Tag Archives: Felix Frankfurter

May the Fourth be with You (and with thy Spirit)…. May 3rd was Day of the Holy Cross (in the Old BCP anyhow); Warnings from History about the Coming Dark Age: May 3 is also Polish Constitution of 1791 Day, and the 60th Anniversary of the Youngstown Sheet & Tube Company Petition for Certiorari

Yes, May the Fourth is international Star Wars Day (“May the Fourth be with You”—but watch out for the “Revenge of the Fifth”), and yesterday, all over Western Christendom, is or at least used to be called “the Day of the Holy Cross” (this construction of the Calendar is sometimes said to be a “Gallican” custom, involving the mixture of Celtic rites of Beltane [May Day] with Christianity, in the time of Saint Gregory of Tours and other such French sources predating the time of Charlamagne*, but even as a 20th century Anglican/Episcopalian, I grew up thinking that Constantine’s Mother the Empress Helen**  went to Jerusalem and found the “true Cross” fragments on May 3, and when I started traveling to and living in Mexico I found that the Mexicans [in "Veracruz" and elsewhere] still celebrate the 3rd, notwithstanding anything Pope John XXIII did the year I was born [1960], and the Maya of Yucatán—see my birthday greetings for Pedro Un Cen on May 1—still celebrate May 3 as the day that the Chaacs (the Ancient Maya Raingods) return to the land from the East to start the beginning of the rainy season, but Last things first:

POLISH CONSTITUTION OF 1791 Day: A Warning for our Time

Most Americans have heard of American Revolutionary War hero General  Andrzej Tadeusz Bonawentura Kościuszko (at least by the shorter version of his name: Tadeusz Kosciuszko).  He came to the United States to assist in the War of Independence for no reason other than he thought it was the right thing to do.  He was a volunteer Patriot in Founding a country 1/3 of the way around the world from his homeland.  

I have the feeling that Kosciuszko lived to feel even more defeated than John W. Davis….(see my adjoining post on the 60th Anniversary of the Youngstown Sheet & Tube Petition for Writ of Certiorari) possibly more like Jefferson Davis must have felt…..  

Kosciuszko lived long enough after the American Revolution to see first the French Revolution, then the final partition of his own homeland by three of the major powers OPPOSED to the French Revolution, the restoration of the core of his homeland (briefly) between 1807 and 1815, and then the final re-annexation of Poland by Russia after the Congress of Vienna in 1815—a situation which would endure for another 104 years….

After helping launch the American nation, with a career comparable and in some ways parallel to the actions of the Marquis de Lafayette in France, Kosciuszko went back to his native Poland where he tried to rebuild and save his own nation, and modernize its constitution in light of what he had learned and seen in America. I have previously, on this blog, mentioned the wonderful Polish Professor Wiktor Osiatynski under whom I was privileged to study at the University of Chicago 1990-1991 and my fascination with the Polish nation and constitutional history has never ceased since then.  Poland is a Phoenix-like nation having been consumed by fire into ashes and portioned by its neighbors Germany and Russia at least twice (and Austria once).  The metaphoric image of the mythical Phoenix arising from its flames parallels takes on added and appropriate meaning given Poland’s association with the City and University of Chicago, not least since Chicago is the largest Polish-speaking urban area anywhere outside of Poland and the City itself has at least once or twice in history arisen from the flames (after the Great Fire of 1871, but arguably again after the riots of 1968 also…).  

On May 3, Poland celebrated the 221st anniversary of the Constitution of 1791, the last Constitution before the two final (18th century) partitions of Poland 1793-1795.   The Twentieth Century Partition of Poland, between Nazi Germany and Stalinist Russia was in a thousand ways much worse, more brutal, more destructive, but also much shorter in duration.  The 18th Century Partitions of Poland were reversed by the Emperor Napoleon I Bonaparte in 1807 as he vainly tried to restrict and limit the power of Prussia.  The Von Ribbentrop-Molotov (aka “Stalin-Hitler”) Pact of 1941 was reversed a mere four years later, but not before Poland had not only been savaged by Nazi occupation but by the Stalinist reprisal which, in terms of meaningful reality, involved much vaster forced migrations than any that history had ever seen, and comparable only to the forced internal migrations (poorly documented though they are) which took place in Maoist China during the “Cultural Revolution”.  

Now you might ask, why should an American care about learning the details of Polish Constitutional History?  As Professor Wiktor Osiatynski made us all aware in the two courses he taught that year at the University of Chicago, Poland’s constitutional history was a major source of its downfall.  Prior to meeting and studying with Wiktor, my primary familiarity with recent modern Poland had been a vague knowledge of the partitions of the late 18th century, the fact that Napoleon I had created the Duchy of Warsaw, and that Chopin and many other 19th century artists had gained fame for the culture of Poland and quietly advocated the restoration of Polish Sovereignty and Nationality.

Of course, I had also been very generally aware from a lifetime obsession with historical cartography, I was aware that Poland had once been the largest nation in Europe—a fact, again, which probably very few Americans must know.***  Yes, the combination of the Grand Duchy of Lithuania and the Kingdom of Poland once not merely “dominated” but in effect “was” all of Eastern Europe—controlling during most of the 15th-early 18th Centuries all of the territory from the Baltic to the Black Seas, dwarfing “barbarous” Russian during most of that time, although Russia started climbing out of an inferior position in the 16th century, though it did not achieve “world nation” status until the 18th under Peter and Catherine the Great.  

But indeed, the Constitutional History of Poland and Lithuania together is very interesting, and historically relevant for Americans, especially in this day and age.  Lithuania, so it was forced to ally more closely with Poland, uniting with its western neighbor as the Polish-Lithuanian Commonwealth (Commonwealth of Two Nations) in the Union of Lublin of 1569. According to the Union many of the territories formerly controlled by the Grand Duchy of Lithuania were transferred to the Crown of the Polish Kingdom, while the gradual process of Polonization slowly drew Lithuania itself under Polish domination. The Grand Duchy retained many rights in the federation (including a separate government, treasury and army) until the May 3 Constitution of Poland was passed in 1791. 

I submit to you, “my fellow Americans” that we today are much like Poland—because of the abrogation of our traditional Federal Union into a centralized dictatorship, we are weak and face extinction, division, and perhaps even partition between, say, China, Mexico, and a resurgent Europe.  

* Pope Adrian I between 784 and 791 sent Charlemagne, at the King of the Franks’ personal request, a copy of what was considered to be the Sacramentary of Saint Gregory, which certainly represented the Western Roman “Early Dark Ages” use of the end of the eighth century.  This book, far from complete, was edited and supplemented by the addition of a large amount of matter derived from the Gallican books and from the Roman book known as the Gelasian Sacramentary, which had been gradually supplanting the Gallican. The editor may well have been Charlemagne’s principal liturgical advisor, the  Englishman Alcuin. Copies were distributed throughout Charlemagne’s empire, and this “composite liturgy”, as Duchesne says, “from its source in the Imperial chapel spread throughout all the churches of the Frankish Empire and at length, finding its way to Rome gradually supplanted there the ancient use”. More than half a century later, when Charles the Bald wished to see what the ancient Gallican Rite had been like, it was necessary to import Hispanic priests to celebrate it in his presence, because the Gallican rite took root firmly in Toledo, Viscaya, Aragon, Catalunia, and elsewhere in the land of the Christian Visigoths of Hispania before the arrival of the Moors (and survived there ever after, even during the Caliphate of Cordoba—which resilience explains why May 3 remains the Day of the Holy Cross everywhere in Latin America).

The Luxeuil Lectionary, the Gothicum and Gallicum Missals, and the Gallican adaptations of the Hieronymian Martyrology are the chief authorities on this point, and to these may be added some information to be gathered from the regulations of the Councils of Agde (506), Orléans (541),Tours (567), and Mâcon (581), and from the “Historia Francorum” of St. Gregory of Tours, as to the Gallican practice in the sixth century.

** Constantine’s Mother the Empress Helen did a lot of traveling and established a lot of Churches.  Named after Helen of Troy, Empress Helen kept the name alive and popular among the Christians, and it was the Empress Helen, I am told, after whom were named both my Louisiana-born grandmother who raised me with love and my Greek-born wife who razed me with something else.

***For my lifelong obsession with maps, I have mostly my mother to blame, because she bought me so many Atlases–Shepard’s Historical Atlas, Oxford Historical Atlas, just for starters–when I was very small and for some reason decorated my boyhood room with a collection historical individually framed maps of almost every county in England, Wales, & Scotland—this led to my grandparents, somewhat later, always putting me in charge of studying the maps when we traveled and making reports on local geography as we did—Baedeker was almost like a family friend, and sometimes AAA and National Geographic.

Forget the Imperial Presidency and refocus attention on the Subservient Congress: Did Congress Work for Five Years to Prepare the Way for Barack Obama to become President? Was it part of “W’s” Plan as well?

http://www.youtube.com/watch?v=H3aCfR8rmrw

My thanks to a dear old friend Barbara Anne K-H for sending this over to me from Alabama in the Heart of Dixie….  I had not seen or even heard of this legislative history before.  As of Friday, February 3, 2011, Judge Malihi’s decision in Georgia came down in favor of Obama as a natural born citizen.  Well, what a shock?   I had rather hoped he would knock Obama down but I am not the least bit surprised or overly disturbed that he didn’t, because Obama’s birthplace is not the problem: Obama’s philosophy and political agenda are the problems, and should be the primary focus of defining his status as a traitor.  I and many others “on the right” waste much too much ink, toil, time, and talent on the eligibility issue, but at least I gave up and moved on rather than doggedly chasing the dead dog around the tree one more time.  I hope that other versions of Judge Malihi’s decision will soon be available, but for the moment it’s good enough to read it in this slightly fuzzy PDF by scribd: 

http://www.scribd.com/doc/80417613/Farrar-Welden-Swensson-Powell-v-Obama-Judge-Malihi-Final-Decision-Georgia-Ballot-Challenge-2-3-2012

Focusing on birthplace eligibility is too narrow and almost silly to justify concluding that Obama is “evil” because he lied about his birthplace.  

Sidebar: I certainly wish I could lie about where I was born sometime—there’s nothing particularly glorious about having been born in Commerce, Texas (I’d have rather been born in someplace special with a really romantic name like “Waco” or “Lubbock” or “Groesbeck”, or even, just imagine it…..gasp “Fort Worth”; likewise my grandmother Helen always regretted having been born in Nachitoches out in the hinterland of French Louisiana which made her less than a full member of New Orleans society, but we all are what we are; even my grandfather, born in the beautiful Victorian city of Galveston, with its amazing beaches and incomparable sea breezes, resented not having been born in his grandfather’s homeland back in England; parents can be so inconsiderate—I often have occasion to ridicule my assistant Peyton’s birthplace being in Memphis….along with his two “triplet” brothers).  

So I stick to my guns: the whole “eligibility” debate is a major distraction and a terrible waste of patriot energies.  We who believe in the Constitution should be focusing strictly on Obama’s crimes against the people (and these are mostly economic and political crimes which his predecessors initiated, which the most extreme and staunch constitutionalists are largely ignoring because they are focusing on Obama’s status or lack thereof as a Natural Born Citizen).  The legal argument most often invoked by the Courts against eligibility cases is that “the people” have suffered no individualized or discrete injuries from any violation of the Natural Born Citizen clause occasioned by Obama’s election.  

The difference in Georgia and other states that are considering the eligibility issue right now is that PROSPECTIVE AND INJUNCTIVE RELIEF are ALWAYS available against Governmental Officials, even when actions for damages or other punitive or corrective actions are barred by doctrines of “official” or “sovereign” immunity.  If Obama has perfected anything, it’s his own self-image as a sovereign (Kind of Reminds me of the King in the big palace portrayed in the movie version of the Jungle Book, but that’s another story…)

This above-referenced you-tube video makes some excellent points of which I was not aware about legislative history and purpose, and I highly recommend it: for five years before Barack Hussein Obama’s election, various members of Congress made repeated attempts to amend the Constitution of the United States to modify the Article II eligibility requirements.

The producer’s “blurb” goes as follows:

- MINI Documentary Illegal Obama “Propped Up” By Congress! If you never watch another video, watch this one, this proves the Democrats (and some Republicans) know Obama is not an American and is serving illegally and unconstitutionally and the efforts they made are recorded in the Congressional Record, attempting to change the Constitution so he could serve legally. EVERYONE that cares about and loves this Constitutional Republic absolutely MUST watch and forward this video!!!!!! This one must go viral. I won’t be surprised when the people of this country begin calling for an Impeachment. This guy and his croonies have been intentionally deceiving the American public and his friends in Congress have been propping him up.. Where are our elected representatives all been hiding?

http://www.youtube.com:80/watch?v=H3aCfR8rmrw
<http://www.youtube.com/watch?v=H3aCfR8rmrw>

I strongly suggest that we forget about Article II eligibility and hereby propose that we amend the Constitution to define “Natural Born Citizenship” for all three Branches of Government (Article I Legislative, Article II Executive, and Article III Judicial—as they do in Mexico, for instance) and actually to extend the requirements for Natural born citizenship as follows: 

“Only persons born within the territory of any of the United States of America, or any of its dependent territories, whose father and mother were both born in the United States, or to two parents also born in the United States who are temporarily living abroad, may serve in any office or capacity created by or under this Constitution, whether legislative, executive, or judicial, except for officers with no law-making, enforcement, or interpretive functions whatsoever.   No person shall be qualified to serve in any capacity whatsoever created by or under this Constitution who does not affirm by oath the primacy of individual rights to life, liberty, and property, above all other human rights.”

Disqualifying all but third generation citizens from Federal Office would have eliminated Barack Hussein Obama from the Senate, which would have prevented his elevation into the Presidency.  It would eliminate both Orly Taitz and Arnold Schwartzenegger from national politics, and would have, not so tragically, prevented early International Socialists (“New Dealers”) like Felix Frankfurter from sitting on the Supreme Court.  (Felix Frankfurter not only supported the New Deal and global integration, but also opposed the expansion of civil rights by incorporation of the Bill of Rights through the Fourteenth Amendment to the States).

It is Barack Hussein Obama’s belief in other rights and powers which makes him dangerous.  There is no more certain definition of a communist than one who does not or cannot affirm that the rights of each individual to life, liberty, and property are supreme and superior to all other human rights.  This maxim must be construed to include that the rights of life, liberty, and property of the individual are superior to the rights of the society to security, the rights of any individual to any particular AMOUNT of property or wealth or income or security, the right to free assistance of any kind from the government, the right to employment, or even the rights to food and medicine.  

I suppose it sounds harsh to say that the government should not be in the business of guaranteeing the right to food and medicine to any individual, but the cost in freedom of an increased augmentation of life or property by and through submission is, or ought to be, intolerable.

There is to my mind very little doubt that George W. Bush had the appointment of an African-American successor at the top of his agenda.  Why else did he have Colin Powell and Condoleezza Rice as his successive Secretaries of State?  The Secretary of State is the most visible officer of the Executive Branch after the President.  So it is only reasonable to expect that Congress, during the entire term of George W. Bush, would likewise have been paving the road for the first African-American President who would only be elected because he totally supported and underwrote EVERYTHING that his predecessors were doing.  It is all just too much of a ritual and stage play.  The Republican parties commitment to affirmative action of “right thinking” African-Americans was clear at the very latest from the fiasco surrounding the appointment of Clarence Thomas to replace Thurgood Marshall in what can now only be called the “African American” seat on the U.S. Supreme Court.  Thomas himself paved the way for the acceptance of Obama in the sense that Thomas’ own marriage was interracial and therefore especially “Brave New Worldy” in that special “destroy real diversity by promoting homogenization” and “shake n’ bake” demographics.  

The New Deal: When Lawyers Became the Masters of our Destiny by Making Paper more valuable than Property

New Deal of Deception by Designation: “Security”                                  A Working Draft of Research in Progress © Charles Edward Lincoln Sunday October 23, 2011 

         The “New Deal” is the name given by political historians to the “recovery & relief” programs initiated during Franklin Delano Roosevelt’s first term as President (March 4, 1933-January 20, 1937).   While many of Roosevelt’s iconic “relief” programs, including the NRA, the WPA, and CCC were either struck down by the Supreme Court or repealed during World War II, the modern legacy of the New Deal includes some familiar names of the most powerful governmental agencies and programs.

The list of six most famous “New Deal” agencies which remain active today, still operating under their original names, includes (1) the Federal Deposit Insurance Corporation (FDIC), (2) the Federal Crop Insurance Corporation (FCIC), (3) the Federal Housing Administration (FHA), and (4) the Tennessee Valley Authority (TVA). By far the largest “New Deal” programs still in existence today are (5) the Social Security Administration (headed by the Independent “Commissioner of Social Security”) and (6) the Securities and Exchange Commission (SEC)—because these two “independent commissions” in essence control and define the modern economy.  All of these programs are tightly knit together in one single tapestry of centralization of economic “command and control”.

What each of these six programs had in common with the other was nothing less than the transformation of various areas of American life by redefining it, by altering the cultural and normative understandings of certain words, phrases, and standards of behavior and transforming the legal landscape, replacing the traditional Anglo-American common law with modern regulatory codes.  The trajectory of each program merits some attention and reflection here, from the most general program to the most specific and limited.

TVA: TEMPLATE FOR A CENTRALLY PLANNED FUTURE

         Most discrete and delineated territorially within the country, and yet most overwhelmingly powerful in regard to “cradle to grave” impact on the lives of those forming its target population, the TVA was the most comprehensive governmental regional reorganization and restructuring plan ever undertaken in world history, and remains the longest lived such plan (still operating up to the present day after almost eighty years as a major techno-economic and socio-cultural planning “corporation”).

Chartered by Congress during Roosevelt’s famous “First Hundred Days” (in May 1933), the TVA manifests, in essence, the ideal of the Centrally Planned Society: a region including parts of seven States in the Protestant Old South transformed and reshaped under the leadership of an ethnic Jew of Austro-Slovakian parentage named David Eli Lilienthal, trained at Harvard by fellow Austrian-born Jew Felix Frankfurter. Frankfurter was famous in teens and twenties as a socialist radical, paving the way for the New Deal by advocated “judicial restraint” in dealing with government misdeeds, including greater freedom for administrative agencies from judicial oversight…..  In practice, this meant that (as Roosevelt’s 1938 appointee to the Supreme Court as the third Jewish Supreme Court Justice to Replace Benjamin Cardozo) Frankfurter would generally uphold all executive branch actions, including those of administrative agencies and government corporations against all constitutional challenges so long as they did not “shock the conscience” (meaning of course, his own conscience).

After 20 years in government, establishing first the TVA and then the Atomic Energy Commission, Lilienthal worked for several years for the investment bank Lazard Freres, and in 1955, formed an engineering and consulting firm called Development and Resources Corporation (D&R) which took the TVA’s objectives worldwide: major centrally planned public power and public works projects. Lilienthal was able to leverage the financial backing of Lazard Freres to found his company. He hired former associates from the TVA to work with him at D&R.  D&R focused on overseas clients, including Post-Mossadegh/Early Shahist Iran, and similarly politically oriented “forced cultural evolution” or “regional development” projects to suppress regional dissent and thus support U.S. backed regimes or programs in Colombia, Venezuela, India, Southern Italy, Ghana, Nigeria, Morocco, and above all, South Vietnam.

Because of Lilienthal’s leadership, TVA is said to be the model which the State of Israel emulated in its reorganization and redesign of Palestine after 1947, and the Tennessee Valley Authority stands as the template for U.S. Overseas Development up through and including the reconstruction of Iraq after 2003—a nearly eighty year run.  Nothing quite like the TVA ever happened again inside the United States, however.

FHA: TO ABOLISH THE DISTINCTIONS BETWEEN CITIES AND URBAN AREAS

         After the TVA’s design to redefine 100% of the way of life in a general region, the next broadest program of the six surviving New Deal Programs has been the acquisition and maintenance of interests in housing.  Born of a depression wherein millions were displaced, providing housing for about forty years for tens of millions, the New Deal legacy in 2011 is a cloaked depression, or perhaps a planned “genocide” in which an astounding 30-50 million Americans are losing or have lost their homes acquired and maintained since the New Deal under the aegis of Federal Government Programs.

For its “constructive” part in the transformation, the Federal Housing Authority was a massive nationwide “lending” umbrella project to fund the mass construction of housing—it also could be called the “Suburban Genesis Authority” or “the Abolition of Urban-Rural Distinctions Authority.”  Just as the TVA transformed parts of the landscape from Virginia through Tennessee to Mississippi, the Federal Housing Authority played a decisive role in moving people out of the cities and off farms into the vast suburban wastelands which now occupy immense percentages of the most fertile farm land in the world and are increasingly marred by decay and degeneracy brought on by foreclosure and eviction—empty ruins being sold off through “Investment Visa EB-5” and “Green Card” sales to thousands of Arabic and Chinese foreign investors with interests hard to characterize or predict except with the wildest speculation.

The Federal Housing Authority was originally created by the National Housing Act of 1934, which was amended in 1938 (Roosevelt’s Second Term) to create the Federal National Mortgage Association “Fannie Mae”, which under Lyndon B. Johnson and Richard M. Nixon metamorphosized and split into “Ginny Mae” (Government National Mortgage Association”) and “Freddie Mac” (Federal Home Loan Mortgage Association) to “foster competition”, even though all three entities remained entirely government controlled and Freddie and Fannie are now [since their “renationalization” by executive fiat in September 2008] owned by the U.S. Treasury Department and controlled by FHFA (Federal Housing Finance Authority).

The Federal Housing Authority now exists within the Department of Housing and Urban Development.  “HUD” was established in 1965 among the first steps of Lyndon B. Johnson’s program called the “Great Society”, which was not coincidentally also the first major expansion of Government Centralization in the United States SINCE the “New Deal” (and also not coincidentally formed part of the same program as the Civil Rights Act of 1964 and the Voting Rights Act of 1965).  The Federal Housing Authority remains today the key government agency supervising the Banking Industry’s role in mortgage finance and securitization of home loans.

In short, the TVA was all about completely reconditioning and reworking technology, society and culture in one region considered particularly “backward” and in need of “development”.  And having done so without significant protest or expressions of pain, TVA, became the model for “foreign aid” for the development of “Third World” Countries, while the FHA was a more general program to restructure the urban and rural landscape by “stimulating” housing construction and lowering costs nationwide.  There are those who say that the housing foreclosure and eviction crisis brought on by Federal financial programs means that the time for a national TVA has finally come, and that the next “Third World Country” to be forceably re-engineered and developed is the U.S., except this time it will be a much more diverse consortium of Near Eastern and Chinese experts who will impose their own standards of “conscience” on our legal system and the interpretation of our constitution.

THE FOURTH BRANCH OF GOVERNMENT: INDEPENDENT COMMMISSIONS OR AGENCIES, INCLUDING THE SEC, SOCIAL SECURITY, IRS, AND FEDERAL RESERVE: UTTERLY UNCONSTITUTIONAL & CONTROLLED BY INDUSTRY INSIDERS

Regarding distinct onomastic pattern characterizes the list of six after the TVA “Corporation” and the sub-cabinet level FHA: two “Insurance Corporations” and two “Security Commissions”— (1) the Federal Deposit Insurance Corporation (FDIC), (2) the Federal Crop Insurance Corporation (FCIC), together with (5) the Social Security System and (6) the Securities and Exchange Commission (SEC).

It is worth noting that in 1933 the United States Government owned no corporations whatsoever, at least not “outright”, although it had certainly chartered and funded some, including the great transcontinental railroads in the 19th century and many large banks after the creation of the Federal Reserve System in 1913, and regulated many others, especially after the enactment of the Sherman Antitrust Act in 1890 and (never coincidentally, the establishment of the first “Independent Commission” namely) the Interstate Commerce Commission (“ICC”) in 1887.

With the aforementioned dominance of the great transcontinental railroads in the U.S. in the late 1800s, legislators in the several states established commissions to effectively supervise them. State legislators delegated power to unelected and “independent” commissions in the belief that “specialists” could more readily accumulate expert knowledge to regulate the railroads than the legislators could do on behalf of the people. However, when the U.S. Supreme Court in 1886 struck down an Illinois statute on railroad commerce involving neighboring states, the U.S. Congress intervened. Congress copied state “unelected industry specialist” approach and established the Interstate Commerce Commission (ICC) in 1887.  Congress authorized the ICC to issue orders regarding the rates set by the railroads and to enforce its orders in court.  The Constitutional authority for Independent Commissions under the United States Constitution of 1787, and as amended since then is, as the late Chief Justice Warren E. Burger once confided to me in 1993 in Palm Beach, Florida, “absolutely nil.”

However, no successful challenge to the existence of these “independent commissions” has ever been litigated through the courts.  For this reason, after the ICC, Congress established many more {independent} regulatory commissions in the early 1900s, to include the Federal Trade Commission (FTC), the Federal Power Commission (FPC), the Federal Elections Commission (FEC), the Federal Communications Commission (FCC), the Internal Revenue Service (IRS: Headed by the “Commissioner of Internal Revenue”), the Nuclear Regulatory Commission (NRC—which took over from David Lilienthal’s Atomic Energy Commission or “AEC” mentioned above), the Securities and Exchange Commission (SEC), and of course, last but not least, the Social Security Administration (SSA: Headed by the “Commissioner of Social Security”).  More recently many “Independent Agencies” such as the Environmental Protection Agency have been created, always preserving, for whatever reason, the three letter monogram style of name.

These Commissions almost always work closely with Executive Branch Cabinet Officers and Administrative Bureaucracy whose officers CAN be fired by the President.  Officers of the Independent Commissions cannot be discharged by the Chief Executive nor, at least not without impeachment, by Congress, although they serve for limited terms.  In “Constitutional Law I” at the University of Chicago with Judge Richard Allen Posner, we spent a great deal of time on the unsuccessful constitutional challenges to the Independent Commissions over the past century.

In blatant defiance of any principles of separation-of-powers, the independent commissions/independent “executive” agencies all both have and exercise powers that functionally parallel all three branches of federal government as established by the Constitution. These Commissions/Agencies legislate by publication in the Federal Register/Code of Federal Regulations when they adopt or enact their own regulations. The Environmental Protection Agency, for example, adopts or enacts regulations limiting pollution emissions by industry.

Independent agencies also carry out executive functions, such as when the Interstate Commerce Commission checks to ensure that trucks have proper safety features.  Finally, many officers of independent agencies act in judicial capacity in “administrative” courts when they hold hearings and issue fines for violations of their undemocratically decreed regulations. Their powers, however, are at least theoretically limited by Congress. Congress may alter, amend, or appeal legislation delegating authority to an agency. The president may remove the head of an agency “for cause” (but not for disagreement with policy or decisions).  Under the desperately deferential “Chevron” standard, the courts (also mostly theoretically) may (but only very occasionally do) declare agency action to be unconstitutional or outside the grant of authority from Congress.

While not officially described as an “Independent Commission”, the Federal Reserve is set up in exactly the same way as the others listed above, and for many of the same practical and political reasons, its de jure “independence” of the government means de facto dependence on the industry being regulated, namely in the Federal Reserve’s case, the banking industry. Like every other “Independent Agency,” the Federal Reserve is independent within government in that “its monetary policy decisions do not have to be approved by the President or anyone else in the executive or legislative branches of government.”  However, its authority derives from Congress and Congressional statutes and is subject to “congressional oversight.”  Additionally, the members of the Board of Governors, including its chairman and vice-chairman, are chosen by the President and confirmed by the advice and consent of the Senate. Congress and the President also exercises not insignificant political control over the Federal Reserve by appointing and setting the salaries of the system’s highest-level employees.

Thus the Federal Reserve Board is populated by Banking “Industry Insiders” and its chairman always hails from Wall Street in New York or at least La Salle Street in Chicago. Like the original ICC, the Federal Reserve epitomizes the government-and-corporate cooperation which is neither democratically controlled by the people through their elected officials for the public good nor permits any genuine “laissez-faire” free-market competition by the operation of any such primitive principles as supply and demand, never mind customer satisfaction with service.   “Independent Commissions” are quintessentially creatures of government “by the industry, of the industry, for the industry” allegedly being “regulated” in the public good.  “Independent Commissions”, in short, constitute a fraudulent and unconstitutional mixture of governmental authority and corporate (financial) power.

TRANSFORMING THE MEANING OF “SECURITY” FROM PRIVATE PROPERTY TO PUBLIC PROMISES