The Lawmaking Power
The Constitution requires the federal government to have three branches: the legislative branch (Article 1), the executive branch (Article 2), and the judicial branch (Article 3). The Constitution also contains Articles 4-7 regarding the status of the states and the jurisdiction of the federal government (Article 4), how to make changes to the Constitution (Article 5), implementation details (Article 6), and how the Constitution is to be put into effect (Article 7).
Regarding the legislative branch, Article 1, section 1 states “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Legislative Power is the power to make law. Thus, the very first sentence of the body of the Constitution assigns the most important of all governmental powers, the power to make the law, to the direct representatives of the people (the house of representatives) and the states (the senate). Using words so clear they can’t be misunderstood, the Constitution establishes that “ALL” lawmaking power is assigned to congress. In other words, ONLY congress can make law.
This is important, because we've all been conditioned to accept that the president can issue “executive orders” that have the force of law. But that’s not how it’s supposed to work. In fact, the power to make law was purposefully not given to the president by the founders! Because a president with the power to make the law and the power to enforce it can't easily be resisted if that power is used against the people.
The president "presides" over the administrative agencies that make up the executive branch. This is important, because we've also been conditioned to accept that regulations made by those agencies have the force of law. This includes the regulations of agencies such as the Internal Revenue Service (IRS), the Department of Homeland Security (DHS), the Federal Emergency Management Agency (FEMA), the Federal Bureau of Investigation (FBI), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the National Security Agency (NSA), etc.
But that’s not how it’s supposed to work either. As stated above, the law of the land, the law that applies to the whole United States, is supposed to be made ONLY by congress. This is confirmed at the very end of Article 1, which once again states that congress alone has the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”. It is vital that we understand the Constitution clearly and repeatedly assigns to congress the power to make ALL laws in connection with ALL of the powers of the federal government. And, the Constitution invites us citizens to personally take an active part in it, and write our own laws for our own collective benefit. WE are in charge of writing our own laws. All of them.
Why doesn’t it work that way anymore? There are only two possibilities. Either congress delegated to the president and executive agencies a portion of its lawmaking power, or the president and the agencies grabbed more power than they are entitled to. But it doesn't matter which, because the Constitution assigns ALL of the lawmaking power to congress alone. That provision has never been amended, and it still applies.
Why is all of this so important? Because to restore the government to its proper operation requires that we first understand how it is supposed to operate, and recognize how it's now different. One of the differences is that executive orders and agency regulations purport to have the force of law but are not made by congress. They conflict with the plain language of the Constitution. They defeat the crucial, explicit, and repeated assignment of the lawmaking power exclusively to congress. The Constitution is the rulebook that sets up and defines the powers of each branch, and by its own terms it is the “supreme law of the land” (Article 6, Clause 2). So any law that conflicts with it can't be valid. Consequently, executive orders, including so-called “emergency” orders, and administrative regulations including those of the IRS, DHS, FEMA, and the rest that purport to have the force of law, are clearly unconstitutional because they weren't made by congress. That means they aren't valid, and have no legitimate legal effect.
Furthermore, any federal law that purports to exercise a power that was not explicitly specified in the Constitution as belonging to the federal government is also unconstitutional, even if it was passed by congress in the prescribed manner. As such, those laws aren't valid either, and have no legitimate legal effect. Of course, if federal agents kick down your door with weapons drawn, you should probably do what they tell you to do. But that’s not because they have legitimate Constitutional authority to do so. It’s because they’re behaving like gangsters.
Moreover, federal agents and soldiers cannot possibly have legitimate power to draw or use weapons against U.S. citizens. Nor do they have any other police power. Because the Constitution, the supreme Law of the Land, doesn't specify that any police power was given to the federal government, with three exceptions that will be examined below. So even if a law, or rule, or a high official, or the president himself by an executive order, or even in person, says they grant you such authority, that law, rule, order, or official is in direct conflict with the plain language of the Constitution. As such, it has no legitimate legal effect. The states, which do have legitimate police power, have never shared any of that power with the federal government. If they had, it would have to be stated in the Constitution, and it's not. The power to use force against Americans, any force at all, for any reason, even temporarily, is not listed there as having been given to the government of the United States, with the following three very specific and narrow exceptions.
The only mention in the Constitution of even a possibility of any armed action against U.S. citizens under federal authority is found in Article 1, Section 8, Clause 15. This clause authorizes congress (not the president) to “provide for calling forth the Militia” (not the army), and only for the specific purposes “to execute the Laws of the Union, suppress Insurrections and repel Invasions”. As noted previously, the Militia referred to are organized groups of ordinary citizens with their own weapons. They aren't regular U.S. army troops or other armed agents, which may never use armed force against U.S. citizens under any circumstances whatsoever. The militias have morphed into today's National Guard, and unfortunately even the National Guard doesn't comport with the Constitution. In fact, one of the most important functions of the militias is to allow the people to protect ourselves from any armed action against us by regular U.S. military forces! Although this isn't stated explicitly in the Constitution itself, it is discussed at length in one of a series of essays published in newspapers explaining the Constitution before it was ratified. The essays were written as an organized project to promote the ratification of the Constitution by the states. Alexander Hamilton and James Madison wrote about 95% of the essays. They had participated in drafting the Constitution, understood every nuance of why it says what it says, and signed the finished document. Those essays have been gathered together and published in a volume called The Federalist, a copy of which can be obtained from Project Gutenburg. One essay in particular speaks directly to this issue. It is attributed to James Madison, known as the "Father of the Constitution" because of his central role in drafting and ratifying it. Madison also drafted the Bill of Rights. According to this essay (Federalist No. 46), it was not reasonable for the states to refuse to ratify the Constitution out of fear that the federal government might someday use its power against the states or the people:
"That the people [by choosing the house of representatives] and the States [by choosing the senate] should, for a sufficient period of time, elect an uninterrupted succession of [congresses] ready to betray both; that the traitors [in congress!] should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the [state and local] governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like [ ] incoherent dreams … than like the sober apprehensions of genuine patriotism. [Suppose for example that] a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which … a standing army can be carried in any country, does not exceed … one twenty-fifth [1/25] part of the number [of citizens] able to bear arms.… To these would be opposed a militia amounting to [the other 24/25 part] with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by [state and local] governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed [which the states do], forms a barrier against the enterprises of ambition.… Let us not insult the free and gallant citizens of America with the … supposition that they can ever reduce themselves to … a blind and tame submission to the long train of insidious measures which must precede [their submission to domination imposed by a central government]."
Wow. How timely is that? This passage makes it perfectly clear that the right to keep and bear arms, secured by the second amendment, is important because it allows the people (virtually all of whom are assumed to be armed!) to organize ourselves into militias and protect ourselves, even from the federal government. The second amendment still applies, and for the same reasons.
The following comments are addressed specifically to anyone and everyone who works for the federal government, especially armed agents of federal agencies and armed forces of the United States. Every federal agent and soldier must understand something of absolutely critical importance: the only possible way a president or other official or group can ever assert control over a large American population is to order armed military and paramilitary forces to dominate and control us. But the Constitution doesn't allow it. If you ever, for any reason, in times of peace and even in times of actual insurrection or invasion, are ordered to point a weapon at a non-violent U.S. citizen, even if armed (because U.S. citizens have a right to "keep and bear arms"), or at a group of citizens peacefully assembled, such as at a non-violent demonstration (because U.S. citizens have a right “peaceably to assemble”), you are breaking the law! That order, even if it is a military order, is in direct violation of those rights, which are explicitly guaranteed by the Constitution, the supreme law of the land. Armed force can only be applied to control the people by the militias, even in times of actual insurrection or invasion. And, only congress, the directly elected representatives of the people, can call upon the militias to do so. And congress can only activate the militias for the specific purposes listed in the Constitution. That is, to "execute legitimate federal laws" (which can never include so-called executive orders), "suppress insurrections" (never to quell peaceful demonstrations), and "repel invasions" (never to round up and deport illegal immigrants). The militias consist of regular folks, armed with their own weapons, and can therefore be expected to refuse to fire upon other regular folks even if they are ordered to do so. You, armed soldiers and armed agents of executive departments such as the Department of Homeland Security (DHS), the FBI, the IRS, the ATF, and all the rest, may never use armed force on American citizens under any circumstances. Not for any reason. Not for breaking a law, no matter how serious. Not to enforce an executive order, especially if that order is to impose martial law. Not to meet any kind of emergency whatsoever. Not even to counter a terrorist threat, or an outbreak of a deadly disease, or even a nuclear attack.
There is simply no legitimate way for the federal government to use its own military or paramilitary forces on civilians. The Constitution never gave that power to any part of the federal government. So if you are ever given such an order, you can properly refuse to follow it. And if you think circumstances warrant it, you might want to consider the merits of switching sides, and persuading your fellows in arms to do the same, and joining or organizing a civilian militia. You might even consider pointing your weapons in the direction you just came from, at the people who gave you that unlawful and unconstitutional order. Because the only possible reason for giving such an order is to control and oppress the people. That purpose can't be achieved if the armed forces that are ordered to do it understand the order is illegal. And no one has an obligation to follow an illegal order. It is morally right, and ethically justified, and absolutely legal, to refuse to follow that or any other illegal order, and even to actively oppose it. You must understand with absolute clarity that the freedoms guaranteed to the American people by the Constitution cannot be taken away from us unless YOU, one of the armed forces under orders, do the taking. Before you do, remember that you swore, you swore, to protect and defend the Constitution from all enemies, foreign and domestic.