632 The Question Is... Separation of powers.


Tom Garrett 2 years, 9 months ago


I've been screaming for years that federal bureaus and agencies go beyond their authority when they write rules and regulations that become law. Ordinary citizens — like you me — should not be harassed by illegally written laws while we are in the forest, or in our homes, or in our businesses.

My belief — as stated by the Constitution — is that only Congress has the authority to write laws, and that a bureau or agency has no authority except in the enforcement of laws AS WRITTEN BY CONGRESS!

The Supreme Court is considering a case which will touch on that issue, a case with the potential of driving the first wedge in against the massive abuse of power by the Administrative Branch.

So what's going on?

The Supreme Court will ask and answer the question whether or not President Obama — and the EPA under his guidance — is out of line in making rules regarding certain aspects of environmental pollution, namely greenhouse gases (mainly carbon dioxide) which are not mentioned in any bill passed by Congress.

However, under President Obama the EPA adopted an expansive interpretation of the Clean Air Act to increase its regulatory authority over a wider range of greenhouses gas emitters such as factories and power plants.

What brings the question before the court is the fact that Congress has refused to pass climate legislation, but the President and the EPA are acting as though it has passed one by creating regulations, thereby acting on an authority which simply does not exist.

If SCOTUS acts to scrap the new EPA rules it will be the thin end of the wedge, setting a precedent for there to be an absolute need for any rule or regulation passed by a bureau or agency to be rooted in legislative law. That is what the Constitution intended, and it is the only way a democracy can function. Otherwise we have a King, not a President.

The Question Is....

How do you think the court will rule?


Ronald Hamric 2 years, 9 months ago


Just a guess here, but if congress is any indication, then the Supreme Court will follow their lead and defer to the Executive Branch. I have said before, and I believe it, that once someone reaches the pinnacle of power that those in all 3 branches of our government have reached, they are already bought and paid for by some special interest group. Currently it seems, with perhaps a few exceptions, that those up there are listening to everyone BUT "the People". To make my point, simply reflect on how much emphasis has been given in Congress, the courts, and in State Legislatures, not to mention the MSM, about same sex marriage and LGBT rights. Now look at these facts:

According to a Williams Institute review conducted in April 2011, approximately 3.8% of American adults identify themselves either as lesbian or gay (1.70%), bisexual (1.80%), or transgender (0.30%); which would correspond to approximately 9 million of adult Americans as of the 2010 Census. That is 9 million out of a population of 317 million. Now you tell me that the tail isn't wagging the dog. With the majority of that remaining 308 million suffering in a bad economy and what with all the ills facing this nation, those "in power" are paying far more attention to the crying of a very small special interest group. I've told you before and I stand by it, this nation is screwed, BIG TIME!! And anyone who thinks they can change the direction the "leaders" of this country have been taking us, by voting in a few different folks every couple of years, has been breathing too much of that "Colorado air". Our only hope is to force them, by physical force if necessary, to return to the literal reading of the Constitution of the United States and to actually honor the oath of office that each one of them takes.


Pat Randall 2 years, 9 months ago

Ronald They have their fingers crossed when they take the oath. (:


Tom Garrett 2 years, 9 months ago

I see there is a move on to have a Constitutional Convention. That's one place where matters could be straightened out, but I have to wonder. What we need is more attention to the basic doctrines which were laid out in 1787, but is that what we'll get?

For example, there was to have been a clear cut separation of powers. Congress was to pass laws and the executive was to "execute" them. But when Congress fails to do its job and passes laws that are so open-ended that they deed away legislative powers to bureaus and agencies, we are in big trouble.

Congress might as well create one agency called Ye Olde Fixit Companie, pass a law that has just four words in it: "Fixe Ye All Problems," adjourn, and let Ye Kinge rule over us from Ye Whyte Howse.

As to all the fooforah over marriages, a civil contract between anyone other than a man and a woman is not a "marriage" as the term was used for at least the past 5,000 years, and perhaps even long before that, since we do not have written records before then. I have no problem at all with such civil contracts; they protect both members of the contract as each of the signers intended that they be protected when they signed it — medically, legally, and financially. That is the meaning of "equality" — equal treatment under the law.

But marriage is more than just a legal contract between two individuals; it is the placing into law of protections related to the natural reproduction of our species. As such, it occupies a very special place in our laws, and is protected and assisted in special ways. That is correct is every possible way. Marriage is now, and always has been, one of the institutions upon which civilization itself rests. Just pick up any history book, about any people, anywhere, and in any time, and you will see that with your own two eyes.

To say that any two people can come together and enjoy the same status as two people who are married is arrant nonsense. If that is true, then why do we have laws which very carefully protect the status of marriage? For just one example, why do we have laws against bigamy? Why not just open a harem in the West Wing of the White House? Why not just allow the entire membership of Payson PD or walmart join together in wedded bliss, with all the privileges and benefits that derive from such?

Bah! Stupid! Calling a stem of grass a tree doesn't make it one.


Tom Garrett 2 years, 9 months ago

A sincere question for you: Am I wrong in thinking that marriage should have a very special place in our laws, that our customs and beliefs should legitimately be reflected in such things as tax breaks for married couples because marriage is one of the fundamental pillars of society in every land in the world? In short, is marriage "special" or is it not?


Michael Alexander 2 years, 9 months ago

Hmmm... somehow, this thread has wandered off-topic, from "Separation of Powers" to same-sex marriage.

But, now that I think about it, maybe that's not off-topic at all, because when a man marries a woman, the powers are no longer separated - they are all hers, clearly. When a man marries another man, or when two women hook up - clarity of supremacy? Not so much.

As to the OP, I'm afraid that I have to agree with Ron. I've seen nothing lately that gives me faith in the constitutionality of any forthcoming decisions. It will be political, and as are all such things, it will depend on the direction and the force of the prevailing winds at the time.

To take it one step further, my opinion, as I've stated before in another thread, is that much of our problems stem not from the laws that are passed by Congress, or even in the way that they are executed by the administration, but from the way those laws, once challenged, are interpreted by the Supreme Court.

Within the movement to amend the Constitution that Tom mentioned is a contingent that would like to see term limits imposed on all federal officials, including Justices of the Supreme Court. Allow them to serve, but with the understanding that they will soon be returning to the real world with the rest of us, to live under the law they interpret, not above it.


Tom Garrett 2 years, 9 months ago

The Supreme Court's failure to interpret the Constitution according to its original intent is a loophole in our way of governing ourselves. Why does it happen? Because people learn fixed viewpoints as they go through life, and those viewpoints interfere — in some people, not all — with an objective interpretation of what the Constitution intended. Add to that the fact that our constant political maneuvering causes a struggle at all levels and in all places to have one party reign supreme, turning all decisions into a political cat fight, and you have what we have — a big mess.

Stop and think about it. How can nine rational human beings, reading the Constitution and agreeing that it should be upheld, constantly make 5-4 decisions? It would seem possible that there might be some 8-1 or 7-2 decisions, but how can any group of rational, unbiased human beings fail to interpret INTENT so badly? If 5 of them are right, then four of them must be wrong.

Can you think of any subject in which 9 people can't decide what a few words mean? The answer to why we get poor decisions is clear; justices are placing their personal preferences above the doctrine by which we have chosen to live. That can be clearly seen by noting that the 5-4 votes are often along party lines.

The basic flaw lies in how we choose our Supreme Court justices. They should not be chosen as they are now chosen, by a simple nomination by the President and approval by Congress. The method needs to resemble that by which we choose jurors. In other words, the goal should be to choose someone who is dedicated to the Constitution in exact accordance with its original intent in all cases, without regard to his or her own personal beliefs. We could perhaps get something better than what we have by adopting rules which say that ANY political leaning in prior rulings knocks out a candidate for SCOTUS. What we have now is the reverse; the hunt is always on for someone who will vote "the right way."

It's a question of what we want. Do we want truth and justice? Or do we want to choose between having the wealthy run the nation, or having the progressives do it? During each administration the fight is on to pack the court. How can that result in justice?

I believe that if Congress were to look around it would not be hard to find lower court justices who have made rulings which clearly show that they are able to set aside their own beliefs and rule according to the finest document ever written. We just need to admit our flaws and do the da--n thing!

What is happening now is that quite often the Constitution is amended by clearly unconstitutional methods. It's one reason we have never before had a Constitutional Convention under Article V. Why bother to try the Constitution the honest way when you can do it the crooked way?

I'll give you the absolute perfect example:


John Lemon 2 years, 9 months ago

Tom, Congressman C. Gowdy recently introduced a Bill that would require that a bill passed by Congress and signed into law be enforced by the Executive branch. Likely it will die in the Senate. The entire problem should never have been noted if we elected people who acted ethically within the traditional guides of the Constitution. Values lacking !


Tom Garrett 2 years, 9 months ago

I will preface this comment by saying that while I do not wear my religion on my sleeve I feel sure that anyone who reads this forum who has no doubts about me in that regard.

Please read these words from the First Amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

That can at times need some interpretation, but what is absolutely plain is that it says that Congress (and by the extension of the 14th Amendment, ANY governmental agency) cannot pass any law, rule, regulation, or ordinance touching upon religion.

"no law..."


So what did the bongo brains in Congress do in 1954? And what did an apparently brain damaged President approve?

A change from this: "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation, indivisible, with liberty and justice for all."

To this: "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all."


Setting aside any other question as totally irrelevant, tell me how that is NOT a law passed by Congress which pertains to religion. C'mon! Show me!

In all but five states of the union that change REQUIRES school children to pledge their faith in God.

That is so clearly a direct violation of the intention of the First Amendment that it makes me wonder if anyone has ever read the First Amendment. It is absolutely "in your face." And not only that, the recorded discussions in Congress show that it was purposely done to show the lousy Commies that while they were Godless idiots, we were not.

Here is part of an earlier Supreme Court ruling which says it so well that I can stop right here after having quoted it.

1943: West Virginia State Board of Education v. Barnette. The Supreme Court reverses an earlier, unconstitutional decision made by — Ta! Ta! — the Supreme Court. Justice Robert H. Jackson writing for the 8 to 1 majority says:

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."

That's it folks: Cherish your personal beliefs, political or religious, love your God if you have one, and pray that we retain the wisdom to continue to allow this great nation to flourish under the concepts embodied in the finest secular document ever written anywhere, anytime, or by anyone:

The United States Constitution.


Michael Alexander 2 years, 9 months ago

If I read you right, Tom, you're saying that the court's reversal had to do only with requiring kids to recite the pledge, not with the claim that adding those two words constituted an "establishment" of religion, right?


Pat Randall 2 years, 9 months ago

Michael, Why does our money have In God we trust printed on it?


Tom Garrett 2 years, 9 months ago

"The entire problem should never have been noted if we elected people who acted ethically within the traditional guides of the Constitution. Values lacking !"

I forgot to comment on that remark. It is so true! Just doing what John implies would solve something like 85% of our problems. The rest would be a matter of finding the right way to go on each issue and a means of financing it.

Mike, the decision preceded the addition of "under God" to the pledge, so there is no direct connection between the change in the pledge and the Barnette case.

The decision was one which was supposed to guide us down the the path of religious neutrality, which is the only path we can tread to stay true to our principles. The question of religion is a personal one, not a governmental one.

But read that guideline and you'll immediately see where Congress and the President went wrong:

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

Extract the important words: "...no official...can prescribe what shall be orthodox in...religion...or force citizens to confess by word or act their faith therein."

Clearly, requiring that anyone who pledges allegiance must say that he is doing so "under God" is dead wrong under our system of beliefs. But that's not really the point here. The point is that Congress itself violated the First Amendment when it made a law regarding the establishment of religion.

Congress, which should be a bulwark of Democracy and freedom became a part of the problem instead a part of the solution. What dummies! And why did they do it? As they themselves said, they did it to show the Soviet Union that we were not the godless mess it was, but a nation of God fearing people. But violate our own beliefs to do it? How does that make any sense?

Mike, there was an earlier case before the Court, Minersville School District v. Gobitis, in which it decided that the establishment clause had not been violated. West Virginia State Board of Education v. Barnette reversed that decision, so the establishment clause IS deeply involved. It's fairly obvious that when the government starts telling you what you can or can't say about religion it is in direct violation of the establishment clause.

"Michael, Why does our money have In God we trust printed on it?"

Free advertising space?

Just kidding. :-)

It's a tradition, of course, and on that basis passes muster. Enough said.


Michael Alexander 2 years, 9 months ago

"Michael, Why does our money have In God we trust printed on it?"

I would have guessed that it's because, since before the dawn of time, experience has shown us that we really can't trust in Man, and modern history has shown that we DAMNED sure can't trust in government, so once you've ruled both of those out... who's left?

Now, I'm just not smart enough to tell the difference... is that an "establishment of religion," or is it just plain old common sense, otherwise known as wisdom.


Tom Garrett 2 years, 8 months ago

Works like this, Mike.

All you have to do is finish the statement.

In God we trust; all others pay cash. :-)

I like this statement, taken from a Supreme Court case:

Zorach v. Clauson, 343 U.S. 306 (1952). Mr. Justice DOUGLAS delivered the opinion of the Court.

"The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State...Otherwise the state and religion would be aliens to each other - hostile, suspicious, and even unfriendly...

Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; "so help me God" in our courtroom oaths - these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment."

I think that very nicely sums it up, don't you?


Michael Alexander 2 years, 8 months ago

I think that very nicely sums it up, don't you?

I do, Tom... very nicely. In this instance, Chief Justice Douglas was clearly channeling Solomon. And I REALLY like your bit about "all others pay cash!" Now, THAT oughta be a law! ;)


Tom Garrett 2 years, 8 months ago

What troubles me more than anything about religious freedom, which I treasure even for those who have no faith (and have a right to be who they are) is whenever I see some misguided militant atheist jumping up and down and screaming "foul" about something which is simply a part of our heritage, our culture, our traditions, and at the same time does not seem to realize that "hands off" really should mean letting other people be because when you don't do that it leads directly back to the days when the city of London had the head of someone with the "wrong" religion decorating each lamppost.

And that is not an exaggeration for effect; it is a fact. It happened. Our forefathers knew that. It's one reason they were so "wise."

I am SO proud of that Supreme Court decision! The Court sat down, reversed itself, and said that the members group of an at-that-time very unpopular religious group were within their rights to refuse to act according to their beliefs even if it made many of us angry.

That's the way our Constitution is supposed to work. Principles first; all else second.


Pat Randall 2 years, 8 months ago

Most schools don't say the Pledge of Allegiance anymore. The ones that do, don't require all kids to say it if they don't want to. If they do say it they can leave out the part about under God. I believe religion is a private thing between me and my God. I don't have to dress up and attend a meeting on Sunday or any other day to prove anything to anyone. There is one all powerful that I will answer to.


don evans 2 years, 8 months ago

Just a FYI. Did you know that EVERY (all 50) State Constitutions, request that GOD give his guidance and/or blessing in the first several lines of their Constitutions preamble. If you ever travel to the DC Capitol, almost every major Government building has a Christian biblical reference outside or inside of the buildings. Some are exterior stone carved depictions or phrases. And yes, even the Supreme Court building has them, both inside and outside. What you won't see is Buda, Mohammed, Moloch, phrases from the Koran or other religions. Only Christianity, unless something new has been added or changed. And for me, I'm good with that historical tradition of fact.


Tom Garrett 2 years, 8 months ago

"Most schools don't say the Pledge of Allegiance anymore. The ones that do, don't require all kids to say it if they don't want to. If they do say it they can leave out the part about under God."

Right, right, and right.

"I believe religion is a private thing between me and my God. I don't have to dress up and attend a meeting on Sunday or any other day to prove anything to anyone."

Also right.

"There is one all powerful that I will answer to."

How about that. Five out of five!

And three hundred years ago in Europe they would have chopped off your head or barbecued you standing up for saying it. Tell me this is not a great country!

Right, Don.

Tradition is tradition and religion is a part of tradition. And everyone reading this who has his head on straight, including people of other religions, agrees with you.

Look at it this way: When I was in —for example — Japan, was I supposed to object to the fact that everywhere I looked I saw Shintoism and Buddhism? I don't think so.


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