Earlier this month, the Federalist Society hosted its annual national lawyers convention in Washington D.C. The topic of this year's convention: "Administrative Agencies and the Regulatory State." Speakers included Associate Justice Neil Gorsuch and U.S. Attorney General Jeff Sessions. The overarching theme was that the current "Regulatory State" engages in myriad abuses of power, including unconstitutional legislation by the executive and judicial branches.
One solution to such abuses of power already exists in an often-overlooked provision of the Constitution that all government officials take an oath to support and defend. Oath-bound leaders throughout the executive and judicial branches should start utilizing the final provision of the Bill of Rights as a rule of construction to check abuses of "powers . . . reserved to the States respectively, or to the people" (U.S. Const., Amend. X).
The 1789 Preamble of the Bill of Rights, which the States ratified in 1791, explains that the purpose of the first amendments to the Constitution was "to prevent misconstructions and abuses of its powers.” The final provision of the Bill of Rights, aka the 10th Amendment, provides: "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."
Here’s how a 10th Amendment-based rule of construction could be applied: Whenever during the course of administering programs of any agency of the Executive branch or adjudicating any case or controversy within the Judicial branch, there arises any statutory ambiguity, such ambiguity shall be construed in favor of "reserve[ing powers] to the States respectively, or to the people" (U.S. Const., Amend. X) in accordance with this guiding principle from the U.S. Supreme Court in New York v. United States, 505 U.S. 144 (1992): "The question is not what power the Federal Government ought to have but what powers in fact have been given by the people." 505 U.S. at 157 (internal citation omitted).
Such a 10th Amendment-based rule of construction would over time result in Congress enacting less ambiguous legislation under Article I of the U.S. Constitution, Section 1 of which provides that, "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
In addition to improving legislation, such a 10th Amendment-based rule of construction would reduce litigation over ambiguous statutes — thereby helping to keep the responsibility to legislate in Congress as opposed to the unelected Judiciary and/or the unaccountable regulatory state.
The practice of unconstitutional legislation by the Regulatory State led the U.S. Supreme Court in 2001 to clarify its "Non-delegation Doctrine": "In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency. Article I, §1, of the Constitution vests '[a]ll legislative Powers herein granted . . . in a Congress of the United States.' This text permits no delegation of those powers, and so we repeatedly have said that when Congress confers decision making authority upon agencies Congress must 'lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform'." Whitman v. American Trucking Ass’n, 531 U.S. 457, 472 (2001).
In the same 2001 opinion, the Court explained: "Our approach to the merits of the parties' dispute is the familiar one of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). If the statute resolves the question . . . 'that is the end of the matter.' But if the statute is 'silent or ambiguous' with respect to the issue, then we must defer to a 'reasonable interpretation made by the administrator of an agency'." Whitman, 531 U.S. at 481.
Whenever federal agencies or courts must resolve "silent or ambiguous" legislation that involves a challenge to federal government power, it is only right and proper that they should utilize a rule of construction based on the final provision of the Bill of Rights to construe silence or ambiguity against the Congress that enacted the legislation at issue.
Since the earliest days of our Republic, the Supreme Court has construed silence and ambiguities in statutes that affect individual contracts contra proferentem, i.e., against Congress. As Justice Paterson wrote in a case involving a customs duty collector’s contract in 1806, "words of a statute, if dubious, ought . . . to be taken most strongly against the law makers." United States v. Heth, 7 U.S. (3 Cranch) 399, 413 (1806).
It does not require any further legislation, executive order, or judicial opinion for oath-bound leaders throughout our national and state governments to start utilizing the final provision of the Bill of Rights as a constitutional rule of construction for checking abuses of "powers . . . reserved to the States respectively, or to the people."
Joseph E. Schmitz served as a foreign policy and national security advisor to Donald Trump during the 2016 presidential campaign. The opinions expressed in this article are his personal opinions. Schmitz served as Inspector General of the Department of Defense from 2002-2005 and is now a Partner in the law firm Schmitz & Socarras LLP. He graduated with distinction from the U.S. Naval Academy, earned his J.D. degree from Stanford Law School, and is author of "The Inspector General Handbook: Fraud, Waste, Abuse, and Other Constitutional ‘Enemies, Foreign and Domestic.’" Read more reports from Joseph E. Schmitz — Click Here Now.
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