Divinely exercising the parody power

A bill which would stop the EPA from regulating so-called “farm dust” was recently approved by Congress:

The Farm Dust Regulation Prevention Act, H.R. 1633, which would prevent the EPA from issuing any new rule over the next year that regulates coarse particulate matter, or “nuisance dust,” passed in a 268-150 vote.

Like other environmental bills the GOP has brought forward this year, the bill enjoyed some support from Democrats: 33 voted along with Republicans in favor of the bill.

Got that? Congress is trying to save farmers from an agency which has been given virtually unlimited power to ruin them.

While I certainly approve of the bill, its very existence provides an important lesson in the how the constitutional framework of this country has been systematically violated. Congress should not have to stop an unconstitutional agency from exercising unconstitutional powers.

First of all, the federal government does not have power to prohibit farm dust. Stopping farm dust is not among the enumerated powers. Nor is “saving the environment.” To the extent that government has a right to regulate farming, it would fall among the general police powers reserved to the states.  So when Congress purported to grant power to the EPA to do such things, it was “delegating” power that it did not have.

Beyond that, they delegated the legislative power they didn’t have to an agency, which doubly violates the plain language of the Constitution. While such piffling details do not bother our modern courts, founder James Madison explained how it was supposed to work:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

The idea — of non-delegation — can be traced back at least as far as John Locke:

The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others. . . . And when the people have said, We will submit to rules, and be govern’d by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making laws, and place it it in other hands.^[2]

The Supreme Court continued to uphold this venerated principle even as late as the early New Deal period, repeatedly striking down unconstitutional agencies and powers.

However, under threat of FDR’s court-packing plan, the Supreme Court reversed itself and approved delegations of congressional powers it had once ruled unconstitutional. And the final capitulation occurred in 1989.

By 1989, the U.S. Supreme Court had completely capitulated, hence quietly declaring null and void the original intent of the Founding Fathers and relegating our Constitution to little more than an interesting historical document. The offending words were written by Justice Blackmun in the majority decision of Mistretta v. United States, in which the Court ruled: “our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”(1)

So we find today that many thousands of unelected federal bureaucrats, working in over one hundred federal agencies and at least a dozen federal departments, collectively have authority to regulate almost everything in the lives of the American people.

As anyone bothering to read the Federalist Papers knows, today’s federal government is but a sick parody of that which was intended by the Founding Fathers.

In that light, perhaps the bill to rein in the EPA should be regarded as a parody of a parody.

It’s a circus. So I might as well join the show.

At the rate things are going, I could see the crackpots arguing that Congress lacks the constitutional power to restrain the EPA.

To continue the parody principle a step further, why, they could even resort to a “Natural Law” argument. They could claim that by protecting “the Environment” the EPA is simply enforcing the “laws of Nature and of Nature’s God” which Jefferson mentioned in the Declaration of Independence! Don’t laugh. According to a number of allegedly serious people (some of whom are running for president), the Declaration actually trumps the Constitution.

Anyway, I don’t think the Laws of Nature’s God do in fact supersede the Constitution, but just to be on the safe side, I have actually met Nature’s God, so my ass is covered.