Heads Up

A Weekly View from the Foothills of Appalachia


June 21 , 1998 #90


by: Doug Fiedor


E-mail to: fiedor19@eos.net

Copyright © 1998 by Doug Fiedor, all rights reserved

This text may be copied and distributed freely

but only in its entirety, and with no changes

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Some of the hard-line Social-Democrats in Congress seemed like they were about to have a heart attack this week. Two of their most favored methods of keeping control over the lives of the American people were not only assaulted, they were actually wounded.

First, Senator Fred Thompson (R-TN), Chairman of the Senate Governmental Affairs Committee, publicly related a fact that we've brought up here many times: federal regulations add almost $7,000 annually in regulatory tax to the average family's budget. That recognized, apparently he also wants to do something about it.

"Enough is enough," says Thompson. And, with other members of Congress, he now proposes a plan to identify those regulations which are not cost-effective, and eliminate them. However, we see a few problems with that action.

First, few regulations are "effective" because most are selectively enforced. Also, if some in the Senate would take an evening to read the U.S. Supreme Court opinions in "New York," "Lopez" and "Printz," the Senate would also find that many federal regulations are actually unconstitutional. Washington demands that we taxpayers obey the law, but on this matter it is the federal government that is in continuous and flagrant violation of the Constitution.

To make matters worse, Senator Carl Levin (D-MI) joined Thompson in what they call bipartisan support for the new Regulatory Improvement Act (RIA). Yet, Carl Levin has a long history of disrespect for our Constitution and has voted in favor of every oppressive bill he sees presented to the Senate.

Anyway, they start out by saying the RIA will ensure that federal regulatory agencies will be accountable for the impact of new regulations, which they already are, supposedly. It's Congress that never pays attention to what the agencies do. We are told that this new Regulatory Improvement Act would impose a cost-benefit analysis on both existing and proposed regulations which create large economic burdens. We've heard that before, too. But, nothing ever comes of it because Congress is derelict in its duty to the American people.

[The RIA] is an effort by some of us to devise a common solution to the problems of our regulatory system,

Thompson said.

We have some real political differences among us, but we all share the same goals: clean air and water, injury-free workplaces, safe transportation systems, to name a few of the good things that can come from regulation. We also all share the goal of avoiding regulation which unnecessarily interferes in people's lives and businesses, which costs more than it benefits, or which, inadvertently, causes actual harm. ... The Regulatory Improvement Act will promote the public's right to know how and why agencies regulate, improve the quality of government decision making, and increase government accountability and responsiveness to the people it serves.

B-O-R-I-N-G! This is the same old song and dance we've been hearing for years. The fact is, most of the regulatory agencies are extra-Constitutional departments of government. They were invented by Roosevelt because, in deference to the Constitution, FDR wanted strict federal government control of everything. The American people will never again realize the freedoms guaranteed by our Constitution as long as these regulatory agencies exist.

To say that the federal regulatory process is excessive in both cost and heavy handed tactics is, therefore, the understatement of the decade. The federal agencies represent, in fact, both legislation and taxation without representation. And that is a totally unconstitutional arrangement.

On the House side, a bill was passed Wednesday to abolish the income tax code by the year 2003, with one major caveat: that Congress approves a simplified replacement tax system before then.

Treasury Secretary Bobby Rubin -- who is a millionaire hundreds of times over -- immediately jumped on the bill, saying the bill should never became law. "If enacted, it would create enormous uncertainty which could well have a severe adverse impact on our economy, our workers, our businesses, our people," Rubin said Tuesday. "Families, for example, would not know what to pay for a house because they wouldn't know if their mortgage interest would be deductible."

Really now, is that what it's all about? America will accept the corrupt practices of the IRS to make secure their deduction for mortgage interest? It's hard to believe that the American public wouldn't jump at a chance to collectively tell the IRS to shove their records, "tax identification numbers" intrusive reports, tyrannical behavior and the whole ball of wax.

And to start the debate: On this end, we'll settle for a flat tax and a sales tax. However, lets make that a "flat sales tax," with a cap written in the law, and levied on everything except food, the homestead, medical services, medication, education, and books.

House Speaker Newt Gingrich referred to the anger and frustration with the current tax system. He also noted that taxpayers pay about $200 billion a year just to comply with the income tax laws. "What we have today is a monstrosity," Gingrich told the National Federation of Independent Business as they presented boxes containing 750,000 signatures from small business people who support the repeal of the income tax.

Pete Stark (D-CA) did a good job of representing the whining of the tax and spend Social-Democrats: "With the Republicans in leadership having no understanding of the basic tenets of economics and leading this house in the most amateurish, asinine way, we will destroy this economy, destroy the values upon which the families are based."

Steve Forbes got it right: "The issue is simple: Who's for the IRS, and who's against it? Who thinks the anti-family, anti-small business tax code is fine just the way it is and who's for real change?" Indeed.

House Minority Leader Dick Gephardt, (D-MO), said the bill "is yet another irresponsible Republican idea masquerading as a solution. They refuse to have a real debate on tax reform because they know what we know: That the average taxpayer would be worse off under the Republican plans."

No Dick, you socialists in Congress would be worse off. Such a scheme would abolish your most treasured and abused social engineering tool: the income tax. Any taxpayer making over $20,000 annually would greatly benefit from the above "flat sales tax" scheme. And the federal government would save a couple hundred billion dollars a year by firing that oppressive agency we call the IRS. In other words, we all benefit. Well . . . except for the control-freaks in Congress, that is.

Then again, Rubin was probably correct and the bill will not be signed into law. The social engineers in government will not allow it.

Next stop for the bill is the Senate, where they are already getting wishy-washy on the subject. Time to tell those Senators what "we" want, folks. Pick up the telephone and tell them to get it done, like pronto.



Big news in the liberal major media: Another liberal reporter releases a magazine. Steven Brill, founder of Court TV, American Lawyer magazine and now the new media review, Brill's Content, used an attack on Independent Counsel Kenneth Starr to publicize the launch of his new rag. In a 28-page essay, Brill maintains that Starr had secretly -- and illegally -- leaked information to reporters.

Three days after the magazine was released, the retractions started. Apparently reporters do not like being misquoted. Neither did Starr. Worse yet, Brill added a few incorrect passages about our favorite choice for a debate with Hillary: Lucianne Goldberg. We think Brill may be playing a bit out of his league with Madam Goldberg. . . .

"What he wrote was pure and absolute garbage," said Goldberg from her Manhattan apartment in a June 16 New York Post interview. "The story he wrote, which goes on forever, looks like it was written from the west wing of the White House."

"He misquoted my son and I on at least four different occasions," she continued. "In one particular part when three separate sources denied I had anything to do with a part of the Lewinsky story, he wrote it anyway."

So, Brill got the press, but the reviews of Brill's Content were not flattering. For instance, in a June 16 editorial the Wall Street Journal writes:

On careful reading, in fact, Mr. Brill's own account clearly shows that Mr. Starr and his aides were not 'orchestrating' anything; they were responding to revelations by Linda Tripp, her publicist friend Lucianne Goldberg, Kathleen Willey and others not bound by any requirement of grand jury secrecy. But on the cover, this becomes reporters 'Lapping up Ken Starr's leaks'.


Aligning himself with the White House propaganda machine got Brill the publicity he wanted to kick off the publication. Now all he needs is some writers who can quote people correctly. There's a web page, but don't bother.

Because, not making the news this week is a new daily Internet publication many Heads Up readers will want to check out. The "Conservative News Service" is now on line at: http://www.conservativenews.org/ So far, it's been very good, with only one small exception: Their scroll goes too fast. Great material, though. Good writing, too. This is definitely a good site to watch.

Of course, for a very good roundup on the news we would also recommend the Western Journalism Center's WorldNetDaily at: http://www.worldnetdaily.com/ Joseph Farah does a great job of posting the news there every day. So good, in fact, that the White House singled out the Western Journalism Center for one of the administration's special IRS audits as punishment. Also, as many people on the net know, Farah is becoming rather famous for those biting editorials.

For more news with a correct viewpoint, we would also recommend the Washington Times at: http://www.washtimes.com/index.html and the New York Post at: http://www.nypostonline.com/

These are all daily's and free sites, and as far as we know not one of them ever displays any of the liberal bias permeating throughout most of the major news media.



Hold the fly swatters. It appears that the tree-huggers have now mutated into insect coddlers. Therefore, for those of you who live near San Bernardino anyway, you had better closely examine that fly before you swat it. Else, according to federal law, men with guns can come and take you to prison.

There are over 875,000 identified types of insects to be saved. This time, it's the Delhi Sands Flower-Loving Fly, which grows to about an inch long as an adult. The "flies" spend most of their two year lives as larvae, buried under sand dunes in San Bernardino County. They don't appear as actual flies till mating season. The bug lovers say there may only be a few hundred of them -- but without sifting tons of sand they do not really know -- so they protected the fly under the Endangered Species Act.

The fly was listed as protected in 1993. Because, as things happen, just as San Bernardino County broke ground on a sandy site for a $487-million hospital, Greg Ballmer, a Riverside entomologist, protested. "It is a very impressive insect and part of California's natural heritage," Ballmer said of the fly.

Anyway, after a court squabble, county officials agreed to move the hospital 250 feet to the north. Then the federal government's U.S. Fish and Wildlife Service's bug police got into the act and wanted more. Fish and Wildlife wanted the county to preserve a 100-foot-wide "fly corridor." As it turned out, the federal bug cops found another colony of the flies a quarter-mile away, across a proposed service-road. The flies do not like to fly over asphalt or concrete, federal bug police said, and the flies might want to visit each other someday. So, the county was ordered to provide an unbroken sand corridor. Nothing as mundane as a human hospital, and the road leading to the new medical facility, can interfere with the free flight of the flies between the two colonies, it seems.

But, alas, that still wasn't quite enough for the bug lovers. The bug people were winning against the big anti-bug humans, so they pushed their luck a bit more: August is mating season, when the flies are most active. Therefore, a federal bug cop started suggesting that traffic on the San Bernardino Freeway -- one of California's busiest -- be halted or slowed in late August.

With that, the county had about enough. The fiasco had already cost the county and its taxpayers at least $6 million. Rerouting freeway traffic to benefit a fly was the last straw and the county went back to court. And today, that is how a stupid fly came to be at the center of a major legal battle over the reach of federal environmental laws.

The county was joined in the case by a coalition including the U.S. Chamber of Commerce, the Defenders of Property Rights, the American Farm Bureau and the California Farm Bureau Federation, and the case was recently presented to the U.S. Supreme Court. (National Assn. of Home Builders and County of San Bernardino vs. Babbitt, 97-1451)

"We think this case raises directly the question about the limits of federal power" said Kenneth B. Bley, a Los Angeles lawyer who filed the appeal in the case. "This fly is not an article of interstate commerce. It has nothing to do with interstate commerce."

There is one recent Supreme Court precedent on their side: U.S. v. Lopez (93-1260, 1995). The government says it has power to regulate the fly under interstate commerce powers. However, the fly only lives in California. Never mind, said the Clinton Administration. Since the fly is in a few museums around the country, and some bug collectors want a sample, that puts it in interstate commerce. However, in Lopez the Supreme Court said that when an object is not in interstate commerce, the federal government has no regulatory powers.

To uphold the Government's contention that [the Gun-Free School Zones Act of 1990] is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States.


If this case is accepted by the Court, there is an excellent chance the bug lovers and tree huggers will lose. The 5-4 ruling in Lopez marked the first time in many years that the court had nullified a federal law on the grounds that Congress had no power to legislate on a subject. Writing for the majority, Chief Justice William H. Rehnquist said that even though the Constitution gives Congress broad power to regulate commerce among the states, that authority is not limitless. He said that, since mere gun possession has no "substantial" effect on interstate commerce, it is a state and local matter, not a federal issue.

"I think the system is out of control and something needs to be done," Jerry Eaves, chairman of the San Bernardino County Board of Supervisors told the Los Angeles Times last Monday. "The Endangered Species Act was intended to save eagles and bears. Personally, I don't think we should be spending this money to save cockroaches, snails and flies."

"The joke in our office is that with a can of Raid, we could solve this problem," Sacramento lawyer Anne Hawkins told the Los Angeles Times. She described the fly as looking "like a huge horsefly. It's about as thick as a thumb."

We have a hint for the good people of San Bernardino County. Start sprinkling birdseed around the sand next month. Every day, put out a few large cupfuls of birdseed. It's just amazing how fast the bugs will disappear. Legally, too.



Unfortunately, I have personal knowledge of a crime in progress by at least a dozen public officials. Therefore, under the misprision of felony law (18 USC 4), I am required to "make known the same [information] to some judge or other person in civil or military authority."

One of the serious crimes being committed at this time is a violation of the "deprivation of rights under color of law" statute (18 USC 242). This law states in part: "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, . . . shall be fined under this title or imprisoned not more than one year, or both."

I shall, therefore, inform the Chief Judge of the closest federal court as to the particulars of this crime. Meanwhile, a synopsis of the case is provided here in hopes that the information may help others with similar local situations.

Last December 8, I wrote a letter to Winston Smith, Director, Air, Pesticides & Toxics Division of EPA for Region 4, in Atlanta. The text of the letter can be found in Heads Up issue #62 dated Dec. 7. The background material provided from U.S. Supreme Court opinions can be found in issue #52 dated Sept. 12.

The letter concerned the U.S. EPA's insistence that Kentucky EPA write regulations forcing Northern Kentucky residents to have tail-pipe emissions tests performed on their motor vehicles. In the Supreme Court opinions provided, we showed conclusively that such action is unconstitutional. The same material was reviewed by the Kentucky cabinet secretary overseeing Kentucky EPA and at least two state legislators.

It took Mr. Smith a few weeks to reply. His reply said nothing, except that Northern Kentucky is lumped in with the Cincinnati area, and therefore Kentucky EPA must initiate tail-pipe testing. The fact that there is no air pollution in Northern Kentucky is immaterial. U.S. EPA demands the tests be performed anyway.

Worse, after reviewing the same material, Kentucky officials bowed down and said "yes master" to the federal EPA. Kentucky officials accepted their orders, and allowed the program to go forward. Therefore, they too have violated their oath of office. And, under color of false law, deprived nearly 150,000 Kentucky citizens of their Constitutional rights.

Below are snippets from two U.S. Supreme Court opinions that directly apply to this matter. First, in "New York vs. U.S." (91-543, 1992), the Court discusses the necessity of separation of powers:

Where Congress exceeds its authority relative to the States, therefore, the departure from the constitutional plan cannot be ratified by the 'consent' of state officials. An analogy to the separation of powers among the Branches of the Federal Government clarifies this point. The Constitution's division of power among the three Branches is violated where one Branch invades the territory of another, whether or not the encroached-upon Branch approves the encroachment. . . . The constitutional authority of Congress cannot be expanded by the 'consent' of the governmental unit whose domain is thereby narrowed, whether that unit is the Executive Branch or the States.


There is no authority within the Constitution for Congress (or the EPA) to regulate air pollution within the States. The federal government makes the States comply through trick and scheme.

"State officials thus cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution."

Furthermore, the federal government has no authority to compel States to regulate, because:

States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government's most detailed organizational chart. The Constitution instead 'leaves to the several States a residuary and inviolable sovereignty,' (The Federalist No. 39), reserved explicitly to the States by the Tenth Amendment. . . .

Whatever the outer limits of that sovereignty may be, one thing is clear: The Federal Government may not compel the States to enact or administer a Federal regulatory program.


Rather clear and easy to understand, is it not? Yet, public servants cannot seem to grasp that this is the law of the land -- the controlling legal authority.

Last year, in "Printz et al vs. U.S." (95-1478, 1997), the U.S. Supreme Court further defined the law on this topic:

The Constitution's structure reveals a principle that controls these cases: the system of 'dual sovereignty.' Although the States surrendered many of their powers to the new Federal Government, they retained a residuary and inviolable sovereignty that is reflected throughout the Constitution's text. . . .

Finally, and most conclusively in these cases, the Court's jurisprudence makes clear that the Federal Government may not compel the States to enact or administer a federal regulatory program. . . .


Again, that is rather clear and easy to understand. And the carrot and the stick theory does not hold either. States may not be bribed into enforcing federal laws and regulations with federal funding programs:

Even assuming they represent assertion of the very same congressional power challenged here, they [bribery with funding programs] are of such recent vintage that they are no more probative [i.e. - proof] than the statute before us of a constitutional tradition that lends meaning to the text. Their persuasive force is far outweighed by almost two centuries of apparent congressional avoidance of the practice.


The Court winds up in "Printz" by laying down the law as per the sovereignty of States:

Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear 'formalistic' in a given case to partisans of the measure at issue, because such measures are typically the product of the era's perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day. . . .

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the State's officers or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.


Furthermore, 5 USC 706 instructs that "The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion [or] . . . contrary to constitutional right, power, privilege, or immunity."







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