 Will
Florida State Legislature Exercise Its Constitutional Duty?
Posted Dec. 10, 2000 12:19AM EST
On Monday, December 4th, Constitutional Attorney, T. David Horton, was guest
on the Sweet Liberty broadcast. We discussed the various and on-going court
cases in Florida; the excessive power of the courts, state-created agencies,
etc. David asserts that the ongoing court cases could all be rendered moot,
if the Florida State Legislature exercises its power and passes a simple
resolution according to the mandates of the federal constitution.
Audio is available of the entire
broadcast. Following are excerpts of that conversation.
JP: ... I've never seen anything so crazy in my life, David.
DH: Well, this is part of the process of litigation. And thats one reason
why your listeners might be interested... that there is a way around all
of this problem, found directly in the U.S. Constitution.
It says that "Each State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors, equal to the whole Number of Senators
and Representatives to which the State may be entitled...", unquote. And
that authority is independent of any other authority.
In other words, this is something that derives from the Constitution. In
order for a State, through its legislature, to be deprived of the right
to pick the Electors, there needs to be a Constitutional Amendment.
Now, if the State has provided for the selection of Electors. - lets say
in the case of Florida - by popular election, and for some reason the popular
election does not become final because there are too many law suits and too
much pushing and pulling... that does not discharge the obligation of the
State Legislature, under the U.S. Constitution, to provide the Electors for
the selection of the president.
And therefore, I think the legislature is thinking along these lines, and
they should be encouraged to proceed because it illustrates a couple of points.
Number one, that the Constitution provides for the contingencies that have
troubled everybody for the last two weeks or so. It provides that the legislature
shall select. Now if the Electors had already been selected in a manner
prescribed by the legislation that would discharge the States obligation.
Since that hasnt happened, the obligation of the State legislature to make
sure that Florida electoral votes are counted, has the power to designate
the Electors who will cast those electoral votes. So, I think that the President
of the Senate, for example, has been advised by his attorney that a resolution
is what the legislature ought to do, instead of a bill that would require
the signature of the governor. And I think this is correct, because it says
that the legislature shall do it. It doesnt say "the legislature shall do
it if the governor approves". It just says, the legislature shall do it.
And the way a legislature does something is either by joint or concurrent
resolution. So if the state of Florida.. or the legislature of the state
of Florida wants to put an end to all of this pushing and pulling they can
enact a joint or concurrent resolution of the legislature of the state of
Florida, which would go something like this:
Be it enacted by the Legislature of the State of Florida;
I. The Legislature finds that:
1. The Constitution of the United States of America provides in Section 1,
Article II, Clause 2: "Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors, equal to the whole
Number of Senators and Representatives to which the State may be entitled..."
2. This mandate has not been carried out in a manner that is final because
of pending and threatened litigation.
3. In order for Floridas electoral votes to be counted, the Electors must
be designated by the legislature in accordance with the direction of Section
1 of Article II of the Constitution of the United States of America.
II. The Legislature does therefore resolve, ordain and decree, that the following
Electors be certified for the State of Florida, in accordance with the authority
provided in Article II, Section 1, of the Constitution for the United States
of America.
1. (There would follow 25 names that would be the same names that have already
been certified by the Secretary of State).
Now, if that is done, that puts a whole additional string on Floridas bow
so far as exercising the electoral votes are concerned.
JP: So, in other words, are you saying then, that none of those law suits
would mean a tinkers damn?
DH: Well, the law suits would - at best - become moot. If there is not another
attempt by Judicial Officers who have no legislative power to usurp
legislative power.
JP: Like the State Supreme Court.
DH: This is one example. But theyre merely one example. The principle thing
to bear in mind... that is one of the reasons that courts are likely to overstep
is that they are not held accountable. They are NOT held accountable by the
Legislature which has the power under most Constitutions to impeach them.
JP: This is true of any state court, isnt it?
DH: Well, nearly any state court has a temptation which hopefully they frequently
resist.
JP: What I mean is... that what you just said... we know they dont have
the power to legislate from the bench and very often it appears that they
attempt to do that
DH: Yes.
JP: What Im asking is, that in any state, the state legislature can... or
does it have to BE in their State Constitution...
DH: The State Legislature can impeach a State Judge for usurping powers that
are denied the court - that judge - under the Constitution, because it consists
of a form of sedition against the lawful government of the State, when you
have judges playing legislators. And changing the statutes, which have to
be changed in a certain way... and under most State Constitutions, they must
be changed only by a bi-cameral legislature. Which means that you have to
have two completely separate and independent branches exercising the legislative
power because it is so powerful and important that the Constitutions dont
entrust it to one branch alone.
JP: Is Nebraska a uni-cameral...
DH: That is the soul exception where a legislative power is vested in a single
body. But there, they have adopted all kinds of cross-checks and balances
that most legislative bodies dont have because they have another legislative
body that is itself a check and balance. In Nebraska they have checks and
balances that are internal to their legislature that most legislative houses
dont need because they have another body that serves substantially the same
purpose.
(Short discussion on bi-cameral versus uni-cameral legislatures, being the
right of each state to choose)
DH: More particularly "state sovereignty", because the State is the Sovereign
Block out of which our Constitution is built. It is by the States that formed
the federal agencies, its not the other way around.
(Short discussion on state autonomy verses state sovereignty... the people
being sovereign under Creator)
DH: Sovereignty inheres in the State itself. Now, you find some State
Constitutions that say that sovereignty inheres in the people. But it inheres
in the people only as an organized political body, exercising its powers
in the manner provided by its constitution. The actual sovereignty - the
sovereign entity - that has the authority, for example, to enter into a
Constitution - a compact - with other sovereignties, is the state itself.
And we, being Citizens of a sovereign state, have such power as... we originate
all of that power, I suppose, in the last analysis... but once it is organized
into a formal government, then the sovereignty is ordinarily exercised by
the agencies that are created by the State Constitution. For example, the
sovereignty frequently is exercised by the exercise of legislative power,
because that is a sovereign power, and it will be exercised in most states
by two branches of the legislature and it ordinarily requires the signature
of the governor as well.
JP: It is my understanding that a State Constitution cannot be repugnant
to the U.S. Constitution. Do you concur with that?
DH: State Constitutions are compatible with the federal constitution, because
they create the federal constitution. Now if a State Constitution tries to
change something in the federal constitution its doing something that it
will lack authority to do. And theres really not that much danger of a state
trying to change the federal constitution.
JP: Well, not trying to change the federal constitution but... for example,
when the states began having their Constitutional Conventions... around
68... the one [s] that were promulgated by the Council of State Governments
and the ACIR... many of the State Constitutions dropped their border definitions.
It appears, David, that that was done intentionally to comply with regionalism.
DH: There are moves afoot to try to trick the states into not only abandoning
their sovereign powers but surrendering the whole constitutional structure.
And these efforts are ongoing and that is one reason why it is important
for the Florida legislature... if it WILL, to consider returning articles
of impeachment against the members of the Florida State Supreme Court. Because
they avowedly and very boldly undertook to exercise legislative power. And
if any State starts using its legislative power to correct the excesses of
its Supreme Court... OR the excesses of federal agencies attempting to usurp
powers that belong to the state, then it greatly improves the picture so
far as constitutional government is concerned.
Because there is NOTHING that cant be reached by the state legislative power.
They can correct not only the violations of the constitution by the Florida
Supreme Court, but they can correct the manifold violations of every provision
of the constitution that occur every day in every state by federal agencies
exceeding the scope of the authority granted to them by the states, in the
Constitution. The problem has not been that there arent plenty of violations
to correct. The problem has been that most States are befuddled into thinking
that they get run by Washington, D.C. The press tells them this every day.
But those who read the Constitution instead of the local fish wrap, will
find that the Constitution says that there wouldnt be any federal agencies
if it werent for the sovereign act of the State working in conjunction with
its sister states in delegating a few powers... to the Congress, for example.
And a few other powers to the Judiciary.
And those limitations of powers, which are made by three special or limited
agencies of government in Washington... those special powers indicate that
there are to be no other powers other than those specifically listed. And
that principle is not only in the general nature of the Constitution itself,
but is specifically spelled out again in the 9th and 10th Amendments. Which
expressly provide that if a power isnt listed, they dont have it. If it
isnt in Article 1, Section 8, the Congress doesnt have that power.
Yet they presume to exercise all kinds of power, largely by distributing
the largess of our taxes in all kinds of areas that the Constitution forbids.
And this is one reason why there is so much attention given on who is going
to be president. Because there has been so much usurped power and usurped
economic power exercised in Washington, that it is too much honey to expect
the flies not to be attracted to it.
JP: And it would be incorrect - I believe - to say that the executive branch
has usurped the power of the Congress. It appears to me that the Congress
has sat on their hands and allowed the Executive to take over legislative
duties.
DH: Yes. The Executive has been the prime mover in most federal legislation.
I had occasion to watch the Congress in Washington for about fifteen years
before I figured out how to escape to Nevada - and I dont recall - but with
one exception - a single piece of major legislation that did not originate
from the federal bureaus who used our tax dollars, to lobby their bills through
our Congress to give them power over our lives. And nearly all of it is in
flat violation of the Constitution.
JP: When you say the bureaus, are you talking about the federal agencies.
DH: I talked to the Governors office about a year ago. Told her I was writing
a report and I told her I wanted to understand our Executive Orders... how
they get passed. The way it was explained to me... this was very frightening.
That an agency head - that would be for example, the State Department of
Environmental Protection or any of the State Agencies that were created
as mirror images of the federal agencies... and these heads of agencies recommend
an executive order. And then the governors Chief Counsel... and here in
Pennsylvania hes a member of the Uniform Law Commission... hes a Uniform
Law Commissioner. The Chief lawyer looks it over, and decides, and then advises
the governor of whether he should sign it or not. So the whole thing is being
done by bureaucrats and lawyers. And you wont take this personally, will
you? These lawyers that are swarming around and through Florida... David...
its almost sinister to me.
DH: This is one reason for urging the legislature to use its legislative
power. To cut through all of the folderol and double-talk and misrepresentation
that generally attends a lot of these special interest litigations. And just
flat do what the Constitution says.
And if the legislature starts actively doing what the Constitution says,
youre going to find a lot more state bureaucrats and even federal bureaucrats
who are going to say, "well maybe we ought to go by the Constitution, too.
Not just for novelty, but because this is the proper thing for us to do and
we may get our hands slapped if we dont.
JP: That sounds like a fantasy to me.
DH: Its the kind of thing where if there are articles of impeachment addressed
to the members of the State Supreme Court for exceeding their powers, this
will remind everyone that they must look to the Constitution and see what
the Constitution tells them to do. Then they need to do it. And when that
happens, theres a lot less litigation; a lot less suppression and a lot
less mis-government and greatly economized governmental expenditures.
JP: I find from my own interaction with certain state legislators in the
past that they dont seem to understand what their legislative.... what their
true power is..
DH: This is true and a lot of it is due to the fact that they are chloroformed
by the temptation to try to do something for people by way of throwing money
at various problems.
JP: Or to get re-elected?
DH: Yes, well not just that, but also to be "good guys", and to be sweet
and loveable and things like that.
The problem is that, particularly in the federal legislature they lack absolutely
any authority to spend a dime for many of the programs that they have thrown
billions at.
And if the state legislature starts to look at its Constitution and the federal
Constitution and starts to go by it, its going to do a lot to reduce the
burgeoning size of state government as well as federal activity, because
the feds... if a state bureaucrat gets slapped down, lets say, for exercising
some alphabet soup power that they dont have authority to exercise...
JP: By the intent of the legislature. Ive noticed that when they create
these agencies, they either give them the authority within that bill that
creates the agency, or the pass another bill... and it gives the agencies
the power to promulgate rules and regulations according to the intent of
the legislature. And they way, way... it seems, David, that the legislation
is worded so broadly that it can be interpreted almost any way you want.
DH: Well, thats one reason why it is so dangerous and pernicious to have
so much legislative power initiated and exercised by bureaucrats. Because
they have the capability, if they could just lobby general phrases through
the legislature, they have the capability of applying those in a very oppressive
manner and in a manner that makes them completely unaccountable to the average
citizen. Because they have the whole state budget to back them up. And the
individual has to pay all those taxes and doesnt have any money left to
fight them.
JP: Before we moved here [to Pennsylvania] I found out who our state rep
was and called him about a situation... about how you can have 50 acres of
land and not be able to get a permit to build a home on it... One thing he
did admit to me at the time -- we were talking about the Department of
Environmental Protection here -- he said, "we have begun to realize that
weve given way too much power to these agencies, and we cannot get bills
even moved out of committee to dis-empower them".
Im going to say something here, and I know youll agree with me... Our state
legislators are woefully uninformed, and when they do try to stand up and
do something that is right, they get shot down by the media and by legislative
leaders. The legislative leaders... what Ive noticed is that usually
theyve been hand picked and promoted up to their leadership positions. And
if enough people began to interact with... meet with their state legislators
and begin to inform them and educate them, that so much of whats happening
today could just be stopped. And they would know that they would have the
people behind them.
DH: Thats truly important. Because they are exposed and vulnerable to the
press to the point where they need to have contact with their constituents
in order to gain confidence enough to go ahead and say, "Now, why are we
letting state bureaucrats set legislative policy? Were not supposed to do
that. Lets stop it!" And they can stop it. If the influence of the bureaucracy
is so powerful in the legislature that any attempt to curb the power of the
bureaucracy can be blocked by them [bureaucrats], then you need to clean
house in the legislature. |