Delegation of Authority

Elder: Mr. Brown, if someone baptizes an individual, and the someone does not have the authority, will God recognize that baptism?

Mr. Brown: No!

Elder: And why not?

Mr. Brown: Because they do not have the authority to baptize.

Elder: So even if the someone was sincere and with good intentions would God recognize the baptism?

Mr. Brown: No.

LDS Missionary discussions [1963]

When your heart tells you something

that the mind does not know, you are listening to the spirit.

Open up your mind and let your heart talk to it.

As you browes through the internet on the subject of taxation you will find countless programs designed to ‘free’ you from government control and taxation. Some of these programs have found limited success and failures. We could, and some have, spent hundreds of dollars on books and schemes designed to ‘save you’. Over the past three decades I have spent those dollars on the books and seminars. It has been an expensive education, but it has helped me sift through the maze of opinions.

As I have travelled this road, it has brought me to what I feel at this moment, the foundation of the powers of government. Now our constitutional government, the Republic, is unique. It is like no other and can be compare to none other. As the ‘Founding Fathers’ designed the guidelines in the Constitution for this government, they were familiar with the attempts of governments in various ages. They learned from the mistakes of history. They learned from their own attempt under the Articles of Confederation which immediately showed up weaknesses thus bringing about the creation of the new Constitution.

I have been able to bring the arguments down to two basic principles, that of ‘sovereignty’ and ‘delegation of authority’. These two principles are basic to any of the powers of government. For my purposes, they answer the questions concerning taxation.

The principle of delegation is widely understood. It is fundamental to the common law. In speaking to the Jews in the synagogue, Jesus told them that He had been delegated by His Father: “For I came down from heaven, not to do mine own will, but the will of him that sent me” (John 6:38). Ezra Taft Benson, past president and prophet of the Church of Jesus Christ of Latter-day Saints and a prominent government official in the Eisenhower administration understood this principle very well:

“Suppose (individual) ‘A’ wants another horse for his wagon. He doesn’t have the money to buy one, but since (individual) ‘B’ has an extra horse, he decides that he is entitled to share in his good fortune. Is he entitled to take his neighbor’s horse? Obviously not! If his neighbor wishes to give it or lend it, that is another question. But so long as (individual) ‘B’ wishes to keep his property, (individual) ‘A’ has no claim to it.

If ‘A’ has no power to take ‘B’s property, can he delegate any such power to the (government)? No! Even if everyone in the community desires that ‘B’ give his extra horse to ‘A’, they have no right individually or collectively to force him to do it. They cannot delegate a power they themselves do not have. This important principle was clearly understood and explained by John Lock nearly 300 years ago;

“… Nobody can transfer to another more power than he has in himself, and nobody has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another.” [John Locke, TWO TREATISE OF GOVERNMENT, book II]

In the law dictionary for the legal profession: “Power. (Def.) The right, ability, authority, or faculty of doing something. Authority to do any act which the grantor might himself lawfully perform.” [Black’s Law Dictionary] It cannot be over stated that the legal profession understands this concept with out question.

“Whenever government is doing anything that is forbidden to the citizen, that function is illegitimate, according to our theory of government…. Our government is founded squarely on this ‘theory of delegation’. One cannot delegate what he doesn’t have.” [Dean Russell, Letter to Compiler, March 19, 1964]

“The right never existed, and the question whether it has been surrendered, can not arise.” (M’Cullock vs. Maryland, supra., at p. 431)

“Since those who adopt and execute laws are our agents, doing only our bidding, we should never ask them to do anything which we would consider evil or wrong for us to do ourselves. Every person who knows right from wrong can apply this test as quickly and as easily in the case of government as in any other moral decision.” [Professor H. Verlan Anderson, Many Are Called But few Are Chosen.]

Separation of Powers

Delegation

What is it?

Simply put it is the “transfer of authority from one to another.”  Black’s Law Dictionary

“The act of empowering to act for another.”      Webster’s Collegiate Dictionary

The foundation of the principle of delegation is found in ‘sovereignty’. In order to transfer a power the sovereign must first possess that power. As the maxim states, one cannot transfer a power that they do not possess.

What are some of the facts?

“An often-repeated proposition of Anglo-American law is that delegated authority cannot be redelegated.”

‘Delegation of Power’

The Oxford Companion to The Supreme Court of the United States

“The usual argument for the invalidity of delegation of powers turns on the concept of ‘separation of powers’, that is, the forbidding of certain general powers to one or another of the general branches of government.”

‘Delegation of Power’

The Oxford Companion to The Supreme Court of the United States

“The legislature cannot delegate its power to make a law,…”

Lawyers Cooperative Publishing

‘Administrative Law’

“The Constitution provides that ‘[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” U.S. Constitution, Art. I, § 1. From this language the Court has derived the nondelegation doctrine: that Congress may not constitutionally delegate its legislative power to another branch of government. … [Mistretta v. U.S., at 371]

We have long recognized that the nondelegation doctrine does not prevent Congress from seeking assistance, within proper limits, from its coordinate Branches. [Mistretta, at 372] Thus Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors. So long as Congress ‘lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not forbidden delegation of legislative power.’ [J.W. Hampton, Jr. v. U.S., 276 U.S. 394, 409]”

Individual Sovereignty

“The Ninth and Tenth Amendments in words declared: ‘The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.’ …. The total residuum of power, the sovereignty, rests in the people, not the government nor in its officers. This marked the fundamental difference between this Anglo-Saxon Constitution and the governments set up under it, and the Justinian and Napoleonic codes and the governments set up under them.”

J. Reuben Clark, Jr. PPNS

There is no such thing as a power of inherent sovereignty in the government of the United States …  In this country sovereignty resides in the people, and Congress can exercise no power which they have not, by their Constitution entrusted to it: all else is withheld.     Juilliard vs. Greenman,  110 U.S. 421 (1884)

“…. The governments are but trustees acting under derived authority and have no power to delegate what is not delegated to them. But the people, as the original fountain might take away what they have delegated and intrust to whom they please. … The sovereignty in every state resides in the people of the state and they may alter and change their form of government at their own pleasure.”  Luther v. Borden, 48 U.S. 1 (1848)

“Power. (Def.) The right, ability, authority, or faculty of doing something. Authority to do any act which the grantor might himself lawfully perform.”

Black’s Law Dictionary

(to see additional information on sovereignty, go to ‘sovereignty’)

What are the Proper Limits

“The U.S. Constitution delegates different powers to the executive, legislative and judicial branches of government. Exercise by the executive branch of the powers delegated to the legislative branch offends this separation and delegation of powers and hence is unconstitutional. Certain powers may not be delegated from one branch of government to another ….”

Black’s Law Dictionary

Evils inherent in combining all powers into one branch

What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body.

Thomas Jefferson, Works 6:543

Tracing the Delegated Authority

An act against another persons life, liberty, or property without the evidence of a criminal act or that individuals consent is a criminal act in its self. In the case of property, it is called theft.

“The power of an administrative officer or board to administer a federal statute and to prescribe rules and regulations to that end is not the power to make law, no such power can be delegated by Congress, but the power to adopt regulations to carry into effect the will of congress as expressed by statute. A regulation which does not do this, but operates to create a rule out of harmony with the statute, is a mere nullity. [Cases cited] … And not only must a regulation, in order to be valid, be consistent with the statute, but it must be reasonable.”

Manhattan General Equipment v. C.I.R., 297 U.S. 129 [1936]

An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B. It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.”

Justice Chase, Calder v. Bull , 3 U.S. 386 (1798) at page 388


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