The (over)Power of the Federal Government in America

How America’s Federal Government is Taking Over

“They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
– Benjamin Franklin

Today, the United States government enjoys unprecedented power over its citizens. With each new administration that enters 1600 Pennsylvania Ave., new legislation is passed which encroaches more and more into the freedoms that American citizens once enjoyed.

Let’s face it: the United States of America that most of us perceive it to be only exists in Country-Western music. In this piece, I’ll shed light onto:

  • The Constitution and its amendments that were created to protect our freedoms;
  • The origin and evolution of the federal government as we know it today;
  • Laws and court decisions that affect them;
  • The difference between freedom and security.

Constitutional Protection

The Supremacy Clause

Before the U.S. Constitution was written and ratified, the Articles of Confederation1 was the document by which all other laws were judged against. These articles held a much stronger stance on the idea of individual state sovereignty and a much weaker stance on the role of centralized government in daily life. To resolve the eventual and unavoidable conflict between state and federal laws, the Constitution included the Supremacy Clause2 which reads:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” (Emphasis added)

In plain English this states that the law of the U.S. government takes precedent over conflicting laws of any state only if the federal government is acting within its constitutionally authorized powers. That is why the phrase “in pursuance thereof” was put into the text of the Supremacy Clause above.

The Tenth Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
— Tenth Amendment to the United States Constitution

Reading this very short amendment to the U.S. Constitution shows that, unless the constitution delegates a power to the centralized federal government, the federal government doesn’t get that power. However, this amendment is missing a word that originally appeared in Article II of the Articles of Confederation, and the omission of this word makes it weak and ambiguous.

That word is: Expressly.

Specifically, the debate at the time the States were considering ratification of the Bill of Rights (including the Tenth Amendment above) involved starting the proposed amendment with “The powers not (expressly) delegated . . .” to the federal government. Doing so would keep the federal government from having what are called Implied Powers3 which can be open to interpretation depending on the mood, whim, or fad of the current era and administration in power.

The original debate4 from August 21st, 1789 is a fascinating view into discussions the Founding Fathers had about, and insight into the thought processes behind drafting the Constitution.

If the Supremacy Clause and Tenth Amendment are put together, it shows that the Supremacy Clause places all federal laws over conflicting state laws, so long as the federal law is made pursuant to the Constitution. However, now that we’ve seen that the powers of the federal government to make laws are not expressly limited, this opens the door for federal law to trump any state law and call it an “Implied Power.”

Necessary and Proper Clause

The last piece of the Constitution which bears mentioning here is the Necessary and Proper Clause (Article I, Section 8, Clause 18)5, which states that

“The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the Enumerated Powers6, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

When these three parts of the Constitution are looked at together, a problem can be seen:

  • The Supremacy Clause7 places all constitutional federal laws above State laws which may conflict with them;
    • The Tenth Amendment doesn’t expressly limit federal lawmaking, except to the self-interpretation of Implied Powers;
      • The Necessary and Proper Clause8 gives power to the federal government to make any law which is considered necessary and proper to carry out the powers it can imply for itself.

At the time of ratification, the architects of the Constitution thought it would be superfluous to enumerate explicit powers to the federal government. James Madison felt that without implied powers, the “Constitution descended to recount every minutia,” and did not wish to make the Constitution that long (taken from the 1789 Constitutional debate minutes, above).

Although well-intentioned, Mr. Madison didn’t take into consideration where future Presidents and their administrations would push their implied powers. If a Congress can mandate that a state comply with a national law which violates the Constitution’s provision for a state to manage itself where the federal government is not given power (see The Patient Protection and Affordable Care Act9 and the The Patriot Act10 below, to name just two), then a State would have no power at all to govern itself unless it is at the discretion of the federal government and not the Constitution.

In the Beginning…

Pre-Civil War

Alexander Hamilton, one of the founding fathers, recognized the danger in a centralized government over-stepping its bounds when making laws and addressed the intent of the Supremacy Clause in the Federalist Papers: Federalist No. 3311. The relevant part of that essay is this:

“But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.” (Emphasis added)

Some states began to recognize the over-stepping of the federal government and would consider a federal law, “Null and void” if it considered a law unconstitutional. This was the reason behind laws passed by some southern states, such as South Carolina’s Nullification Ordinance12 (enacted November 24, 1832), in response to tariffs enacted by a northern-dominated government. (In this case, the tariffs in question were considered beneficial to the industrial North, but were detrimental to the industrially dependent, agricultural South.)

This protest from the South led to the Nullification Crisis13: the first open aggression between the federal and a State governments in American History. In reaction to the Nullification Ordinance, then-President Andrew Jackson sent a small naval fleet down to South Carolina and also threatened to send federal ground troops to enforce the tariffs.

“Jackson authorized this under color of national authority, claiming in his 1832 Proclamation Regarding Nullification that “our social compact in express terms declares, that the laws of the United States, its Constitution, and treaties made under it, are the supreme law of the land; and for greater caution adds, “that the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” Here, Jackson clearly omitted the phrase “which shall be made in pursuance thereof” from the Supremacy Clause, indicating that the Constitution was a document conferring absolute sovereign authority to the federal government — which was starkly in opposition to Jefferson’s assertion in The Kentucky Resolutions of 179814, that “the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; would make the federal government, and not the Constitution, final judge of its own powers.” Hence under Jackson’s view, federal law was final, and states had no choice but to obey it.”15

As can be seen here, President Jackson didn’t bother concerning himself with the constitutionality of the tariffs. His concern was that states fall in line with federal law without challenge.

The Civil War

In grade school we learn that the Civil War was about ending slavery in America. While slavery was one issue, the larger issue at hand concerned a State’s right to enact its own laws regarding issues such as legalized slavery. Since slavery by today’s standards is a very bigoted and all-around-unpopular idea, using the idea of abolishing slavery was an easy way to mask the real reason behind the Civil War: Establishing U.S. governmental supremacy over states, regardless of constitutionality.

Abolishing slavery was a good vehicle to play on the emotions of the masses in order to garner popularity for a conflict that stripped away the rights of States and individuals within those States. The immediate impact, though, was about money.

Some historians argue that the Southern secession and the “War Between the States” was actually much more of a financial fight than a war over slavery. Northern-inspired tariffs benefited Northern interests but were detrimental to Southern interests and were destroying the economy in the South16.

With the defeat of the Confederacy in 1865, the U.S. federal government solidified its presence as the highest law in the land — affirming that any challenges to its authority would be met with military might. The constitutionality requirement of the Supremacy Clause could now be overlooked as Andrew Jackson did, with little or no resistance from individual states.

As you can seen here, in the 89 years after the ratification of the U.S. Constitution, the centralized government moved from:

  • Assuming that the Supremacy Clause was a truism and needed no further clarification of specific powers; to
  • Pushing the applicability of the Supremacy Clause under a broad definition of Implied Powers within the Constitution; to
  • Ignoring State’s rights under the Constitution and asserting supreme, centralized federal rule with military might.

Laws and Jurisprudence

I will not delve into every law that encroaches into a State’s right to govern itself effectively, or every court case decision that legalizes the centralized U.S. government’s attempts to do so. I will, however give a few examples of each of these to illustrate the aforementioned assertions.

Health Care Reform
The most recent, red-button issue that brings to light the national government’s move to expand its powers is The Patient Protection and Affordable Care Act. Some call this new law Obamacare. This law mandates that every American purchase and maintain health insurance, or face fines if found without it.

In a lawsuit17 filed by 26 states jointly, the constitutionality of the new health care reform legislation was called into serious question:

“The Act represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs’ respective states, by mandating that all citizens and legal residents of the United States have qualifying healthcare coverage or pay a tax. The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage. By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution.”18

District and Circuit Courts are split in their decisions regarding these cases (there are more than just the joint case cited above). It is effectively the government-mandating that a citizen of the U.S. purchase a private-sector product. There is a very slippery slope here — one that we shouldn’t be facing given the protections in the Constitution and Tenth Amendment. However, this is what we’re facing and the courts are conflicted.

The Patriot Act
The Patriot Act is a minefield of Constitutionality issues. The passage of the bill came shortly after the terrorist attacks of September 11, 2001, and was a reaction to a national sense that our security was breached. The sense of nationalism in America was so strong at the time that opposition to the bill was considered “Un-American.” (The name itself suggests that proponents are patriots, and detractors must not be!)

Most of the criticisms of this bill, constitutionally speaking, are related to the Fourth Amendment protection against unlawful searches. From National Security Letters19, which allow the FBI to conduct records-searches (telephone records, e-mail, financial) without a warrant, to indefinite detention of illegal immigrants, this knee-jerk bill arguably did more to violate the Constitution and individual civil rights than any other bill in history.

Entire novels have been written about this controversy20, but the main idea of the bill is that it gave agencies like the FBI freedom to search people without a warrant and without informing them of the search. The Fourth Amendment to the U.S. Constitution is short and sweet:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Court decisions of note
The following is a short list of court cases which pertain to this trend of governmental power grabbing.

United States v. Darby21 is an often repeated decision by the U.S. Supreme Court which highlights the problems that exist because the word “expressly” was omitted from the Tenth Amendment. This establishes that the federal government can construe Implied Powers very broadly with little to no recourse by a State government.

Missouri v. Holland22 held that the federal government’s ability to make treaties trumps any State concerns that such treaties might abrogate States’ rights arising under the Tenth Amendment.

Mayfield v. United States23 found that one or more portions of the PATRIOT Act violated the Fourth Amendment protection against illegal searches and seizures.

United States v. Alfonso Lopez Jr.24 was the first Supreme Court case since the New Deal to set limits to Congress’s power under the Commerce Clause of the United States Constitution.

Gonzales v. Raich25 ruled that under the Commerce Clause, Congress may criminalize the production and use of home-grown marijuana even where States approve its use for medicinal purposes.

(Author’s Note: this decision means that even when the act is committed inside a State, and the results of such commerce never leave the State, it can still be a federal crime. Why? Because growing medicinal Marijuana can impact the supply-and-demand chain outside a given State’s borders. Justify it however you want, Supreme Court, but anything grown, used, and/or sold within a single State’s borders cannot constitutionally be criminalized at the federal level.)

Freedom vs. Security – Boiling the Frog

Boiling the Frog

Have you ever learned how to boil a frog? If you drop a frog into a pot of boiling water, it’ll immediately hop out. However, if you place the frog into room temperature water, then slowly boil that water with the frog in it, he’ll gradually boil to death before realizing the need to escape.

It’s an old proverb that is applicable to contemporary Americans. Over the last 180 years, since the time of the Nullification Crisis before the Civil War, the centralized federal government has incrementally exercised more and more power over the States and citizens beneath it that, much of the time, there is no public outcry at all for the loss of rights and freedoms enjoyed before.

Other times the power transfer is much more observable. In the case of the PATRIOT Act, as the United States was grieving deeply over the instantaneous loss of thousands of civilians at the hands of terrorists, we as citizens were willing to tolerate this Act and all the intrusions it meant in order to feel safer and more secure. Initially we were told it was just emergency provisions, as it was set to expire three years later.

Even though it was written with an expiration date, the emergency powers granted by the Act have not gone away. Congress has extended the Act multiple times, as recently as February 8, 2011 by the oversight of President Barack Obama.

Why has there been no public outcry? The short answer is that we’ve been living with infringed civil liberties for enough time that it wasn’t even news. This is our boiling frog.

Freedom vs. Security

A financial author and investment expert named Robert Kiyosaki confronted a simple human emotion and illustrated it with jobs. Freedom is what most Americans claim to cherish to their core. Safety and security are basic human needs and the drive to achieve security is very strong26. However, to Kiyosaki, freedom and security are opposing ideals.

One of the most secure jobs one can think of in America would be government service — more specifically, military service. Once out of basic training, a new member of the military cannot quit. It is a steady paycheck, for the period of enlistment, guaranteed. However, the security of this employment means giving up a number of freedoms (ironically, to protect the freedoms of others). A soldier cannot choose where he or she lives, what job he or she is assigned, when he or she deploys, or how much he or she makes. Security of employment, therefore, comes with a sacrifice of freedoms.

Freedom of employment, namely self-employment, comes with a complete lack of security. Personal income has infinite potential, there are no set work hours, and one has as many vacation days as one wants. However, there are no guarantees in business-ownership. There is no safety net; no security of income.

The desire for freedom directly opposes security. It is much the same for citizens of free and democratic societies. The level of desired security always comes at the price of freedom. The number of freedoms that we, as American citizens, are willing to sacrifice in the name of security is a tough balancing act. However, once a society loses any freedom by relinquishing it to the power of the federal government, that freedom is rarely, if ever, returned.

Conclusion

Some of the most fundamental aspects of American society are based on security, not freedom. The largest expenditures of the U.S. government are defense and Social Security/Welfare/Medicare. The national debt is over $14 Trillion. The daily budget deficit is over $4 Billion every day.

As a society, the U.S. is going broke. It/we are going broke to protect physical security (defense and Medicare/Medicaid), and financial security (Social Security/Welfare). These are safety nets that the People won’t do without. These programs deprive us of our freedoms of income potential (taxes) and civil liberties (the PATRIOT Act, et. al.).

Calling America a “free society” is a complete fallacy and misnomer. Americans have accepted the bending and breaking of our Constitution and the freedoms it provides in the name of security.

  • In the name of equality we abolished slavery and won the Civil War. What we got was a federal government that could rule outside the Constitution for an immediate “greater good” but established a precedent that went far beyond slavery.
  • In the name of financial security, we established Social Security27. What we got was the second largest expenditure in the current U.S. budget and the taxes/debt that go towards maintaining it. Almost half of federal income tax dollars go to Social Security and medical care (Medicare/Medicaid).
  • In the name of safety we allowed the PATRIOT Act. What we got was government and law enforcement that could violate the Fourth Amendment at will, so long as it was construed to protect against terrorism.
  • In the name of protecting our children, America has established and tolerated laws which violate the basic freedoms given by the Constitution on a daily basis28.

Freedom is a warm and fuzzy word that gives pride to Americans. However, how much freedom is there left that we had in 1776? Is it worth it?

Before you answer, take a look at the Traffic Safety Administration. Just voicing one’s opinion negatively toward the TSA, a First Amendment guarantee, can justify being treated as a terrorist29.

My personal answer is no.

A lot of hot air is given to the topic of “Personal Responsibility” that citizens should take upon themselves. This idea of fending for one’s self is the basis of what freedom is. Taking responsibility for income, health, personal safety, and future is what freedom is. Reliance on the government to supply these things for us is, in essence, giving away the freedoms we love.

It cannot be had both ways.

I choose freedom every time. However, the representative government America has will not bend on spending for defense and Social Security lest they be voted out of office. We, as a people, have traded (or tolerated the trade of) freedom for security. It’s hypocritical to expect security while demanding freedom. Until the voting citizens of America demand their freedoms and accept the responsibility their own security, the status-quo will not change.

Freedom and security are trade-offs. It cannot be had both ways.

  1. Text of the Articles of Confederation []
  2. Provision under Article IV, Section 2 of the U.S. Constitution, providing that federal law is superior to and overrides state law when they conflict. Legal Information Institute []
  3. The Necessary and Proper Clause from Article I, Section 8, clause 18 of the U.S. Constitution grants to Congress the power to enact laws to carry out the “enumerated powers” (Clauses 1-17) that are specifically assigned to the federal government. []
  4. House of Representatives, Amendments to the Constitution; 18, 21 Aug. 1789;Annals 1:761, 767–68 []
  5. Implied Powers []
  6. Article I Section 8, Clauses 1-17 []
  7. Provision under Article IV, Section 2 of the U.S. Constitution, providing that federal law is superior to and overrides state law when they conflict. Legal Information Institute []
  8. Implied Powers []
  9. H.R.3590 – Patient Protection and Affordable Care Act: full text []
  10. H.R. 3162 — USA PATRIOT Act: full text []
  11. Full text of Federalist No. 33 []
  12. South Carolina Ordinance of Nullification, November 24, 1832 []
  13. Discussion of the Nullification Crisis []
  14. http://www.constitution.org/cons/kent1798.htm []
  15. Taken from the Wikipedia entry for “State’s Rights” []
  16. The Great Centralizer: Abraham Lincoln and the War between the States>/a>; DiLorenzo (1998) []
  17. 26-State Class Action Complaint filed 3/23/10 []
  18. 26-State Class Action Complaint filed 3/23/10 []
  19. A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006 []
  20. Amazon’s list of books on the PATRIOT Act and its impact []
  21. United States v. Darby 312 U.S. 100, 124 (1941) []
  22. Missouri v. Holland, 252 U.S. 416 (1920) []
  23. Mayfield v. United States, 504 F. Supp. 2d 1023 (2007) []
  24. United States v. Alfonso Lopez Jr., 514 U.S. 549 (1995) []
  25. Gonzales v. Raich, 545 U.S. 1 (2005) []
  26. see Maslow’s Hierarchy []
  27. The Social Security Act of 1935 []
  28. Trading Freedoms: for the Children []
  29. TSA security looks at people who complain about … TSA security []