particular.

Overthrowing Our Constitution and Separation of Powers

In dissenting from the majority opinion in the marriage case, Justice Scalia expressed more eloquently what I just said:

“But what really astounds is the hubris reflected in today’s judicial Putsch. … They [the majority of Justices] are certain that the People ratified the Fourteenth Amendment [in 1868] to bestow on them the power to remove questions from the democratic process when that is called for by their ‘reasoned judgment.’”

If we don’t understand the word “putsch,” then we won’t appreciate the gravity of what Scalia said. According to Webster’s Dictionary, a “putsch” is “a secretly plotted and suddenly executed attempt to overthrow a government.”

How is the majority’s decision an overthrow of our government? Justice Scalia explains:

“[The Due Process Clause] stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes.”

In other words, we truly are no longer a self-governing people, but, as Justice Scalia said, a people “subordinate to a committee of nine unelected lawyers.” Rightly does he say that such “does not deserve to be called a democracy.”

Overthrowing Control Over Our State Constitution

The judicial disdain for our form of government was put on further display this week when federal District Judge Kevin Sharp decided it was incumbent on him, as a federal judge, to interpret our state constitution’s provisions governing the means by which amendments to our state constitution are to be adopted.

Under long-standing principles of federal court jurisdiction, federal courts should abstain from interpreting a state constitution unless the argument is that the constitution itself violates a provision of the U.S. Constitution. But that is not the kind of argument really being made here. The argument is that state officials didn’t interpret our constitution correctly and haven’t done so for decades. And I have to ask, “Who is this arrogant federal judge to decide that for us?!” That is a uniquely state question that the state should answer.

Scalia’s Invitation to Action

As I reflect on Judge Sharp’s actions and the judicial putsch of our Supreme Court, I am stirred by the closing comments in Justice Scalia’s dissent:

“Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. … With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.” (emphasis supplied)

Justice Scalia, thank you for the invitation to remind our federal judges that their authority flows from Almighty God through “we the people.” It is, in fact, past time to remind them of their impotence if they think it their prerogative to overrule millennia of thinking regarding marriage and the votes of millions of Americans in regard to their state constitutions.

We will remind them, I hope, by strongly urging members of Congress to seriously consider filing articles of impeachment relative to Justices like Kevin Sharp, who arrogantly usurp authority over a state’s constitution, and relative to Justices like Ginsberg and Kagan, who presided over same-sex “marriages” yet did not recuse themselves from the ruling contrary to the federal law that requires recusal if a justice’s “impartiality might reasonably be questioned.”1

And we will also remind these Justices of their impotence by our growing insistence that Congress consider constitutional measures to reform lifetime judicial appointments and perhaps demand that Congress renew the long-forgotten debate over whether Congress should be able to “overrule” by some means a Supreme Court decision.

I believe we will do that if we, on this Independence Day weekend, remember what Patrick Henry said in his “Give me liberty” speech and remember that the blood of patriot fathers like him still runs in our veins. I invite you to listen to this dramatic rendering of Henry’s speech.” And then I invite you to spend some of your Independence Day considering what course you plan to take in the days ahead to restore this great Republic.

If we who love liberty will do that and stand together—despite our differences on particular policy issues—and use the lawful tools available to us, then this may be an Independence Day future generations will long remember celebrating.

ENDNOTES:

1“Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S. Code § 455


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

FACT-RSS-Blog-Icon-small Get David Fowler’s Blog as a feed.

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