Rowan County is located in Kentucky. Kim Davis is the Rowan County clerk who has repeatedly refused to issue marriage licenses to same-sex couples and has therefore been jailed by order of a federal judge.
Here’s a video of a Kentucky attorney, Michael Peroutka, explainting a constitutional defense for Ms. Davis at a rally. He argues that she’s broken no law, because there is no law requiring her to issue marriage licenses to homosexuals. Yes, there may be court opinions alleging that Ms Davis must issue such licenses, but court opinions are not “law”–they are only opinions.
As Mr. Peroutka pointed out, Article 1 Section 1 of the federal Constitution declares, “All legislative Powers herein granted shall be vested in a Congress of the United States . . . .” If all legislative powers are vested in Congress, no legislative powers are vested in the courts (or in the executive branch, which is currently famous for issuing executive orders that seem to have the force of “law”). That means that the judicial and executive branches of the federal government have no authority to legislate and “make” law.
If the only charges against Kim Davis are that she’s defined a court opinion and/or executive order, then she has broken no law and it’s wrong, fraudulent and illegal to jail her for breaking a law because there is no such law.
Mr. Peroutka’s Article 1 Section 1 defense is the best “show me the law” argument that I’d heretofore seen.
But it got me thinking. Mr. Peroutka’s argument may be incomplete. I began to realize why the “show me the law” demand (often used by “tax resistors” being tried for violating IRS law) is routinely ignored by government in general and the courts in particular.
In theory, the “show me the law” defense should work against any charge that’s based on court opinions or executive orders–provided that you understand the significance of administrative law and make sure that your case is heard in a judicial, rather than administrative, court.
The “show me the law” defense probably won’t work under administrative law.
Because, at bottom, the “show me the law” argument is based on the principle of “separation of powers“. This principle confides various powers exclusively to only one branch of government.
For example, The Constitution of The State of Texas expressly declares:
“ARTICLE 2. THE POWERS OF GOVERNMENT
“Sec. 1. DIVISION OF POWERS; THREE SEPARATE DEPARTMENTS; EXERCISE OF POWER PROPERLY ATTACHED TO OTHER DEPARTMENTS. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.” [emphasis added]
Under “separation of powers,” the judicial court’s opinions can’t be law since “all legislative power” is vested in the Congress and therefore no legislative power is vested in the judicial branch.
But, as I’ve pointed out previously in several articles that touch on administrative law, according to the article on “administrative law” in American Jurisprudence 2nd, there is no separation of powers under administrative law. Under administrative law, all three fundamental powers of government (legislative, executive and judicial) are unified under a single authority. This unification implies that, under administrative law, all legislative powers are shared by all three “branches” of government and the judicial opinions and executive orders are just as much “law” as the legislation enacted by Congress.
All of which implies that under administrative law, you can be jailed for violating a judicial opinion or an executive order and the “show me the law” defense will be ineffective and futile. That implication is consistent with our current state of affairs. As if we don’t have enough trouble with legislators making idiotic laws, the courts are also famous for “making law” and President Obama is burying this country under a haystack of executive orders.
In fact, while I wouldn’t yet bet on it, it is conceivable that, insofar as the police are deemed to be part of the administrative law government, an order by a cop might carry the same authority as a “law” enacted by the legislative branch of government. Interesting conjecture, no? Could it be that under administrative law, the cops don’t merely enforce the law, they make it?
Administrative law is the cornerstone of big government and the police state.
How might you avoid being subject to administrative law?
I raised an argument against being subject to administrative law the A.D. 2006 case where I raised a Freedom of Religion defense against allegations prosecuted by the Attorney General of Texas. Most of that defense was based on the argument that I am a man made in God’s image and therefore can’t be an animal subject to the drug laws that apply to animals. But I also raised a defense against being subject to administrative law. The court never commented on either line of defense, but (after investing six years and nearly $500,000 in pre-trial investigations and hearings) the Attorney General’s office did simply drop the case and stop prosecuting.
If you’re curious about my defense at that time, you can go to the case at the previous link, and search for the word “administrative”. You’ll see about 9 instances where I used that term at various points in my answer. Taken together, those instances will illustrate my vague defense against being subjected to administrative law and administrative process.
Today, my defense against administrative law would be more sophisticated. Today, I’d argue something like this
- Article 1 Section 1 of The Constitution of The State of Texas declares in part that, “All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. . . . .”
- Based on Article 1 Section 1, The Constitution of The State of Texas is a trust indenture.
- The People of The State of Texas are the beneficiaries of that trust indenture and are entitled to whatever benefits that Constitution provides.
- One of those benefits of The Constitution of The States of Texas is “Division of Powers” (separation of powers) declared at Article 2 of that Constitution.
- I am one of the People of The State of Texas.
- I am a beneficiary of The Constitution of The State of Texas.
- I am entitled to the benefit of “division of powers” (separation of powers).
- Administrative law combines all three fundamental powers of government (legislative, executive and judicial) under a single authority.
- Administrative law unifies–rather than divides/separates–the three fundamental powers of government.
- Administrative law violates the principle of “division of powers”.
- By unifying the three fundamental powers of government, mandatory administrative law injures me by depriving me of one or more of the benefits of The Constitution of The State of Texas, including but not limited to my rights to “division of powers” and substantive due process.
- I do not consent to waive my right as one of the People of The State of Texas to the benefit of “division of powers”.
- I do not consent to be subject to administrative law and/or administrative process.
- If you hold public office under The Constitution of The State of Texas, you are a fiduciary charged with administering that trust.
- If you have taken an oath to support and/or defend The Constitution of The State of Texas, you are a fiduciary for that trust.
- As a fiduciary for The Constitution of The State of Texas trust, you are obligated to administer that trust for my benefit and ensure that I receive benefits such as my right to “division of powers” (separation of powers).
- If you are not acting in the capacity of a fiduciary under The Constitution of The State of Texas, you have no authority over me under administrative law unless I consent to that authority.
- I deny that I have ever knowingly and voluntarily consented to be subject to administrative law.
- If you are not bound by office or oath to administer The Constitution of The State of Texas on my behalf, I deny that you have any administrative authority over me in this matter.
- As one of the People/beneficiaries of The Constitution of The State of Texas I demand that any claims or litigation against me proceed and be heard only in a judicial court under the judicial department of government.
I’m just spit-balling here. If I were really facing prosecution in some administrative tribunal, I’d undoubtedly tweak, tighten and expand the previous line of defense. For example, I’d want to include reference to the 6th Amendment which declares in part that “In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation” against him. My right to be informed of the nature and cause of the accusation against me is just another way of saying I have a right to demand that they “show me the law”.
Nevertheless, I think you get the basic idea: I believe that, properly presented and argued, the constitutional right to “division” and/or “separation” of powers should defeat the presumed authority of administrative law.
Once you’re out from under administrative law, the demand that government “show me the law” may take on real authority and effectiveness. Until you escape administrative law,
As for Kim Davis (the clerk imprisoned for refusing to issue marriage licenses to gays), if the previous analysis is roughly correct, even though she has violated no known legislative law, she has probably been “lawfully” imprisoned under administrative law. She will remain in prison and her imprisonment will be deemed lawful unless she can devise a defense that proves that she is not subject to administrative law.