The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.
President George Washington – Farewell Address, September 19, 1796 (excerpt)
The United States is in a very difficult position right now with regard to federalist principles. For well over a century, Washington’s guidance (above) has been ignored. Although we have a constitution — and a pretty good one at that — much of it is now a dead letter. The federal government acts in ways that it is not authorized to act. It is unbounded.
Of course we are not permanently tied to the constitution as it exists today. It provides two different mechanisms by which we can change it or even replace it (Article V). So the proper way to deal with constitutional restrictions we no longer like is to change the constitution. But that’s hard to do…maybe too hard.
Regardless, I agree with Washington on this. Until we change or replace the constitution, we must obey the constitution. If I am elected president, it will be as “sacredly obligatory” upon me as it was upon him. And I will uphold my oath to protect and defend it.
But I am painfully aware that it would be catastrophic to shut down every unconstitutional federal program on the day I take office. It would throw the entire country into chaos. It could even irreparably destabilize the government. And, I have to admit, some of those programs are well liked and useful…some are even really good. We need to devise a way to keep the good and eliminate the bad.
For this reason, I propose a four-year program to rebalance programs between the federal and state governments.
This way, no federal program (except those in direct violation of natural law or antagonistic to the human rights) would be summarily terminated without a transition or shut-down plan. The people and governments of each state would take the lead in deciding for themselves what programs will be maintained and what programs will end within that state.
Much of this plan can be done within the executive branch under the direction of the president. Some parts, however, would require the cooperation of the Congress, the states, and the Supreme Court. These are listed separately.
Year 1: Evaluation
Executive Actions
- A complete review will be performed of all federal agencies, programs, and regulations. Every single one of them. Each will be placed into one of the following numbered categories:
- Category 1: Uses powers delegated to the federal government by the constitution, and not in violation of natural law or human rights. These may be kept without changes.
- Category 2: Violates natural law or human rights. These must eliminated and are not eligible for transfer to the states (since the states, too, must uphold the human rights).
- Category 3: Not covered by an enumerated federal power, or extends beyond the limitations on federal power, but not in violation of natural law or human rights. These will need to be evaluated on a case-by-case basis. They may be phased-out, modified to comply with the constitution, or reassigned to the states. (Disposition to be determined in Year 2.)
- This review will likely take the entire year, but detailed quarterly reports will be made to keep the states, Congress, and the public informed. These reports should include the categorizations for each agency, program, and regulation reviewed up to that point.
- Any agency, program, or regulation determined to fall in category 2 (i.e., in violation of natural law or human rights) will be eliminated within three months from the publication of the quarterly report in which it is identified as such.
Requests Outside of the Executive Branch
- A formal request will be made to the Congress asking it to perform a similar comprehensive review of the United States Code, to immediately repeal any part that violates natural law or human rights, and to plan for the prompt modification or repeal of any part not covered by a delegated federal power.
- A formal request will be made to the Supreme Court, through legal challenges if necessary, asking it to perform a similar comprehensive review of all case law, and to overrule or otherwise invalidate any decisions that violate natural law or human rights, or purport to authorize federal authorities outside of its delegated powers.
- A formal request will be made to the governments of each of the fifty states, advising them to begin preparing for the partitioning and transfer of federal programs, the details of which to be determined in years 2 and 3.
Year 2: Rebalance Planning
Executive Actions
- Determine the best disposition of all federal agencies, programs, and regulations found to be in category 3 (not covered by an enumerated federal power, but not in violation of natural law or human rights). There are several different ways this may be done:
- Any that are ineffective, harmful, or unnecessary will be phased-out in an orderly fashion over one or two years.
- Any that have useful effects or broad public support, and are organized in a way that allows for an orderly partition and transfer to the state governments, will be offered to the states (more on how this will work in year 3).
- Any that have useful effects or broad public support, but are organized in a way that partition and transfer to the states would be very difficult or impossible, will be referred to Congress and the states in the form of a proposed constitutional amendment for their consideration (more on this in year 3 as well).
- Note that concurrence from Congress is preferred, but not required, in determining the disposition of these agencies, programs, and regulations. Because all of them in category 3 fall outside of the delegated authorities, any act of Congress purporting to have established them is inherently invalid.
- Continue to provide quarterly reports on the progress of this review, so that the public, the states, and the Congress may anticipate and begin planning for the transfers or constitutional amendments (see year 3).
Requests Outside of the Executive Branch
- Formally notify the Congress of the plans for the final disposition of all federal agencies, programs, and regulations.
- Provide Congress with one or more proposed constitutional amendments which would authorize those programs that have useful effects or broad public support but cannot be reassigned to the states.
- Congress may, of course, modify, approve, or disapprove of these amendments. They may propose entirely different amendments of their own. Any amendments approved by Congress will need to be ratified by the states under the Article V process.
- Provide the states with the final list of those federal agencies, programs, and regulations that have useful effects or broad public support, and can be partitioned and transferred to the states. Request that they begin planning for the transition by determining for themselves which of these they intend to continue in their territories, and which they intend to discontinue.
- Additionally, provide the states with the proposed constitutional amendments that were provided to Congress, so they may independently consider them.
- The states may call a constitutional convention to consider these amendments as provided for in Article V. Like Congress, they may, of course, modify, approve, or disapprove of any of the amendments proposed. They may propose their own amendments. Amendments brought forth through this process, like those originating in Congress, must be ratified by the states as described in Article V.
Year 3: Final Arrangements
Executive Actions
- Closely follow the progress in the Congress and the States with regard to the proposed constitutional amendments and the partition and transfer plans.
- Perform an orderly partition of those agencies, programs, and regulations that are intended for transfer to the states into fifty subagencies, subprograms, or subregulations concurrent with the geographical boundaries of each state. Plans will be made for each for two possible outcomes:
- An orderly transfer of that subagency, subprogram, or subregulation to its respective state, if that state’s government authorizes its continuation in accordance with its own constitution and political processes.
- An orderly shut-down or elimination of that subagency, subprogram, or subregulation in its respective state, if the state’s government chooses to discontinue it, or fails to take action before the end of the four-year rebalance.
- Develop plans for two possible outcomes for those agencies, programs, and regulations that are intended to be continued after authorization by constitutional amendments:
- Continuation of those agencies, programs, and regulations as currently structured, or with any changes that may be required by the text of the amendments as expected to be adopted and ratified.
- An orderly shut-down of those agencies, programs, and regulations in the event that those amendments are not passed and ratified before the end of the four-year rebalance.
Requests Outside of the Executive Branch
- Request that the Congress provide regular updates on the progress of the proposed constitutional amendments, so as to assist the executive branch in planning for the most likely outcomes.
- Request that the states provide regular updates on the progress of the proposed constitutional amendments for the same reason.
- Request that the states provide regular updates on the progress of their planning for the partition and transfer of those agencies, programs, and regulations intended for transfer to the states.
Year 4: Federalism Restored
Executive Actions
- In accordance with all that has gone on in years 1-3, and especially with the final plans developed in year 3, perform the final steps to rebalance the federal system.
- With regard to those agencies, programs, and regulations that were partitioned in year 3 and slated for transfer to the states:
- Transfer to the respective state governments those partitioned subagencies, subprograms, and subregulations that the states have chosen to continue.
- Shut-down those subagencies, subprograms, and subregulations that their respective states have chosen to discontinue, or have not taken action on.
- Any state’s governor or legislature may request, and will be granted, a 1 year extension to complete a transfer if they are unable to complete it before the end of year 4.
- With regard to those agencies, programs, and regulations that are intended to be continued after authorization by constitutional amendments:
- For those that have already been authorized by a passed and ratified amendment consistent with Article V, make any changes required by the text of that amendment and carry on.
- For those where an amendment has been passed by Congress or a constitutional convention consistent with Article V, but has not yet been ratified, extend the shut-down deadline by no more than one year.
- For those where an amendment is under active consideration by Congress or the states, upon a formal request by a congressional majority or a majority of the governors and/or legislatures of the states, extend the shut-down deadline by no more than one year.
- For those where no amendment has been passed and none is under active consideration, proceed with the planned shut-down.
Requests Outside of the Executive Branch
- Request that the Congress continue to provide regular updates on the progress of the proposed constitutional amendments, and that they request an extension if appropriate and consistent with the guidelines above.
- Request that the states provide regular updates on the progress of the proposed constitutional amendments for the same reason. A majority of the states’ governors and/or legislatures may also request an extension if needed.
- Request that the states provide regular updates on the progress of their planning for the transfer of those subagencies, subprograms, and subregulations intended for transfer to the states, and request an extension for said transfer if needed.