Jon Roland Letter
This letter very aptly answers many questions asked by my readers. A copy of the same document text will be found at eofed.htm with hot index links for you convenience. Forest
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Executive Order a Threat to Federalism
by
Jon Roland
Mon, 8 Jun
Dear Congressman:
This concerns three matters that require urgent action by Congress. The first is an Executive Order signed by President Clinton in Birmingham, UK, on May 14, 1998, entitled "Federalism", which is attached. It was posted on the White House Web site without a number, but other sources indicate its number is 13083. To the lay reader its provisions seem harmless. It makes ritual recognitions of the principles of federalism and compliance with the Constitution, but then, in Sec. 3(d), asserts elements which are not what they seem. I urge you to initiate rescission of this Executive Order within the 30-day period provided by statute.
One of the problems with the language of many statutes, regulations, judicial opinions, and executive orders is the opening they provide for bureaucrats determined to twist such language to expand federal power into areas not authorized by the Constitution or intended by the authors. It is the duty of Congress to be alert to the ways such language can be abused to subvert the Constitution and, in this case, the principles of federalism. Upon careful analysis of the language of this executive order, I have concluded that it will be used by the federal executive branch to assert administrative control over the day-to-day operations of every function of state and local government, by intimidating state and local officials into clearing almost every decision they make with federal bureaucrats and agents.
My investigations have revealed the operation of a long-term program by elements of the federal government to infiltrate and control state and local government. This program involves the placement into key positions of persons who take their orders not from their nominal superiors, but from federal agencies. This is being done with state and local law enforcement agencies, state and local prosecutor's offices and courts, legislative staffs, and executive agencies of all kinds. The aim appears to be to gain de facto control of state and local government, and is being used to block action against high-level wrongdoing, especially by federal agencies. Its apparent aim is nothing less than to reduce state and local government to divisions of the federal executive branch.
I further urge Congress to launch a general review of all executive orders, and the recission of all those which assert powers not in compliance with constitutional law.
The second matter concerns information I have received that the Federal Bureau of Investigation is to be in violation of statute concerning the maintenance of data on firearm purchases. The name and full ID of every retail gun buyer in the country will be recorded by the FBI, starting Nov. 30. Social security numbers will be semi-optional until Oct. 1, 2000, when they become mandatory. A tax of up to $16 will apply to every purchase, unless a state's police cooperate with the FBI (in which case the tax is waived); 19 states are cooperating as of this date. The FBI may lower its tax, working in concert with membership groups, if they think it will aid acceptance of registration. The official public comment period has ended.
FBI agents (who have effectively eliminated BATF from enforcement) claim they have to do all this for security or audit purposes, pursuant to the instant check provisions of the Brady Act. None of these claims are compatible with statute. Gun owners will be kept online for at least two years, and records will be stored permanently. The 2-year revolving online registry will include between eight and fourteen million people -- all the most current gun owners. Multiple permanent and quasi-permanent backups are planned. Testing starts with Oregon and Nevada in June, if the interface specs are on time.
Congress has not repealed the McClure-Volkmer act, which unequivocally prohibits recording this information in a government facility. The FBI is simply ignoring it, claiming it doesn't apply. Saving instant-check data is contrary to the Brady Act, which provides that if the sale goes through the records shall be destroyed.
The only data which might be properly stored, pursuant to the instant check provisions of the Brady Act, would be a record of persons whose rights to keep and bear arms have been disabled or restricted, in whole or in part, by order of a court of competent jurisdiction. I urge you to initiate action to terminate all such illegal actions by the FBI or any other agency or private organization acting as a contractor of the federal government.
I further urge a third measure, legislation prohibiting the use of social security numbers for any other purpose than the collection of income taxes and the payment of refunds and social security benefits. There is an ongoing effort by the federal government to gain control over the daily lives and right to work of every person, by creating a national identification system based on the social security number. This is a power that is already being abused to suppress critics of governmental abuses. It is a power that the national government must not be allowed to exercise under any pretext.
Jon Roland
THE WHITE HOUSE
Office of the Press Secretary
(Birmingham, England)
For Immediate Release May 14, 1998
EXECUTIVE ORDER [13083]
- - - - - - -
FEDERALISM
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to guarantee the division of governmental responsibilities, embodied in the Constitution, between the Federal Government and the States that was intended by the Framers and application of those principles by the Executive departments and agencies in the formulation and implementation of policies, it is hereby ordered as follows:
Section 1. Definitions. For purposes of this order:
(a) "State" or "States" refer to the States of the United States of America, individually or collectively, and, where relevant, to State governments, including units of local government and other political subdivisions established by the States.
(b) "Policies that have federalism implications" refers to Federal regulations, proposed legislation, and other policy statements or actions that have substantial direct effects on the States or on the relationship, or the distribution of power and responsibilities, between the Federal Government and the States.
(c) "Agency" means any authority of the United States that is an "agency" under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).
Sec. 2. Fundamental Federalism Principles. In formulating and implementing policies that have federalism implications, agencies shall be guided by the following fundamental federalism principles:
(a) The structure of government established by the Constitution is premised upon a system of checks and balances.
(b) The Constitution created a Federal Government of supreme, but limited, powers. The sovereign powers not granted to the Federal Government are reserved to the people or to the States, unless prohibited to the States by the Constitution.
(c) Federalism reflects the principle that dividing power between the Federal Government and the States serves to protect individual liberty. Preserving State authority provides an essential balance to the power of the Federal Government, while preserving the supremacy of Federal law provides an essential balance to the power of the States.
(d) The people of the States are at liberty, subject only to the limitations in the Constitution itself or in Federal law, to define the moral, political, and legal character of their lives.
(e) Our constitutional system encourages a healthy diversity in the public policies adopted by the people of the several States according to their own conditions, needs, and desires. States and local governments are often uniquely situated to discern the sentiments of the people and to govern accordingly.
(f) Effective public policy is often achieved when there is competition among the several States in the fashioning of different approaches to public policy issues. The search for enlightened public policy is often furthered when individual States and local governments are free to experiment with a variety of approaches to public issues. Uniform, national approaches to public policy problems can inhibit the creation of effective solutions to those problems.
(g) Policies of the Federal Government should recognize the responsibility of -- and should encourage opportunities for -- States, local governments, private associations, neighborhoods, families, and individuals to achieve personal, social, environmental, and economic objectives through cooperative effort.
Sec. 3. Federalism Policymaking Criteria. In addition to adhering to the fundamental federalism principles set forth in section 2 of this order, agencies shall adhere, to the extent permitted by law, to the following criteria when formulating and implementing policies that have federalism implications:
(a) There should be strict adherence to constitutional principles. Agencies should closely examine the constitutional and statutory authority supporting any Federal action that would limit the policymaking discretion of States and local governments, and should carefully assess the necessity for such action.
(b) Agencies may limit the policymaking discretion of States and local governments only after determining that there is constitutional and legal authority for the action.
(c) With respect to Federal statutes and regulations administered by States and local governments, the Federal Government should grant States and local governments the maximum administrative discretion possible. Any Federal oversight of such State and local administration should not unnecessarily intrude on State and local discretion.
(d) It is important to recognize the distinction between matters of national or multi-state scope (which may justify Federal action) and matters that are merely common to the States (which may not justify Federal action because individual States, acting individually or together, may effectively deal with them). Matters of national or multi-state scope that justify Federal action may arise in a variety of circumstances, including:
(1) When the matter to be addressed by Federal action occurs interstate as opposed to being contained within one State's boundaries.
(2) When the source of the matter to be addressed occurs in a State different from the State (or States) where a significant amount of the harm occurs.
(3) When there is a need for uniform national standards.
(4) When decentralization increases the costs of government thus imposing additional burdens on the taxpayer.
(5) When States have not adequately protected individual rights and liberties.
(6) When States would be reluctant to impose necessary regulations because of fears that regulated business activity will relocate to other States.
(7) When placing regulatory authority at the State or local level would undermine regulatory goals because high costs or demands for specialized expertise will effectively place the regulatory matter beyond the resources of State authorities.
(8) When the matter relates to Federally owned or managed property or natural resources, trust obligations, or international obligations.
(9) When the matter to be regulated significantly or uniquely affects Indian tribal governments.
Sec. 4. Consultation.
(a) Each agency shall have an effective process to permit elected officials and other representatives of State and local governments to provide meaningful and timely input in the development of regulatory policies that have federalism implications.
(b) To the extent practicable and permitted by law, no agency shall promulgate any regulation that is not required by statute, that has federalism implications, and that imposes substantial direct compliance costs on States and local governments, unless:
(1) funds necessary to pay the direct costs incurred by the State or local government in complying with the regulation are provided by the Federal Government; or
(2) the agency, prior to the formal promulgation of the regulation,
(A) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of the Office of Management and Budget a description of the extent of the agency's prior consultation with representatives of affected States and local governments, a summary of the nature of their concerns, and the agency's position supporting the need to issue the regulation; and
(B) makes available to the Director of the Office of Management and Budget any written communications submitted to the agency by States or local governments.
Sec. 5. Increasing Flexibility for State and Local Waivers.
(a) Agencies shall review the processes under which States and local governments apply for waivers of statutory and regulatory requirements and take appropriate steps to streamline those processes.
(b) Each agency shall, to the extent practicable and permitted by law, consider any application by a State or local government for a waiver of statutory or regulatory requirements in connection with any program administered by that agency with a general view toward increasing opportunities for utilizing flexible policy approaches at the State or local level in cases in which the proposed waiver is consistent with applicable Federal policy objectives and is otherwise appropriate.
(c) Each agency shall, to the extent practicable and permitted by law, render a decision upon a complete application for a waiver within 120 days of receipt of such application by the agency. If the application for a waiver is not granted, the agency shall provide the applicant with timely written notice of the decision and the reasons therefor.
(d) This section applies only to statutory or regulatory requirements that are discretionary and subject to waiver by the agency.
Sec. 6. Independent Agencies. Independent regulatory agencies are encouraged to comply with the provisions of this order.
Sec. 7. General Provisions.
(a) This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.
(b) This order shall supplement but not supersede the requirements contained in Executive Order 12866 ("Regulatory Planning and Review"), Executive Order 12988 ("Civil Justice Reform"), and OMB Circular A-19.
(c) Executive Order 12612 of October 26, 1987, and Executive Order 12875 of October 26, 1993, are revoked.
(d) The consultation and waiver provisions in sections 4 and 5 of this order shall complement the Executive order entitled, "Consultation and Coordination with Indian Tribal Governments," being issued on this day.
(e) This order shall be effective 90 days after the date of this order.
WILLIAM J. CLINTON
THE WHITE HOUSE, May 14, 1998.
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Constitution Society, 1731 Howe Av #370, Sacramento, CA 95825
916/568-1022, 916/450-7941VM Date: 06/08/98 Time: 00:42:13
http://www.constitution.org/ mailto:jon.roland@constitution.org
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