Separate Powers Automatically Using Simple Rules

What’s needed are six simple pass-fail tests of legislation’s constitutionality, interpreted independently by enough government people.

Administrative agencies, with their alarming recent grabs of power over the use of generics and supplements, over liberty, and over political speech, are nothing new under the sun.

For hundreds of years before the American Revolution, kings operated administrative agencies. Kings and their agencies issued rules, regulations, and waivers. They operated administrative courts. The Declaration of Independence included specific grievances about the king’s “multitude” of administrative offices and about the resulting administrative rules—“pretended Legislation.”

An administrative state would plainly violate the Constitution, as drafted and ratified.

The ratifying generation also had a seriously low opinion of congresses. The Constitution’s rules gave congresses only the powers granted in the Constitution; divided congresses; offset congresses with the presidential veto; prevented congresses from appointing executives; prevented congresses from changing a president’s compensation until his next election; prevented congresses from reducing a judge’s salary while he was in office; and prevented a congressman from creating an office or increasing its funding and then receiving an appointment to such an office. The ratifying generation also proposed preventing congresses from making changes in congresspeople’s compensation that take effect before the next election.

But when the generation’s Federalist politicians marketed the Constitution, and later when the generation’s politicians started operating the national government, they gave congresses a pass by going beyond the letter of the law to hobble presidents. Where the Constitution limits presidents to spending a congress’s overall total appropriation, and holds presidents accountable to report their executive spending choices, the ratifying generation’s legislators grabbed the executive powers to organize departments and to set line-item appropriations. Basically, they replaced separation of powers and executive responsibility with legislative logrolling.

Later legislators built out an administrative state after all, and it has now turned deadly.

Enough is enough! To have far more constitutional, greatly limited, better governments, all it takes is to constitutionally apply a few simple legislative drafting rules, and to constitutionally not follow statutes that violate these simple rules.

Apply Simple Pass/Fail Tests of Constitutionality

Each existing statute and new bill is constitutional only if it passes all of the following simple pass/fail tests:

• No misleading parts.
• Only uses powers enumerated for the national government.
• No delegation of legislative power.
• No grabs of executive power.
• No grabs of judicial power.
• Not noncritical, complex, or long, and not helping make the total corpus of law incomprehensibly complex or long.

Any existing statute or new bill that passes the first five tests will consist only of rules and sanctions. It will only use enumerated powers, and it will separate powers. So it won’t infringe on the powers delegated to other jurisdictions, the powers delegated to other branches, or the powers reserved to the people.

At that point, the sixth test, of comprehensibility, will be surprisingly easy to apply acceptably well.

And even if opinions vary about overall comprehensibility, there will be the saving grace that basically every statute that’s constitutional will be commonsense. Commonsense statutes automatically are obeyed without being read, when people simply respect others.

Independently Interpret Constitutionality

The simple pass/fail tests of constitutionality above encode bedrock constitutional rules. Like all legal rules, these have force only if they are backed by legal sanctions that get used.

The sanctions that give force to these rules are every power, in every jurisdiction, of every legislator and every executive or judicial officer.
In every jurisdiction, before a legislator or officer takes any actions on the job, he swears an oath or affirmation either to support or to protect the Constitution. He can only uphold his oath or affirmation if he independently interprets the constitutionality of his every potential action and only takes those actions that he himself interprets to be constitutional.

If he chooses to not independently interpret whether his actions will be constitutional, he still has made a choice. And that choice is not simply dishonorable but also summarily impeachable, if impeachment is applied properly—to prevent we the people from suffering losses of our unalienable rights at the hands of politicians and their confederates.

The Constitution is a far-better design than government people have ever implemented. A simple, giant step up will be to make statutes automatically separate powers.