by Steven D. Miller
Regulations sometimes apply only to very narrow situations, which Congress never intended to apply to everyone.
Nothing here is legal advice.
Warning: government forms are issued under statutes. Their forms (requests for information) conform to the statutes that require information needed to perform their governmental function. The form establishes the venue set by the statute and regulations. If you sign the form you have agreed to their statutory venue and jurisdiction regardless of what you write or cross off of the form. It is most likely a martial law federal venue and jurisdiction intended to offer benefits and to control their wards.
There are over one million restrictions in federal regulations. The Code of Federal Regulations consistently grows every year. Regulatory compliance and economic impacts cost us $1.86 trillion annually. This is $14,900 annually per household. This is more per household than helath care, food, transportation, entertainment, apparel and services and savings. Not counting regulatiory burdens. Not counting State regulatory costs.
Back when America was free, people had very little contact with the limited government they created. Now there are executive department rules and regulations for all the taxes, penalties, fees, fines, tariffs, tickets, permits, tolls, and asset forfeitures that are needed to pay for SWAT raids, zero tolerance policies, surveillance cameras, speed traps, bank account seizures, private prisons, red light cameras, and NSA recording all phone calls. You are a slave being bled dry by government. But half of the problem is your misconstruing of the laws and regulations.
IMPLEMENTING REGULATIONS ARE REQUIRED BY LAW
Neither the statutes nor the Regulations can stand alone as law. The force of law depends upon both.
For example: in an ACLU case against bank snitching, the Supreme Court ruled that the law
“contains a general authorization to the Secretary of the Treasury to prescribe by regulation records to be kept…”
— California Banker’s Association v. Shultz, 416 U.S. 21, link: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=416&invol=21
and that
” the Act’s civil and criminal penalties attach only upon violation of regulations promulgated by the Secretary; if the Secretary were to do nothing, the Act itself would impose no penalties on anyone. “
There are many reasons why an agency will not develop regulations for laws they have a duty to enforce. For example:
- Congress failed to appropriate funds to enforce it.
- The law appears to be unconstitutional. The Supreme Court ruled that: “When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62
That’s right. Agencies and Courts will not let an issue get to the Supreme Court where their purported powers will be shot down. Your case will be dismissed on “other grounds”.
THE DEFINITION OF REGULATE KEEPS CHANGING.
The first two editions of Black’s Law Dictionary used the Webster’s definition. The third edition, in 1933 after we lost our right to own gold, added
“Power to regulate is power to establish reasonable limitations but does not generally include power to prohibit.”
Then they added a separate definition for Regulations for an Executive Department (editions 4 to 6), and a separate definition for Regulations plural (editions 5 and 6).
Black’s Law Dictionary sixth edition was the first to have no definition for Regulate singular. It is no longer in their vocabulary — even though it appears three times in the U.S. Constitution.
Then Black’s Law Dictionary seventh addition dropped these two definitions (Regulations for an Executive Department and for Regulations plural) but defined Regulation to include restriction — even though the third edition said “does not generally include power to prohibit”.
The Supreme Court in GE V FRC ruled that Courts can act administratively. But beware of Administrative Hearings. YOU WILL ALWAYS LOSE an Administrative Hearing. For a full explanation why this is so, I recommend the book The Authoritarians: Their Assault on Individual Liberty, the Constitution, and Free Enterprise from the 19th Century to the Present
REQUIRED DOES NOT MEAN MANDATORY
LAWS THAT ARE MERELY DIRECTORY if they try to regulate a right.
As I mentioned in my article on marriage licenses. Beverlin v. Beverlin, 29 W.Va. 732. 1887 ruled that
“… a natural right, and one that existed independent of statutes, any commands which a statute may give … should, if the form of words will permit, be interpreted as mere directions to the officers of the law and to the parties, not rendering void what is done in disregard thereof. … “
and
U.S. Supreme Court in Meister v. Moore 96 U.S. 76 in 1888 ruled that
“Such formal provisions may be construed as merely directory, instead of being treated as destructive of a common law right…”
U.S. v. Tallmadge, 829 F.2d 767:
“… One who relies on a legal interpretation by a government official assumes the risk that it is in error… it has also been held or said that `the government could scarcely function if it were bound by its employees unauthorized representations'” Goldberg v. Weinberger, 546 F.2d 477
The United States Supreme Court warned you that it is your duty to make sure government employees act within the law. Federal Crop Insurance Corp. v. Merril, 332 U.S. 380 (1947):
“… Anyone entering into an arrangement with the government takes the risk of having accurately ascertained that he who purports to act for the government stays within the bounds of his authority … and this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority.”
U.S. v. Stewart, 234 F.Supp. 94 (1964):
“United States Government officer may be sued only if he acts in excess of his statutory authority or in violation of the Constitution for then he ceases to represent government.”
U.S. Constitution Article 1, section 10 prohibits any State from passing ANY law impairing the Obligation of Contracts. So how can they shut down lemonade stands on private property for not getting a business license, food establishment permit, food safety permits, health inspections, requirements for on-site running water and refrigeration, approved fire extinguisher, federal and state tax registration, proof of waste disposal contract for the lemonade stand not just for the address, etc? According to John Stossel’s investigative report it takes a minimum of 65 days to start a lemonade stand.
US Supreme Court in U.S. vs. Minker, 350 U.S. 179 at page 187 explains that an administrative summons cannot compel testimony: “” an official command, … has some coercive tendency, either because of ignorance of their rights on the part of those whom it purports to command or their natural respect for what appears to be an official command, or because of their reluctance to test the … validity by litigation.”
The Amish do not have business licenses for their businesses. Maybe we could learn something from them.
And, by the way, the original food safety law said that vendors of food shall sell none but wholesome food. It was then up to a jury to determine a violation.
Fields v. US, 27 App DC 433: Words like “may,” “must,” “shall,” etc., are constantly used in statutes without intending that they be taken literally.
THE WORD MUST MEANS MAY
Your Government’s definition of the word “MUST”
You’ve probably been told that you “Must” file a form, or you “Must” disclose a number. Let’s take a closer look.
Caterpillar Tractor Company v. U.S., 589 F.2d 1040 (also see GEHL Co. v. C.I.R. 795 F.2d 1324): “Informal publications of IRS all the way up to revenue rulings are simply guides to taxpayers and taxpayer relies on them at his peril.”
Brinkley v. Brinkley, 56 N.Y. 192: “Must” as used in statutes has been frequently construed not to be mandatory
Fort Howard Paper v. Fox River Dist. 26 N.W.2nd 661: The word “shall” in a statute may be construed to mean “may”, particularly in order to avoid a constitutional doubt.
Gow v. Consolidated Copper, 165 Atl. 136: If necessary, to avoid unconstitutionality of a statute, “shall” will be deemed equivalent to “may”.
George Williams College v. Village of Williams Bay, 7 N.W.2nd 891: “Shall” in any statute may be construed to mean “may” in order to avoid constitutional doubt.
US Supreme Court, Cairo and Fulton RR Co. v. Hecht, 95 U.S. 168 (1877):
As against the government, the word ‘shall,’ when used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest.
Ballou v. Kemp, 95 F.2d 556: The word “shall” in a statute may be construed as “may” where the connection in which it is used or the relation to which it is put with other parts of the same statute indicates that the legislature intended that it should receive such a construction.
And just to make things more confusing…
SOMETIMES MAY MEANS MUST
Note how “may” is defined in 34 AmJur, Mandamus, section 72:
“Frequently, however, the word ‘may’ or the like as used in statutes relating to the duty of public officers is construed as mandatory, and not merely permissive, Anno: 6 L.R.A. 162; 12 L.R.A.(NS) 340, See STATUTES (also 25 RCL p. 750), and when such is the case, mandamus may issue to compel the officer to perform the duty so imposed. Rock Island County v. United States, 4 Wall. (US) 435, 18 LEd,419; Brokaw v. Highway Comrs., 130 Ill482, 22 N.E. 596, 6 L.R.A. 161.”
US Supreme Court in Mahler v. Eby 264 US 32:
“It is essential that where an executive is exercising delegated legislative power he should substantially comply with all the statutory requirements in its exercise”
AND JUST SO THAT YOU ARE NOT FOOLED, OR MEANS AND.
Take a closer look at section 6001 of the Internal Revenue Code. It uses the deceptive terminology “may require” and “or by regulations”:
“… Whenever in the judgment of the Secretary it is necessary, he may require any person, by notice served upon such person or by regulations, to make such returns, render such statements, or keep such records, as the Secretary deems sufficient to show whether or not such person is liable for tax under this title.”
Concerning the “or by regulations” terminology: This is one of the places where the word “or” really means “and”. If you are going to claim that some people are served notice in person, while others are served notice via the publication of regulations, then I demand the equal protection of the law, equal with those who have been served notice in person. [In statutes the word `or‘ can mean `and‘ unless preceded by a comma.] and of course, “may require” means must require.
Laws mean what Congress intended it to mean.
Justice Felix Frankfurter, in 47 Columbia Law Review 527 (1947), expressed:
“To go beyond [the statute] is to usurp a power which our democracy has lodged in its elected legislature. The great judges have constantly admonished their brethren of the need for discipline in observing the limitations. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction.”
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