The Patriot Corner—Lawful Government Authority
By Dan Meador
2/22/2000
My article containing the cite of authority for the Attorney General and the Federal Bureau of
Investigation investigating Title 18 crimes involving government personnel prompted considerable
discussion in the Internet patriot community. For the sake of those who missed the first article, I’ll
cite the authority, which is at section 535(a) of Title 28 of the United States Code:
“The Attorney General and the Federal Bureau of Investigation may
investigate any violation of title 18 involving Government officers and
employeesÖ”
Possibly the Tenth Amendment to the U.S. Constitution provides the best context for
understanding government authority limits: “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.”
In the American system, our governments are established by law. We as a people are sovereign.
Through our state and national constitutions, we have divested ourselves of an amount of
sovereignty by vesting governments with a limited number of powers and responsibilities. State
and local governments have what is described as common law jurisdiction or powers, but beyond
that, they may exercise only powers enumerated in applicable constitutions. If any given
government wants more power, the only lawful way to secure it is for advocates to seek
amendments to applicable constitutions.
In the meantime, state and national legislative bodies, whether Congress or the legislature of any
given state, have sole responsibility for setting the wheels of government in motion through the
medium of written law. For example, Article III, Sec. 2 of the U.S. Constitution establishes specific
jurisdictional authority that is or can be exercised by U.S. courts, but to the point Congress
activated the power through legislation, not even the Supreme Court could entertain and rule on
cases. Congress empowered the Supreme Court and created and empowered various inferior
courts via the judiciary acts of 1789 & 1792, but has never empowered them with all available
Article III jurisdiction limits.
Article I, Sec. 8, clause 18 of the U.S. Constitution vests Congress with all legislative power.
Administrative and judicial branches of government can exercise only powers Congress vests in
them through law. Analogously, Congress owns the storehouse of Federal power, and is
responsible for parceling it out if and when the astute body is so disposed. While administrative
and judicial officers may covet more, they don’t have authority to exceed what Congress has
disbursed.
The Supreme Court addressed this matter time and again in the difficult reconstruction period
following the Civil War. One of the more lucid statements was in the 1869 case Pierce v. United
States (7 Wall (74 U.S.) 666):
“We have no officers in this government from the President down to the most subordinate agent,
who does not hold office under the law, with prescribed duties and limited authority. And while
some of these, as the President, the Legislature and the Judiciary, exercise powers in some
sense left to the more general definitions necessarily incident to fundamental law found in the
Constitution, the larger portion of them are the creation of statutory law, with duties and powers
prescribed and limited by that law,” 7 Wall, at 677-678.
In the course of the Civil War, Robert E. Lee’s estate in Virginia was seized, and at the whim of
the President, it wasn’t returned after the war. In 1882, the Supreme Court finally returned the
Arlington estate to Lee’s heirs with the following comments:
“No man in this country is so high that he is above the law. No officer of the law may set that law
at defiance with impunity. All the officers of the government, from the highest to the lowest, are
creatures of the law and are bound to obey it. It is the only supreme power in our system of
government, and every man who by accepting office participates in its functions is only the more
strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon
the exercise of the authority which it gives,” 106 U.S., at 220.
“Shall it be said... that the courts cannot give remedy when the citizen has been deprived of his
property by force, his estate seized and converted to the use of the government without any
lawful authority, without any process of law, and without any compensation, because the
president has ordered it and his officers are in possession? If such be the law of this country, it
sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other
government which has a just claim to well-regulated liberty and the protection of personal rights,”
106 U.S., at 220, 221.
In 1974, the Ninth Circuit restated limits to Federal agency powers in precise terms, in a case
styled Soriano v. United States, 494 F.2d 681:
“[A]n administrative agency is a creature of statute, having only those powers expressly granted
to it by Congress or included by necessary implication from the Congressional grant,” 494 F.2d,
at 683.
The primary difficulty is ignorance. People employed as government functionaries, i.e., the deputy
sheriff, the revenue officer, the agency criminal investigator, or whatever, does more or less as he
is told, and he probably doesn’t understand limits of his authority any more than those exposed to
his inquiry are. In a very real sense, this is where ignorance meets ignorance. The courts have
addressed the matter by placing responsibility for knowing limits of agency authority on whoever
is subjected to their scrutiny. In a 1940 decision (Continental Casualty Co. v. United States, 113
F. 2nd 284), the Fifth Circuit Court of Appeals stated the matter in clear terms:
“Public officers are merely the agents of the public, whose powers and authority are defined and
limited by law. Any act without the scope of the authority so defined does not bind the principal,
and all persons dealing with such agents are charged with knowledge of the extent of their
authority.”
In other words, Joe Public bears responsibility for knowing enough about his government to tell
any given functionary when to take a hike. If he doesn’t, it’s as much his fault as it is the
functionary’s. Therein is the burden of the sovereign. It’s somewhat like having kids: Are kids
going to rule the house, or are the parents? If government exists at the pleasure of the people,
who bears primary responsibility for seeing that government personnel do not usurp power that
isn’t conferred by applicable constitutions or is not otherwise vested in any given agency by law?
As the cite above demonstrates, Congress stated FBI investigation authority in explicit terms. FBI
personnel cannot lawfully exceed authority of the legislation. Yet in practice, government
agencies of all stripes, not just the FBI, routinely exceed lawful authority. This is the reason that
by 1990, Federal government alone employed more people than all American manufacturing
combined. In a manner of speaking, we as a people defaulted our responsibility to police the
police. The consequence has been government encroachment that today penetrates nearly all
aspects of life from cradle to grave.