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In this blog…
What is Law; What are Laws?
What does “Law” Mean?
The Rule of Law is More Than Just a Rule
The Definition of Statute
Court Cases About Statutes
Sovereign Citizen Arguments Against Statutes
Consent of the Governed
Who Makes Laws?
The Power of the Congress to pass LAWS
State Power to make LAW via Statutes and Ordinances
Powers of Sovereignty in States
What About Codes?
What About Regulations?
Over time people have challenged the credibility of my arguments, and the credibility of many different governmental actions, because they are based on statutory provisions, that is, on statutes. This challenge takes the simple form of this statement:
“Those are statutes and statutes are not laws.”
This concept is widely circulated and fervently argued by those who need to believe it and never more than by sovereign citizens. If you ever point to a law they don’t like they will likely call it a statute and say it is not a law.
After all, the basic underlying theory of the sovereign citizens and their freeman on the land fellow travelers is that they are only subject to that which they have agreed. They undoubtedly have not agreed to the enacted statutes of most legislative bodies. At any rate it is convenient to say “statutes are not laws,” when you don’t want to obey them.
For many, they say “laws must be voluntary;” and for all, it is much more convenient to be able to claim that the provisions that irk them are voluntary rules, infringements on their rights, optional for them — anything but a law.
As we shall see however if it is voluntary it does not meet the definition of law. And, there is no legal tradition anywhere, any time, by which someone may exempt themselves from to the law.
So they may agree they are bound by, for example, “natural” law, “common” law as they define them (or don’t); but they don’t want other laws (especially written ones, recent ones, and ones they cannot unilaterally change or reject).
Why the Fuss?
People will tell you a statute is not a law because they don’t want to be bound by statutes, nor by governments. If Statutes are not law they don’t have to be obeyed.
They will say statutes are voluntary or a matter of contract or some other gibberish. They will claim the state or the U.S. is a corporation and you must contract with the state if you are to be bound by its laws.
Or they will claim only the Uniform Commercial Code is the law, which of course is commercial contract law enacted by a state, ironically, in a statute!
That’s all nonsense.
Statutes can put you in jail for life or execute you.
Is that voluntary? Do you contract for prison or death? That alone tells you government is not a business nor a company.
They can’t show any evidence that statutes are not laws. There is no court decision, no law review article, no body of case law, nothing in common law (real or imagined versions) that says it. There is no real authority in the history or practice of law that supports that idea.
They argue that because consent of the governed is required that means individual consent. But the Founders were practical people doing real government and would have laughed at the notion, or tossed the speaker into a mental institution of the time.
No Court decision says that; no Constitution says it; no Law passed by a legislature says it. Nor does any legal dictionary nor regular dictionary say it. Unanimous consent in any large group of people is impossible. We didn’t create a government based on a “rule by impossibility,” but based on the Rule of Law.
So they fall back on bare pronouncements or claim superior unwritten law and then they demand you prove that they are laws. Of course it’s not for you to prove it since it’s their claim.
But it turns out not so difficult to prove.
Of course they will not accept any amount of proof that they are wrong but in fact they are and it’s quite clear and simple to show it.
What is Law; What are Laws?
What is A LAW?
The law is the entire body of theory, rules, and institutions by which our society governs itself. As some of the definitions below will show the concepts are often mixed together.
a (1) : a binding custom or practice of a community : a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority
(2) : the whole body of such customs, practices, or rules
(3) : common law
Mirriam-Webster online accessed 17 Dec 2015
1. the principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognized and enforced by judicial decision.
3. the controlling influence of such rules; the condition of society brought about by their observance: maintaining law and order.
4. a system or collection of such rules
7. an act of the supreme legislative body of a state or nation, as distinguished from the constitution.
a rule made by a government that states how people may and may not behave in society and in business, and that often orders particular punishments if they do not obey, or a system of such rules.
A law is a rule that is binding, enforced, and one can be punished for not obeying
or may be ordered on threat of punishment to obey.
The Rule of Law — More Than Just a Rule
My position throughout my blogs is that
- Law is made by humans, has always been made by humans, and there is a long history of legal principles and thought which can be found in writing.
- Law evolves as societies evolve. Law is not universal it is a product of a particular culture or civilization.
- Humans when gathered in any significant number will ALWAYS create governments,
- Governments strike the balance between societal needs and individual needs in different ways according to the values of those societies.
The essential tension in every human society is how to balance the freedom of the individual with the needs of the greater society; no perfect balance can ever exist, but each society must and will strike some balance.
Too much for the individual and the society fails; too collective and the people are not served and will ultimately bring it down.
Neither extreme works for long. Both are scary; terms for them might be anarchy on the one hand and fascism on the other. The best results are somewhere in the middle.
In our tradition we have the Rule of Law which is the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. Indeed we speak of the Rule of Law as being fundamental to our society.
No law passed by a legislature will have unanimous agreement of all humans; and thus no true law could exist by that measure; but lack of laws is anarchy; which means whoever can force others to his will gets his way.
We base the orderly functioning and fundamental justice of our entire society upon the “Rule of Law;” Laws shield us from others and even from government itself.
The Rule of Law is the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws.
(First Result from googling “What is the Rule of Law”)
“…the Law is the definition and limitation of power.”
Yick Wo v. Hopkins, 118 U.S. 356 (1886)
Rule of Law Definition: That individuals, persons and government shall submit to, obey and be regulated by law, and not arbitrary action by an individual or a group of individuals.
Duhaime’s Law Dictionary
Without laws we have no effective freedoms.
This is a corollary of the Rule of Law. Without law there is mechanism to protect or enforce freedoms.
The ideal characteristics of a systemic rule of law (not to be achieved perfectly by fallible humans) are:
- The government and its officials and agents as well as all individuals and private entities are accountable under the law. No one is exempt from the laws.
- The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.
- The processes by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
- Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
In OUR legal tradition there is a government to which every person (human being) is subject; and the people collectively exercise power over that government.
We have a written constitution and it is the supreme law of the land.
The legislative function of our governments is that part which is given the power to make law; the judicial has the power to interpret the law, to say what it means, and to apply it to specific cases; and the executive function executes the law, enforces it.
Separation of those powers limits the power of government, in order to help protect the individual.
Definition of Statute
They are called statutes, or statute law or statutory law.
In Latin the word began as STATVS* (status) meaning state and evolved to statutem which means “established” as in established law of a state. The dictionary tells us a statute (or an enactment, or an act) is a law. It is passed by a legislature. And the very words “legislate” or “legislature” mean law making.
But they are also called statutes to distinguish legislative law from other kinds of law such as constitutional law, case law, common law.
*In ancient Latin every word is CAPITALIZED for every purpose; in fact there are no small letters, they were invented in the Middle Ages. I mention this because some sovereigns make a claim that capital letters have legal significance and derive that from claims about Roman Law. Obviously that’s nonsense, if all letters are capitals you cannot derive special meaning from capital letters.
When we look to dictionaries, general or legal, every single one says a statute is a law in so many words.
Statute: A law enacted by a legislative body – such as the United States Congress, or a state senate. Statutes are the primary source of law in the United States, and typically authorize an administrative agency (such as the Federal Communications Commission, or the Securities Exchange Commission) to adopt rules pursuant to the Statute.
Statute 1 : a law enacted by the legislative branch of a government
statute. n. a Federal or state written law enacted by the Congress or state legislature, respectively. Local statutes or laws are usually called “ordinances.”
- The legislative power is the power to make law.
- It is exercised by the legislative branch.
- And its legislative enactments are laws, called statutes.
Court Cases About Statutes
The courts have demonstrated that they consider statutes to be laws; indeed they don’t usually bother to say it because it so clearly the case. It is quite rare for a court to rule that a statute is a law because they simply refuse any consideration to the idea that it isn’t. No reputable attorney would even make the argument. Only when sovereigns turn up in court do we hear such nonsense.
Thus I have not found a single simple sentence that so declares it. But that doesn’t mean there is nothing, just that it’s not a simple declarative sentence.
Nothing can be a crime unless there is a law that makes it a crime. In 1908 the U.S. Supreme in the case is Twining v. State clearly showed a state statute is a law:
“…Such an act is made a misdemeanor by a statute of the State, (P.L. 1899, p. 450, at 461), which is as follows:
“Every director, officer, agent or clerk of any trust company who willfully and knowingly subscribes or makes any false statement of facts or false entries in the books … or willfully or knowingly subscribes to or makes any false report, shall be guilty of a high misdemeanor and punished accordingly.”
Twining v. State, 211 U.S. 78 (1908)
If a statute is not a law how can it make some act a criminal — one for which one can be tried? What can a statute be if it defines crimes, if it is not a law?
I did find one comment on a video that said there is a case showing statutes are not laws, citing Flournoy v First National Bank.
But in fact that case is about a statute that was found to be unconstitutional. And it still tells us a statute has the “form and name of law.” The case was to decide how to handle issues that had been dealt with under it before it was declared unconstitutional. In that case the court said:
“”The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be In agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows: The general rule is well stated in Volume XI, American Jurisprudence, verbo ‘Constitutional Law,’ Sec. 148, page 827, as follows:
“The general rule is that an unconstitutional statute, though having form and name of law, is in reality no law, but is wholly void, and in legal contemplation is as inoperative as if it had never been passed…””
Flournoy v. First Nat. Bank of Shreveport 197 La. 1067, 1083 (La. 1941)
Well if an unconstitutional statute has “the form and name of law” surely a constitutional one does.
A (constitutional) statute has the “form and name” of law, and (as long as constitutional) it is in reality law. Indeed the opening paragraph in the quote does not say statutes are not law it says that unconstitutional statues are not valid law.
Constitutional statutes are laws; it’s really that simple.
And the Constitution as quoted calls the acts of Congress laws as we shall demonstrate.
Sovereign Citizen Arguments Against Statutes
Statutes are not laws because “Law[s] are always just – they protect our rights and freedoms.”
That is a nice idea but it’s not a fact and not found in the study of law.
Again we are talking about humans and a human institution. It is true that in general laws protect rights and freedom because without them it is the domination of the strong. Besides, who but the Courts have the power to decide if a law is protecting rights and freedom?
Law includes the interposition between the powerful and powerless of a mechanism to balance legitimate needs and rights. But law is indeed useless if it is not practical and no quest for perfection is expected. The law is flawed and the courts often say so. They work to limit the damage a flawed law can create but they must defer to the legislature. It is not the courts’ job to change the laws, but to interpret them.
Of course whether a law actually is just or protects rights and freedoms is a matter subject to some opinionated interpretation. So doubtless sovereigns looking at particular laws will divine some injustice and thus invalidate the law in their mind. In fact the Sovereigns want to decide individually and personally whether a law protects. But we know humans will differ in such judgments, and often based on personal interests. It’s not workable. The guy who is hurt by a law will almost always find the law is wrong.
The sovereign also suggest many other ways in which laws and statutes are different — again with no source or authority. These are tablets from the mountain. We are to believe without proof.
“you will not find any statute that calls itself a law, nor any act of Congress.“
Maybe you will, maybe you won’t, but so what? You won’t find a horse that calls itself a horse, but that doesn’t make it a llama.
Any law passed by Congress regardless of what it calls itself is a law because in fact the Constitution says it is a law. See Article I Section 7 where it is explicitly stated that Congress makes Laws.
“Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law…
There is nothing magical about the word “law” that it must be included in laws. “Act” means the same thing. And “legislation” is the product of a legislature, and is law.
“Law refers to common law. Common law tops any form of legislative statute. Also God’s/natural laws top common law.”
This statement is accompanied as usual with no authority.
And in fact it is simply not true under the Constitution. Our system recognizes the Constitution of the U.S. as Supreme Law so we do not bow to ‘natural law’, whatever it may be. We recognize no law of any kind superior to the Constitution.
“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land…”
Article 6 US Constitution
I must point out the sovereign claim is also wrong as to English Common Law, the law of cases, as Parliament can override Common Law at will, by passing a statute that changes the common law. It is undeniably inferior to statutory law as the King in Parliament is the sovereign and supreme legal authority in that system.
“No doubt a statute may take away a common law right, but there is always a presumption that the legislature has no such intention unless it be plainly expressed.”
Meister v. Moore 96 U.S. 76 (1877)
It is a well-established principle inherited from British constitutional law that parliament is sovereign or all powerful. … subject to constitutional limitations, it means that in theory parliament can make any law it wants to, even if it is contrary to what most people would regard as their basic rights….
The practical result of the principle of parliamentary sovereignty is that legislation prevails over common law. If there is a conflict between legislation and the common law, legislation will over-ride the common law. However, that conflict must be clear. There is a presumption that rights under common law continue unless the legislation clearly does away with them.”
Tasmania Law Book Elements of the Criminal Justice System
‘Natural law’ is religiously based and presumes itself to be the highest law anywhere. God has too many spokespersons in the US and we don’t recognize them.
You cannot open a book and find in clear words what natural law says, because it is not written or defined, and as I said those who speak for god give a lot of different answers.
Consent of the Governed – Uniform Application of Law
“Consent must be given by the individual and not by a collective on behalf of the individual – this would be dictatorship by the majority. Each individual must have the absolute right to give and withhold their consent.”
Well, obviously this person is a subscriber to at least parts of the sovereign citizen legends. There is no authority nor any proof offered. Nor can any be found.
No legal tradition, constitutional provision, legal enactment, court decision, nor anything that happened in history is offered to show that it is true. Not even a learned treatise or law review article validates this idea, which is very new in legal terms, not a deep historical viewpoint.
It is simply an opinion stated as fact which first appeared around 1970 not 1790.
In fact sovereignty is a matter of collective, not individual power.
“From the Crown of Great Britain, the sovereignty of their country passed to the people of it …and then the people, in their collective and national capacity, established the present Constitution… Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner … the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves…
Chisholm v. Georgia, 2 U.S. 2 Dall. 419 419 (1793)
“Dictatorship of the majority” is a valid concern; but in the U.S. the Constitutional protection of the individual and the division of power are restraints on the power of the majority. Like everything else made by humans it’s not perfect. Ultimately majority rule is a reality in human society unless we prefer dictatorships or oligarchies. Which we sometimes do.
Law is subject to the collective consent of the governed, but no society could exist and no government functions (nor has any, ever) that requires the unanimous consent of every person. Because no law would every receive such unanimous consent.
If it takes 100% consent to make a law apply to everyone then it does not meet the definition of a law; no law will ever get 100% approval of the people. So it will never apply to everyone, and in fact, anyone who doesn’t like this or that law gets to choose not to obey, it’s a recipe for anarchistic chaos. This way of doing things inevitably means that there is in reality no law at all; no law is possible and therefore no government is possible and that is not freedom; it is the opposite of freedom. It is the opposite of the rule of law for sure.
And if a law does not apply to all it is not a law. By definition it is not law if people can exempt themselves from it.
(Exception: laws on very specific topics may by their nature apply to a small scope of people; but all who are similarly situated must be included in the same way.)
Our society has never held individual assent (and certainly not universal assent) as a legal tradition, nor even a possibility, in our nation or national history; and in fact no society or government anywhere at any time in all human history has operated on that principle.
You won’t find any legislative enactment (law or otherwise) that says individual assent is required.
You won’t even find that idea written about before the 1970’s. The idea grew out of speculation by members of the posse comitatus movement which first emerged in 1969.
You won’t find a single court decision that ever said individual assent to the law is required; just the opposite in fact. You will see court cases that explicitly say everyone must obey the law.
Here’s what a court says on this subject; this is case law:
In order for our scheme of ordered liberties to succeed, we must all obey valid laws, even those with which we do not agree; a man cannot exempt himself from the operation of a law simply by declaring that he does not consent to have it apply to him.
City of Salina v. Wisden (Utah 1987) 737 P2d 981
And another court:
The Court therefore feels some measure of responsibility to inform Defendant that all the fancy legal-sounding things he has read on the internet are make-believe. …at the end of the day, … sovereign citizens … are subject to both state and federal laws, just like everyone else.
Order, docket entry 102, 2/12/2013, United States v. Kenneth Wayne Leaming, DC WD Washington.
Tellingly, there is not even a process by which one can withhold nor give consent to be ruled by law.
How do we know a sovereign has exempted himself from a law or assented to it? He will tell us when he is arrested. Or he will send in made up paperwork to some public official who he presumes has the authority to record and the obligation to inform every public official everywhere.
“I did not agree to not murder anyone nor to be subject to your system.”
“Oh well off you go then…”
True every rule, every law, doubtless takes away some bit of freedom from someone and limits what they may do; but many laws are enacted precisely to protect the rights of others, to reduce the freedom to impinge on others’ rights.
Without the “force of law” there is no law and no value derived from it and no protection by the law.
Laws prohibit theft, pollution of the air and water, sexual crimes, the right to possess and use property and prevent the use of property to the harm of the neighbors. Driver license laws promote safety and protect the right to travel. Zoning laws ensure your neighbor doesn’t start making explosives for his fireworks company next door to you.
No. Courts do not recognize these bold and groundless assertions and do not accept these principles or definitions and do not rule using them. So claiming that they are “right” or “statutes are not laws” is a meaningless exercise when the courts will not rule accordingly.
Who Makes Laws?
Legislation refers to the preparation and enactment of laws by a legislative body through its lawmaking process. The legislative power is the power to make laws. It is derived from the Latin, leges, plural meaning “laws.” (lex, singular, legis, genetive, “of or related to law”)
That process is defined in broad strokes by a Constitution.
Legislative power is exercised by the legislative branch. In some places legislative power is shared, for example referendum and initiative are concepts that allow the people to directly legislate or have a veto power over laws enacted by legislatures. But it is the Legislative Branch that makes laws.
The Power of the Congress to pass LAWS
But in the case of Congress it is manifestly clear that it has the power to and it does pass LAWS.
Here is what our Constitution says:
“Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, … it shall become a law …If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.
Article I Section 7 U.S. Constitution
Legislative enactments by Congress are laws. The Constitution says so.
The United States Code or USC is a collection and organization of the laws passed by Congress using the Constitutional process. Not every single law passed is in the USC but most of them are especially the criminal ones.
State Power to make LAW
Statutes and Ordinances
The process of adopting a statute in each state is defined usually in its Constitution. For example, The California Constitution leaves us no doubt in Article IV Section 8(b) (1)
The Legislature may make no law except by statute and may enact no statute except by bill.
So you see legislative authority, the power to make law, is given to the appropriate branch of the government of the state, and in California for the Legislature, it is the power to enact a statute.
It can also be given by state constitution, or by statute, to cities and towns and counties (and also given to the people through referendum and initiative if specified in the state constitution). Those bodies can create law or change law.
Statutes and Ordinances are the laws they create. Ordinance is the usual term by which a law passed by a city, county or other subdivision of the state is known.
Powers of Sovereignty in States
The ability of the legislature to pass statutory law is limited by the U.S. and state Constitutions and in general include the powers recognized as belonging to sovereigns which have not been delegated to Congress.
The Congress has only the specific powers delegated to it by the Constitution but the States and have the powers reserved to them by the Tenth Amendment. Those include the powers of sovereignty as the States are sovereign.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Amendment X U.S. Constitution
The courts have found the States and the Federal Government are the governing bodies of the sovereign people; the powers granted to the people in that amendment are exercised by the State unless the people in their State Constitution provide otherwise..
“From the Crown of Great Britain, the sovereignty of their country passed to the people of it… and thirteen sovereignties were considered as emerged from the principles of the Revolution ….and then the people, in their collective and national capacity, established the present Constitution… Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves …
Chisholm v. Georgia, 2 U.S. 2 Dall. 419 419 (1793)
In the Arizona Constitution we see how counties, cities or other bodies gain authority to make laws, called Ordinances usually.
Arizona Constitution in Art 1 Sec 1 provides:
The legislative authority of the state shall be vested in the legislature, consisting of a senate and a house of representatives… The powers of the initiative and the referendum are hereby further reserved to the qualified electors of every incorporated city, town, and county as to all local, city, town, or county matters on which such incorporated cities, towns, and counties are or shall be empowered by general laws to legislate.
Legislate? That means “to make laws.”
OK so it is clear that Statutes really are laws, let’s look at why this is so significant and find more support for that contention.
What About Codes?
The proponents of these ideas will often claim that a code is not law. Again, they fundamentally are seeking a rationale to deny the existence and power of the law.
A legal code is a book of laws – like a phone directory is a book of phone numbers or a dictionary is a book of definitions.
A legal code is simply a convenient way of gathering laws together, of organizing them. It doesn’t have to be a physical book, you can it online and nowadays that’s where we almost always find them. Here are more definitions that clarify:
Law code or legal code:
“A code is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the code was enacted, by a process of codification.”
a code of laws adopted by a state or nation; “a code of laws”
Examples jus civile, Justinian code, Roman law, civil law – the legal code of ancient Rome; codified under Justinian; the basis for many modern systems of civil law
Salic law –
the code of laws of the Salian Franks and other German tribes
criminal law –
the body of law dealing with crimes and their punishment
code, codification –
a set of rules or principles or laws (especially written ones)
penal code –
the legal code governing crimes and their punishment
The Code of Hammurabi was one of the earliest in recorded history. It was a set of laws. The Napoleonic Code is the basis of law in France and other places including Louisiana.
Look at the Alabama Code online:
“Code of Alabama and Constitution”
“Welcome to FindLaw’s hosted version of the Code of Alabama. Here you will find a collection of state laws passed by the Alabama Legislature and organized by subject area into Titles, Chapters and Sections.”
Legal Codes are collections of laws; a book of laws if you will. It could not be more clear or more simple. The idea that parts of codes are laws and others are not; or that codes per se are not law, is nonsense.
If you really don’t accept it after all this time, I challenge you to verify my information or prove me wrong. In a legal code each provision is directly traceable to a legislative enactment.
You can test this as to any state law, simply go to a law library — most counties and many law schools have one open to the public — and show the librarian the specific legal section of a code that you want to investigate.
Normally the librarian will be glad to show you how to trace that provision back to a specific legislative enactment passing it into law. And you can likely go back in its history to see who introduced it; and when; what legislative committees voted on it; what amendments were made to it. You can probably find the vote recorded in each legislative proceeding and the signature of the governor or President and the date and time when it was signed.
In addition the librarian can show you how annotated codes give the history of the law as it evolved over time (many laws have been amended repeatedly over decades and centuries) and even key rulings of the courts as to what each section means.
But the key point here is that the “sections” in the code are actually provisions of the laws enacted. When codified they may be given specific numbers to fit them into an overall scheme; formal language such as “Be it enacted by the House and Senate…etc.” may be stripped out because it isn’t needed in the code compilation. It’s in the original law where it does matter.
Codes are simply a way to organize laws for convenience. They are laws.
What About Regulations?
Without going into the arguments in detail, I have found essentially two issues raised about regulations.
- Regulations are not laws and therefore cannot be enforced
- Regulations are not permitted at all, except that the government can issue regulations for itself.
I believe it is fairy simple to explain the first and dismiss the second.
It is quite true that a regulation is not a law. A law must be passed by a legislative body, a part of the Legislative branch of government. Most regulations are issued by the Executive branch. They are by definition not laws. So far we agree.
However, rules and regulations properly adopted and applied can have the force of law within their area of authority.
To have the force of law they must be made pursuant to some law which authorizes them.
Why regulations exist. Regulations exist for many reasons, among them:
- The Legislature as a practical matter cannot and should not specify every single detail of every act of government.
- They are used to enable the Executive to do the job of putting law into effect.
- Regulations deal with matters that are sometimes highly technical and which a legislature is not equipped to handle.
- Regulations are susceptible to change when the legislature is not able to act, or where it would be burdensome to refer these many changes to the legislative process
Government could not be efficiently carried on if something could not be left to the judgment and discretion of administrative officers to accomplish in detail what is authorized or required by law in general terms. Without this power legislation would become either oppressive or inefficient. There would be confusion in the laws, and in an effort to detail and particularize, the law would miss sufficiency both in provision and detail.
Thompson v. Smith, 155 Va. 367, 379 (Va. 1930)
An example will illustrate these points.
At this writing British Petroleum (BP) is in court on many legal cases seeking to hold it liable for breaking rules regarding pollution of the Gulf of Mexico from the Deepwater Horizon oil spill.
The regulations and underlying laws hold them responsible to those injured and also allow the agencies and courts to impose fines for the violations of rules and regulations.
And those regulations dictate, for example, how much drilling ‘mud’ (fluid) of what density must be used in certain situations to prevent wells from blowing out. No Legislature would have the time or knowledge to make those rules, nor could they quickly change them if they got it wrong or as technology advanced.
So the statutory goals and consequences are laid out and agencies are given the power to regulate by rules. The Legislature determines the goals of the law and can limit or specify means and methods, but usually the details are left to regulations by the Executive branch.
In most cases Legislatures don’t rule make (except for themselves), they create or empower executive bodies to do that.
The Internal Revenue Code is one example of a complete and detailed set of rules in the form of a law. Even so IRS had to construct numerous rules and regulations to implement the law, specifying for example within each category of tax exemption or deduction situations that do or don’t apply.
Because laws simply can’t conceive of every circumstance that may arise, the Executive steps in to fill the gaps and smooth issues, as do the courts by applying logic and established legal principles to the goal or intentions of the legislature when it is not clear.
So the Clean Air Act and Clean Water Act and Highway Safety Act and others created bodies such as the EPA; and authorized agencies to adopt rules to achieve the ends the law seeks, to implement and execute the law.
Those regulations when properly adopted have in fact the force of law.
They can be challenged in Court and the creating agency must show for example that it had the authority to create them; that under the authorizing legislation these regulations have the force of law; that they are logical and consistent; that they were adopted using the proper procedures; that they are consistent with the purposes and aims of the law; that they are not arbitrary or unreasonably restrictive; and so on.
They can be challenged but they are binding absent a successful challenge.
Some arguments against regulations
I often see this case quoted for the proposition that statutes and laws don’t apply or have no force or are unconstitutional
“The common law is the real law, the supreme Law of the land, the code, rules, regulations, policy and statutes are “not the law”
Self v. Rhay, 61 Wn (2d) 261
Well that seems clear enough; the problem is that the ruling says no such thing.
Read it for yourself. Find those words. They are not there. Nothing like that is in the decision. That case is all about whether the Washington legislature followed the state constitution in the way it adopted a change to existing law. It has nothing to do with anything of regulation, rules, policy. (And note that this quote is offered also to support the idea that statutes are not laws…)
BUT here are the important words that are in Self v. Rhay:
“It follows that the petition for a writ of habeas corpus is denied, the stay of execution is dissolved, and respondent is directed to produce petitioner in the Superior Court for King County for setting the time of his execution in the
manner provided by law.”
That should make anyone wishing to rely on these theories to consider seriously taking a more traditional approach to the law, like hiring a lawyer. The defendant didn’t use lawyers or present defenses because the court ‘has no jurisdiction’ and is only able to hear ‘commercial cases’.
Unfortunately that is nonsense and the Courts gave it zero consideration.
Perhaps he’d have gotten a death sentence anyway, but… this is not the sentence for a commercial infraction. It’s not about money. “The King or International Banker or the BAR” will not get richer for it. But someone may well get dead for it. It’s a case about the murder of a police officer.
Also frequently quoted in this context is:
“All codes, rules, and regulations are for government authorities only, not human/Creators in accordance with God’s laws. All codes, rules,and regulations are unconstitutional and lacking due process…”
Rodrigues v. Ray Donavan (U.S. Department of Labor) 769 F. 2d 1344, 1348 (1985).
This is a wonderfully supportive quote; but it too is simply made up; those words are not in the opinion; nor does the case conclude anything remotely like that.
Rodrigues v. Ray Donavan is also often cited as proof that courts are purely administrative, not judicial; but that is a complete misreading of the case, which revolved around a matter that was the subject of an administrative hearing.
That case itself is an Equal Protection and Due Process claim under the Constitution filed in federal courts as a lawsuit, not an administrative hearing nor a ‘direct’ appeal from a hearing under statutory authority.
One of the most famous Supreme Court decisions ever made is quoted in support of the proposition:
“All laws, rules and practices which are repugnant to the Constitution are null and void”
Marbury v Madison, 5th US (2Cranch)137, 174, 176 (1803)
Indeed the Marbury v Madison decision is the famous defining opinion of the judicial branch’s role in declaring what the law says, and finding laws unconstitutional and it does stand for that proposition.
However, those who say this is an absolute ban on rules or regulations mistake the grammatical meaning of that quote; they over-read what it means; and misconstrue the applicability of the key phrase: “which are repugnant to the Constitution”
They think “which” modifies “rules and practices” and thus conclude that it says “rules and practices are repugnant” to the Constitution; but if that were the case you can leave ‘which’ out of the quote to get the same result:
“All laws, rules and practices are repugnant to the Constitution
[and] are null and void”
But rules of legal interpretation require that every word in a legal document be given meaning if it can, so instead, we see that “which” modifies “repugnant to the Constitution” so that the proper understanding of this statement is
“Those laws, rules and practices which are repugnant to the Constitution
are null and void;
[but laws rules and practices which are not repugnant to the Constitution
are not null and void”]
The following words are not part of Marbury but are often found where people use the quote above, mostly because they have cut and pasted from someone who did the same and probably down a long chain of repeats:
-“Legislators simply don’t have the authority to rule make”
That is not any part of the court’s ruling.
Also often cited is the famous Miranda case:
“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them”
Miranda v. Arizona, 384 U.S. 436, 491
And that is correct. But it does not say, nor does it mean that ALL rule making or legislation per se is forbidden, rather it applies to only those rules and laws which actually abrogate rights secured by the Constitution.
Indeed for it to mean what they suggest then legislatures could not enact any laws, but they must, they do, and the Constitution expects them to do so. You could simply end the sentence at “legislation” you don’t need “which would abrogate them”. Indeed they want it to say, “Rule making or legislation abrogates rights secured by the Constitution.” If that is what the court meant that is what it would have said.
The sovereign citizen deeply relies on the notion that rights are absolute and cannot be restrained, infringed, or balanced; but if rights collide and if no restraint is available, then might makes right, not law. Whoever is strongest will get unabridged rights and tough for the other guy and his rights. In fact, many rules and regulations and court decisions limit rights, but do not abrogate them. Indeed many play a role in protecting particular rights.
Courts decide whether a rule or law abrogates a right secured by the Constitution (Marbury v Madison, ironically!); and Courts routinely hold that rights must be balanced against each other, so sometimes a right is restrained or restricted in order to give proper deference to a conflicting right.
Indeed a massive share of decisions by the Supreme Court are focused exactly on how to balance one right versus another.It is a major part of the role of the judiciary.
= More Blogs by Philipem 1000 =
Sources Of Law and Authority
Strawman Theory and CAPITAL Letters
ideas and challenges to the driver license laws
= The US and the States =
The United States is still a British Colony
There are Three United States
= The Courts =