Institutionalized
Tyranny
The Character
& Color of Authority
By Dan Meador
Revised - November 14, 2009, in memory of the author: Dan
Meador
This
work documents elements of a scheme known as “Cooperative
Federalism” that for the last half century has placed the
American people under edict of private courts and has compromised
virtually all State and Federal enforcement authority. Sections of the
work demonstrate proper application of Federal drug and tax
laws. _______________
The
Avenger
Comes
I
As certain as
the dawn of new day, the Avenger comes,
but we cannot see him, and know not his character
for darkness that engulfs us blinds our sight. Is
he a man of God; Christ Jesus come again?
or is he vengeful after his own cause, an
Inquisitor,
who will inflict terror on those who
oppose his rule? We who seek and pray for justice
must turn to God
for His solace is the hope of multitudes;
we must
be diligent in our labors,
for the day of
Righteousness comes. But who approaches the near
horizon –
the Son of Man, or another would-be
god?
II
We stand at
the gates of Babylon, her secrets
exposed;
we have
defrocked black-robed pretenders
who inflict the rule
of private courts,
and have unraveled the myth of
convoluted law. These truths
cannot be defamed -- they are candles
set in the
midst of reprobates. It is for
them that the Avenger
comes.
III
We who seek
justice have touched the face of
grief,
asking
mercy for neighbor and
friend; We have
labored to secure and expose the
truth,
but have
been rebuffed by proud, sanctimonious liars
who bloat
themselves on pirated fruits,
the spoils of
countrymen and kin. How shall we
greet the Avenger who comes?
Shall we
demand justice, or again ask mercy,
That the
reprobate, or at least his attendant, be spared?
Dan Meador; February
24, 1998; FMC-Lexington, at Lexington,
Kentucky
_______________
Table of
Contents
Introduction
The
Scheme & Its Effect
The
Least Common Denominators
The
Codes Are Unraveled
Basic
& Essential Authorities
Breakdown
of Drug & Internal Revenue Laws
I.
Application of Federal Drug Control Laws
II.
Application of Internal Revenue Code Taxing
Authority
Transfer
of Functions
Underlying
Compromise of the U.S. Marshal
Territorial
Jurisdiction of Federal Law Enforcement
Community
End
Game Alternatives
Footnotes
__________________________
Introduction
In the last
decade, increasing numbers have joined the effort to unravel how
Federal, State, and local governments make what amount to end runs
around constitutional limitations. The purpose of this composition
is to bring the fruit of the best research into focus, and construct
a reasonably comprehensive picture of the macabre scheme that
undermines sovereignty and solvency of the nation.
As the original
and first revision of this discourse circulated, other people began
responding with additional research and constructive criticism,
making expansion and more authoritative detail possible. Particular
thanks go to Paul Mitchell, Timothy McCrory, and J. Halsbrook. Those
who made factual and conceptual breakthroughs that contributed to
the original composition are too numerous to name.
Dale Pond of
Tulsa, Oklahoma edited the original and has continued to review each
revision with the objective of helping frame technical material
dredged from tens of thousands of pages of historical documents and
government legalese so most any literate person can read and grasp
both substance and implications of possibly the most diabolical
scheme ever perpetrated against a developed nation.
A mere "thank you"
is inadequate for my wife, Gail, who has endured humiliation and
hardship since approximately 1995, and the many generous, patriotic
people who have made the continuing effort to unearth and expose
truth possible.
Gail and I share a
life calling -- Christian ministry. We believe our nation was
established in a unique historical moment, and that the Constitution
of the United States emerged as a divinely inspired compact to serve
widely divergent interests. It was not something fabricated out of
thin air. Massachusetts Bay Colony established the first American
constitution for civil government in 1636, basing it on precepts set
out in the Mayflower Compact, signed by Pilgrims when they first
arrived at Plymouth Colony in 1620, so the fledgling nation had over
a century and a half of experience with written constitutions before
the Constitution of the United States was drafted in 1787. While the
Constitution does not specifically credit God as ultimate authority,
many of the men who participated in the Constitutional Convention
were also delegates to the Second Continental Congress, and had
signed the Declaration of Independence, pledging lives, fortunes,
and sacred honor to the cause of liberty.
The Declaration of
Independence justified severance from British rule by the "Laws of
Nature and Nature's God" -- physical and moral law man can neither
author nor amend. These are the two great branches of natural law,
acknowledged since time memorial even in civilizations that did not
worship the Creator God acknowledged by Christian and Jewish
religions. The Constitution preserves these principles by
recognizing sovereignty of the people and preserving unalienable
rights articulated in the Declaration of Independence. The
Constitution must be understood in this context, the lineage being
approximately six prior centuries in which principles of
English-American common law were time-tested, proven, and
articulated.
Central to this
understanding is that nobody is above the law, and no manmade law
contrary to the Laws of Nature and Nature's God is or can be
legitimate as it is destructive to the body politic and the cultural
fabric. Those who usurp power not enumerated in and specifically
delegated by the Constitution are in rebellion against man, nature
and God -- they are reprobate. As they pursue self-serving ends,
they breach public trust, threaten peace and domestic tranquillity,
and cause injury to countryman and kin. In the end, they bring
destruction on themselves as history has proven time and again that
tyranny has no friends.
While this effort
addresses details of the scheme that undermines and compromises the
sovereign American people, Gail and I stand firm in the belief that
God blessed America from the beginning, and in the latter Twentieth
Century, is exposing the fraud through people prepared for and
appointed to the task. The means of peaceful correction can and
should be primarily through exposure -- documentation and disclosure
of truth. Truth will ultimately prevail.
Ponca City,
Oklahoma
__________________________
The Scheme & Its
Effect
Governments of the
United States, the Union of several States, and possessions of the
United States are embroiled in a scheme known as Cooperative
Federalism, sometimes identified simply as Federalism. The
nonconstitutional scheme presumes that each of the several States is
an instrumentality of the United States on a par with insular
possessions of the United States1, rather than semi-independent State
republics, (1) restricted only by constitutional prohibitions and
mandates, and (2) subject only to constitutionally-enumerated powers
of the United States.
This scheme was
made possible by emergence of a second government. Yet even today,
those not familiar with the two capacities of United States
government find it difficult to grasp implications. However, some
who held responsible positions when the second or shadow government
emerged saw the danger. Justice Harlan, a justice on the Supreme
Court of the United States, was among them. One of his more lucid
criticisms was written in his dissenting opinion in Downes v.
Bidwell (1901), the first of four insular tax cases that provided a
conceptual platform for the current de facto (authority in
fact, but without law) system that engulfs not only insular
possessions of the United States, but State republics party to the
Constitution:
The idea
prevails with some -- indeed, it found expression in arguments at
the bar -- that we have in this country substantially or
practically two national governments, one to be maintained under
the constitution, with all its restrictions; the other to be
maintained by Congress outside and independently of that
instrument, by exercising such powers as other nations of the
earth are accustomed to exercise. It is one thing to give such a
latitudinarian construction to the Constitution as will bring the
exercise of power by Congress, upon a particular occasion or upon
a particular subject, within its provisions. It is quite a
different thing to say that Congress may, if it so elects, proceed
outside the Constitution. The glory of our American system of
government is that it was created by a written constitution which
protects the people against the exercise of arbitrary, unlimited
power, and the limits of which instrument may not be passed by the
government it created, or by any branch of it, or even by the
people who ordained it, except by amendment or change of its
provisions.2
The United States,
via constitutionally-delegated powers which are statutorily
activated by Congress, carries out certain responsibilities in
relation to the several States party to the Constitution and the
people of the several States, but Congress has what is described as
plenary or near-absolute power in territory belonging to the United
States. The insular tax cases addressed a unique situation: Insular
possessions ceded by Spain in 1898 following the Spanish-American
War were the first territories acquired by the United States where
the cession treaty did not incorporate the territory and people in
the constitutional scheme. Consequently, the Philippines, Puerto
Rico, and other provinces ceded by Spain were to become more like
British Crown colonies than territory previously acquired by the
United States. Other insular possessions acquired since have not
been incorporated in the constitutional scheme, either.
This division, and
limited application of the Constitution, was what alarmed Justice
Harlan and others who clearly understood that a house divided cannot
stand -- that the "permissive" would eventually overcome the
"restrictive" government. They were correct. Cooperative Federalism,
known as Corporatism into the 1930s, evolved to crowd out legitimate
government required to operate within the confines of
constitutionally-enumerated powers. An idyllic view of the scheme
was articulated by the Supreme Court in Shapiro v. Thompson
(1969):
The Great
Depression of the 1930's exposed the inadequacies of state and
local welfare programs and dramatized the need for federal
participation in welfare assistance. Congress determined that the
Social Security Act, containing a system of unemployment and
old-age insurance as well as the categorical assistance programs
now at issue, was to be a major step designed to ameliorate the
problems of economic insecurity. The primary purpose of the
categorical assistance programs was to encourage the States to
provide new and greatly enhanced welfare programs. Federal aid
would mean an immediate increase in the amount of benefits paid
under state programs. But federal aid was to be conditioned upon
certain requirements so that the States would remain the basic
administrative units of the welfare system and would be unable to
shift the welfare burden to local governmental units with
inadequate financial resources. Significantly, the categories of
assistance programs created by the Social Security Act
corresponded to those already in existence in a number of States.
Federal entry into the welfare area can therefore be best
described as a major experiment in "cooperative federalism" King
v. Smith, 392 U.S. 309, 317, 88 S.Ct. 2128, 2133, 20 L.Ed.2d 1118
(1968), combining state and federal participation to solve the
problems of the depression.3
Since the 1930s
great depression and World War II, fraudulent economic policy, and
mathematically impossible credit and monetary systems, have
undermined American sovereignty and solvency, resulting in agonizing
rural poverty and cancerous growth of the urban ghetto. The effect
of wealth transfer since the early 1970s has all but destroyed the
nation's middle and upper-middle income classes. Benefits flow to
only about twenty percent of the population, while windfalls funnel
to the wealthiest quarter of one percent. By the end of the 1980s,
the Cooperative Federalism system of frauds had ripened to such
decadence that it criminalizes tens of thousands without lawful,
constitutionally delegated authority, and otherwise engages in
thinly disguised piracy perpetrated against many thousands more..
Absolutely nobody is safe -- government seeks to control life of
virtually all Americans from cradle to grave. Aside from specific
industries, the economic assault has been particularly injurious to
two broad classes, children and subsequent lineage of the Post War
Boomers, and minorities of color.
Distress from the
increasingly confrontational system is sufficient that every
legitimate key-question survey since 1990 has reflected that sixty
percent or more of the nation's eligible voters distrusts
politicians and political institutions down to and including local
school boards. By September 1995, the distrust level topped 72%, and
by May 1996, went over 80%; in November 1996, only 49% of the
nation's registered voters bothered to vote, which was a distressing
number due largely to only 35-40% of those eligible to vote having
even registered. Consequently, few politicians elected in November
1996, including the President of the United States, represent much
more than 10% of the eligible voters in their respective districts.
As the last decade of the Twentieth Century draws to an end,
national, state, and local governments are probably less
representative of the people than at any time since Congress
convened under the Constitution in 1789.4
In a more pointed
survey, approximately 35% of those interviewed expressed manifest
and rising anger toward Federal government. The summer 1998 survey
abated some from a year earlier, but politicians such as Vice
President Al Gore are concerned that what was previously articulated
as anger has simply turned to cynicism, in many ways a more
dangerous and enduring mindset. Those cynical and angry toward
Federal government constitute a significant force approaching half
the nation's adult population.
These surveys
contradict pomp and circumstance proclaiming all is well. Americans
aren't indifferent to personal and national welfare, generation of
wealth, and sovereignty. The vast majority knows something is
desperately wrong, but has been mystified and immobilized by the
de facto scheme woven in the craft of wordsmiths and other
means of deception which has evolved since approximately the Civil
War, with what amounted to a constitutional coup de grace in
the 1930s.
Encroachment has
continued at a steady to accelerating pace since, hitting high gear
in 1966 and after. By 1990, State and Federal governments
incarcerated more people in total numbers and on a per-capita basis
than any other nation in the world other than South Africa and the
old Soviet Union -- prison industries had become the nation's fifth
largest industry. The Department of Justice, to say nothing of
corresponding State agencies, the Internal Revenue Service, and
other Federal agencies, routinely seizes and/or confiscates in
excess of $50 billion per year in privately-owned American
assets.5 This frenzy has gone so overboard
that by late 1997 and early 1998, even The Wall Street
Journal, Forbes Magazine, and other influential mainline
magazines and newspapers were publishing critical articles. In 1998,
American incarceration numbers, now at 1.2 million nationally, and
in excess of 113,000 in the Federal system, rank second in the
world, with the former Soviet Union having the dubious honor of
ranking first.
The combined force
of adverse economic policy, and abusive administrative, and civil
and criminal prosecution initiatives, is rapidly reaching critical
mass -- a point where general civil disobedience, and eventually
revolution, is inevitable unless something happens to alleviate
mounting conflict. Common people feel alienated from and defenseless
against their government, symptoms which characteristically lead to
backlash and violent confrontation. This is the course of nations
and empires throughout history, with nineteen of twenty-one known
empires prior to 1935 having fallen from within due to economic
collapse and destruction of key social institutions.6
Proper enforcement
of law has the potential of averting disaster. Cooperative
Federalism is imposed through fraud and illusion -- perpetrators
operate in a de facto manner without lawful authority, so
they are subject to criminal prosecution and civil remedies in
lawful State and Federal courts. The problem is forcing those
appointed or elected to judicial offices to convene
constitutionally-authorized courts, or removing them from office so
successors will.
Thanks to work of
patriotic researchers across the nation, keys to unraveling
convoluted State and Federal Codes are soundly in place. With solid
conceptual footing, energy can be focused on untangling the maze,
then deploying strategies to peacefully and lawfully correct the
system. Scripture speaks to the matter in two contexts which are
fundamental to the effort: The reprobate will be caught in his own
snare, and in his second letter to Timothy, the Apostle Paul
foretold that the reprobate would proceed no further as he would be
exposed for all the world to see. These two approaches are
fundamental to peacefully restoring constitutional rule.7
__________________________
The Least Common
Denominators
Virtually every
Federal initiative in the Union of several States in both civil and
criminal actions is defective by virtue of being without lawful
authority. All cases are prosecuted in United States District
Courts8 in the name and by authority of the
United States of America. At first blush, these facts seem
legitimate and innocent enough, but the underlying difficulty is
akin to remembering if the order of stripes on the deadly coral
snake is red then black, or red then yellow. The "United States
District Court" isn't what it seems; the "United States of America"
isn't what it seems, either.
These are fatal
flaws. Only district courts of the United States, as defined at 28
U.S.C. § 4519 (Section 451 of Title 28 of the
United States Code), and three remaining territorial courts10, are courts of the United States.
United States District Courts situated in the Union of several
States are private courts; they do not exercise Article III or
Article I (legislative-territorial) judicial authority of the United
States.
The Article III
district court was defined in a 1938 Supreme Court decision styled
Mookini v. United States, as follows:
The term
"District Courts of the United States," as used in the rules,
without an addition expressing a wider connotation, has its
historic significance. It describes the constitutional courts
created under article 3 of the Constitution. Courts of the
Territories are legislative courts, properly speaking, and are not
District Courts of the United States. We have often held that
vesting a territorial court with jurisdiction similar to that
vested in the District Courts of the United States does not make
it a "District Court of the United States."11
The legitimate
territorial court, designated as a United States District Court, was
defined by the Supreme Court in Balzac v. Porto Rico in
1922:
The United
States District Court is not a true United States court
established under article 3 of the Constitution to administer the
judicial powers of the United States therein conveyed. It is
created in virtue of the sovereign congressional faculty, granted
under article 4, § 3, of that instrument, of making all needful
rules and regulations respecting the territory belonging to the
United States. The resemblance of its jurisdiction to that of true
United States courts, in offering an opportunity to nonresidents
of resorting to a tribunal not subject to local influence, does
not change its character as a mere territorial court.12
One of the better
listings of "courts of the United States" is the definition of
courts which the Administrative Office of United States Courts has
jurisdiction over, at 28 U.S.C. § 610. However, this list is dated.
Since the definition was last amended, the United States District
Court for the Canal Zone has been abolished, and the territorial
court (United States District Court) for the Northern Mariana
Islands has been added:
As used in this
chapter the word "courts" includes the courts of appeals and
district courts of the United States, the United States District
Court for the District of the Canal Zone, the District Court of
Guam, the District Court of the Virgin Islands, the United States
Court of Federal Claims, and the Court of International
Trade.
Validity of this
definition of courts of the United States is reinforced by
regulations generated for the General Accounting Office in the
definition of "agency" at 4 CFR § 91.2:
§ 91.2
Definitions.
(a)
Agency means --
(1) An executive
agency as defined in 5 U.S.C. 105, including the General
Accounting Office,
(2) The
Government Printing Office,
(3) The Library
of Congress,
(4) The Office
of the Architect of the Capitol,
(5) The Botanic
Garden, and
(6) The
Administrative Office of the United States Courts, the Federal
Judicial Center, and any of the courts set forth in section 610 of
title 28, U.S. Code. Section 610 defines "courts" to include the
courts of appeals and district courts of the United States, the
United States District Court for the District of the Canal Zone,
the District Court of Guam, the District Court of the Virgin
Islands, the United States Claims Court and the Court of
International Trade.
The General
Accounting Office is general agent of the Treasury of the United
States, responsible for settling all claims of or against the United
States, so reiteration of 28 U.S.C. § 610 as authoritative with
respect to identifying lawful courts of the United States
conclusively demonstrates that United States District Courts
situated in the Union of several States are not lawful courts of the
United States. Implications of the GAO adopting this definition as
identifying lawful courts of the United States are more than
interesting and at some point in the future should be useful in
securing redress of grievance in administrative and judicial
forums.
A somewhat
different but maybe clearer approach is used in the definition at 28
U.S.C. § 1869(f). This subsection "defines" what courts of the
United States are authorized by statute to convene grand and petit
(trial) juries, and effectively bridges civil and criminal so far as
lawful courts of the United States are concerned:
(f) "district
court of the United States", "district court", and "court" shall
mean any district court established by chapter 5 of this title,
and any court which is created by Act of Congress in a territory
and is invested with any jurisdiction of a district court
established by chapter 5 of this title...
Criminal
jurisdiction of the United States, found at 18 U.S.C. § 3231, is
vested in "district courts of the United States", not "United States
District Courts", and the same is true in civil forums in title 28
of the United States Code.13 Sections of the Code which reflect
jurisdiction similar to district courts of the United States in
territorial courts are found for the most part in title 48,
Territories and Insular Possessions. The Virgin Islands territorial
court is unique in that it is vested with concurrent maritime
jurisdiction at 18 U.S.C. § 3241. However, the "territorial"
jurisdiction can and does extend only to the insular possession
itself, along with territorial waters. The Canal Zone territorial
court had concurrent admiralty and maritime jurisdiction until it
was abolished, and prior to admission as States of the Union,
concurrent maritime jurisdiction was vested in various of the
territorial courts.
No Article III or
Article I jurisdiction of the United States is vested in United
States District Courts situated in the Union of several States party
to the Constitution. They are not courts created by Congress -- they
are private courts created by a judicial consortium. These folks
garbed in black were for the most part appointed under authority of
Article III § 1 of the Constitution to preside in lawful courts of
the United States, but without constitutional or statutory
authority, elected to set up a system of private courts which
operates under the territorial illusion.
Whenever
territories of the United States were admitted to the Union, Article
I territorial courts were replaced by Article III district courts of
the United States. Prior to the 1920s, however, there doesn't seem
to have been any real distinction in text so far as the district
court of the United States v. the United States District Court is
concerned. The problem was resolved via Supreme Court definition in
Balzac v. Porto Rico (1922). However, in at least some legislation,
court nomenclature was avoided, as was the case in the judiciary act
of March 3, 1911 in statutory language governing transition from
territorial to Article III courts. The fact that the territorial
courts were abolished with admittance of a territory to the Union of
several States is verified in §§ 62-64 of the act of March 3, 1911,
ch. 231, 36 Stat. 1104:
Sec. 61. When
any Territory is admitted as a State, and a district court is
established therein, all the records of the proceedings in the
several cases pending in the highest court of said Territory at
the time of such admission, and all records of the proceedings in
the several cases in which judgments or decrees had been rendered
in said territorial court before that time, and from which writs
of error could have been sued out or appeals could have been
taken, or from which writs of error had been sued out or appeals
had been taken and prosecuted to the Supreme Court or to the
circuit court of appeals, shall be transferred to and deposited in
the district court for the said States.
Sec. 63. It
shall be the duty of the district judge, in the case provided in
the preceding section, to demand of the clerk, or other person
having possession or custody of the records therein mentioned, the
delivery thereof, to be deposited in said district court; and in
case of the refusal of such clerk or person to comply with such
demand, the said district judge shall compel the delivery of such
records by attachment or otherwise, according to law.
Sect. 64. When
any Territory is admitted as a State, and a district court is
established therein, the said district court shall take cognizance
of all cases which were pending and undetermined in the trial
courts of such Territory, from the judgments or decrees to be
rendered in which writs of error could have been sued out or
appeals taken to the supreme Court or to the circuit court of
appeals, and shall proceed to hear and determine the
same.
The sections above
were derived from §§ 567-568 of the Revised Statutes of 1878, page
97, so they weren't new in 1911 or even 1878, but originated a
considerable time before. They clearly demonstrate that the nature
of courts of the United States is an either/or proposition: Either
they must be district courts of the United States, vested with
judicial power of the United States via Article III § 1 of the
Constitution, or they must be Article I legislative courts, with
territorial courts having jurisdiction limited to territory subject
to Congress' Article IV § 3.2 legislative authority. There is no
statutory provision or justification for maintaining territorial
courts once a territory of the United States is admitted to the
Union of several States. When a territory is admitted to the Union,
only Article III courts of the United States may make determinations
that deprive the sovereign people of life, liberty, or property..
The Fifth Article of Amendment, as well as the "arising under"
clause at Article III § 2.1 of the Constitution, cannot be abridged
by Congress or the judicial branch of government.
The means by which
Congress vests territorial courts with judicial authority similar to
that of Article III district courts of the United States is
demonstrated in language employed to establish jurisdiction of the
District Court of Guam, at 48 U.S.C. § 1424:
Sec. 1424.
District Court of Guam; local courts; jurisdiction
(a) District
Court of Guam; local courts
The judicial
authority of Guam shall be vested in a court of record established
by Congress, designated the "District Court of Guam," and such
local court or courts as may have been or shall hereafter be
established by the laws of Guam in conformity with section 1424-1
of this title.
(b)
Jurisdiction
The District
Court of Guam shall have the jurisdiction of a district court of
the United States, including, but not limited to, the diversity
jurisdiction provided for in section 1332 of title 28, and that of
a bankruptcy court of the United States.
(c) Original
jurisdiction
In addition to
the jurisdiction described in subsection (b) of this section, the
District Court of Guam shall have original jurisdiction in all
other causes in Guam, jurisdiction over which is not then vested
by the legislature in another court or other courts established by
it. In causes brought in the district court solely on the basis of
this subsection, the district court shall be considered a court
established by the laws of Guam for the purpose of determining the
requirements of indictment by grand jury or trial by
jury.
Restating the
obvious, United States District Courts situated in the several
States are not Article III district courts of the United States, and
they are not Article I territorial courts, known as United States
District Courts. It is technically accurate to say that they are
"outlaw" courts -- courts which do not exist by laws of the United
States promulgated by Congress, and do not exercise judicial
authority of the United States.14
This is not
conjecture. Judges and the court clerk in the Eastern District of
Kentucky have effectively confessed this conclusion in
administrative and judicial forums. Law of the United States speaks
clearly to the matter. Litigation is already filed in the Eastern
District of Kentucky with the mandate to convene the Article III
district court of the United States, with an affidavit of bias and
prejudice that disqualifies all judges appointed to the district,
the object being to force the Chief Judge of the 6th Circuit to
convene the constitutionally-authorized and statutorily-established
district court. The contention is supported by a letter from the
office of the General Counsel for the Administrative Office of
United States Courts.15 As of this writing, these initiatives
are stalemated by inaction, but there has been no rebuttal to the
obvious conclusions and legitimacy of the initiatives.
The character of
the United States District Court is addressed several times in the
body of this discourse, so we will rest the subject for
now.
Next, it is
particularly important to understand that the "United States of
America" responsible for civil and criminal initiatives in United
States District Courts is a government foreign to the United States
that has no constitutional or statutory authority in the several
States party to the Constitution. Where United States government has
two capacities or characters, there are two distinct political
alliances or coalitions named the "United States of
America".
The original
United States of America, spelled with capital first letters, was
comprised of the thirteen original States joined to fight the
American war of independence, and was formally established in
Article I of the Articles of Confederation (1777). This same "United
States of America" appears in the Preamble of the Constitution of
the United States: "We the People of the United States..,"
established the Constitution, "... for the United States of
America." The United States of America also has a function in
Article II of the Constitution: By way of electoral college, the
President is elected President of the United States of America, then
at his inauguration is sworn in by oath as President of the United
States.
The relationship
of the Union of several States party to the Constitution, designated
as the United States of America in the Articles of Confederation, is
somewhat on the order of member nations who participate in the
United Nations. By way of charter, signatory nations established the
United Nations, but the charter does not vest unilateral authority
in any of the participating nations; all actions of the United
Nations, regardless of what nations participate, are engaged in the
name and by authority of the United Nations. The Constitution of the
United States enumerates certain powers vested in the governmental
entity known and designated as the United States, not the United
States of America.
Analogously,
suppose several people decide to undertake an enterprise of some
sort. Maybe they want to build cars. They might create a
corporation, which is a legal fiction, and might name the legal
fiction "agent" responsible for carrying out the enterprise the Ford
Motor Corporation, General Motors, Chrysler, or anything else.
Likewise, delegates of the United States of America compact could
have named the confederation agent anything they wanted to. Rather
than the "United States", they might have named the designated
governmental entity the "Confederated Authority". The sense of what
they did is related in the first three articles of the Articles of
Confederation:
Article I. The
Stile of this confederacy shall be "The United States of
America".
Article II. Each
state retains its sovereignty, freedom, and independence, and
every Power, Jurisdiction and right, which is not by this
confederation expressly delegated to the United States, in
Congress assembled.
Article III. The
said states hereby severally enter into a firm league of
friendship with each other, for their common defence, the security
of their Liberties, and their mutual and general welfare, binding
themselves to assist each other, against all force offered to, or
attacks made upon them, or any of them, on account of religion,
sovereignty, trade, or any other pretence whatever.
Essentially the
same limitations on United States authority is articulated in the
Ninth and Tenth Amendments to the Constitution:
Ninth Article of
Amendment
The enumeration
in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people.
Tenth Article of
Amendment
The powers not
delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or
to the people.
Obviously, even
the original United States of America had no significant
constitutionally delegated powers -- the Constitution was "for" the
United States of America, its primary function was to delegate
authority to the United States as the general government agent, and
therefore, the Constitution is the Constitution of the United
States. The original draft of the Constitution made at the
Constitutional Convention actually didn't have a title. The title
was added for classification and other purposes, but the intent is
clear even without the title. But substituting the "United States of
America" for the "United States" as the principal of interest in
Federal civil and criminal initiatives is only the beginning of
fraud.
The United States
of America currently responsible for Federal civil and criminal
initiatives is not the original. It is a political coalition,
compact or alliance of insular possessions of the United States
subject to sovereignty of the United States via Congress' plenary
power (near-absolute) in territory belonging to the United States
under authority of Article IV, Sec. 3, cl. 2 of the
Constitution.16 By way of various sections of the
United States Code, delegations of authority, treaties, etc., we
know the substitute "United States of America" is territorial, it is
a jurisdiction foreign to the United States, and it is defined as an
agency of the United States (see notes following 18 U.S.C. § 1001,
and 18 U.S.C. § 6, 1994 edition, derived from 18 U.S.C. § 80, 1940
edition). The entity is very probably classified or designated as a
municipal corporation.
By putting the
"United States" and the "United States of America" in the same
statute or regulation, the two entities are distinguished as being
unique and separate -- the "this is not that" test applies. The
following is reproduction of 18 U.S.C. § 80, 1940 ed., and it does
precisely what is required to distinguish the "United States" from
the "United States of America":
§ 80. (Criminal
Code, section 35(A).) Presenting false claims.
Whoever shall
make or cause to be made or present or cause to be presented, for
payment or approval, to or by any person or officer in the civil,
military, or naval service of the United States, or any department
thereof, or any corporation in which the United States of
America is a stockholder, any claim upon or against the
Government of the United States, or any department or officer
thereof, or any corporation in which the United States of
America is a stockholder, knowing such claim to be false,
fictitious, or fraudulent; or whoever shall knowingly and
willfully falsify or conceal or cover up by any trick, scheme, or
device a material fact, or make or cause to be made any false or
fraudulent statements or representations, or make or use or cause
to be made or used any false bill, receipt, voucher, roll,
account, claim, certificate, affidavit, or deposition, knowing the
same to contain any fraudulent or fictitious statement or entry in
any matter within the jurisdiction of any department or agency of
the United States or any corporation in which the United States
of America is a stockholder, shall be fined not more than
$10,000 or imprisoned not more than ten years, or both.
[Underscore added]
The general fraud
is made possible by the likeness of the two names where the second
is a familiar name. For example, years ago when I lived in Oklahoma
City, I was listed in the telephone directory as "Dan L. Meador,"
and there was also a Daniel Meador who was listed as "Dan'l Meador."
I occasionally received mail and telephone calls intended for
Daniel, and he sometimes received mail and telephone calls intended
for me.
One of the better
high school athletes I've ever known was a sophomore when I was a
senior. But I could never get his name straight -- he was either
George Dennis or Dennis George. I still have to occasionally look in
my old high school year book to recall which way it is. I can
envision that if I didn't have the year book, I might find it
difficult to locate him as most metropolitan telephone directories
list people named George Dennis and Dennis George. If I wanted to
locate the old high school friend, I would simply have to call those
listed under both names until finding the right one. This is more or
less the process required to determine the
constitutionally-authorized governmental entity and the lawful
Article III district court of the United States. Each has been
isolated through the process of elimination.
Then there is a
similar kind of confusion: When I was attending a university with
over ten thousand students, I kept running into what I thought was
the same guy. It was disconcerting because he would show up in
places that didn't make sense. I might see him somewhere, then see
him a second place and wonder how he managed to get from one place
to the other ahead of me. Confusion was resolved when I saw
look-alikes together -- they were identical twins.
The examples
aren't precisely the same as the "United States" not being the
"United States of America," but knowing there are two entities
identified as the "United States of America" helps, then seeing the
"United States" and the "United States of America" clearly set out
in the same section of the United States Code or the Code of Federal
Regulations provides the means for conceptual clarification and
orientation. We can demonstrate that, "The United States is not the
United States of America," then demonstrate by way of the
Constitution and laws of the United States that the United States,
not the United States of America, has lawful authority in the Union
of several States party to the Constitution.
Ironically, proper
principal and judicial authority are tied together in the Internal
Revenue Code at 26 U.S.C. § 7402. This section, in subsection (a),
is specific with respect to the "United States" being the lawful
principal of interest, and the "district court of the United States"
being the court where government may secure lawful
remedies:
(a) To issue
orders, process, and judgments
The district
courts of the United States at the instance of the United
States shall have such jurisdiction to make and issue in civil
actions, writs and orders of injunction, and of ne exeat
republica, orders appointing receivers, and such other orders
and processes, and to render such judgments and decrees as may be
necessary or appropriate for the enforcement of the internal
revenue laws. The remedies hereby provided are in addition to and
not exclusive of any and all other remedies of the United States
in such courts or otherwise to enforce such laws. [underscore
added]
The "United
States" must bring the action -- "... at the instance of the United
States..." -- in a "district court of the United States," in all
"civil actions."
Making a
non-criminal claim or complaint in a court is a "civil action," and
it may be in two different forms. It may proceed "in the course of
the common law," or "in the course of the civil law." The
terminology of law is at best confusing for most people even where
there is no deceptive intent, so there is an inherent problem of
explaining the meaning of words and phrases even for many people who
practice law. The problem is even worse where there is intentional
deception, which is the case for the Internal Revenue Code and other
titles of the United States Code.
The Internal
Revenue Code is full of deception. One example relates to
forfeitures. In the Internal Revenue Code, forfeitures are
designated as "in rem" actions, and are to be executed in
United States District Courts, this stipulation at 26 U.S.C. §
7323:
Sec. 7323.
Judicial action to enforce forfeiture.
(a) Nature and
venue.
The proceedings
to enforce such forfeitures shall be in the nature of a proceeding
in rem in the United States District Court for the district where
such seizure is made.
The United States
District Court is a territorial court, and the in rem action
is an admiralty/maritime action, which proceeds "in the course of
the civil law," contrary to due process in the course of the common
law secured by the Fifth, Sixth, and Seventh Articles of Amendment,
and presumed by the "arising under" clause at Article III § 2..1 of
the Constitution. Again it is necessary to understand terminology
and implications of terminology to grasp meaning of 26 U.S.C. §
7323. However, with what has already been addressed, we can conclude
that the current Internal Revenue Code does not authorize seizures
and forfeitures in the Union of several States party to the
Constitution -- these portions of the Internal Revenue Code are
limited to territorial and maritime jurisdiction of the United
States. Thus, "venue" for forfeitures, venue meaning territorial
jurisdiction, is determined in the context of § 7323 by designation
of the territorial court rather than the Article III district court
of the United States as the court with authority to effect seizures
and forfeitures. Only three legitimate territorial courts remain,
designated via 1994 legislation at 18 U.S.C. § 23 -- United States
District Courts of Guam, the Northern Mariana Islands, and the
Virgin Islands. Therefore, per 26 U.S.C. § 7323, all suits for
seizure and forfeiture must be in one of the three remaining
territorial courts, not in district courts of the United States
situated in the Union of several States party to the
Constitution.
That the "United
States", not the "United States of America", is the constitutionally
and statutorily-authorized principal of interest, and must therefore
be the prosecuting party via lawful courts of the United States, is
reasonably easy to track through statutory authority relating to
revenue laws. By going to the 1934 edition of the United States
Code, authority of the "United States" is verified for actions to
enforce forfeitures, etc. Authority is found at 28 U.S.C. § 732,
1934 ed., as follows:
§ 732. Suits for duties, imposts, taxes, penalties, or
forfeitures. All suits for the recovery of any duties, imposts, or
taxes, or for the enforcement of any penalty or forfeiture
provided by any act respecting imposts or tonnage, or the
registering and recording or enrolling and licensing of vessels,
or the internal revenue, or direct taxes, and all suits arising
under the postal laws, shall be brought in the name of the
United States. [underscore added]
The origin of 28
U.S.C. § 732, 1934 ed., is § 919 of the Revised Statutes of 1878,
the beginning-place for the United States Code. By going to the
Revised Statutes of 1878, we can compare the section with that in
the Code to see proper authority:
Sec. 919. All
suits for the recovery of any duties, imposts, or taxes, or for
the enforcement of any penalty or forfeiture provided by any act
respecting imports or tonnage, or the registering and recording or
enrolling and licensing of vessels, or the internal revenue, or
direct taxes, and all suits arising under the postal laws,
shall be brought in the name of the United States.
[underscore added]
The 1934 U.S.C.
section duplicates § 919 of the Revised Statutes of 1878, the
Revised Statutes of 1878 providing the point of demarcation for
current law of the United States. Annotation to § 919 of the Revised
Statutes of 1878 cite original legislation as follows: Act of 4
Aug., 1790, c. 35, s. 67, v. 1, p. 176. 31 Dec. 1792, c. 1, s. 29,
v. 1, p. 298. 18 Feb., 1793, c. 8. s. 35, v. 1, p. 317. 2 Mar.,
1799, c. 22, s. 89, v. 1, pp. 695, 696. 13 July, 1866, c. 184, s. 9,
v. 14, pp. 111, 145. 8 June, 1872, c. 335, s. 303, v. 17, p.
323.
Additionally, the
Supreme Court of the United States has determined authority of the
"United States" to sue in the absence of statutory authority
specifying the principal. In the absence of statutory authority, or
statutes to the contrary, the Attorney General may initiate suit in
the name and by authority of the United States (United States v..
San Jacinto Tin Co., 125 U.S. 273 (1888); United States v. Beebe,
127 U.S. 338 (1888); United States v. Bell Telephone Co., 128 U.S.
315 (1888)).
Finally, the
matter is ultimately put to rest by the original judiciary act of
September 24, 1789. The first section which speaks to authority of
the United States is § 9, 1 Stat. 76:
Sec. 9. And
be it further enacted, That the district courts (c) shall
have, exclusively of the courts of the several States, cognizance
of all crimes and offences that shall be cognizable under the
authority of the United States...
Actions of a civil
nature are addressed in 11, 1 Stat. 78:
Sec. 11. And
be it further enacted, That the circuit courts shall have
original cognizance, concurrent with the courts of the several
States, of all suits of a civil nature at common law or in equity,
where the matter in dispute exceeds, exclusive of costs, the sum
or value of five hundred dollars, and the United States are
plaintiffs...
Duties of the
United States Marshal clarify authority of the United States, with
no other authority listed, at § 27, 1 Stat. 87:
Sec. 27. And
be it further enacted, That a marshal shall be appointed in
and for each district for the term of four years ... (b)
And to execute throughout the district, all lawful precepts
directed to him, and issued under the authority of the United
States...
To close the loop,
this same basic charge of responsibility for the U.S. Marshal is
found in the 1994 edition of the United States Code at §
566(c):
(c) Except as
otherwise provided by law or Rule of Procedure, the United States
Marshals Service shall execute all lawful writs, process, and
orders issued under the authority of the United
States...
Nowhere is there
constitutional or statutory authority for the "United States of
America" to serve as principal of interest in civil or criminal
causes in the Union of several States party to the Constitution..
This might be a minor thing of no consequence if the "United States
of America" wasn't a distinct, separate geographical and political
entity foreign to the "United States", but the evidence clearly
shows that the United States and the United States of America are
distinct and different with distinct and separate geographical
authority. There is no other "law or Rule of Procedure" authorizing
the United States of America as prosecuting principal in civil or
criminal judicial forums; all writs, process, and orders of courts
of the United States which the U.S. Marshal's Service may execute
must be "issued under the authority of the United
States."
In sum, virtually
all Federal civil and criminal initiatives against individuals and
non-governmental enterprise are filed in private United States
District Courts situated in the Union of several States party to the
Constitution in the name and by authority of the United States of
America, a government foreign to the United States that has no
constitutional or statutory authority in the several States party to
the Constitution. These are the "least common denominators" for
Americans assailed in civil and criminal forums since approximately
1948.
The broader scheme
will make more sense after reading the next two sections. Motives
behind the Cooperative Federalism scheme are simple -- wealth and
power.
__________________________
The Codes
Are Unraveled
Part of the
problem for researchers and people who have relied on the law
fraternity for assistance has been not understanding the United
States Code, the Code of Federal Regulations, and corresponding
Codes for the several States. As a consequence, otherwise excellent
researchers, and attorneys who are loyal Americans interested in
correcting the ravenous prosecution and seizure frenzy, have been
led like a dog chasing his tail. However, keys to unraveling the
United States Code and the Code of Federal Regulations, as well as
State codes, have been unearthed.
At the onset, an
important fact needs to be established: The United States Code and
State codes are not laws of the United States and the several
States. The codes are merely classification systems; in and of
itself, the United States Code does not vest a franchise of
authority in any officer, department or agency of the United States,
and does not create a liability or benefit for anybody. The same is
true for State codes. Laws of the United States are published
annually in the Statutes at Large; laws enacted by State
legislatures are published in State session laws following each
session of the legislature. So far as the United States Code is
concerned, even those titles enacted as so-called "positive law" are
merely "legal evidence" of laws of the United States; titles which
have not been enacted as positive law are "prima facie" (by
appearance) the law.17
The United States
Code was first published in 1926. It has never been more than a
classification system for laws of the United States. The first
edition was based on the Revised Statutes of 1878, and session laws,
published in the Statutes at Large, through 1926. Each year there is
a supplement to the Code with laws passed in the immediate previous
session, then every six or so years, a new edition incorporates
original legislation, amendments, and repeals enacted since the
previous edition was published. Supplements are then added each year
until the next new edition is published. The 1994 edition, with
supplements, is the sixth and current edition.
The purpose of the
United States Code, and its nature, were stated clearly in the
Preface to the 1926 edition, the first paragraph reproduced
here:
This Code is the
official restatement in convenient form of the general and
permanent laws of the United States in force December 7, 1925, now
scattered in 25 volumes -- i.e., the Revised Statutes of 1878, and
volumes 20 through 43, inclusive, of the Statutes at Large. No new
law is enacted and no law repealed. It is prima facie the
law...
The fact that the
United States Code isn't law is demonstrated by § 33 of the Act of
June 25, 1948, c. 646, 62 Stat. 991, the act which purportedly
enacted title 28, Judiciary and Judicial Procedure, into positive
law:
No inference of
a legislative construction is to be drawn by reason of the chapter
in Title 28, Judiciary and Judicial Procedure, as set out in
section 1 of this Act, in which any section is placed, nor by
reason of the catchlines used in such title.
What is
legislative construction? Legislative construction determines
application, in some way identifies source of authority, etc. Any
given section in the United States Code is separated from its title,
enacting clause, and other essentials necessary to determine
application. It is evidence of law, but it is not the
law.
The first three
editions of the Code were reasonably straightforward (1926, 1934
& 1940), then in 1948 and after, an amalgamation process began
which converges and distorts sections from various titles in the
1940 edition. The current 28 U.S.C. § 132, addressed in an earlier
footnote, merges sections of the 1940 edition from titles 28,
Judiciary and Judicial Procedure, and 48, Territories and Insular
Possessions, the latter relating principally to the territorial
court of Hawaii prior to Hawaii being admitted as a State of the
Union. The section is an amalgamation of two or more sections from
previous editions of the United States Code and Acts of Congress,
with the consequence being that people cannot simply read it and
determine what portion has what application. The underlying laws
were not amended, merely the amalgamated section in the Code.
Therefore, sections of the Code are not law of the United States, as
such. They are merely evidence that a law or several laws of that
nature exist somewhere in the Statutes at Large.
Fortunately, there
is a reasonably simple way to unravel the United States Code to
demonstrate proper application of any given section: Following each
section, there are Historical and Statutory Notes. These notes
provide the history, and cites in the Statutes at Large where the
original act and major amendments are located. By going to the
original act citation in the Statutes at Large, the beginning cite
can be secured, then that cite and/or the popular name of any given
piece of legislation can be found in the Distribution Tables in the
United States Code. The Distribution Tables provide a
section-by-section breakdown of the bill published in the Statutes
at Large, directing to where pieces of the legislation are located
in the United States Code.
For example,
taxing authority for Subtitles A and C and administrative and
judicial sections in Subtitle F of Title 26, the Internal Revenue
Code, are major sources of grief for people across the country.
Subtitle A contains particulars relating to what most Americans know
as the "income tax" -- technically, the "normal tax," enacted as a
privilege tax against officers, employees and agents of United
States Government in 1919 or before. Subtitle C includes statutory
authority for Social Security tax, other social welfare taxes, and
authority for payroll deductions. Today elements of the normal tax
and Social Security-related legislation are scattered through titles
5, 26, 31, 42, and other titles. Generally speaking, judicial
procedure for collection of these taxes, when delinquent, is in
Title 5 of the United States Code, not Subtitle F of the Internal
Revenue Code (see particularly 5 U.S.C. §§ 5512 & 5520).. The
General Accounting Office, as general agent for the Treasury of the
United States, is responsible for initiation of judicial
proceedings, not the Internal Revenue Service.18 This is but one example of the mire
created by the entire United States Code, not just the Internal
Revenue Code, and has been disabling for those who make sincere
efforts to unravel laws of the United States. When proper use of the
Code is understood, it is a handy tool, but it is not law of the
United States -- it is merely evidence of law. Because of
classification, merging and editing distortions, it is no longer
even reliable evidence except for those willing to wade through
volumes of legalese.
The Code of
Federal Regulations has a corresponding finding aid called the
Parallel Table of Authorities and Rules, authorized by the Federal
Register Act at 44 U.S.C. § 1510.19 The Parallel Table of Authorities and
Rules, along with other finding aids, is located in the Index volume
of the Code of Federal Regulations. The Code of Federal Regulations
bears approximately the relationship to the Federal Register as the
United States Code does to the Statutes at Large, with finding aids
in the Index providing the bridge between statutes and regulations
(see 44 U.S.C. § 1507).
The Parallel Table
of Authorities and Rules lists sections and titles of the United
States Code in numerical order, with sections that have published
regulations listed having general application or application limited
to the regulation listed, and those not listed having limited
application to (1) government of the United States (see 5 U.S.C.. §§
301 & 302), (2) territories and insular possessions of the
United States, and/or (3) admiralty and maritime jurisdiction of the
United States.
In this scheme,
any statute promulgated by Congress must be wed to an administrative
regulation before it has the force and effect of
law.20 Via a statute promulgated by Congress
in compliance with Article I § 7 of the Constitution, Congress
effectively says, "This is the law," then the President or an
executive officer by regulation says, "This is the application and
the way the statute will be enforced." One is incomplete without the
other; until a legitimate statute and general application regulation
are joined, there can be no general application save as is
applicable to the three limited and special jurisdictions listed
above.
Another secret
--the Director of the Administrative Office of Courts of the United
States is responsible for publishing regulations governing conduct
and operation of court officers and personnel such as clerks,
probation officers and the like (see 28 U.S.C. §§ 603(a)(1) &
603(f)). It does not appear that these regulations are published in
the Code of Federal Regulations, but must be secured from that
office. They are required to be published in the Federal Register
before having force and effect. Additionally, the Director produces
a manual for conduct of United States magistrate judges. This is
important to know as the courts themselves, through clerks as well
as judges and other officers attached to the courts, are keepers at
the gate. Having regulations in hand is vital to forcing compliance
or filing complaints for removal and/or
prosecution.21
Nearly all States
joined to the Cooperative Federalism scheme have adopted the Uniform
Administrative Procedures Act which sets out regulatory requirements
similar to those in the Federal Administrative Procedures Act and
the Federal Register Act. Comparable finding aids and indexes should
be in place. State law for the several States respectively is in
State session laws, not codes such as the Oklahoma Statutes
Annotated, and administrative agencies are required to promulgate
regulations along the same order as Federal regulations. Some States
such as Kansas have compiled and organized
administratively-promulgated regulations in publications similar to
the Code of Federal Regulations, but others such as Oklahoma
haven't. Without implementing regulations, delegations of authority,
etc., both State and Federal authorities proceed without force and
effect of law.
__________________________
Basic &
Essential Authorities
While every
effort is being made to write this material so virtually any
literate person can understand it, it is necessarily steeped in
legal cites, court decisions, etc., which can make comprehension
difficult for those not familiar with principles of law and the
strange language sometimes described as legalese. This is probably
the most difficult section as it deals with five essential
authorities, then works through the relationship of the authorities
by using examples. In order to provide orientation, the authorities
are listed immediately below, ahead of the actual section narrative.
Analysis follows the itemized list.
-
The
Constitution of the United States must establish authority for all
statutory enactments of Congress applicable to the Union of
several States party to the Constitution, and the American people
at large. Further, Congress must be legislating for the Union of
several States rather than exclusively for territory of the United
States before even enumerated powers are applicable in or to the
several States. Therefore, determination of what capacity Congress
is operating in -- the root source of constitutional authority --
is an indispensable element of constitutional
authority.
-
Congress must
create departments, including courts inferior to the Supreme
Court, and empower the various administrative departments and
courts, by way of statutes enacted in compliance with Article I §
7 of the Constitution. The following authorities establish and
preserve this requirement: Art. I § 8.18 & Article III § 1 of
the Constitution; 4 U.S.C. § 72.
-
Where Congress
by statute vests authority in the President, the President may
delegate authority to executive officers or departments by way of
Executive Order published in the Federal Register. This
requirement is at 3 U.S.C. § 301.
-
Where Congress
by statute directly vests authority in an executive officer or
administrative department, or authority vested in the President is
delegated by Executive Order, the executive officer or department
head may redelegate authority by delegation order. The requirement
is in the Federal Register Act, at 44 U.S.C. § 1505(a). This
requirement also applies to legislative and judicial officers and
departments, but not necessarily in the framework of the Federal
Register Act.
-
Any given
statute that prescribes a departmental function, creates an
obligation, or prescribes a penalty, must be implemented by
regulations published in the Federal Register. The requirement is
in the Federal Register Act, at 44 U.S.C. § 1505(a).
A physical
scientist will say, "Nothing comes from nothing." The same principle
applies to governments, particularly governments established by
constitutions where departments and officers have specifically
enumerated powers. This is absolutely the case when it comes to
governments of the United States and the Union of several States
party to the Constitution. Each has its constitutionally-enumerated
powers, and can do nothing which is not delegated by applicable
constitutions. Sovereignty, as such, is vested and resides in the
people; the people divest themselves of whatever responsibilities
they want governments to tend to by way of powers enumerated in
applicable constitutions.
Through the Bill
of Rights of the Constitution of the United States (first Ten
Articles of Amendment), and bills of rights in constitutions of the
several States party to the Constitution, the American people
specifically retained certain rights which were articulated in the
Declaration of Independence (1776), and in the English-American
heritage as early as the Magna Charta (1215). The rights to life,
liberty and pursuit of happiness, articulated in the Declaration of
Independence, restated as rights to life, liberty and property in
the Fifth Article of Amendment, were and are essential to freedom
and prosperity. These unalienable and therefore inseparable rights,
which are what American founders described as self-evident truth,
are to freedom and prosperity as legs on a three-legged milking
stool. To remove any of the three legs effectively destroys the
stool.
The Tenth Article
of Amendment is particularly important as it prohibits the
government of the United States from exercising power which is not
specifically delegated to it by and enumerated in the Constitution.
When properly understood, the Tenth Amendment works somewhat like a
volley ball or tennis net, separating State and Federal authority.
This frames what is called the Separation of Powers Doctrine --
State and Federal governments are postured as the antipodes or
opposite ends of authority, with one operating inside the scope of
its enumerated powers while the other operates in the scope of its
enumerated and limited powers. Additionally, the Separation of
Powers Doctrine distinguishes responsibility of the three branches
of government -- executive and judicial branches do not have
constitutional legislative authority, legislative and administrative
branches do not exercise judicial authority, and legislative and
judicial branches do not administer laws of the United States. Each
branch has its role, and with few limited crossover areas that are
gray in nature, one does not perform the functions of the
other.
This principle is
expressly articulated in Springer et al v. Government of the
Philippines Islands, 48 S.Ct. 480, 277 U.S. 189, 72 L.Ed. 485
(1928), at 201 & 202:
It may be stated
then, as a general rule inherent in the American constitutional
system, that, unless otherwise expressly provided or incidental to
the powers conferred, the Legislature cannot exercise either
executive or judicial power; the executive cannot exercise either
legislative or judicial power; the judiciary cannot exercise
either executive or legislative power. The existence in the
various Constitutions of occasional provisions expressly giving to
one of the departments powers which by their nature otherwise
would fall within the general scope of the authority of another
department emphasizes, rather than casts doubt upon, the generally
inviolate character of this basic rule.
Legislative power,
as distinguished from executive power, is the authority to make
laws, but not to enforce them or appoint the agents charged with the
duty of such enforcement. The latter are executive functions. It is
unnecessary to enlarge further upon the general subject, since it
has so recently received the full consideration of this court. Myers
v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160.
Original authority
is vested in the three branches of Federal government respectively
by the Constitution of the United States. One cannot exercise
constitutionally enumerated powers of another; none can exercise
power not delegated by the Constitution. The Constitution
simultaneously serves as an empowering instrument while articulating
limitation in the "Thou shalt not..," language of the Tenth Article
of Amendment.
The first
essential authority where matters at hand are concerned, beyond the
constitutionally-enumerated power, is statutory authority. The
Constitution itself merely established the branches and authorizes
authority each may exercise. At Article I § 8.18, the Constitution
specifies that, "[The Congress shall have 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." The means for enacting laws is prescribed in
Article I § 7.
Through this
lawmaking authority, Congress may activate and enact all, some or
none of any given power enumerated in the Constitution. This
includes creating offices and/or agencies. For example, the Attorney
General has been an officer in the administration almost from the
time Congress first convened under the Constitution in 1789 (Act of
Sept. 24, 1789). The Department of Justice wasn't legislated into
existence until 1870 (Act of June 22, 1870). Since then, Congress
has vested certain responsibilities in the Attorney General and/or
the Department of Justice, or sometimes in departments Congress has
created in the Department of Justice. By way of delegation of
authority by the Attorney General, these various divisions of the
Department of Justice, and departments or agencies attached to the
Department of Justice, are charged with carrying out
responsibilities prescribed by statute.
One of the more
important statutory restrictions which secures and reinforces
Congress' authority is at 4 U.S.C. §§ 71 & 72. The first of
these sections establishes territory within the current borders of
the District of Columbia as the seat of government for the United
States; the second prohibits any government department from
operating outside the District of Columbia save as Congress
authorizes by statute:
Sec. 72. Public
offices; at seat of Government
All offices
attached to the seat of government shall be exercised in the
District of Columbia, and not elsewhere, except as otherwise
expressly provided by law.
In this context,
we see what should be lawful constraint on the Federal Bureau of
Investigation by examining origins and statutory authority of the
FBI: Read notes following 28 U.S.C. § 531 to find that Congress
didn't create the Federal Bureau of Investigation. The FBI simply
appeared in the Department of Justice -- it is an
administratively-created entity, so cannot exceed authority
originally vested in the Attorney General or the Department of
Justice. Statutory authority vested in the FBI and the Attorney
General is found at 28 U.S.C. § 535:
The Attorney
General and the Federal Bureau of Investigation may investigate
any violation of title 18 involving Government officers and
employees...
Administrative
creation of the FBI is confirmed in The United States Government
Manual, 1996/97 edition, page 349:
"The Federal
Bureau of Investigation was established in 1908 by the Attorney
General, who directed that Department of Justice investigations be
handled by its own staff..."
What authority
does the FBI have to investigate and otherwise bother people in the
several States other than Government officers and employees? De
facto authority -- "I can, therefore I will." The FBI has no
statutory authority to disturb anyone in the Union of several States
other than government officers and employees. Therefore, 4 U.S.C. §
72, in addition to constitutional limitations, constrains FBI
investigations in the Union of several States to subject matter
prescribed by statute, that being 28 U.S.C. § 535, cited
above.
The Internal
Revenue Service and the Bureau of Alcohol, Tobacco and Firearms are
successors of the Bureau of Internal Revenue, Puerto Rico, the BIR
to IRS name change being effected by T.D.O. 150-29, in 1953; BATF
was split from IRS in 1972 by administrative order, not by Congress'
statutory authority. No new governmental entity was created. These
agencies, which are not part of the Department of the Treasury of
the United States or the Treasury of the United States, have
legitimate authority only in insular possessions and territorial
waters belonging to the United States, all of which are subject to
Congress' plenary power under Article IV § 3.2 of the Constitution.
Neither has statutory authority beyond borders of the District of
Columbia save in insular possessions of the United States, per 4
U.S.C. § 72.
The same statute
condemns United States District Courts situated in the Union of
several States, and the "United States of America" -- civil and
criminal process in the Union of several States must issue in
Article III district courts of the United States in the name and by
authority of the United States (judicial authority over criminal
actions in district courts of the United States at 18 U.S.C. § 3231
& civil actions relating to tax cases at 26 U.S.C. § 7402, cited
elsewhere).
Another example of
necessary statutory authority is rules of procedure for judicial
process. By way of judiciary acts of 1789 and 1792, district courts
of the United States were established as common law courts. Cases
and controversies "arising under" the Constitution and laws of the
United States (Article III § 2.1 "arising under" clause), and
treaties enacted by authority of the United States, are to proceed
in the course of the common law as established in England at the
time the Constitution was implemented.22
Current Federal
Rules of Civil Procedure, Federal Rules of Criminal Procedure,
Federal Rules of Appellate Procedure, Supreme Court Rules, and
Federal Rules of Evidence are promulgated under statutory authority
evidenced at 28 U.S.C. §§ 2071-2074, particularly § 2072, and are
applicable only in legitimate United States district courts, not in
district courts of the United States.
This is one of the
major deception moves made in 1948. In the 1920s, then again in the
1930s, Congress authorized the Supreme Court to prescribe rules for
equity, admiralty and maritime cases for Article III district courts
of the United States. In fact, the 1934 edition of the United States
Code appears confused on the matter as "one form of action" was
already in statutory language, but rules of evidence and other
statutory matters relating to the course of the common law had not
been repealed. Revision and historical notes, which have been the
responsibility of West Publishing from the beginning, articulated
the confusion -- probably the editor was being dumb like a fox. Most
consternation appeared to be straightened out by the 1940 edition,
then in 1948, statutory authority for the rules, and the rules
themselves, were amended to apply in United States district courts
rather than district courts of the United States.23 Equity, admiralty, and maritime cases
proceed in the course of the civil law; cases at law proceed in the
course of the common law. There is no presumption in the common law.
When some matter of authority or liability is challenged, proof must
be provided in an open hearing and be established by documentary
evidence and testimony.
The course of the
civil law operates to a great extent on presumption, even though
there is no Federal Rules of Evidence rule for presumption relating
to criminal cases (see notes for Rule 301, presumption in civil
matters, Federal Rules of Evidence). In the course of the civil law,
which presumes, "The will of the prince is law," presumption,
including undisclosed presumption, may lie against the defendant,
leaving the defendant to prove innocence rather than requiring the
plaintiff to prove guilt or liability. Each of the several States
party to the Constitution save Louisiana is a common law State; as a
longtime French colony prior to United States acquisition in 1803,
Louisiana was permitted to retain the Napoleonic Code, which was
civil law. Read Downes v. Bidwell, 1901, cited elsewhere, for the
history of how the Ordinance of 1787 for government of the Northwest
Territory was extended to each new territory, assuring due process
in the course of the common law, prior to the cession treaty ceding
the Philippines, Puerto Rico, etc., following the Spanish-American
War. The Ordinance of 1787 is part of the organic law of the United
States, published in the first volume of the current United States
Code.
Difference between
due process in the course of the common law and due process in the
course of the civil law is significant, and so long as the Fifth,
Sixth, and Seventh Articles of Amendment are in place, Congress has
no authority to bastardize the clear and straightforward rules of
common law process. There is, in fact, no statutory authority for
merger of rules governing process for actions at law with actions in
equity, admiralty, and maritime jurisdiction.
Next is the
statute being executed and prosecuted: What is the source of
authority and application for any given statute, which may be
"evidenced" by a section of the United States Code?
Questions framed
in Wayman v. Southard, cited earlier, a decision written by former
Chief Justice John Marshall, provide an important lesson. The first
question was basically, "What does the Constitution authorize
Congress to do?" relative to courts, process, etc. The second was,
"What has Congress done?"
Too many involved
in litigation jump the gun by arguing what the Constitution
authorizes Congress to do, without stepping back to examine and
question what Congress has done. Since the 1920s, what the
Constitution authorizes Congress to do under Article I enumerated
powers has been all but irrelevant as nearly all statutory
enactments since have issued under Article IV authority in territory
of the United States -- precious few laws of the United States now
apply to the Union of several States party to the Constitution.
Arguing about authority under the commerce clause and other broadly
construed powers is a waste of time as Congress abandoned regulating
commerce among the several States in favor of regulating commerce
among territories and insular possessions of the United States, and
foreign commerce, long ago. As another example, by way of the
revenue act of November 23, 1921, Congress repealed virtually all
excise taxes and other taxes applicable under Article I and
Sixteenth Article of Amendment authority, the "normal" tax against
officers and employees of the government of the United States being
one of the few exceptions. The normal tax, patterned on the tax
against Federal employees in 1862, was resurrected in 1919 or some
time before. When the various taxes were reenacted at a later date,
they were applicable in the District of Columbia and territories and
insular possessions of the United States, or as might apply in
admiralty and maritime jurisdiction of the United States.
It appears that
governments of the several States are working through corporate
structures, and via municipal corporations, are "acting" as though
each is an instrumentality or political subdivision of the United
States. This fraud is perpetrated by State legislatures adopting
uniform acts, nearly all of which presume the adopting States are
instrumentalities of the United States. However, at Article IV §
3.1, the Constitution condemns this:
New States may
be admitted by the Congress into this Union; but no new State
shall be formed or erected within the Jurisdiction of any other
State...
Once Congress
admits a new State to the Union, nobody, including Congress, has
authority to create another State within jurisdiction of the
existing State. Therefore, the so-called corporate State, which
functions as a Federal State, exists and operates as a completely
de facto entity. It has no lawful existence or authority..
Governors and legislatures of the several States certainly don't
have authority to create new states.
One of the grand
paradoxes set up by this move to Article IV plenary power, as
opposed to Article I delegated powers, is framed in the statute
which authorizes the Supreme Court to promulgate rules of procedure,
at 28 U.S.C. § 2072(b):
(b) Such rules
shall not abridge, enlarge, or modify any substantive right. All
laws in conflict with such rules shall be of no further force or
effect after such rules have taken effect.
The Separation of
Powers Doctrine comes into focus here: Congress does not have
authority to delegate legislative power to administrative and
judicial branches of government. Yet with 28 U.S.C. § 2072(b),
Congress gave the Supreme Court repeal power, which is legislative.
Rules promulgated by the Supreme Court repeal any conflicting
statute. Justices Black and Douglas argued this well into the 1960s,
but to no avail.
There is, however,
a reasonably simple explanation for how Congress could delegate
legislative authority: Congress vested repeal power in the Supreme
Court under the Article IV territorial clause, not as pertains to
the Union of several States party to the Constitution. This is
demonstrated in Rule 54(c) application of terms, Federal Rules of
Criminal Procedure:
"Act of
Congress" includes any act of Congress locally applicable to and
in force in the District of Columbia, in Puerto Rico, in a
territory or in an insular possession.
"State" includes
District of Columbia, Puerto Rico, territory and insular
possession.
Applications above
use territorial possessions of the United States as examples. None
of the examples represent the Union of several States. A statute
must be interpreted within the framework of its language, and if all
examples are of one class, application cannot go beyond the class.
Similarly, if the wording on a can of flea spray lists only breeds
of dogs, it is designed for dogs, but not cats. If the intent of
Congress is manifest in the plain wording of a statute, as evidenced
at 28 U.S.C. § 2072(b), the enactment must be taken at face value.
Consequently, what the Supreme Court sets out in rules is the
determining factor as statutes contrary to the rules are repealed by
authority of 28 U.S.C. § 2072(b). Since Congress may not delegate
legislative authority in the framework of general powers enumerated
in Article I of the Constitution, authority for rules promulgated by
the Supreme Court to repeal any and all conflicting law must be
exercise of Congress' Article IV legislative power over territory
and other possessions of the United States. This is the only way to
reconcile implications of 28 U.S.C. § 2072(b) with the Separation of
Powers Doctrine. In fact, by referencing the Parallel Table of
Authorities and Rules, which is addressed elsewhere in this
document, it is found that none of the sections pertaining to rules
of the courts are listed (28 U.S.C. §§ 2071-2074), thereby
indicating that there are no general application regulations save as
might be promulgated by the Director of the Administrative Office of
United States Courts or the Chief Justice of the Supreme Court in
his administrative capacity.
The acid test is
to examine application. To do that, consider corresponding authority
for the Attorney General to imprison people, set out at 18 U.S.C. §
4001(a):
§ 4001.
Limitation on detention; control of prisons
(a) No citizen
shall be imprisoned or otherwise detained by the United States
except pursuant to an Act of Congress.
Since the Supreme
Court has stipulated that an Act of Congress is locally applicable
in the District of Columbia, Puerto Rico, or in a territory or an
insular possession, the term "Act of Congress" used in 18 U.S.C.. §
4001 must comply with the application the Supreme Court prescribed
in Rule 54(c), F.R.Crim.P., or it is repealed by 28 U.S.C. §
2072(b). Therefore, current authority for the Attorney General to
imprison people is applicable only in the District of Columbia,
Puerto Rico, a territory or insular possession of the United States.
Since the Separation of Powers Doctrine prohibits one branch of
government from performing constitutionally delegated powers of
another, thereby prohibiting the Supreme Court from enacting or
repealing legislation, the repeal power of rules authorized at 28
U.S.C. § 2072(b) must be delegated to the Supreme Court under
Congress' Article IV plenary power in territory and insular
possessions of the United States. Application of the term "Act of
Congress" in Rule 54(c), F.R.Crim.P., and use of the term in 18
U.S.C. § 4001, are consistent with this conclusion. The further
inescapable conclusion is that title 18 of the United States Code,
the criminal code, is evidence of law applicable only in territories
and possessions of the United States. For all practical purposes
other than as sections of the Code might apply to officers and
employees of the United States, and admiralty and maritime
jurisdiction of the United States, the Code is municipal law in
territories and insular possessions of the United States.
The next element
of authority is delegation of authority: By statute, Congress vests
basic authority over any given title and various administrative
functions in the President, an executive officer such as the
Attorney General or the Secretary of the Treasury, or in departments
of the United States government.
Where authority is
vested in the President, he may redelegate it to executive officers,
departments, etc., via Executive Order, the E.O. required to be
published in the Federal Register in compliance with the Federal
Register Act (44 U.S.C. §§ 1501 et seq., particularly § 1505(a)).
Specific statutory authority for Presidential Executive Orders is at
3 U.S.C. § 301. Where authority is delegated from the President to
an executive officer, or is vested in an executive officer by
statute, the executive officer must redelegate authority down line
by way of delegation orders published in the Federal Register in
compliance with the Federal Register Act (44 U.S.C. § 1505(a)). The
Federal Register serves as public notice.
It is convenient
that nearly all Attorney General delegation orders are reproduced in
Part 0 of title 28 of the Code of Federal Regulations (28 CFR, Part
0). Reading this rather lengthy part provides an excellent outline
of authority vested in the Department of Justice, the office of the
United States Attorney, the Federal Bureau of Prisons, etc. However,
the regulations can be misleading without knowing other particulars
so they shouldn't be taken at what appears to be face value without
considerable study. For example, the Federal Bureau of Prisons is a
corporation, it is no more a government department than the Federal
Reserve System is, and no more a part of the Department of Justice
than the Internal Revenue Service is part of the Department of the
Treasury of the United States.
On the other hand,
there are certain striking disclosures in Attorney General
delegations of authority that don't require special knowledge, nor
the aptitude of a rocket scientist. For example, the Attorney
General delegation order at 28 CFR, Part 0.55 vests powers in the
Assistant Attorney General over the Criminal Division of the
Department of Justice relative to those accused or convicted of
crimes against the United States. Then the delegation order
reproduced at 28 CFR, Part 0.64-1 authorizes the Assistant Attorney
General over the Criminal Division of the Department of Justice to
act as "Central Authority" or "Competent Authority" under treaties
authorized by Public Law 95-144 on behalf of the United States of
America. Further authority relating to the United States of America
is delegated at 28 CFR, Part 0.64-2.
The picture takes
even better shape via the Director of the Bureau of Prisons: The
delegation order at 28 CFR, Part 0.96 authorizes the Director to
take custody of people accused or convicted of offenses against the
United States; the delegation order at 28 CFR, Part 0.96b authorizes
the Director to take custody of offenders from the United States of
America under provisions specified in a treaty authorized by Public
Law 95-144. The Director acts as agent of the United States in this
transfer process. Under terms of Public Law 95-144, whoever is
transferred from United States of America to United States custody
must sign consent prior to transfer (see 18 U.S.C. § 4100(b))..
Obviously, whenever the Assistant Attorney General over the Criminal
Division of the Department of Justice, the Director of the Bureau of
Prisons, or their respective delegates, including United States
Attorneys, wardens, U.S. Marshals, etc., act against someone
prosecuted in the name and by authority of the "United States of
America" beyond provisions of Pub.L. 95-144 where there is no treaty
in place, the victim has not been properly extradited from his or
her home asylum State, and has not signed consent to be transferred
from United States of America to United States custody, those
responsible are respectively acting as de facto agents of a
government foreign to the United States. Since they frequently
proceed under actual or threatened force of arms, they engage in
treason, as defined in Article III § 3 of the
Constitution.
Since they are
reasonably short, the first paragraph of the Director of the Bureau
of prisons delegation of authority at 28 CFR, Part 0.96, and the
entire delegation of authority at 28 CFR, Part 0.96b are reproduced
below:
§ 0..96
Delegations
The Director of
the Bureau of Prisons is authorized to exercise or perform any of
the authority, functions, or duties conferred or imposed upon the
Attorney General by any law relating to the commitment, control,
or treatment of persons (including insane prisoners and juvenile
delinquents) charged with or convicted of offenses against the
United States...
§ 0..96b
Exchange of prisoners.
The Director of
the Bureau of Prisons and officers of the Bureau of Prisons
designated by him are authorized to receive custody of offenders
and to transfer offenders to and from the United States of America
under a treaty as referred to in Public Law 95-144; to make
arrangements with the States and to receive offenders from the
States for transfer to a foreign country; to act as an agent of
the United States to receive the delivery from a foreign
government of any person being transferred to the United States
under such a treaty; to render to foreign countries and to receive
from them certifications and reports required under a treaty; and
to receive custody and carry out the sentence of imprisonment of
such a transferred offender as required by that statute and any
such treaty.
The term "State"
used in 28 CFR, Part 0.96b must conform to application of the term
"State" prescribed in Rule 54(c), F.R.Crim.P., per authority of 28
U.S.C. § 2072(b), so these regulations are applicable to the Federal
States (Puerto Rico, Guam, the Northern Mariana Islands, the Virgin
Islands, and American Samoa), and are exclusive of the Union of
several States party to the Constitution.
Use of the two
terms "United States" and "United States of America" in the same
regulation clearly distinguishes one from the other. This new
"United States of America" is territorial; as agent of the United
States, the Director is authorized to transfer offenders to and from
the United States of America to United States custody; United States
of America jurisdiction is foreign to United States jurisdiction;
and this United States of America evidently has authority to effect
treaties under Public Law 95-144, so is political in nature even
though it probably operates as a municipal corporation. It is a
power foreign to the Constitution of the United States and the Union
of several States party to the Constitution that has no
constitutional or statutory standing or authority whatever in the
several States. If there was no other evidence, Attorney General
delegation orders at 28 CFR, Parts 0.55, 0.64-1, 0.64-2, 0.96 &
0.96b prove conclusions set out in this paragraph.
The Internal
Revenue Code provides another interesting trail to follow: 26
U..S.C. § 7621 authorizes the President to establish revenue
districts. Under authority of 3 U.S.C. § 301, the President may
redelegate authority vested in him by statute to executive officers
via Executive Order, the E.O. required to be published in the
Federal Register in compliance with the Federal Register Act (44
U.S.C. § 1505(a)).
The search for the
President's redelegation of authority would seem to be a blind trail
as 26 U.S.C. § 7621 does not appear in the Parallel Table of
Authorities and Rules. Therefore, there is no general application
regulation applicable to the Union of several States party to the
Constitution and the population at large. However, the President did
delegate this responsibility to the Secretary of the Treasury via
E.O. #10289. The Executive Order is published in the United States
Code following 3 U.S.C. § 301; the applicable portion pertains to
customs laws and the Anti-Smuggling Act. By again consulting the
Parallel Table of Authorities and Rules in the section on Executive
Orders, it is found that application of authority conveyed by E..O.
#10289 is 19 CFR, Part 101. There are no regulations pertaining to
revenue districts in title 26 of the Code of Federal Regulations,
which would apply to income tax, normal tax, Social Security tax,
and other taxes in Subtitles A, B & C of the Internal Revenue
Code.
The easy way to
determine what 19 CFR, Part 101 pertains to is to turn to the "List
of CFR Titles, Chapters, Subchapters, and Parts", another convenient
finding aid in the Index volume of the Code of Federal Regulations.
This compilation immediately follows the Parallel Table of
Authorities and Rules.
Not surprisingly,
title 19 of the Code of Federal Regulations covers Customs Duties,
and Chapter I conveys authority to the "United States Customs
Service, Department of the Treasury (Parts 1-199)". 26 CFR, Part 101
is the regulation styled "General provisions." By going to actual
regulations at 19 CFR, Part 101, it is found that this is the
authority to establish customs districts, and since the authority is
vested in the United States Customs Service rather than the Internal
Revenue Service, the Bureau of Alcohol, Tobacco and Firearms, etc.,
one might be curious enough to write to the District Director of the
Internal Revenue Service Arkansas-Oklahoma District, or some other
district in one of the several States party to the Constitution, to
ask what lawful authority he has for maintaining an internal revenue
district in the Union of several States. Certainly it isn't 26
U.S.C. § 7621, E.O. #10289, or 19 CFR, Part 101 -- that authority is
vested exclusively in the United States Customs Service. Unless an
IRS or BATF district director, or the Commissioner of Internal
Revenue has a rabbit hidden in a hat, these agencies, both
successors of the Bureau of Internal Revenue, Puerto Rico, are
exercising de facto authority -- authority in fact,
but not in law. They are in defiance of the prohibition at 4 U.S.C.
§ 72, as well as sundry constitutional limitations.24
It so happens that
there is another authority: In 1956, via Treasury Delegation Order
#150-42, the Secretary of the Treasury delegated authority to the
Commissioner of Internal Revenue in the areas of Puerto Rico, the
Virgin Islands, and the Canal Zone. Simultaneously, authority over
these areas was removed from district and regional customs offices
in Florida, Georgia, and New York. The delegation order was slightly
amended in 1986 by T.D.O. #150-01. The 1986 order eliminated
specific mention of the Canal Zone, which is no longer subject to
Congress' Article IV § 3.2 legislative jurisdiction, and extended
authority of the Commissioner to other areas of the world subject to
jurisdiction of the United States. The Northern Mariana Islands have
been added to the flock of insular possessions since 1956 (1976),
and Guam and American Samoa were brought under internal revenue laws
of the United States since 1960. The original Treasury Delegation
Order 150-42, published on page 5852 of the 1956 Federal Register,
is as follows:
Office of the Secretary
[Treasury Dept. Order
150-42]
Panama
Canal Zone, Puerto Rico, and
The
Virgin Islands Administration of Internal Revenue Laws
By virtue of the
authority vested in me as Secretary of the Treasury it is hereby
ordered:
1. The Panama
Canal Zone is removed from the Internal Revenue District,
Jacksonville, and from the Atlanta Region; and Puerto Rico and the
Virgin Islands of the United States are removed from the Internal
Revenue District, Lower Manhattan, and from the New York City
Region.
2. The
Commissioner shall, to the extent of authority otherwise vested in
him, provide for the administration of the United States internal
revenue laws in the Panama Canal Zone, Puerto Rico, and the Virgin
Islands.
3. This order
shall not be deemed to affect the procedures for administrative
appeal existing immediately prior to August 1, 1956.
4. This order
shall be effective as of August 1, 1956.
Dated: July 27,
1956.
[Seal] David W.
Kendall,
Acting Secretary
of the Treasury.
[F.R. Doc.
56-6280; Filed, Aug. 3, 1956; 8:50 a.m.]
Where no other
authority exists, no other authority exists. "Nothing comes from
nothing," is the governing principle -- lawful authority must have
lawful origin. T.D.O. 150-42 (1956), as amended by T.D.O. 150-01
(1986), is the end of the road for the Commissioner of Internal
Revenue, the Internal Revenue Service, and the Bureau of Alcohol,
Tobacco and Firearms. When and if officers or agents in this line
act beyond properly delegated authority, their actions are "outlaw"
-- they act under private and therefore "outlaw" motive.
Finally, any given
statute which creates an obligation, prescribes a penalty, etc.,
must have an implementing regulation. This is required by the
Federal Register Act, the applicable section at 44 U.S.C. § 1505(a),
the same subsection that establishes the mandate for delegations of
authority to be published in the Federal Register:
Sec. 1505.
Documents to be published in Federal Register
(a)
Proclamations and Executive Orders; Documents Having General
Applicability and Legal Effect; Documents Required To Be Published
by Congress. There shall be published in the Federal Register
--
(1) Presidential
proclamations and Executive orders, except those not having
general applicability and legal effect or effective only against
Federal agencies or persons in their capacity as officers, agents,
or employees thereof;
(2) documents or
classes of documents that the President may determine from time to
time have general applicability and legal effect; and
(3) documents or
classes of documents that may be required so to be published by
Act of Congress.
For the purposes
of this chapter every document or order which prescribes a penalty
has general applicability and legal effect.
If "... every
document or order which prescribes and penalty has general
applicability and legal effect," then every document or order which
prescribes a penalty must be published in the Federal Register. The
last sentence of § 1505(a) is inclusive: Every document or order
which prescribes a penalty means all documents and orders which
prescribe penalties must be published in the Federal Register. This
is a precaution that avoids imposition of secret or private law,
with the precedent dating to God's mandate that Israel post His
statutes and regulations at the borders of the covenant nation.
Consequently, if an implementing regulation for any given statute is
not published in the Federal Register, penalties authorized by the
statute may not be imposed. When regulations are published in the
Federal Register, penalties may be imposed only as the published
regulation specifies. The regulation may not exceed or depart from
statutory intent.
With this mandate
soundly in place, we can do what amounts to a frontal attack: Title
18 of the Code of Federal Regulations is "Conservation of Power and
Water Resources". There is no title in the Code of Federal
Regulations for the Criminal Code, which is Title 18 of the United
States Code. Each title 18 U.S.C. criminal statute listed in the
Parallel Table of Authorities and Rules, and most aren't, relies on
regulations promulgated under authority of some other United States
Code title.
In order to
document regulatory application, alleged offenses of nineteen people
incarcerated at the Federal Medical Center-Lexington at Lexington,
Kentucky were listed in order by U.S.C. title and section number,
then checked against the Parallel Table of Authorities and Rules.
Very few of the alleged crimes appear in the Parallel Table of
Authorities and Rules, and the few that do have regulations
promulgated under titles 19, 26 & 27 of the Code of Federal
Regulations. Title 19 is Customs Duties, under jurisdiction of the
United States Customs Service; title 26 is Internal Revenue, in part
at least under jurisdiction of the Internal Revenue Service; and
title 27 is Alcohol, Tobacco Products and Firearms, under
jurisdiction of the Bureau of Alcohol, Tobacco and Firearms.
Customs, IRS, and BATF are listed as agencies of the Department of
the Treasury. However, by consulting title 31 of the United States
Code, it is found that IRS and BATF are not agencies in the
Department of the Treasury of the United States. IRS and BATF are
successors of the Bureau of Internal Revenue, Puerto Rico; IRS and
BATF are agencies of the Department of the Treasury, Puerto Rico,
not the Department of the Treasury of the United States. This is
generally confirmed by definitions in title 27 of the Code of
Federal Regulations, aside from other evidence (see definitions in
27 CFR, Part 250.11). The list of Department of the Treasury of the
United States bureaus and agencies is reflected in the table of
contents for Chapter 3, Subchapter I of Title 31, U.S.C.:
We have already
disproved authority of IRS & BATF, by way of the Commissioner of
Internal Revenue, for operating revenue districts in the Union of
several States under authority of 26 U.S.C. § 7621. Per E.O. #
10289, the Secretary has merely established customs districts
applicable to sections in title 19 of the United States Code under
authority of the United States Customs Service. Therefore, it isn't
necessary to establish concrete proof of IRS and BATF origins --
they do not have authority under 26 U.S.C. § 7621 to establish
revenue districts in the Union of several States party to the
Constitution. Their jurisdiction lies in insular possessions and
territorial waters of the United States, the delegation of authority
being T.D.O. #150-42 (1956), as amended by T.D.O. #150-01 (1986).
Consequently, regulations 26 CFR, Parts 1-799 and 27 CFR, Parts
1-299 are applicable in Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Northern Mariana Islands, and possibly the
District of Columbia. Only the United States Customs Service, under
applicable regulations in title 19 of the Code of Federal
Regulations, has delegated authority to establish revenue districts
in the several States, and even that is dubious as the current
United States Customs Service is the product of a Presidential
reorganization plan, it is not the original customs service
established by Congress.
To further
solidify where IRS & BATF have jurisdiction, and to establish
where taxes in the Internal Revenue Code apply when there is
geographical application, Consider definitions of the terms "United
States", "State", and "Citizen" at 26 CFR § 31.3121(e)-1. These
definitions apply to Social Security, unemployment tax, etc., with
the original enactment in 1935. These definitions are possibly the
clearest relating to administration of the Internal Revenue Code,
and are particularly important as they demonstrate application to
Alaska and Hawaii before 1960 but not after, and application to Guam
and American Samoa after January 1, 1961:
(a) When used in
the regulations in this subpart, the term "State" includes the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, and Territories of Alaska and Hawaii before their
admission as States, and (when used with respect to services
performed after 1960) Guam and American Samoa.
(b) When used in
the regulations in this subpart, the term "United States", when
used in a geographical sense, means the several states (including
the Territories of Alaska and Hawaii before their admission as
States), the District of Columbia, the Commonwealth of Puerto
Rico, and the Virgin Islands. When used in the regulations in this
subpart with respect to services performed after 1960, the term
"United States" also includes Guam and American Samoa when the
term is used in a geographical sense. The term "citizen of the
United States" includes a citizen of the Commonwealth of Puerto
Rico or the Virgin Islands, and, effective January 1, 1961, a
citizen of Guam or American Samoa.
The transition
involving Alaska, Hawaii, Guam and American Samoa in the above
regulation definitions is reinforced by the current statutory
definitions at 26 U.S.C. § 3121(e):
(e) State,
United States, and citizen
For purposes of
this chapter --
(1)
State
The term "State"
includes the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, and American Samoa.
(2) United
States
The term "United
States" when used in a geographical sense includes the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and
American Samoa.
An individual
who is a citizen of the Commonwealth of Puerto Rico (but not
otherwise a citizen of the United States) shall be considered, for
purposes of this section, as a citizen of the United
States.
The allegation
that most Federal laws presently on the books, other than as
pertains to officers and employees of the United States, are
applicable only in territory belonging to the United States might
seem far-fetched even with proofs already established in this
discourse, but consider the definitions at 18 U.S.C. § 921(a)(2),
which are applicable for Chapter 44 -- Firearms, in the current
edition of the United States Code (18 U.S.C. §§ 921-930):
§ 921.
Definitions
(a) As used in
this chapter --
(2) The term
"interstate or foreign commerce" includes commerce between any
place in a State and any place outside of that State, or within
any possession of the United States (not including the Canal Zone)
or the District of Columbia, but such term does not include
commerce between places within the same State but through any
place outside of that State. The term "State" includes the
District of Columbia, the Commonwealth of Puerto Rico, and the
possessions of the United States (not including the Canal
Zone). [Underscore added]
Application of the
term "State" above is exclusive of the Union of several States party
to the Constitution -- all examples of the class are territories and
possessions of the United States subject to Congress' Article IV §
3.2 legislative jurisdiction.
This conclusion is
supported by the Constitution: The Second Article of Amendment
secures the right to own and bear arms for the sovereign people of
the several States party to the Constitution. The Fifth Article of
Amendment also secures the absolute right of the people to life,
liberty, and property except when taken in lawful courts by due
process of law in the course of the common law. An absolute right
includes the right to defend that which falls within the right --
life, liberty and property. And since there is no constitutional
amendment which alters or limits the Second and Fifth Articles of
Amendment, or lists firearms and related commodities as commodities
Congress may regulate, it follows that the bevy of firearms laws in
Chapter 44 of title 18 and related laws in title 26 of the United
States Code were promulgated under Congress' Article IV § 3.2
plenary power in territory belonging to the United States. The
cumulative evidence is sufficient to leave even the worst cynic with
nothing more than shifting sand beneath his feet. Congress may tax
something, but has no regulatory power unless the power is
specifically enumerated.
Definitions above
are also governed by long-standing principles of law thoroughly
treated in The Federal Zone by Mitch Modeleski. The two
principles, articulated long ago in Latin, are, "Inclusio unius
est exclusio alterius,", and "Noscitur a sociis." Both
are found in Black's Law Dictionary, 6th edition, as
follows:
Inclusio
unius est exclusio alterius. The inclusion of one is the exclusion of another. The
certain designation of one person is an absolute exclusion of all
others ... This doctrine decrees that where law expressly
describes [a] particular situation to which it shall apply, an
irrefutable inference must be drawn that what is omitted or
excluded was intended to be omitted or excluded.
Noscitur a
sociis. It is known
from its associates. The meaning of a word is or may be known from
the accompanying words. Under the doctrine of "noscitur a
sociis", the meaning of questionable or doubtful words or
phrases in a statute may be ascertained by reference to the
meaning of other words or phrases associated with it.
The principles are
clearly enough stated that they shouldn't need elaboration.
Definitions reproduced in this discourse include only territories
and insular possessions of the United States, there are no examples
of the several States or other verbiage suggesting than any or all
of the several States party to the Constitution are included.
Therefore, "The certain designation of one [territory] is an
absolute exclusion of all others..," and "... the meaning of
questionable or doubtful words or phrases in a statute may be
ascertained by reference to the meaning of other words or phrases
associated with it." Where only the District of Columbia and/or
insular possessions of the United States are listed in definitions,
application may extend only to possessions of the United States,
whether territories incorporated in the constitutional scheme, or
insular possessions not incorporated in the constitutional
scheme.
The definition of
"includes" and "including" at 26 U.S.C. § 7701(c) is clumsy, but
basically restates the two Latin principles:
(c) Includes and
including.
The terms
"includes" and "including" when used in a definition contained in
this title [Internal Revenue Code] shall not be deemed to exclude
other things otherwise within the meaning of the term
defined.
Where definition
is by example, the example represents the class. If examples are
Thoroughbred, Morgan, and Clydesdale, the class is horses, exclusive
of cats and dogs. To test the principles with relation to statutory
authority, we'll examine what Congress has done with relation to
Guam and the Virgin Islands, the two controlling statutes,
reproduced in relevant part, evidenced at 48 U.S.C. §§ 1421a &
1541:
Sec. 1421a.
Unincorporated territory; capital; powers of government; suits
against government; type of government; supervision
Guam is declared
to be an unincorporated territory of the United States and the
capital and seat of government thereof shall be located at the
city of Agana, Guam....
Sec. 1541.
Organization and status
(a) Composition
and territorial designation
The provisions of
this chapter and the name "Virgin Islands" as used in this chapter,
shall apply to and include the territorial domain, islands, cays,
and waters acquired by the United States through cession of the
Danish West Indian Islands by the convention between the United
States of America and His Magesty the King of Denmark entered into
August 4, 1916, and ratified by the Senate on September 7, 1916 (39
Stat. 1706). The Virgin Islands as above described are declared an
unincorporated territory of the United States of America.
The District of
Columbia, ceded as the seat of government of the United States by
Virginia and Maryland, is a unique case as the Constitution of the
United States was extended to the territory as the law of the land
prior to cession under authority of Article I § 8.17. The Supreme
Court has wrestled the matter of how the Constitution applies to the
District of Columbia almost since United States acquisition, but has
generally followed the rule that once the Constitution has been
extended to territory, Congress does not have authority to withdraw
it. Where the territory now designated as the District of Columbia
was in Virginia and Maryland when they respectively joined the Union
under the Constitution, the Constitution theoretically remains in
full force and effect. However, when the District municipal
corporation was revised following the Civil War, Congress adopted
the "Constitution of the United States of America" for the District
municipal corporation. This distortion aside, the District of
Columbia is actually a class of one as it does not have standing as
a State of the Union and it isn't an unincorporated insular
possession of the United States, so is usually named in definitions
when statutory application is intended to apply within the
District.
Suppose we're
playing a football game: We're going to dress the Union team in
blue, and the unincorporated insular possession team in red. For
convenience, we're going to put the District of Columbia team in
black and white striped shirts -- D.C. will be the referee. The blue
team is subject only to general powers of the United States
enumerated in the Constitution; the red team is subject to whatever
powers Congress wants to exercise; and those in black-and-white
striped shirts occupy what must sometimes seem like
no-man's-land.
Where a statutory
definition employs examples to establish territorial application,
designation of players in red shirts is exclusive of those in
black-and-white, and those in blue; designation of players in red
and black-and-white shirts is exclusive of those in blue. Until a
statutory definition explicitly extends to players in blue shirts,
being the Union of several States party to the Constitution, the
blue team isn't authorized or required to play.
Another
politically sensitive subject needs to be addressed. We will come at
it through example: The Eighteenth Article of Amendment was ratified
in 1919. It implemented national prohibition against intoxicating
distilled spirits, with Section 2 establishing concurrent State and
Federal enforcement authority. Ratification of the Twenty-first
Article of Amendment in 1933 repealed the Eighteenth, thereby ending
national prohibition, effecting what is described as State's choice,
and terminating concurrent State and Federal enforcement authority
-- enforcement of State liquor laws lies beyond Federal enforcement
authority. This matter was determined by the Supreme Court of the
United States in 1935.25
Given this
example, it stands to reason that it would require a constitutional
amendment to implement national prohibition against any other
commodity, whether arms, drugs, or anything else. There is no such
amendment authorizing prohibition against arms, drugs or any other
commodity. Congress may have Article I and/or Sixteenth Article of
Amendment taxing authority relative to these things, but has no
authority to institute prohibition or otherwise limit sale and
distribution. The Constitution does not confer regulatory authority.
Therefore, assumed authority, which amounts to usurpation of power,
has simply been used as an excuse and means to field the equivalent
of a private army that daily subjects people throughout the nation,
and elsewhere around the world, to "nonconstitutional", de
facto rule.
Prohibition
against alcohol was the greatest boon ever for organized crime. When
government imposes prohibition against anything, it creates black
market demand. Continuing demand for distilled spirits created the
environment for Al Capone and other organized crime figures to put
financial legs under national and international operations capable
of challenging and doing open battle with government enforcement
agencies. Crime organizations and government enforcement agencies
grew at unprecedented rates during prohibition years. The same has
been true for drug prohibition imposed without constitutional
authority: Drug cartels grew up on inflated revenue generated from
consumer demand -- an estimated 35 million Americans use what are
classified as illegal drugs. Presently 60% of the people
incarcerated by the Bureau of Prisons were convicted on drug-related
charges, and depending on the State, 30 to 40% of the people in
State prisons are incarcerated for drug-related offenses. The
underground market continues to flourish, drug cartels and
independents continue to prosper, and the American people are
saddled with outrageous costs for enforcement, prosecution,
incarceration, etc., when in reality, there are no Federal or State
drug laws applicable in the Union of several States party to the
Constitution.
Drug laws are
predicated on revenue laws -- customs duties. They originated in
commercial trade treaties in the early part of the Twentieth
Century, particularly after the Boxer Rebellion in 1900. Congress
promulgated the China Trade Act in 1904, which regulated trade in
opium, cocaine, and citric wines, then step-by-step moved by
illusion into efforts to regulate sale and distribution of these
commodities. The Labeling Act of 1906 appears to be the first
significant domestic step, then the Anti-Narcotic Act of 1914, as
amended, was used as the vehicle for perpetrating the illusion of
legitimate prohibition against these commodities in the environment
of national alcohol prohibition. International agreements which
provide the foundation for what appears to be domestic law were
effected in 1912. This matter is taken up in a subsequent
section.
Leaving the drug
subject, we will consult the Parallel Table of Authorities and Rules
for regulations pertaining to firearms laws in title 18 of the
United States Code (18 U.S.C. §§ 921-930). Of necessity, tracking
these authorities gets pretty bogged down in "legalese", so forgive
complicated sentence structure and what amount to lists of
authorities: Regulations for 18 U.S.C. §§ 921-928 are at 27 CFR,
Part 178; an additional regulation for 18 U.S.C. § 921 (definition)
is at 27 CFR, Part 72; and an additional regulation for 18 U.S.C. §
926 (rules and regulations), is at 27 CFR, Part 200.
The general
application regulation for 18 U.S.C. § 921-930 is 27 CFR, Part 178,
located in Subchapter M -- Alcohol, Tobacco and Other Excise Taxes,
Part 178 pertaining to commerce in firearms and ammunition. Part 72
is in Subchapter F -- Procedures and Practices, and relates to
disposition of seized personal property; Part 200 is in Subchapter M
-- Alcohol, Tobacco and Other Excise Taxes, and pertains to rules of
practice in permit proceedings. The definition of "State" at 18
U.S.C. § 921 narrows the geographical application to territories and
insular possessions of the United States, as does the lack of
IRS/BATF authority to establish revenue districts under authority of
26 U.S.C. § 7621, and the fact that these are excise taxes rather
than import duties further verifies that application is in insular
possessions of the United States and the District of Columbia,
exclusive of the Union of several States party to the Constitution.
There is no constitutional provision whatever vesting Congress with
authority to regulate production, distribution and sale of firearms
and ammunition within the Union of several States party to the
Constitution. Under Article I authority, Congress could legitimately
impose an excise tax on production and distribution of firearms, but
the legislation would have to be for taxing purposes only, not
regulation of who can or cannot purchase firearms and
ammunition.
At this juncture
it would be useful to reiterate that in June 1921, Congress
effectively hid the Treasury of the United States by creating the
General Accounting Office, under direction of the Comptroller
General, then moved Treasury employees to GAO. GAO is an independent
agency or department, and serves as general agent of the Treasury of
the United States, in charge of determining legitimacy of all claims
of or against the United States. A claim against the United States
cannot be adjudicated in courts of the United States unless it has
first been submitted to, and rejected by GAO. This is the reason so
many cases against the Internal Revenue Service, the Commissioner of
Internal Revenue, IRS revenue agents, the "United States", etc., are
dismissed as stating claims on which relief cannot be granted --
whoever initiates these cases doesn't know the claim must first be
submitted to GAO.26
The Department of
the Treasury is an administrative agency, it is not the Treasury of
the United States -- the Treasury of the United States, established
while Congress was still convened under the Articles of
Confederation, predates the Constitution, but was reestablished by
Congress under the Constitution via the act of September 2, 1789. It
has always been under congressional supervision. The Department of
the Treasury of the United States has precious little authority in
the Union of several States.
We will conclude
this section with rationale behind Cooperative Federalism: Probably
the most important legislation in 1913 was the Federal Reserve Act.
The nation had two national or central banks in the early going, but
the charters of both were terminated and the banks abolished. In
1836, President Andrew Jackson vetoed the bill Congress intended to
renew the charter of the second, his rationale simple and to the
point: The Constitution does not delegate authority for Congress to
establish a national bank. It still doesn't. Yet in 1913, the
Federal Reserve Act created a more ominous entity than a national
bank as the Federal Reserve System literally has power to expand or
contract the entire economy by regulation of key interest rates and
bank reserves. None of these powers are delegated by the
Constitution, so creation of the Federal Reserve System had to be
under Congress' Article IV § 3.2 plenary power in territory
belonging to the United States. With and subsequent to the Federal
Reserve Act came fraudulent, nonconstitutional credit and monetary
systems.
Once fraudulent
credit and monetary systems, and economic controls were in place,
the balance of Federal government had to be moved under Congress'
Article IV § 3.2 legislative authority in territory belonging to the
United States. In this section, we have demonstrated the move by
examining five essential authorities. Laws of the United States
evidenced in the United States Code nearly all apply (1) to officers
and employees of the United States, (2) to territories and insular
possessions of the United States, and/or (3) to maritime and
admiralty jurisdiction of the United States, and do not have general
application in the Union of several States party to the
Constitution.
__________________________
Breakdown of Drug & Internal Revenue
Laws
Proof of the
pudding is in the tasting. If historical evidence and authorities
addressed thus far hold true, it should be reasonably easy to
demonstrate that Federal drug laws, which account for about 60% of
the cases prosecuted in United States District Courts, and internal
revenue laws categorized in the Internal Revenue Code, are
applicable only in the three jurisdictions excluded from the Federal
Register Act: Application of these two categories of laws should
apply solely to (1) officers and employees of United States
government and governments of political subdivisions of the United
States, (2) in United States admiralty and maritime jurisdiction,
and (3) in territories and insular possessions of the United
States.
I. Application of Federal Drug Control
Laws
Probably the place
to begin on the subject of controlled substances is with
Congressional findings and declarations relating to controlled
substances, framed in Public Law 91-513, title II, Sec. 101, Oct.
27, 1970, 84 Stat. 1242, the statement classified at 21 U.S.C. §
801:
Sec. 801.
Congressional findings and declarations: controlled
substances
The Congress
makes the following findings and declarations:
(1) Many of the
drugs included within this subchapter have a useful and legitimate
medical purpose and are necessary to maintain the health and
general welfare of the American people.
(2) The illegal
importation, manufacture, distribution, and possession and
improper use of controlled substances have a substantial and
detrimental effect on the health and general welfare of the
American people.
(3) A major
portion of the traffic in controlled substances flows through
interstate and foreign commerce. Incidents of the traffic which
are not an integral part of the interstate or foreign flow, such
as manufacture, local distribution, and possession, nonetheless
have a substantial and direct effect upon interstate commerce
because --
(A) after
manufacture, many controlled substances are transported in
interstate commerce,
(B) controlled
substances distributed locally usually have been transported in
interstate commerce immediately before their distribution,
and
(C) controlled
substances possessed commonly flow through interstate commerce
immediately prior to such possession.
(4) Local
distribution and possession of controlled substances contribute to
swelling the interstate traffic in such substances.
(5) Controlled
substances manufactured and distributed intrastate cannot be
differentiated from controlled substances manufactured and
distributed interstate. Thus, it is not feasible to distinguish,
in terms of controls, between controlled substances manufactured
and distributed interstate and controlled substances manufactured
and distributed intrastate.
(6) Federal
control of the intrastate incidents of the traffic in controlled
substances is essential to the effective control of the interstate
incidents of such traffic.
(7) The United
States is a party to the Single Convention on Narcotic Drugs,
1961, and other international conventions designed to establish
effective control over international and domestic traffic in
controlled substances.
I have never
advocated use of nonprescription drugs, and through the years have
seen negative and disastrous effects from abuse of both prescription
and street drugs. On the other hand, many of my contemporaries,
particularly in the university setting, used various so-called
illegal substances in the way social drinkers drink, with most
leading productive lives in school and work environments. Casual,
social, or recreational use, whatever the descriptive terminology
should be, did not seem to adversely affect whatever pursuits they
were involved in. With my commitment to ministry, I find it
impossible to tell people that use of drugs or alcohol to the point
judgment is impaired is proper. But I also recognize that freedom of
choice is indispensable to liberty. God put the tree of knowledge in
the Garden of Eden, then told Adam and Eve not to eat the fruit, but
he didn't put a fence around it. They were free to exercise choice
-- they could be obedient or disobedient. That's one context the
entire faith community must consider when tackling the problem of
drug laws. From experience and observation, I'm increasingly
convinced that government cannot function as moral custodian. This
is particularly the case when politicians responsible for
legislation, and those responsible for enforcement, are morally
derelict to begin with. In light of what has already been addressed,
it's difficult to claim that any branch of government is morally
motivated. At the same time there is increasing prosecution of
so-called vice, there is increasing regulation of family an
community in all other aspects of life, with the church being one of
the targets of ever-tighter regulation.
The second context
is this: Sometimes a cure is worse than the disease. Surgery can be
successful, but the patient still die. That is certainly the case
for Federal and State drug laws. If production and distribution of
what are now controlled substances were regulated in somewhat the
fashion State governments regulate production and sale of alcoholic
beverages, freedom of choice for adults would be preserved, the cost
of enforcement, prosecution, and correction would be greatly
reduced, and inflated street prices would be undermined sufficiently
that coffers of organized crime wouldn't be nearly as
enriched.
The third context
is most important: If and when government exceeds constitutionally
delegated powers, those responsible, regardless of how
righteous-sounding the cause, are engaged in rebellion against the
sovereign people, disdaining the constitutional republic. The first
transgression is worst as if successful, it invariably leads to
further encroachment and eventually to institutionalized tyranny.
That's precisely what we're addressing -- government out of control.
So far as the essence of authority and the necessity of preserving
constitutional integrity are concerned, former Chief Justice John
Marshall addressed the matter as eloquently as anyone in Marbury v.
Madison (1803), 5 U.S. 137, 2 L.Ed. 60:
The question,
whether an act, repugnant to the constitution, can become the law
of the land, is a question deeply interesting to the United
States; but, happily, not of an intricacy proportioned to its
interest. It seems only necessary to recognize certain principles,
supposed to have been long and well established, to decide
it.
That the people
have an original right to establish, for their future government,
such principles as, in their opinion, shall most conduce to their
happiness, is the basis on which the whole American fabric has
been erected. The exercise of this original right is a very great
exertion; nor can it nor ought it to be frequently repeated. The
principles, therefore, so established are deemed fundamental. And
as the authority, from which they proceed, is supreme, and can
seldom act, they are designed to be permanent.
This original
and supreme will organizes the government, and assigns to
different departments their respective powers. It may either stop
here; or establish certain limits not to be transcended by those
departments.
The government
of the United States is of the latter description. The powers of
the legislature are defined and limited; and those limits may not
be mistaken or forgotten, the constitution is written. To what
purpose are powers limited, and to what purpose is that limitation
committed to writing; if these limits may, at any time, be passed
by those intended to be restrained? The distinction between a
government with limited and unlimited powers is abolished, if
those limits do not confine the persons on whom they are imposed,
and if acts prohibited and acts allowed are of equal obligation.
It is a proposition too plain to be contested, that the
constitution controls any legislative act repugnant to it; or,
that the legislature may alter the constitution by an ordinary
act.
Between these
alternatives there is no middle ground. The constitution is either
a superior, paramount law, unchangeable by ordinary means, or it
is on a level with ordinary legislative acts, and like other acts,
is alterable when the legislature shall please to alter
it.
If the former
part of the alternative be true, then a legislative act contrary
to the constitution is not law; if the latter part be true, then
written constitutions are absurd attempts, on the part of the
people, to limit a power in its own nature
illimitable.
Certainly all
those who have framed written constitutions contemplate them as
forming the fundamental and paramount law of the nation, and
consequently the theory of every such government must be, that an
act of the legislature repugnant to the constitution is
void.
On the surface,
Congressional findings and declarations in 21 U.S.C. § 801 are
high-sounding and even have a righteous ring. However, the first
defect on the face of the statement is in subsection (7): "The
United States is a party to the Single Convention on Narcotic Drugs,
1961, and other international conventions designed to establish
effective control over international and domestic traffic in
controlled substances."
Condemnation
doesn't have to be elaborate. "So what?" is sufficient. If the
Constitution doesn't delegate authority via an enumerated power, it
makes no difference how many conventions, treaties, accords or
whatever Congress and/or the President enters, application cannot be
to the Union of several States. Congress and the Administration
cannot use treaties and other forms of foreign agreements to enlarge
constitutionally delegated powers. Unless or until there is a
constitutional amendment delegating regulatory authority pertaining
to some commodity, Federal regulatory authority doesn't exist in the
Union of several States party to the Constitution. Per Chief Justice
Marshall, the enactment is not and cannot be law of the land as
there is no constitutional authority to make such a law. The
enactment might be popular in some quarters, but that is precisely
what the Constitution is designed to guard against -- imposition of
the politically popular and expedient that encroaches on unalienable
rights of those who don't happen to be in vogue and in tune with
bandwagon politics. The enactment, if not within the scope of powers
enumerated in the Constitution can have no lawful effect.
The next flaw in
the proclamation is the string of presumptions concerning interstate
and foreign commerce. They wipe out State and local sovereignty,
setting the stage for what amount to bills of attainder, prohibited
at Article I § 9.3 for government of the United States, and Article
I § 10.1 for governments of the several States. These kinds of
presumption, prosecuted in the course of the civil law, constituted
major grievances American founders addressed to King George III and
the British Parliament in the Declaration of Rights and the
Declaration of Independence -- they were plagued by vice-admiralty
courts in which presumption, contrary to the course of the common
law, played a significant role. "The will of the prince is law," --
in this case, Congress --, is foreign and repugnant to eight
centuries of English-American juris prudence. In street language,
whoever manufactured the Congressional findings and declarations
statement in § 801 was a sick puppy -- the rationalization is thin
veneer for institutionalizing tyranny which by way of what amounts
to a private army daily plunders and imprisons sovereign American
people.
However, as is the
case with other elements of law we've treated, we can examine
application of this general statement to the Union of several States
via the Parallel Table of Authorities and Rules, and demonstrate
that the law does not and never has applied to the several States
party to the Constitution. The only regulation listed for 21 U.S.C.
§ 801 is 21 CFR § 5, which relates to delegation of authority and
organization of the Food and Drug Administration, Department of
Human Services. The underlying authority, Pub. L. 91-513, has an
additional regulation at 42 CFR § 2a, which prescribes regulations
for protection of the identity of research subjects. This regulation
is the only one for surviving portions of the Comprehensive Drug
Abuse Prevention and Control Act of 1970. However, as other core
legislation relating to other matters, Pub. L. 91-513 has been
amended several times, so all the amendments should be examined in
light of implementing regulations. The list follows:
The Narcotic
Addict Treatment Act of 1974 (Pub. L. 93-281);
The Psychotropic
Substances Act of 1978 (Pub. L. 95-633);
The Dangerous
Drug Division Control Act of 1984 (Pub. L. 98-473)
The Federal Drug
Law Enforcement Agent Protection Act of 1986 (Pub. L.
99-570);
The Mail Order
Drug Paraphernalia Control Act of 1986 (Pub. L. 99-570), repealed
in 1990 by a similar act;
There were several
additions and amendments to Pub. L. 99-570, enacted in 1986 under
the following short titles:
Controlled
Substances Import and Export Penalties Enhancement Act of 1986,
Controlled Substance Analogue Enforcement Act of 1986, the
Juvenile Drug Trafficking Act of 1986; the Drug Possession Penalty
Act of 1986; the Narcotics Penalties and Enforcement Act of 1986;
and the Anti-Drug Abuse Act of 1986;
The Asset
Forfeiture Amendments Act of 1988; the Chemical Diversion and
Trafficking Act of 1988; and the Anti-Drug Abuse Amendments Act of
1988, all under auspices of Pub. L. 100-690;
The Anabolic
Steroids Control Act of 1990 (Pub. L. 101-647);
The Domestic
Chemical Diversion Control Act of 1993 (Pub. L. 103-200);
and
The Drug Free
Truck Stop Act, 1994 (Pub. L. 103-322).
Since most of the
public laws pertaining to drugs enacted since 1970 are cited in
notes following 21 U.S.C. § 801, they can be listed in chronological
order with authorities attributed to them in the Parallel Table of
Authorities and Rules. The Public Law is listed on the left, with
applicable regulations on the right. Where more than one regulation
is listed for any given title of the Code of Federal Regulations,
the double "§§" indicates that more than one regulation is accounted
for:
Pub. L. 91-513
42 CFR § 2a (Title 42 -- Public Health; Chapter I -- Public Health
Service, Department of Health and Human Services (Parts 1-199);
Subchapter A -- General Provisions; § 2a, Protection of identity
-- research subjects).
Pub. L. 93-281
No implementing regulations.
Pub. L. 95-473
No implementing regulations.
Pub. L. 99-570 5
CFR §§ 294 (Title 5 -- Administrative Personnel; Chapter I --
Office of Personnel Management (Parts 1-1199); Subchapter B --
Civil Service Regulations; § 294, Availability of official
information.), 2502 (Chapter XV -- Office of Administration,
Executive Office of the President (Parts 2500-2599); § 2502,
Availability of records.);
19 CFR § 103
(Title 19 -- Customs Duties; Chapter I -- United States Customs
Service, Department of the Treasury (Parts 1-199); § 103,
Availability of information.);
22 CFR §§ 303
(Title 22 -- Foreign Relations; Chapter III -- Peace Corps (Parts
300-399); § 303, Inspection and copying of records: rules for
compliance with Freedom of Information Act); 503 (Chapter V --
United States Information Agency (Parts 500-599); § 503,
Availability of records.);
24 CFR §§ 15
(Title 24 -- Housing and Urban Development; Subtitle A -- Office
of the Secretary, Department of Housing and Urban Development
(Parts 0-99); § 15, Testimony, production and disclosure of
material or information by HUD employees.); 2002 (Subtitle B --
Regulations Relating to Housing and Urban Development; Chapter XII
-- Office of Inspector General, Department of Housing and Urban
Development (Parts 2000-2099); § 2002, Availability of information
to the public);
28 CFR § 32
(Title 28 -- Judicial Administration; Chapter I -- Department of
Justice (Parts 0-199); § 32, Public safety officers' death and
disability benefits.);
29 CFR § 1610
(Title 29 -- Labor; Subtitle B -- Regulations Relating to Labor;
Chapter XIV -- Equal Employment Opportunity Commission (Parts
1600-1699); § 1610, Availability of records.);
32 CFR § 285
(Title 32 -- National Defense; Chapter I -- Office of the
Secretary of Defense (Parts 1-399); Subchapter N -- Freedom of
Information Act Program; § 285, DoD Freedom of Information Act
program.);
45 CFR § 2005
(Title 45 -- Public Welfare; Subtitle B -- Regulations Relating to
Public Welfare; should be in Chapter XIX or XX, the chapters and §
2005 are not listed);
49 CFR §§ 350
(Title 49 -- Transportation; Chapter III -- Federal Highway
Administration, Department of the Transportation (Parts 300-399);
§ 350, Commercial motor carrier safety assistance program); 701
(Chapter VII -- National Railroad Passenger Safety Board (Parts
700-799); § 701, Freedom of Information Act
regulations).
Pub. L. 100-690
7 CFR § 3017 (Title 7 -- Agriculture; Subtitle B -- Regulations of
the Department of Agriculture; Chapter XXX -- Office of Finance
and Management, Department of Agriculture (Parts 3000-3099); §
3017, Government-wide Department [probably should be "debarment"]
and suspension (non-procurement) and government-wide requirements
for drug-free workplace (grants).);
10 CFR § 1036
(Title 10 -- Energy; Chapter X -- Department of Energy (General
Provisions) (Parts 1000-1099); § 1036, Government-wide debarment
and suspension (nonprocurement) and government-wide requirements
for drug-free workplace (grants));
12 CFR § 516
(Title 12 -- Banks and Banking; Chapter V -- Office of Thrift
Supervision, Department of the Treasury (Parts 500-599); § 516,
Application processing guidelines and procedures.);
13 CFR § 145
(Title 13 -- Business Credit and Assistance; Chapter I -- Small
Business Administration (Parts 1-199); § 145, Government-wide
debarment and suspension (nonprocurement) and government-wide
requirements for drug-free workplace (grants).);
14 CFR § 1265
(Title 14 -- Aeronautics and Space; Chapter V -- National
Aeronautics and Space Administration (Parts 1200-1299); § 1265,
Government-wide debarment and suspension (nonprocurement) and
government-wide requirements for drug-free workplace
(grants).);
21 CFR § 1316
(Title 21 -- Food and Drugs; Chapter II -- Drug Enforcement
Administration, Department of Justice (Parts 1300-1399); § 1316,
Administrative functions, practices, and procedures.);
22 CFR §§ 51
(Title 22 -- Foreign Relations; Chapter I -- Department of State
(Parts 1-199); Subchapter F -- Nationality and Passports; § 51,
Passports.); 137 (Subchapter N -- Miscellaneous; § 137,
Government-wide debarment and suspension (nonprocurement) and
government-wide requirements for drug-free workplace.); 310
(Chapter III -- Peace Corps (Parts 300-399); § 310,
Government-wide debarment and suspension (nonprocurement) and
government-wide requirements for drug-free workplace (grants)..);
1006 (Chapter X -- Inter-American Foundation (Parts 1000-1099); §
1006, Government-wide debarment and suspension (nonprocurement)
and government-wide requirements for drug-free workplace
(grants).);
28 CFR §§ 32
(Title 28 -- Judicial Administration; Chapter I -- Department of
Justice (Parts 0-199); § 32 Public safety officers' death and
disability benefits.); 67 (§ 67, Government-wide debarment and
suspension (nonprocurement) and government-wide requirements for
drug-free workplace (grants).);
29 CFR §§ 98
(Title 20 -- Labor; Subtitle A -- Office of the Secretary of Labor
(Parts 0-99); § 98, Government-wide debarment and suspension
(nonprocurement) and government-wide requirements for drug-free
workplace (grants).); 1471 (Subtitle B -- Regulations Relating to
Labor; Chapter XII -- Federal Mediation and Conciliation Service
(Parts 1400-1499); § 1471, Government-wide debarment and
suspension (nonprocurement) and government-wide requirements for
drug-free workplace (grants).);
31 CFR § 19
(Title 31 -- Money and Finance: Treasury; Subtitle A -- Office of
the Secretary of the Treasury (Parts 0-50); § 19, Government-wide
debarment and suspension (nonprocurement) and government-wide
requirements for drug-free workplace (grants).);
33 CFR § 1
(Title 33 -- Navigation and Navigable Waters; Chapter I -- Coast
Guard, Department of Transportation (Parts 1-199); Subchapter A --
General; § 1, General provisions.);
36 CFR § 1209
(Title 36 -- Parks, Forests, and Public Property; Chapter XI --
National Archives and Records Administration (Parts 1200-1299);
Subchapter A -- General Rules; § 1209, Government-wide debarment
and suspension (nonprocurement) and government-wide requirements
for drug-free workplace (grants).);
44 CFR § 17
(Title 44 -- Federal Emergency Management and Assistance; Chapter
I -- Federal Emergency Management Agency (Parts 0-399); Subchapter
A -- General; § 17, Government-wide debarment and suspension
(nonprocurement) and government-wide requirements for drug-free
workplace (grants).).
Pub. L. 101-647
No implementing regulations.
Pub. L. 103-200
No implementing regulations.
Pub. L. 103-322
No implementing regulations.
It shouldn't be
surprising that the Coast Guard, under 33 CFR § 1, promulgated under
authority of Pub. L. 100-690, has the only delegated criminal
enforcement authority with teeth. The authority relates to admiralty
and maritime jurisdiction, and insular possessions of the United
States. No enforcement authority under any of the laws above apply
in the Union of several States party to the Constitution.
It will be useful
to reproduce 21 U.S.C. § 953(a) as this section lists the various
"conventions" that allegedly provide authority relating to drug
trade and distribution. Title 21 pertains to Food and Drugs, the
section is in Chapter 13 -- Drug Abuse Prevention and Control,
Subchapter II -- Import and export:
Sec. 953.
Exportation of controlled substances
(a) Narcotic
drugs in schedule I, II, III, or IV
It shall be
unlawful to export from the United States any narcotic drug in
schedule I, II, III, or IV unless --
(1) it is
exported to a country which is a party to --
(A) the
International Opium Convention of 1912 for the Suppression of the
Abuses of Opium, Morphine, Cocaine, and Derivative Drugs, or to
the International Opium Convention signed at Geneva on February
19, 1925; or
(B) the
Convention for Limiting the Manufacture and Regulating the
Distribution of Narcotic Drugs concluded at Geneva, July 13, 1931,
for limiting the manufacture and regulating the distribution of
narcotic drugs (as amended by the protocol signed at Lake Success
on December 11, 1946), signed at Paris, November 19, 1948;
or
(C) the Single
Convention on Narcotic Drugs, 1961, signed at New York, Mach 30,
1961;
(2) such country
has instituted and maintains, in conformity with the conventions
to which it is a party, a system for the control of imports of
narcotic drugs which the Attorney General deems
adequate;
(3) the narcotic
drug is consigned to a holder of such permits or licenses as may
be required under the laws of the country of import, and a permit
or license to import such drug has been issued by the country of
import;
(4) substantial
evidence is furnished to the Attorney General by the exporter that
(A) the narcotic drug is to be applied exclusively to medical or
scientific uses within the country of import, and (B) there is an
actual need for the narcotic drug for medical or scientific uses
within such country; and
(5) a permit to
export the narcotic drug in each instance has been issued by the
Attorney General.
Regulations for 21
U.S.C. § 953 are listed in the Parallel Table of Authorities and
Rules as being 19 CFR § 162 and 21 CFR § 1312. They are as
follows:
19 CFR § 162
Title 19 -- Customs Duties; Chapter I -- United States Customs
Service, Department of the Treasury (Parts 1-199); § 162,
recordkeeping, inspection, search, and seizure.
21 CFR § 1312
Title 21 -- Food and Drugs; Chapter II -- Drug Enforcement
Administration, Department of Justice (Parts 1300-1399); § 1312,
Importation and exportation of controlled substances.
The companion
import section is at 21 U.S.C. § 952, reproduced below in its
entirety:
Sec. 952.
Importation of controlled substances
(a) Controlled
substances in schedule I or II and narcotic drugs in schedule III,
IV, or V; exceptions
It shall be
unlawful to import into the customs territory of the United States
from any place outside thereof (but within the United States), or
to import into the United States from any place outside thereof,
any controlled substance in schedule I or II of subchapter I of
this chapter, or any narcotic drug in schedule III, IV, or V of
subchapter I of this chapter, except that --
(1) such amounts
of crude opium, poppy straw, concentrate of poppy straw, and coca
leaves as the Attorney General finds to be necessary to provide
for medical, scientific, or other legitimate purposes,
and
(2) such amounts
of any controlled substance in schedule I or II of any narcotic
drug in schedule III, IV, or V that the Attorney General finds to
be necessary to provide for the medical, scientific, or other
legitimate needs of the United States --
(A) during an
emergency in which domestic supplies of such substance or drug are
found by the Attorney General to be inadequate,
(B) in any case
in which the Attorney General finds that competition among
domestic manufacturers of the controlled substance is inadequate
and will not be rendered adequate by the registration of
additional manufacturers under section 823 of this title,
or
(C) in any case
in which the Attorney General finds that such controlled substance
is in limited quantities exclusively for scientific, analytical,
or research uses,
may be so
imported under such regulations as the Attorney General shall
prescribe. No crude opium may be so imported for the purpose of
manufacturing heroin or smoking opium.
(b) Nonnarcotic
controlled substances in schedule III, IV, or V
It shall be
unlawful to import into the customs territory of the United States
from any place outside thereof (but within the United States), or
to import into the United States from any place outside thereof,
any nonnarcotic controlled substance in schedule III, IV, or V,
unless such nonnarcotic controlled substance --
(1) is imported
for medical, scientific, or other legitimate uses, and
(2) is imported
pursuant to such notification, or declaration, or in the case of
any nonnarcotic controlled substance in schedule III, such import
permit, notification, or declaration, as the Attorney General may
by regulation prescribe, except that if a nonnarcotic controlled
substance in schedule IV or V is also listed in schedule I or II
of the Convention on Psychotropic Substances it shall be imported
pursuant to such import permit requirements, prescribed by
regulation of the Attorney General, as are required by the
Convention.
(c) Coca
leaves
In addition to
the amount of coca leaves authorized to be imported into the
United States under subsection (a) of this section, the Attorney
General may permit the importation of additional amounts of coca
leaves. All cocaine and ecgonine (and all salts, derivatives, and
preparations from which cocaine or ecgonine may be synthesized or
made) contained in such additional amounts of coca leaves imported
under this subsection shall be destroyed under the supervision of
an authorized representative of the Attorney General.
Regulations for 21
U.S.C. § 952 are listed as 19 CFR § 162, and 21 CFR §§ 1311 &
1312. Two of the three are set out above, so only 21 CFR § 1311
needs to be accounted for:
21 CFR § 1311
Title 21 -- Food and Drugs; Chapter II -- Drug Enforcement
Administration, Department of Justice (Parts 1300-1399); § 1311,
Registration of importers and exporters of controlled
substances.
We will continue
with statutory and regulatory examination, but at this juncture,
certain things are already obvious. Through analysis of the three
Title 21 United States Code sections, and the various public laws
listed above, none of the licensing, regulation, and civil and
criminal enforcement authority pertaining to controlled substances
reaches into the Union of several States save as they might pertain
to someone involved in importing or exporting the substances. Next,
regulations vest authority in the Coast Guard, which in times of war
is under authority of the Navy and in peacetime is under authority
of the Department of Transportation, in the United States Customs
Service, which is a bureau in the Department of Treasury, and the
Drug Enforcement Administration, which is a department or bureau in
the Department of Justice. Licensing and regulation of import and
export is left to discretion of the Attorney General. Yet statutory
authority of the Attorney General for enforcement at 28 U.S.C. §
535, treated earlier, is limited to investigation of officers and
employees of United States government. It is also important that the
Drug Enforcement Administration was created by a Presidential
reorganization plan, not by Congress, the current Coast Guard is
something other than what it originally was, and United States
Customs Service is an administrative creation distinct from the
original created by Congress. These factors all support the notion
that even export and import regulation applies only to the
geographical United States subject to Congress' Article IV § 3.2
legislative jurisdiction, not the Union of several States party to
the Constitution. In other words, export and import licensing
requirements apply only in Puerto Rico, Guam, the Virgin Islands,
American Samoa, and the Northern Mariana Islands, and conceivably in
the District of Columbia. If this is the case, we should be able to
verify application.
Sections relating
to drug abuse prevention and control are contained in Chapter 13 of
Title 21. What we're looking for is the section with definitions,
located at 21 U.S.C. § 802, in Subchapter I -- Control and
Enforcement, Part A -- Introductory Provisions. The critical
definitions are at 21 U.S.C. § 802(26) & (28):
(26) The term
"State" means any State, territory, or possession of the United
States, the District of Columbia, the Commonwealth of Puerto Rico,
the Trust Territory of the Pacific Islands, and the Canal
Zone.
(28) The term
"United States", when used in a geographical sense, means all
places and waters, continental and insular, subject to the
jurisdiction of the United States.
Are Oklahoma,
Texas, Minnesota, California, and New York, States of the United
States? Hardly. They are States of the Union. They are
semi-independent States that have legislative autonomy within the
framework of constitutional mandates and prohibitions, and as the
Constitution vests authority in United States Government. States of
the United States, in the geographical sense, include territories
and insular possessions subject to Congress' legislative
jurisdiction under territorial clause authority. All examples in the
list of States of the United States in the definition of "State" at
21 U.S.C. § 802(26) are territories and possessions of the United
States. Collectively, these States of the United States constitute
the "geographical United States." Where general powers of the United
States relating to the Union of several States are concerned,
geography, so far as it pertains to land owned and occupied by the
United States, is irrelevant. The United States technically has
subject matter jurisdiction, not geographical or territorial
jurisdiction in the several States. Since there is no
constitutionally enumerated power for the United States to regulate
drugs and other commodities in the several States, legislation
evidenced in Chapter 13 of Title 21 of the United States Code must
of necessity be promulgated under Congress' Article IV § 3.2
legislative jurisdiction in the geographical United States. If not,
it is patently unconstitutional and of no lawful effect, per Marbury
v. Madison.
To continue the
analysis: Chapter 13 of Title 21 is divided into two subchapters:
Subchapter I -- Control and Enforcement, includes §§ 801-904;
Subchapter II -- Import and Export, includes 951-958. Definitions at
21 § 802(26) & (28), apply to Subchapter I. For obvious reasons,
enforcement statutes in Subchapter I are of primary concern as (1)
territorial civil and criminal prosecution is the primary concern,
and (2) import and export requirements in Subchapter II of necessity
rely on territorial application in Subchapter I.
At the onset, it
is useful to establish that the Attorney General must promulgate
regulations for statutory authority evidenced in Subchapter I. This
requirement is set out at 21 U.S.C. §§ 811(a) § 721:
Sec. 811.
Authority and criteria for classification of
substances
(a) Rules and
regulations of Attorney General; hearing
The Attorney
General shall apply the provisions of this subchapter to the
controlled substances listed in the schedules established by
section 812 of this title and to any other drug or other substance
added to such schedules under this subchapter...
Sec. 821. Rules
and regulations
The Attorney
General is authorized to promulgate rules and regulations and to
charge reasonable fees relating to the registration and control of
the manufacture, distribution, and dispensing of controlled
substances and to the registration and control of regulated
persons and of regulated transactions.
This laborious
task might not make the Attorney General a happy camper, but by
employing the Parallel Table of Authorities and Rules and the List
of CFR Titles, Chapters, Subchapters, and Parts, we will examine
what rules and regulations the Attorney General has promulgated for
key sections in Subchapter I. Per 44 U.S.C. § 1505(a), reproduced
earlier, each document or order that imposes a penalty is construed
as having general application, so all penalty statutes must have
properly promulgated regulations. Additionally, regulations for the
Federal Register Act require that the Attorney General keep the
Parallel Table of Authorities and Rules current (44 U.S.C. § 1510; 1
CFR § 8.5 & elsewhere), so if there is error, fault lies with
the Attorney General, nobody else. However, I have every confidence
that the current Attorney General and her predecessors have all been
virtuous, competent people dedicated to upholding and defending the
Constitution and laws of the United States, as respectively required
to pledge by oath, so we can rely on truth being revealed via this
analysis.
Code sections will
be listed on the left, with section nomenclature on the right, then
regulatory application will follow in the right column with a
paragraph for each CFR title; multiple regulations in any given CFR
title will be listed in the same paragraph sequentially. The double
"§§" will denote two or more parts in the same CFR title. Because of
the way regulations are listed in the Table, precise application in
some instances is difficult to determine, so to give the Attorney
General every benefit of the doubt, where there is question, a
regulation that might apply to any given U.S.C. section will be
listed for the questionable section.
21 U.S.C. § 822
Persons required to register.
21 CFR §§ 10
(Title 21 -- Food and Drugs; Subchapter A -- General; § 10,
Administrative practices and procedures.); 12 (§ 12, Formal
evidentiary public hearing.); 13 (§ 13, Public hearing before a
public board of inquiry.); 15 (§ 15, Public hearing before the
Commissioner.); 16 (§ 16, Regulatory hearing before the Food and
Drug Administration.); 1301 (Chapter II -- Drug Enforcement
Administration, Department of Justice (Parts 1300-1399); § 1301,
Registration of manufacturers, distributors, and dispensers of
controlled substances.); 1307 (§ 1307, Miscellaneous.); 1309 (§
1309, Registration of manufacturers, distributors, importers and
exporters and List I chemicals.); 1316 (§ 1316, Administrative
functions, practices, and procedures.).
21 U.S.C. § 823
Registration requirements.
21 CFR §§ 5
(Title 21 -- Food and Drugs; Subchapter A -- General; § 5,
Delegations of authority and organization.); 10 (§ 10,
Administrative practices and procedures.); 12 (§ 12, Formal
evidentiary public hearing.); 13 (§ 13, Public hearing before a
public board of inquiry.); 15 (§ 15, Public hearing before the
Commissioner.); 16 (§ 16, Regulatory hearing before the Food and
Drug Administration.); 291 (Subchapter C -- Drugs: General; § 291,
Drugs used for treatment of narcotic addicts.); 1301 (Chapter II
-- Drug Enforcement Administration, Department of Justice (Parts
1300-1399); § 1301, Registration of manufacturers, distributors,
and dispensers of controlled substances.); 1309 (§ 1309,
Registration of manufacturers, distributors, importers and
exporters and List I chemicals.).
44 U.S.C. § 827
Reports and reports of registrants.
21 CFR §§ 10
(Title 21 -- Food and Drugs; Subchapter A -- General; § 10,
Administrative practices and procedures.); 12 (§ 12, Formal
evidentiary public hearing.); 13 (§ 13, Public hearing before a
public board of inquiry.); 15 (§ 15, Public hearing before the
Commissioner.); 16 (§ 16, Regulatory hearing before the Food and
Drug Administration.); 1304 (Chapter II -- Drug Enforcement
Administration, Department of Justice (Parts 1300-1399); § 1304,
Records and reports of registrants.).
21 U.S.C. § 829
Prescriptions.
21 CFR §§ 10
(Title 21 -- Food and Drugs; Subchapter A -- General; § 10,
Administrative practices and procedures.); 12 (§ 12, Formal
evidentiary public hearing.); 13 (§ 13, Public hearing before a
public board of inquiry.); 15 (§ 15, Public hearing before the
Commissioner.); 16 (§ 16, Regulatory hearing before the Food and
Drug Administration.); 1306 (Chapter II -- Drug Enforcement
Administration, Department of Justice (Parts 1300-1399); § 1306,
Prescriptions.).
21 U.S.C. § 841
Prohibited acts A.
No implementing
regulations.
21 U.S.C. § 842
Prohibited acts B.
No implementing
regulations.
21 U.S.C. § 843
Prohibited acts C.
No implementing
regulations.
21 U.S.C. § 844
Penalties for simple possession.
39 CFR § 232
(Title 39 -- Postal Service; Chapter I -- United States Postal
Service (Parts 1-999); Subchapter D -- Organization and
Administration; § 232, Conduct on postal property.).
21 U.S.C. § 844a
Civil penalty for possession of small amounts of certain
controlled substances.
28 CFR § 76
(Title 28 -- Judicial Administration; Chapter I -- Department of
Justice (Parts 0-199); § 76, Rules of procedure for assessment of
civil penalties for possession of certain controlled
substances.).
21 U.S.C. § 846
Attempt and Conspiracy.
No implementing
regulations.
21 U.S.C. § 847
Additional penalties.
No implementing
regulations.
21 U.S.C. § 848
Continuing criminal enterprise.
28 CFR § 524
(Title 28 -- Judicial Administration; Chapter V -- Bureau of
Prisons, Department of Justice (Parts 500-599); Subchapter B --
Inmate Admission, Classification, and Transfer; § 524,
Classification of inmates.).
21 U.S.C. § 849
Transportation safety offenses.
No implementing
regulations.
21 U.S.C. § 852
Application of treaties and other international
agreements.
No implementing
regulations.
21 U.S.C. § 853
Criminal forfeitures.
No implementing
regulations.
21 U.S.C. § 854
Investment of illicit drug profits.
No implementing
regulations.
It appears that
there may be a potential for civil penalties for inappropriate
drug-related behavior on postal property, but other than that, there
are no implementing regulations for any penalty section in
Subchapter I of Chapter 13, of Title 21 of the United States Code.
Continuing criminal enterprise is addressed by the Bureau of Prisons
through transfer, classification, etc., but as previously
demonstrated, the Attorney General may not imprison anyone who isn't
charged with or convicted of an offense prescribed by "Act of
Congress", such Act, per Rule 54(c) of the Federal Rules of Criminal
Procedure, applicable in, "... the District of Columbia, in Puerto
Rico, in a territory or in an insular possession."
There might be
regulations of sorts pertaining to registration, reporting
requirements, etc., but there is no need to pursue the matter as
there is no civil or criminal enforcement authority within the
several States behind any of these regulations, so even if
import/export registration requirements are in place, we're left
with the same question posed in the beginning: "So what?"
The more obvious
default is at 21 U.S.C. § 852: There are no implementing regulations
applicable to the Union of several States and the American people at
large for treaties and other international agreements pertaining to
regulation of controlled substances. The entire body of drug-related
legislation, beginning with the Anti-Narcotic Act of 1914, has been
predicated on these treaties and agreements. They simply do not
apply to or in the Union of several States party to the Constitution
as there is no constitutionally delegated authority for Congress to
regulate any of the commodities itemized in the various schedules of
controlled substances.
Where do these
laws apply? In insular possessions of the United States, as
evidenced at 48 U.S.C. § 1494b. We'll reproduce only subsection (a),
as relates to American Samoa, as there is no need to repeat the same
thing for Guam, the Northern Mariana Islands, Puerto Rico, the
Virgin Islands, and Paulo, all included in the section:
Sec. 1494b.
Enforcement and administration in insular areas
(a) American
Samoa
(1) With the
approval of the Attorney General of the United States or his
designee, law enforcement officers of the Government of American
Samoa are authorized to --
(A) execute and
serve warrants, subpoenas, and summons issued under the authority
of the United States;
(B) make arrests
without warrant; and
(C) make
seizures of property to carry out the purposes of sections 1494 to
1494c of this title, the Controlled Substances Import and Export
Act (21 U.S.C. 951-970), and any other applicable narcotics laws
of the United States.
(2) The Attorney
General and the Secretaries of Education and Health and Human
Services of the United States, as appropriate, are authorized to
and, upon request of the Government of American Samoa, shall
--
(A) train law
enforcement officers and other personnel of the Government of
American Samoa, and
(B) provide by
purchase or lease law enforcement equipment and technical
assistance to the Government of American Samoa to carry out the
purposes of sections 1494 to 1494c of this title and any other
Federal or territorial drug or other substance abuse
laws.
(3) There are
authorized to be appropriated $350,000 for fiscal year 1989 and
annually thereafter for grants to the Government of American Samoa
to be expended in accordance with a plan approved by the Secretary
of the Interior in consultation with the Attorney General and the
Secretaries of Education and Health and Human Services to carry
out the purposes of sections 1494 to 1494c of this title, to
remain available until expended.
(4) The
Secretary of the Treasury in consultation with the Secretary of
the Interior shall provide the Government of American Samoa with a
vessel to be used in the enforcement of narcotics and other laws.
There are authorized to be appropriated $500,000 for this
purpose.
It is useful for
orientation to reproduce a portion of one of the four opinions
submitted in Downes v. Bidwell (1901), which by plurality
established what is called the Downes Doctrine for insular
possessions such as Puerto Rico, Guam, American Samoa, etc. The
portion below does not address unincorporated insular possessions as
such, but provides a perspective of territories v. the several
States in general, and the long-held doctrine that once the
Constitution has been extended even in a territorial possession of
the United States, it cannot be withdrawn. In Downes, the plurality
opinion concluded that unincorporated insular possessions enjoy
constitutional assurances, benefits, and privileges only as Congress
extends them, thus removing them a step from assurances secured in
the District of Columbia and former incorporated territories, but
this opinion segment (1) demonstrates the distinction between
territory owned by the United States and the several States party to
the Constitution, and (2) articulates the prohibition against
Congress infringing on the Constitution once it has been extended to
any given territory, whether the territory is a State of the Union
or territory of the United States. The cite is Downes v. Bidwell, 21
S.Ct. 770, 182 U.S. 244, 45 L.Ed. 1088, at 182 U.S. 269:
In Springville v.
Thomas, 166 U.S. 707, 41 L.Ed. 1172, 17 Sup.Ct.Rep. 717, it was held
that the verdict returned by less than the whole number of jurors
was invalid because in contravention of the 7th Amendment to the
Constitution and the act of Congress of April 7, 1874 (18 Stat. at
L. 27, chap. 80), which provide "that no party has been or shall be
deprived of the right of trial by jury in cases cognizable at common
law." It was also intimated that Congress "could not impart the
power to change the constitutional rule," which was obviously true
with respect to Utah, since the organic act of that territory (9
Stat. at L. 458, chap. 51, § 17) had expressly extended to it the
Constitution and laws of the United States. As we have already held,
that provision, once made, could not be withdrawn. If the
Constitution could be withdrawn directly, it could be nullified
indirectly by acts passed inconsistent with it. The Constitution
would thus cease to exist as such, and become of no greater
authority than an ordinary act of Congress. In American Pub. Co.. v.
Fisher, 166 U.S. 464, 41 L.Ed. 1079, 17 Sup.Ct.Rep. 618, a similar
law providing for majority verdicts was put upon the express ground
above stated, that the organic act of Utah extended the Constitution
over that territory. These rulings were repeated in Thompson v.
Utah, 170 U.S. 343, 42 L.Ed. 1061, 18 Sup.Ct.Rep. 620, and applied
to felonies committed before the territory became a state, although
the state Constitution continued the same provision.
Eliminating, then,
from the opinions of this court all expressions unnecessary to the
disposition of the particular case, and gleaning there from the
exact point decided in each, the following propositions may be
considered as established:
1. That the
District of Columbia and the territories are not states within the
judicial clause of the Constitution giving jurisdiction in cases
between citizens of different states;
2. That
territories are not states within the meaning of Rev. Stat. § 709,
permitting writs of error from this court in cases where the
validity of a state statute is drawn in question;
3. That the
District of Columbia and the territories are states as that word
is used in treaties with foreign powers, with respect to the
ownership, disposition, and inheritance of property;
4. That the
territories are not within the clause of the Constitution
providing for the creation of a supreme court and such inferior
courts as Congress may see fit to establish;
5. That the
Constitution does not apply to foreign countries or to trials
therein conducted, and that Congress may lawfully provide for such
trials before consular tribunals, without the intervention of a
grand or petit jury;
6. That where
the Constitution has been once formally extended by Congress to
territories, neither Congress nor the territorial legislature can
enact laws inconsistent therewith.
The issue in
Downes was whether or not the Article I tax uniformity clause
applied to commodities shipped from unincorporated insular
possessions to the several States party to the Constitution. After
hammering at the issue from every conceivable direction, without a
majority of the justices standing on any single opinion, the
plurality opinion conceded that insular possessions ceded by Spain
in 1898 were not incorporated in the constitutional scheme, and
therefore were foreign as Congress had not formally extended the
Constitution to the former Spanish provinces. That had been the case
in Utah, however, as pointed out in the opinion above, but even
though the Constitution might be applicable in the District of
Columbia and incorporated territories, Article III judicial
authority of the United States does not extend to them. They are
subject to Congress' plenary power (combined power of State and
national government) under the Article IV § 3.2 territorial clause
to the point the territory is admitted as a State of the
Union.
Point 6 above is
particularly important: "That where the Constitution has been once
formally extended by Congress to territories, neither Congress nor
the territorial legislature can enact laws inconsistent
therewith."
If that's the case
for territories, it's doubly the case for Congress and legislatures
of the several States party to the Constitution: The Constitution of
the United States is the law of the land in each of the several
States, per mandate of the Constitution and constitutions of each of
the several States. The Constitution of the State of Oklahoma sets
this proclamation out in Article I, Section 1 -- not part of it, but
all of it, with the Tenth Article of Amendment prohibition against
government of the United States exercising power not delegated by
the Constitution fully intact.
The circle is
closed: The Constitution does not delegate authority for Congress to
regulate drugs or any other commodity. Regulations applicable to
drug laws demonstrate that where "domestic" application of these
laws is concerned, they amount to municipal law in insular
possessions of the United States, with possible application in the
District of Columbia. They do not apply to the Union of several
States party to the Constitution.
II. Application of Internal Revenue Code
Taxing Authority
Application of
Federal tax laws, authority of the Internal Revenue Service, and
various matters relating to the Internal Revenue Code have been
addressed throughout this effort, so there is no need to reproduce
every detail covered to this point. However, one of the more
important points that needs to be emphasized is that Title 26 of the
United States Code, as other titles of the Code, is not law -- it is
merely evidence of law. Where the Internal Revenue Code is
concerned, it has not been enacted as positive law so doesn't even
qualify as "legal evidence". It is merely "prima facie" the
law.
Without
hairsplitting, it is probably fair to say the Internal Revenue Code
is law by appearance. In order to unravel the Code so each tax
accounted for in it, and application of administrative and judicial
sections in Subtitle F could be properly interpreted, it would
probably be necessary to track United States tax and judicial
legislation to the time Congress convened under the Constitution in
1789, which would require pouring over the complete Statutes at
Large (they take about 200 feet of shelf space), Treasury orders,
treaties, reorganization plans, and volumes of court decisions. In
fact, the Code has been defaulted as void for vagueness as it is
impossible for most so-called experts to understand -- mere mortals
get impossibly lost in it. The only real favor in the thing is the
general disclaimer at 26 U.S.C. § 7806:
Sec. 7806.
Construction of title.
(a) Cross
references.
The cross
references in this title to other portions of the title, or other
provisions of law, where the word "see" is used, are made only for
convenience, and shall be given no legal effect.
(b) Arrangement
and classification.
No inference,
implication, or presumption of legislative construction shall be
drawn or made by reason of the location or grouping of any
particular section or provision or portion of this title, nor
shall any table of contents, table of cross references, or similar
outline, analysis, or descriptive matter relating to the contents
of this title be given any legal effect. The preceding sentence
also applies to the sidenotes and ancillary tables contained in
the various prints of this Act before its enactment into
law.
The fact that
Title 26 has never been enacted as positive law, which would make it
"legal evidence" of laws of the United States, is verified in the
Preface to the 1994 edition of the United States Code, produced in
the first volume of the complete Code. Therefore, it remains prima
facie evidence of law, but legislative construction cannot be
assumed even where one section follows another in numerical
sequence, classification by subtitle, chapter, subchapter, or
whatever. Each section must be tracked to its original source or
sources in the Statutes at Large in order to determine legitimate
application, the section must be wed to one or more general
application regulations, proper lines of authority must be
established, etc., before a section can be said to have "legislative
construction."
Since this effort
isn't intended to provide thorough treatment and a complete history
of United States tax law, I've limited focus to underlying
authorities and the legitimacy of agencies involved in the
collection process and enforcement of the Federal taxing system..
That will generally be the case in this section, although we will
investigate some of the historical evolution of the current
system.
One of the key
questions is, "Where did the Internal Revenue Code come
from?"
The first true
"Internal Revenue Code" was the Internal Revenue Code of 1939. It
seems that the 1939 Code was the point of demarcation for the Code
we presently have as it was effected after the "Normal Tax" in the
present Subtitle A, and Social Security and related taxes enacted in
1935 were on line. To that point, there was no effort to extend
normal tax obligations to the general population -- the normal tax
was simply a tax on officers and employees of United States
government, governments of United States political subdivisions, and
officers of corporations in which United States government has a
proprietary interest. That remains the case today, the term
"employee" defined at 26 U.S.C. § 3401(c), and "employer" at §
3401(d):
(c)
Employee.
For purposes of
this chapter, the term "employee" includes an officer, employee,
or elected official of the United States, a State, or any
political subdivision thereof, or the District of Columbia, or any
agency or instrumentality of any one or more of the foregoing..
The term "employee" also includes an officer of a
corporation.
(d)
Employer.
For purposes of
this chapter, the term "employer" means the person for whom an
individual performs or performed any service, of whatever nature,
as the employee of such person...
These definitions
are applicable to Subtitle C, Chapter 24 -- Collection of Income Tax
At Source. The requirement for withholding is at § 3402:
Sec. 3402.
Income tax collected at source.
(a) Requirement
of withholding.
(1) In general.
Except as otherwise provided in this section, every employer
making payment of wages shall deduct and withhold upon such wages
a tax determined in accordance with tables or computational
procedures prescribed by the Secretary...
Liability is
prescribed at §§ 3403 & 3404:
Sec. 3403.
Liability for tax.
The employer
shall be liable for the payment of the tax required to be deducted
and withheld under this chapter, and shall not be liable to any
person for the amount of such payment.
Sec. 3404.
Return and payment by governmental employer.
If the employer
is the United States, or a State, or political subdivision
thereof, or the District of Columbia, or any agency or
instrumentality of any one or more of the foregoing, the return of
the amount deducted and withheld upon any wages may be made by any
officer or employee of the United States, or of such State, or
political subdivision, or of the District of Columbia, or of such
agency or instrumentality, as the case may be, having control of
the payment of such wages, or appropriately designated for that
purpose.
Liability for
collection, and payment, ultimately falls to withholding agents, or
in the event of a third-party payee, the third party. Liability is
established in Chapter 25 -- General Provisions Relating to
Employment Taxes and Collection of Income Taxes at Source, §§ 3504
& 3505:
Sec. 3504. Acts
to be performed by agents.
In case a
fiduciary, agent, or other person has the control, receipt,
custody, or disposal of, or pays the wages of any employee or
group of employees, employed by one or more employers, the
Secretary, under regulations prescribed by him, is authorized to
designate such fiduciary, agent, or other person to perform such
acts as are required of employers under this title and as the
Secretary may specify. Except as may be otherwise prescribed by
the Secretary, all provisions of law (including penalties)
applicable in respect of any employer shall be applicable to a
fiduciary, agent, or other person so designated but, except as so
provided, the employer for whom such fiduciary, agency, or other
person acts shall remain subject to the provisions of law
(including penalties) applicable in respect of
employers.
Sec. 3505.
Liability of third parties paying or providing for
wages.
(a) Direct
payment by third parties.
For purposes of
sections 3102, 3202, 3402, and 3403, if a lender, surety, or other
person, who is not an employer under such sections with respect to
an employee or group of employees, pays wages directly to such an
employee or group of employees, employed by one or more employers,
or to an agent on behalf of such employee or employees, such
lender, surety, or other person shall be liable in his own person
and estate to the United States in a sum equal to the taxes
(together with interest) required to be deducted and withheld from
such wages by such employer.
(b) Personal
liability where funds are supplied.
If a lender,
surety, or other person supplies funds to or for the account of an
employer for the specific purpose of paying wages of the employees
of such employer, with actual notice or knowledge (within the
meaning of section 6323(i)(1)) that such employer does not intend
to or will not be able to make timely payment or deposit of the
amounts of tax required by this subtitle to be deducted and
withheld by such employer from such wages, such lender, surety, or
other person shall be liable in his own person and estate to the
United States in a sum equal to the taxes (together with interest)
which are not paid over to the United States by such employer with
respect to such wages. However, the liability of such lender ,
surety, or other person shall be limited to an amount equal to 25
percent of the amount so supplied to or for the account of such
employer for such purposes.
(c) Effect of
payment.
Any amounts paid
to the United States pursuant to this section shall be credited
against the liability of the employer.
At no point is the
"employee" made liable for these taxes. The lot falls to the officer
or employee designated to withhold directly from wages, or to the
lender, surety, or other person who supplies funds for whatever
enterprise the tax is imposed against. We could chase this in a
circle, but will simply cite the definition of "withholding agent"
at § 7701(a)((16) to put other statutes into play:
(16) Withholding
agent. The term "Withholding agent" means any person required to
deduct and withhold any tax under the provisions of sections 1441,
1442, 1443, or 1461.
Before addressing
the withholding agent further, we'll cite other definitions in §
7701(a) as useful keys to unraveling the Code. Of particular import,
the definitions of "United States", "State", and "Trade or
business". The latter opens the door to taxes prescribed in
Subtitles A & C, so it will be cited first:
(26) Trade or
business. The term "trade or business" includes the performance of
the functions of a public office.
By employing the
two limiting principles cited earlier, the above general definition
applicable to the Internal Revenue Code limits consideration to the
class of "trade or business" defined by example. Private enterprise
is excluded from "trade or business" where the Internal Revenue Code
is concerned. The field is thus narrowed to definitions of
"employee" and "employer" at §§ 3401(c) & (d). The range of
applicability is further narrowed by definitions of "United States"
and "State":
(9) United
States. The term "United States" when used in a geographical sense
includes only the States and the District of Columbia.
(10) State. The
term "State" shall be construed to include the District of
Columbia, where such construction is necessary to carry out
provisions of this title.
We previously saw
from the Downes decision that the District of Columbia, and
territories and insular possessions of the United States, are not
States of the Union where the Constitution is concerned. Therefore,
the exclusionary language in the two definitions above, when reliant
on use "in a geographical sense," must be exclusive of the several
States party to the Constitution. This reinforces Paul Mitchell's
contention that the Internal Revenue Code is for all practical
purposes municipal law applicable in territory subject to
sovereignty of the United States under Article IV § 3.2 of the
Constitution. With the possible exception of the "normal tax"
prescribed in Chapter 1, Subtitle A of the Internal Revenue Code,
the rest of the taxes in Title 26 are applicable only in the States
of the United States, which include insular possessions of the
United States, except where the District of Columbia is specifically
incorporated, as is the case in the definitions of "United States"
and "State" at §§ 7701(a)(9) & (10). Definitions at § 3102(e),
relating to the Federal Insurance Contributions Act, will be
reproduced here again for comparative expediency as they are more
explicit:
(e) State,
United States, and citizen.
For purposes of
this chapter --
(1) State. The
term "State" includes the District of Columbia, the Commonwealth
of Puerto Rico, the Virgin Islands, Guam, and American
Samoa.
(2) United
States. The term "United States" when used in a geographical sense
includes the Commonwealth of Puerto Rico, the Virgin Islands,
Guam, and American Samoa.
An individual
who is a citizen of the Commonwealth of Puerto Rico (but not
otherwise a citizen of the United States) shall be considered, for
purposes of this section, as a citizen of the United
States.
Given these
definitions, a "United States trade or business" can at best be
expanded to an officer or employee of United States government, and
a "State trade or business" to an officer or employee of the
District of Columbia, Puerto Rico, Guam, American Samoa, the Virgin
Islands, the Northern Mariana Islands, and governments of other
insular possessions of the United States. Application of these taxes
is therefore exclusive of (1) private enterprise, and (2) public
office in the Union of several States party to the Constitution..
The bridge the several States have used has generally been the Buck
Act, located in Title 4 of the United States Code. There are no
implementing regulations for Title 4 (Title 4 of the Code of Federal
Regulations pertains to Accounts, and is under administration of the
General Accounting Office in conjunction with the Department of
Justice), so the bridge is as much illusion as other elements of
Cooperative Federalism. Definitions in the Buck Act reinforce this
conclusion.
The liability
issue is clarified in regulations for §§ 1441, 1442, 1443 &
1446, with applicable regulations in 26 CFR §§ 1, 31 & 301;
i.e., 26 CFR § 1.1441, 31.1441 & 301.1441, etc. Consult the
Parallel Table of Authorities and Rules to determine which are
general application regulations, but study all regulations
pertaining to these sections whether they are listed as having
general application or not.
In a previous
section, I made two assertions that may have seemed outrageous:
First, Congress effectively hid the Treasury of the United States in
June 1921 by creating the General Accounting Office and moving
former Treasury personnel to the office under supervision of the
Comptroller General, then via the act of Nov. 23, 1921, repealed
virtually all taxes authorized by Article I and the Sixteenth
Article of Amendment to the Constitution, with the various taxes,
when reenacted, applicable exclusively within territory of the
United States. The revenue act of Nov. 23, 1921, ch. 136, is at 42
Stat. 227; creation of the General Accounting Office and transfer of
Treasury employees is at 42 Stat. 23. For purposes here, Historical
and Revision Notes following 5 U.S.C. § 5512 follow:
In subsection
(b) [of 5 U.S.C. § 5512], reference to the "General Accounting
Office" is substituted for "accounting officers of the Treasury"
on authority of the Act of June 10, 1921, ch. 18, title III, 42
Stat. 23. The words "on request of" are substituted for "if
required to do so by" as more accurately reflecting the intent.
Reference to the "Attorney General" is substituted for "Solicitor
of the Treasury" and "Solicitor" on authority of section 16 of the
Act of March 3, 1933, ch. 212, 47 Stat. 1517; section 5 of E.O.
6166, June 10, 1933; and section 1 of 1950 Reorg. Plan No. 2, 64
Stat. 1261.
Standard changes
are made to conform with the definitions applicable and the style
of this title as outlined in the preface to the
report.
Responsibility of
the Comptroller General, as head of the General Accounting Office,
is preserved in the current United States Code at 31 U.S.C. § 3702,
Title 31 relating to Money and Finance:
Sec. 3702.
Authority of the Comptroller General to settle claims
(a) Except as
provided in this chapter or another law, the Comptroller General
shall settle all claims of or against the United States
Government. A claim that was not administratively examined before
submission to the Comptroller General shall be examined by 2
officers or employees of the General Accounting Office
independently of each other...
Unless or until a
claim is submitted to the Comptroller General, in his capacity as
head of the General Accounting Office, courts of the United States
may not adjudicate it -- suit for a claim which has not been denied
by the General Accounting Office presents a claim for which relief
may not be granted. Consequently, a suit against the United States,
the Internal Revenue Service, or any other governmental entity will
go nowhere until such time as the General Accounting Office makes a
determination.
When the
government makes a claim, the head of an executive or legislative
agency has first responsibility for the attempted collection, as
specified at 31 U.S.C. § 3711:
Sec. 3711.
Collection and compromise
(a) The head of
an executive or legislative agency --
(1) shall try to
collect a claim of the United States Government for money or
property arising out of the activities of, or referred to, the
agency;
(2) may
compromise a claim of the Government of not more than $100,000
(excluding interest) or such higher amount as the Attorney General
may from time to time prescribe that has not been referred to
another executive or legislative agency for further collection or
action; and
(3) may suspend
or end collection action on a claim referred to in clause (2) of
this subsection when it appears that no person liable on the claim
has the present or prospective ability to pay a significant amount
of the claim or the cost of collecting the claim is likely to be
more than the amount recovered.
(b) The
Comptroller General has the same authority that the head of the
agency has under subsection (a) of this section when the claim is
referred to the Comptroller General for further collection action.
Only the Comptroller General may compromise a claim arising out of
an exception the Comptroller General makes in the account of an
accountable official.
[(c) not
reproduced]
(d) A compromise
under this section is final and conclusive unless gotten by fraud,
misrepresentation, presenting a false claim, or mutual mistake of
fact. An accountable official is not liable for an amount paid or
for the value of property lost or damaged if the amount or value
is not recovered because of a compromise under this
section.
(e) The head of
an executive or legislative agency acts under --
(1) regulations
prescribed by the head of the agency; and
(2) standards
that the Attorney General and the Comptroller General may
prescribe jointly.
(f)(1) When
trying to collect a claim of the Government under a law except the
Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.), the head of
an executive or legislative agency may disclose to a consumer
reporting agency information from a system of records that an
individual is responsible for a claim if... [balance of section
not reproduced]
The portion of
Subsection (f)(1) was included simply to demonstrate that collection
of taxes prescribed in the Internal Revenue Code is included in the
collection and compromise process prescribed in 31 U.S.C. § 3711.
The initial collection effort, or negotiation on a claim, begins
with the agency head, then goes to the Comptroller General or his
delegate in the General Accounting Office if collection isn't
successful or a claim against an agency isn't paid (compromised). If
the Comptroller General determines that collection should be
effected where a claim isn't paid, he is then responsible, via the
Attorney General in his capacity as Solicitor of the Treasury, for
initiating litigation. Where officers and employees of the United
States subject to normal tax withholding are concerned, the
necessity of this process is codified at 5 U.S.C. § 5512:
Sec. 5512.
Withholding pay, individuals in arrears
(a) The pay of
an individual in arrears to the United States shall be withheld
until he has accounted for and paid into the Treasury of the
United States all sums for which he is liable.
(b) When pay is
withheld under subsection (a) of this section, the General
Accounting Office, on request of the individual, his agent, or his
attorney, shall report immediately to the Attorney General the
balance due; and the Attorney General, within 60 days, shall order
suit to be commenced against the individual.
Section 7712
tacitly provides the avenue for litigating contested assessments.
Administrative withholding to satisfy a claim of the United States
may be accomplished in only one of two ways: (1) consent on the part
of the party withholding is from, or (2) litigation in a court of
competent jurisdiction. If the "individual" the assessment is
against contests and rejects whatever assessment lies against him,
he "requests" that the General Accounting Office, via the Attorney
General, initiate suit for collection -- he does not consent to
administrative collection without proper judicial process. This is
verified in the section on garnishment at 5 U.S.C. §
5520a(b):
(b) Subject to
the provisions of this section and the provisions of section 303
of the Consumer Credit Protection Act (15 U.S.C. 1673) pay from an
agency to an employee is subject to legal process in the same
manner and to the same extent as if the agency were a private
person.
There is a small
encumbrance to administrative seizure and admiralty/maritime seizure
(in rem and in personam) actions employed by the
Internal Revenue Service. The Fifth Article of Amendment due process
clause is an absolute barrier -- "No person shall ... be deprived of
life, liberty, or property, without due process of law..." Per
Wayman v. Southard (1825), cited earlier, the Fifth, Sixth, and
Seventh Articles of Amendment assure due process in the course of
the common law. Even United States government is obligated by
contract to pay wages for work performed, so in the event an alleged
liability is contested, the matter must be litigated in a court of
competent jurisdiction in the course of the common law. Although
linguistically tortured, 5 U.S.C. § 5512 preserves this
constitutionally-secured right even for officers and employees of
United States government.
Now back to the
Internal Revenue Code, at § 7805:
Sec. 7805. Rules
and regulations.
(a)
Authorization.
Except where
such authority is expressly given by this title to any person
other than officer or employee of the Treasury Department, the
Secretary shall prescribe all needful rules and regulations for
the enforcement of this title...
Never-ending word
games -- the Treasury Department is not the Department of the
Treasury. The reference above is to the Treasury of the United
States, which has always been under congressional supervision. The
General Accounting Office, via the June 1921 act cited above, became
general agent of the Treasury of the United States, under
supervision of the Comptroller General -- due to recent legislation,
GAO is now under a Director rather than the Comptroller General so
titles are about to change again. Oh, what tangled webs they weave.
At any rate, the Secretary isn't responsible for promulgating
regulations for GAO -- consult Title 4 of the Code of Federal
Regulations for most of those regulations -- but he is responsible
for regulations pertaining to all other agencies that enforce
Internal Revenue Code provisions.
In order to come
to terms with this hocus-pocus, we're going back to definitions (11)
& (12) in § 7701(a):
(11) Secretary
of the Treasury and Secretary.
(A) Secretary of
the Treasury. The term "Secretary of the Treasury" means the
Secretary of the Treasury, personally, and shall not include any
delegate of his.
(B) Secretary.
The term "Secretary" means the Secretary of the Treasury or his
delegate.
(12)
Delegate.
(A) In general.
The term "or his delegate" --
(i) when used
with reference to the Secretary of the Treasury, means any
officer, employee, or agency of the Treasury Department duly
authorized by the Secretary of the Treasury directly, or
indirectly by one or more redelegations of authority, to perform
the function mentioned or described in the context;
and
(ii) when used
with reference to any other official of the United States, shall
be similarly construed.
(B) Performance
of certain functions in Guam or American Samoa. The term
"delegate," in relation to the Performance of certain functions in
Guam or American Samoa with respect to the taxes imposed by
chapters 1, 2, and 21, also includes any officer or employee of
any other department or agency of the United States, or of any
possession thereof, duly authorized by the Secretary (directly, or
indirectly by one or more redelegations of authority) to perform
such functions.
The Treasury
Department still isn't the Department of the Treasury. The delegate
of the Secretary of the Treasury in the United States is, "any
officer, employee, or agency of the Treasury Department..." The
General Accounting Office is general agent of the Treasury of the
United States; the Director, formerly the Comptroller General, is
head of the General Accounting Office.
The Internal
Revenue Service and the Bureau of Alcohol, Tobacco and Firearms are
agencies of the Department of the Treasury, Puerto Rico, both in the
lineage of the Bureau of Internal Revenue, Puerto Rico, created by
the provisional government of Puerto Rico in approximately 1900..
These agencies are delegates of the Secretary in insular possessions
of the United States, Guam and American Samoa evidently included.
They operate in the framework of authority delegated to the
Secretary of the Treasury via E.O. # 10289, and redelegated to the
Commissioner of Internal Revenue via T.D.O. #150-42 (1956), as
amended by T.D.O. #150-01 (1986). They have absolutely no
constitutional or statutory authority in the Union of several States
party to the Constitution.
Our focus is on
Chapter 80 -- General Rules, Subchapter A. -- Application of
Internal Revenue Laws. The subchapter includes §§ 7801-7811.. Via §
7806, we established that the Internal Revenue Code is merely prima
facie the law, no inference of legislative construction can be given
to any section in the Code, and under stipulation of whatever
legislation lies behind § 7805(a), the General Accounting Office is
the delegate of the Secretary as general agent of the Treasury of
the United States. Granted, we've gone around Robin Hood's barn to
get where we're headed, but we've finally arrived at what may be the
most critical and pivotal section in the Code, § 7804, which is in
Chapter 80, Subchapter A:
Sec. 7804.
Effect of reorganization plans.
(a)
Application.
The provisions
of Reorganization Plan Numbered 26 of 1950 and Reorganization Plan
Numbered 1 of 1952 shall be applicable to all functions vested by
this title, or by any act applicable to all functions vested by
this title, or by any act amending this title (except as otherwise
expressly provided in such amending act), in any officer,
employee, or agency, of the Department of the
Treasury.
(b) Preservation
of existing rights and remedies.
Nothing in
Reorganization Plan Numbered 26 of 1950 or Reorganization Plan
Numbered 1 of 1952 shall be considered to impair any right or
remedy, including trial by jury, to recover any internal revenue
tax alleged to have been erroneously or illegally assessed or
collected, or any penalty claimed to have been collected without
authority, or any sum alleged to have been excessive or in any
manner wrongfully collected under the internal revenue laws. For
purposes of any action to recover any such tax, penalty, or sum,
all statutes, rules, and regulations referring to the collector of
internal revenue, the principal officer for the internal revenue
district, or the Secretary, shall be deemed to refer to the
officer whose act or acts referred to in the preceding sentence
gave rise to such action. The venue of any such action shall be
the same as under existing law.
The Internal
Revenue Code of 1954 (Vol. 68A of the Statutes at Large), as amended
in 1986, is evidenced in Title 26 of the United States Code. But
even Vol. 68A of the Statutes at Large is simply an amalgamation of
the various Federal tax laws enacted through the years. It is not
the original acts themselves, and it is in many respects incomplete.
Examining historical transition of the Internal Revenue Code is
important to help grasp implications of § 7804.
The biggest
departure from the 1939 Code to the 1954 Code was administrative in
nature, effected by the two reorganization plans listed in § 7804.
Most of the administrative changes involved transfer of collection
responsibilities from directly appointed revenue agents to the
Bureau of Internal Revenue, a "professional" service. President
Harry S. Truman's January 14, 1952 letter to Congress, which
accompanied Reorganization Plan Numbered 1 of 1952, explains
rationale and the process, reproduced below in relative part (full
text follows § 7804 in Title 26 U.S.C.):
The task of
collecting the internal revenue has expanded enormously within the
past decade. This expansion has been occasioned by the necessity
additional taxation brought on by World War II and essential
post-war programs. In fiscal year 1940, tax collections made by
the Bureau of Internal Revenue were slightly over 5 1/3 billions
of dollars; in 1951, they totaled almost 50 1/2 billions. In 1940,
19 million tax returns were filed; in 1951, 82 million. In 1940,
19 million tax returns were filed; in 1951, 82 million. In 1940,
there were 22,000 employees working for the Bureau; in 1951, there
were 57,000...
Throughout this
tremendous growth, the structure of the revenue-collecting
organization has remained substantially unchanged. The present
field structure of the Bureau of Internal Revenue is comprised of
more than 200 field offices which report directly to Washington.
Those 200 offices carry out their functions through more than
2,000 suboffices and posts of duty throughout the country. The
Washington office now provides operating supervision, guidance,
and control over the principal field offices through 10 separate
divisions, thus further adding to the complexities of
administration.
Since the end of
World War II, many procedural improvements have been made in the
Bureau's operations. The use of automatic machines has been
greatly increased. The handling of cases has been simplified. One
major advance is represented by the recently completed
arrangements to expedite criminal prosecutions in tax-fraud cases.
In these cases, field representatives of the Bureau of Internal
Revenue will make recommendations for criminal prosecution
directly to the Department of Justice. These procedural changes
have increased the Bureau's efficiency and have made it possible
for the Bureau to carry its enormously increased workload.
However, improvements in procedure cannot meet the need for
organizational changes.
Part of the
authority necessary to make a comprehensive reorganization was
provided in Reorganization Plan No. 26 of 1950, which was one of
several uniform plans giving department heads fuller authority
over internal organizations throughout their departments. The
studies of the Secretary of the Treasury have culminated since
that time in a plan for extensive reorganization and modernization
of the Bureau. However, his existing authority is not broad enough
to permit him to effectuate all of the basic features of the plan
he has developed.
The principal
barrier to effective organization and administration of the Bureau
of Internal Revenue which plan No. 1 removes is the archaic
statutory office of collector of internal revenue. Since the
collectors are not appointed and cannot be removed by the
Commissioner of Internal Revenue or the Secretary of the Treasury
and since the collectors must accommodate themselves to local
political situations, they are not fully responsive to the control
of their superiors in the Treasury Department. Residence
requirements prevent moving a collector from one collection
district to another, either to promote impartiality and fairness
or to advance collectors to more important positions.
Uncertainties of tenure add to the difficulty of attracting to
such offices persons who are well versed in the intricacies of the
revenue laws and possessed of broadgaged administrative
ability.
It is
appropriate and desirable that major political offices in the
executive branch of the Government be filled by persons who are
appointed by the President by and with the advice and consent of
the Senate. On the other hand, the technical nature of much of the
Government's work today makes it equally appropriate and desirable
that positions of other types be in the professional career
service. The administration of our internal-revenue laws at the
local level calls for positions in the latter
category.
Instead of the
present organization built around the offices of politically
appointed collectors of internal revenue, plan No. 1 [of 1952]
will make it possible for the Secretary of the Treasury to
establish not to exceed 25 district offices...
Mr. Truman's
rationale had the ring of sincerity, and no doubt there is some
merit in what he presented. But the letter also makes important
disclosures: The "archaic statutory office of collector of internal
revenue," which was administratively abolished by Reorganization
Plan 1 of 1952, was not attached to the Bureau of Internal Revenue
or the Department of the Treasury. The collector of internal revenue
was attached to the Treasury Department, a/k/a Treasury of the
United States, the Treasury being under congressional rather than
executive control. The position was appointed, and as the U.S.
Marshal, district judges, court clerks, United States Attorneys,
etc., the collector of internal revenue was required to live in
whatever district he was appointed to. He was accountable to the
community in the same way local public servants are.
President Franklin
D. Roosevelt used somewhat the same rationale to extend Bureau of
Internal Revenue authority over the Federal Alcohol Administration
Act via Reorganization Plan No. III of 1940. In relative part, Mr.
Roosevelt's letter to Congress of April 2, 1940 is reproduced
below:
The second
reorganization affecting the Treasury Department vests in the
Secretary of the Treasury full authority for the administration of
the Federal Alcohol Administration Act. At present the Federal
Alcohol Administration occupies an anomalous position. It is
legally a part of the Treasury Department, but actually it is
clothed with almost complete independence under existing statutory
provisions. Under certain conditions the Administration would by
law become an independent agency, whereas the interest of improved
management require its integration with allied activities in the
Treasury Department.
I propose,
therefore, that the functions of the Federal Alcohol
Administration be correlated with the activities of the Bureau of
Internal Revenue, particularly its Alcohol Tax Unit. The Bureau is
already performing a large part of the field enforcement work of
the Administration and could readily take over complete
responsibility for its work. The Bureau is daily making, for other
purposes, a majority of the contacts with units of the liquor
industry which the Federal Alcohol Administration should but
cannot make without the establishment of a large and duplicating
field force. Under the provisions of this plan, it will be
possible more effectively to utilize the far-flung organization of
the Treasury Department, including its many laboratories, in
discharging the functions of the Federal Alcohol Administration.
Thus, I find the proposed consolidation will remedy deficiencies
in organization structure as well as afford a more effective
service at materially reduced costs.
Succession of
administration of Federal law relating to distilled spirits is
reflected in a note on page 762 of The United States Government
Manual, 1996/97 edition:
Alcohol Control
Administration, Federal
Established by
E.O. 6474 of Dec. 4, 1933. Abolished Sept. 24, 1935, on induction
into office of Administrator, Federal Alcohol Administration, as
provided in act of Aug. 29, 1935 (49 Stat. 977). Abolished by
Reorg. Plan No. III of 1940, effective June 30, 1949, and
functions consolidated with activities of Internal Revenue
Service.
Per Mr.
Roosevelt's letter of April 2, 1940, it appears that the Bureau of
Internal Revenue, predecessor of the Internal Revenue Service and
the Bureau of Alcohol, Tobacco and Firearms, moved into the breach
prior to Reorganization Plan III of 1940 -- his letter discloses
that BIR, with no statutory authority, was already performing many
of the functions of the Federal Alcohol Administration, which was to
have replaced the Federal Alcohol Control Administration in August
1935. A director for the Federal Alcohol Administration was
appointed, but the Administration itself was never activated as the
Constantine case was pending, and it appeared that repeal of the
Eighteenth Amendment in December 1933 was finally going to end
concurrent State and Federal jurisdiction relating to regulation of
production and distribution of alcoholic beverages. The Twenty-first
Amendment placed production and distribution of drinking alcohol
under State option; concurrent State and Federal jurisdiction was
secured in Section 2 of the Eighteenth Amendment, had not been
preserved with ratification of the Twenty-first. Therefore, Federal
enforcement relating to alcohol, tobacco and firearms, now under
jurisdiction of BATF, had to be limited to territory and other
property of the United States, and United States admiralty and
maritime jurisdiction. Reorganization Plan III of 1940 came nearly
five years after the Constantine decision, long enough for Federal
encroachment into certain areas to be under the cloak of
forgetfulness, and for the general environment of the New Deal,
launched in March 1933, to condition people to more direct
involvement in everyday life. The illusion, however, didn't change
the reality of law any more then than now -- Congress didn't create
the Bureau of Internal Revenue, and has never implemented anything
resembling statutory authority for IRS and BATF to establish revenue
districts of any sort in the several States.
Both Roosevelt and
Truman abolished statutory offices and agencies, replacing them with
administratively-created offices, and sometimes agencies, and where
the Federal tax system is concerned, progressively moved collection
and enforcement activity under administration of the Puerto Rican
Bureau of Internal Revenue. For about a year in the 1930s, a Bureau
of Internal Revenue had been incorporated as a private enterprise in
a Northeastern State, but the corporation was abolished. The Puerto
Rico link was evidently sufficient, particularly since the Social
Security Act of 1935 had specified administration by the Bureau of
Internal Revenue, with definitions at 26 U.S.C. § 3121 & 26 CFR
§ 31.3121 verifying exclusive United States territorial application.
Origins are also verified by definitions at 27 CFR §
250.11:
Revenue Agent.
Any duly authorized Commonwealth Internal Revenue Agent of the
Department of the Treasury of Puerto Rico.
Secretary. The
Secretary of the Treasury of Puerto Rico.
Secretary or his
delegate. The Secretary or any officer or employee of the
Department of the Treasury of Puerto Rico duly authorized by the
Secretary to perform the function mentioned or described in this
part.
In order not to
leave a stone unturned, we will go as far as possible to unearth
sources, the first source being presidential authority for
reorganization plans. President Roosevelt enacted reorganization
plans under the act under an older reorganization plan statute,
where Mr. Truman issued reorganization plans under the act of June
20, 1949, ch. 226, Sec. 3, 63 Stat. 203, which is no longer listed
in the Parallel Table of Authorities and Rules, replaced by Pub.. L.
89-554 of Sept. 6, 1966, 80 Stat. 394, and amended several times
since. Application of current public laws will be examined
momentarily, but first, the Code section evidencing authority for
the President to implement reorganization plans should be
considered, 5 U.S.C. § 903:
Sec. 903.
Reorganization plans
(a) Whenever the
President, after investigation, finds that changes in the
organization of agencies are necessary to carry out any policy set
forth in section 901(a) of this title, he shall prepare a
reorganization plan specifying the reorganizations he finds are
necessary. Any plan may provide for --
(1) the transfer
of the whole or a part of an agency, or of the whole or a part of
the functions thereof, to the jurisdiction and control of another
agency;
(2) the
abolition of all or a part of the functions of an agency, except
that no enforcement function or statutory program shall be
abolished by the plan;
(3) the
consolidation or coordination of the whole or a part of an agency,
or of the whole or a part of the functions thereof, with the whole
or a part of another agency or the functions thereof;
(4) the
consolidation or coordination of part of an agency or the
functions thereof with another part of the same agency or the
functions thereof;
(5) the
authorization of an officer to delegate any of his functions;
or
(6) the
abolition of the whole or a part of an agency which agency or part
does not have, or on the taking effect of the reorganization plan
will not have, any functions.
The President
shall transmit the plan (bearing an identification number) to the
Congress together with a declaration that, with respect to each
reorganization included in the plan, he has found that the
reorganization is necessary to carry out any policy set forth in
section 901(a) of this title.
[subsections (b)
& (c) not reproduced]
Criteria in § 901
requires justification of reorganization plans according to
standards of economy and efficiency -- there is no need to reproduce
the section here. We'll simply examine authority of 5 U.S.C. § 9,
and existing public laws which provide underlying authority for
reorganization plans.
In the Parallel
Table of Authorities and Rules, the general application regulation
for 5 U.S.C. § 903 is listed as 28 CFR § 45: Title 28 -- Judicial
Administration; Chapter I, Dept. of Justice (Parts 0-199); § 45,
Standards of Conduct.
Public laws
which replaced the 1949 act are as follows: Pub. L. 89-554, Sept.
6, 1966, 80 Stat. 394; Pub. L. 90-83, Sec. 1(99), Sept. 11, 1967,
81 Stat. 220; Pub. L. 92-179, Sec. 2, Dec. 10, 1971, 85 Stat. 574;
Pub. L. 95-17, Sec. 2, April 6, 1977, 91 Stat. 30; and Pub. L..
98-614, Sec. 3(b)(10, (2), 4, Nov. 8, 1984, 98 Stat. 3192,
3193.
As in similar
analysis, the public law is listed on the left, with regulations on
the right:
Pub. L. 89-544
32 CFR § 716: Title 32 -- National Defense; Subsection A --
Department of Defense; Chapter VI -- Department of the Navy (Parts
700-799); Subchapter C -- Personnel; § 716, Death
gratuity.
Pub. L. 90-83 No
general application regulations.
Pub. L. 92-179
No general application regulations.
Pub. L. 95-17 No
general application regulations.
Pub. L. 98-614
No general application regulations.
The underlying
authority for presidents to promulgate reorganization plans is
consistent with previous analysis relating to other subjects: The
reorganization may apply solely to (1) government of the United
States and political subdivisions of the United States, (2) United
States admiralty and maritime jurisdiction, and (3) territories and
insular possessions of the United States. There is no application to
the Union of several States party to the Constitution.
We can now address
the three reorganization plans: Section 2 of Reorganization Plan III
of 1940, which placed administration of the Federal Alcohol
Administration Act under administration of the Bureau of Internal
Revenue was repealed by Pub. L. 95-258, Sec. 5(b), Sept. 13, 1982,
96 Stat. 1068, 1085. Possibly it is a relief to some that Congress
finally did something decisive, but as it turns out, there are no
general application regulations listed in the Parallel Table of
Authorities and Rules for Pub. L. 95-258, either. Consequently, the
original transfer of authority for administration of the Federal
Alcohol Administration Act to the Bureau of Internal Revenue, Puerto
Rico still doesn't apply to the Union of several States party to the
Constitution. In light of what has already been proven, the
conclusion shouldn't be overly surprising.
Next,
Reorganization Plan 26 of 1950, cited in 26 U.S.C. § 7804: The four
sections in this reorganization plan were repealed by 1972 &
1982 legislation, again demonstrating that Congress has a will of
its own. Section 1 was repealed by Pub. L. 97-258, Sec. 5(b), Sept.
13, 1982, 96 Stat 1068, 1085, "see" references as 31 U.S.C. § 321
& 49 U.S.C. § 108; Section 2 was repealed by Pub. L. 97-258,
Sec. 5(b), Sept. 13, 1982, 96 Stat. 1068, 1085, "see" reference as
31 U.S.C. § 321; Section 3 was repealed by Pub. L. 92-302, Sec.
1(d), May 18, 1972, 86 Stat. 149, "see" reference at 31 U.S.C. §
301; Section 4 was repealed by Pub. L. 97-258, Sec. 5(b), Sept. 13,
1982, 96 Stat. 1068, 1085, "see" reference at 31 U.S.C. §
321.
No general
application regulations for the two public laws are listed, so it
will be useful to examine the United States Code sections listed as
"see" references: 31 U.S.C. §§ 301 & 321, and 49 U.S.C. § 108.
There are no general application regulations listed for 31 U.S.C. §
301, Title 31 being Money and Finance, § 301 pertaining to
organization of the Department of the Treasury, or 49 U.S.C. § 49,
Title 49 being Transportation, and § 108 establishing the Coast
Guard as a department or agency in the Department of Transportation
during peacetime. There are, however, a crop of regulations for 31
U.S.C. § 321, which prescribes general authority of the Secretary of
the Treasury. All the general applications regulations listed are in
Title 31 of the Code of Federal Regulations, Money and Finance:
Treasury, with none pertaining to Title 26. The listed regulations
are as follows: 31 CFR §§ 1, 2, 10, 19, 21, 25, 26, 205, 206, 210,
337, 413 & 601. It's obvious that few if any of these
regulations have much to do with the Internal Revenue Code and
regulations promulgated thereunder, but true to resolve to look
under every rock, each of these regulations will be accounted
for:
31 CFR § 1 Title
31 -- Money and Finance: Treasury; Subtitle A -- Office of the
Secretary of the Treasury (Parts 0-50); § 1, Disclosure of
records.
31 CFR § 2 § 2,
National security information.
31 CFR § 10 §
10, Practice before the Internal Revenue Service.
31 CFR § 19 §
19, Government-wide debarment and suspension (nonprocurement) and
government-wide requirements for drug-free workplace
(grants).
31 CFR § 21 §
21, New restrictions on lobbying.
31 CFR § 25 §
25, Prepayment of foreign military sales loans made by the Defense
Security Assistance Agency and foreign military sales loans made
by the Federal Financing Bank and guaranteed by the Defense
Security Assistance Agency.
31 CFR § 26 §
26, Environmental review of actions by Multilateral Development
Bands (MDBs).
31 CFR § 205
Subtitle B -- Regulations Relating to Money and Finance; Chapter
II -- Fiscal Service, Department of the Treasury (Parts 200-399);
Subchapter A -- Financial Management Service; § 205, Rules and
procedures for funds transfers.
31 CFR § 206 §
206, Management of Federal agency receipts, disbursements, and
operation of the Cash Management Improvements Fund.
31 CFR § 210 §
210, Federal payments through financial institutions by the
automated clearing house method.
31 CFR § 337
Subchapter B -- Bureau of the Public Debt; § 337, Supplemental
regulations governing Federal Housing Administration
debentures.
31 CFR § 413
Chapter IV -- Secret Service, Department of the Treasury (Parts
400 -- 499); § 413, Closure of streets near the White
House.
31 CFR § 601
Chapter VI -- Bureau of Engraving and Printing, Department of the
Treasury (Parts 600-699); § 601, Distinctive paper for United
States currency and other securities.
It's nice to see
that the Secret Service has regulatory authority to close streets
near the White House, which is incidentally located in the District
of Columbia (this is another Department of the Treasury agency or
Bureau that has little or no legitimate authority in the several
States), and that the Bureau of Engraving and Printing is required
to use distinctive paper for United States currency and other
securities. However, none of the regulations above directly mandate
filing tax returns, etc., as might be expected from regulations
promulgated under authority of Reorganization Plan 26 of 1950 and
Public Laws that replaced the four sections of the plan.
Next we turn to
Reorganization Plan 1 of 1952. Except for repeal of Section 2(b) via
Pub. L. 97-258, Sec. 5(b), Sept. 13, 1982, 96 Stat. 1068, 1085, this
plan has been left intact. Subsection 2(b) established the office of
Assistant General Counsel, 31 U.S.C. § 301. Section 3, which relates
to appointment and compensation of Assistant Commissioners and
district commissioners, now probably district directors, and the
Assistant General Counsel, was amended via act of June 28, 1955, ch.
189, Sec. 12(c)(19), 69 Stat. 182. By consulting the Parallel Table
of Authorities and Rules, it is found that there are no general
application regulations promulgated for Reorganization Plan 1 of
1952, the act that repealed Section 2, the act that amended Section
3, or 31 U.S.C. § 301.
It would appear
that authorities have been exhausted, but thanks to an IRS Internet
reply to Alan Tenore (Oct. 12, 1998; IDENTIFIER: irsnash5 #83778;
http://www.irs.ustreas.gov/help/email-survey.html for a survey
exercise, or http://www.irs.ustreas.gov/prod/help/newmail/user.html
for questions), we need to address original enactments of the
Internal Revenue Code.
Per the prepared
response, the Internal Revenue Code of 1954 was enacted August 16,
1954, Pub. Law 591, then amended by the Tax Reform Act of 1986, Pub.
L. 99-514. Although neither of these cites is complete, the act of
1954 is Volume 68A of the Statutes at Large, and the 1968 Public Law
number can be referenced in the Parallel Table of Authorities and
Rules.
In the Parallel
Table of Authorities and Rules, Public Law cites begin with the 80th
Congress, numbering being changed to reflect the Congress and the
number of the law enacted in that particular session. The first
Public Law listing using this numbering system is Public Law 80-806.
Prior to that, the listing is by location in the Statutes at Large.
For example, the 98th volume of the Statutes at Large, page 42 = 98
Stat. 42.
By turning to page
810 of the 1996 Code of Federal Regulations Index volume, it is
found that Volume 68A of the Statutes at Large is not listed.
However, sections in Volumes 68 and 69 are. Consequently, the
conclusion must be that there are no implementing regulations for
Volume 68A of the Statutes at Large, the 1954 Internal Revenue Code,
or successive Secretaries of the Treasury have been derelict in
their respective duties over a period spanning approximately 44
years. However, there are regulations listed for the Tax Reform Act
of 1986, Pub. L. 99-514, so there must be an explanation for
oversight of some kind relating to Vol. 68A. Regulations listed for
Pub. L. 99-514 go a ways toward explaining the defect.
Pub. L. 99-514
appears on page 821 of the 1996 CFR Index volume. Listed regulations
are 19 CFR § 354 and 26 CFR § 31.
The first
regulation is reasonably easy to dispose of: Title 19 -- Customs
Duties; Chapter III -- International Trade Administration,
Department of Commerce (Parts 300-399); § 354, Procedures for
imposing sanctions for violation of an antidumping or countervailing
duty protective order.
The regulation
which on the surface appears to be problematic is 26 CFR § 31: Title
26 -- Internal Revenue, Department of the Treasury (Parts 1-799);
Subchapter C -- Employment Taxes and Collection of Income Tax at
Source; § 31, Employment taxes and collection of income tax at
source.
The first clue to
26 CFR § 31 application is the fact that all Chapter I regulations
in Title 26 of the CFR are promulgated for Internal Revenue Service
administration. They must be applicable in United States
territorial, and conceivably in admiralty and maritime jurisdiction
and as applicable to officers and employees of the United States and
it's political subdivisions. However, because we have the cited
regulation as applicable under the Tax Reform Act of 1986, we should
investigate further to see if 26 CFR § 31 complies with authorities
thus far established.
A cursory survey
of authorities listed under "Authority 26 U.S.C. 7805", which
requires the Secretary to promulgate regulations (Title 26 --
Internal Revenue, volume containing parts 30-39, April 1, 1998
Edition, pages 10 & 11), fails to list Pub. L. 99-514 as any
unique authority for § 31. Authority appears to emerge almost
exclusively from Vol. 68A of the Statutes at Large, with the
exception of § 31.6053-3(b)(5), (h) and (j)(9), § 31.6053-4, §
31.6053-3T, and § 31.6053-4T (T = temporary regulations; have no
binding effect). In addition to the Internal Revenue Act of 1954,
Pub. L. 98-369, 98 Stat. 1052, is listed as an authority. General
application regulations for Pub. L. 98-369 are listed as 49 CFR §
89, which is Transportation, in Subtitle A -- Office of the
Secretary of Transportation, § 89, Implementation of Federal Claims
Collection Act.
Since Pub. L.
99-514 isn't specifically listed as authority in headnotes for 26
CFR § 31, there would appear to be inconsistency unless it can be
internally demonstrated that the Tax Reform Act did not do anything
significant to expand or alter application of the Internal Revenue
Code of 1954.
Researchers and
others interested in details of how administrative process relative
to Subtitle A & C taxes is supposed to work, even for Federal
employees subject to administration of the General Accounting
Office, should read 26 CFR § 31, particularly Subpart G, as a
multitude of procedural sins are exposed in these
regulations.
Subpart A --
Introduction, §§ 31.0-1 - 31.0-4, begins on page 11, of the April 1,
1998 edition of this volume. In order to secure subject matter, the
introduction is as follows:
§ 31.0-1
Introduction.
(a) In
general. The regulations in this part relate to the employment
taxes imposed by subtitle C (chapters 21 to 25, inclusive) of the
Internal Revenue Code of 1954, as amended. References in the
regulations to the "Internal Revenue Code" or the "Code" are
references to the Internal Revenue Code of 1954, as amended,
unless otherwise indicated. References to the Federal Insurance
Contributions Act, the Railroad Retirement Tax Act, and the
Federal Unemployment Tax Act are references to chapters 21, 22,
and 23, respectively, of the Code. References to sections of law
are references to sections of the Internal Revenue Code unless
otherwise indicated. The regulations in this part also provide
rules relating to the deposit of other taxes by electronic funds
transfer.
(b) Division
of regulations. The regulations in this part are divided into
7 subparts. Subpart A contains provisions relating to general
definitions and use of terms, the division and scope of the
regulations in this part, and the extent to which the regulations
in this part supersede prior regulations relating to employment
taxes. Subpart B relates to the taxes under the Federal Insurance
Contributions Act. Subpart C relates to the taxes under the
Railroad Retirement Tax Act. Subpart D relates to the tax under
the Federal Unemployment Tax Act. Subpart E relates to the
collection of income tax at source on wages under chapter 24 of
the Code. Subpart F relates to the provisions of chapter 25 of the
Code which are applicable in respect of the taxes imposed by
chapters 21 to 24, inclusive, of the Code. Subpart G relates to
selected provisions of subtitle F of the Code, relating to
procedure and administration, which have special application in
respect of the taxes imposed by subtitle C of the Code. Inasmuch
as these regulations constitute Part 31 of Title 26 of the Code of
Federal Regulations, each section of the regulations is preceded
by a section symbol and 31 followed by a decimal point (§ 31.).
Sections of law or references thereto are preceded by "Sec." or
the word "section".
Those wishing to
track the Social Security act and related legislation would be well
served to read § 31.0-2, General definitions and use of terms, as
cites for the original Social Security Act of 1935 and major
amendments through 1972 are listed in the definitions. The
definition at § 31.0-2(e) is the only one that will be reproduced
here:
(e) Subpart
E. As used in Subpart E of this part, unless otherwise
expressly indicated, tax means the tax required to be deducted and
withheld from wages under section 3402 of the Code.
The withholding at
26 U.S.C. § 3402 relates to the so-called "income" tax, a/k/a
"normal" tax. Therefore, 26 CFR § 31 relates to Social Security and
related taxes, and income tax prescribed in Subtitle A of the
Internal Revenue Code. Administrative procedure addressed in Subpart
G therefore relates to both Social Security and income tax, where
applicable, railroad retirement tax, unemployment tax,
etc.
Although the
subpart is reasonably long, I'm going to reproduce § 31.0-3, Scope
of regulations, nearly in its entirety as there are important
elements in it which I will underscore as a means of
emphasis. Of particular note, definitions are applicable for
determining liability:
§ 31.0-3 Scope
of regulations.
(a) Subpart
B. The regulations in Subpart B of this part related to the
imposition of the employee tax and the employer tax under the
Federal Insurance Contributions Act with respect to wages paid and
received after 1954 for employment performed after 1936. In
addition to employment in the case of remuneration therefor paid
and received after 1954, the regulations in Subpart B of this part
relate also to employment performed after 1954 in the case of
remuneration therefor paid and received before 1955. The
regulations in Subpart B of this part include provisions relating
to the definition of terms applicable in the determination of the
taxes under the Federal Insurance Contributions Act, such as
"employee", "wages", and "employment". The provisions of
Subpart B of this part relating to "employment" are applicable
also, (1) to the extent provided in § 31.3121(b)-2, to services
performed before 1955 the remuneration for which is paid after
1954, and (2) to the extent provided in § 31.3121(k)-3, to
services performed before 1955 the remuneration for which was paid
before 1955. (For prior regulations on similar subject matter, see
26 CFR (1939) Part 408 (Regulation 128).)
[(b) Subpart
C omitted, relates to Railroad Retirement Tax Act]
(c) Subpart
D. The regulations in Subpart D of this part relate to the
imposition on employers of the excise tax under the Federal
Unemployment Tax Act for the calendar year 1955 and subsequent
calendar years with respect to wages paid after 1954 for
employment performed after 1938. In addition to employment in the
case of remuneration therefor paid after 1954, the regulations in
Subpart D of this part relate also to employment performed after
1954 in the case of remuneration therefor paid before 1955. The
regulations in Subpart D of this part include provisions relating
to the definition of terms applicable in the determination of the
tax under the Federal Unemployment Tax Act, such as "employee",
"employer", "employment", and "wages". The regulations in
Subpart D of this part also include provisions relating to the
credits against the Federal tax for State contributions. (For
prior regulations on similar subject matter, see 26 CFR (1939)
Part 403 (Regulations 107).)
(d) Subpart
E. The regulations in Subpart E of this part relate to the
withholding under chapter 24 of the Code of income tax at source
on wages paid after 1954, regardless of when such wages were
earned. The regulations in Subpart E of this part include
provisions relating to the definition of terms applicable in the
determination of the tax under chapter 24 of the Code, such as
"employee", "employer", and "wages". (For prior regulations on
similar subject matter, see 26 CFR (1939) Part 406 (Regulations
120).)
(e) Subpart
F. The regulations in Subpart F of this part deal with the
general provisions contained in chapter 25 of the Code, which
relate to the employment taxes imposed by chapters 21 to 24,
inclusive, of the Code. (For prior regulations on the subject
matter of section 3501, see 26 CFR (1939) 411.802 and 408.803
(Regulations 114 and 128, respectively). For prior regulations on
the subject matter of section 3504, see 26 CFR (1939) 406.807 and
408.906 (Regulations 120 and 128, respectively).)
(f) Subpart
G. The regulations in Subpart G of this part, which are
prescribed under selected provisions of subtitle F of the Code,
relate to the procedural and administrative requirements in
respect of records, returns, deposits, payments, and related
matters applicable to the employment taxes imposed by subtitle C
(chapters 21 to 25, inclusive) of the Code. In addition, the
provisions of Subpart G of this part relate to adjustments and to
claims for refund, credit, or abatement, made after 1954, in
connection with the employment taxes imposed by subtitle C of the
Internal Revenue Code of 1954, by chapter 9 of the Internal
Revenue Code of 1939, or by the corresponding provisions of prior
law, but not to any adjustment reported, or credit taken, in whole
or in part on any return or supplemental return filed on or before
July 31, 1960. The provisions of Subpart G of this part also
relate to deposits of taxes imposed by subchapter B on chapter 9
of the 1939 Code or by corresponding provisions of prior law with
respect to compensation paid after 1954 for services rendered
before 1955. For other administrative provisions which have
application to the employment taxes imposed by subtitle C of the
Code, see Part 301 of this chapter (Regulations on Procedure and
Administration). (The administrative and procedural regulations
applicable with respect to a particular employment tax for a prior
period were combined with the substantive regulations relating to
such tax for such period. For the regulations applicable to the
respective taxes for prior periods, see paragraphs (a), (b), (c),
and (d) of this section.) Subpart G of this part also provides
rules relating to the deposit of other taxes by electronic funds
transfer.
Reproduction of §
31.0-3 was primarily to demonstrate that regulations in this part
(1) apply to the group of taxes that issue under or in connection
with the Social Security tax system, inclusive of unemployment tax,
etc., and income tax prescribed in Subtitle A, and (2) definitions
in 26 U.S.C. §§ 3121 & 3401 determine application of the
tax.
We can dispose of
whatever questions there might be concerning application of these
regulations in reasonably short order by beginning with the
definition of "American employer" at 26 CFR §
31.3121(g)-1:
§ 31.3121(h)-1
American employer.
(a) The term
"American employer" means an employer which is (1) the United
States or any instrumentality thereof, (2) an individual who is a
resident of the United States, (3) a partnership, if two-thirds or
more of the partners are residents of the United States, (4) a
trust, if all of the trustees are residents of the United States,
or (5) a corporation organized under the laws of the United States
or of any State. For provisions relating to the terms "State" and
"United States", see § 31.3121(e)-1.
(b) For
provisions relating to services performed outside the United
States by a citizen of the United States as an employee for an
American employer, see paragraph (c)(3) of § 31.3121(b)-3 and
paragraph (e) of § 31.3121(b)(4)-1.
We're back to
definitions reproduced earlier, but the definitions of "State",
"United States", and "citizen" at § 31.3121(e)-1 simply cannot be
resisted:
§ 31.3121(e)-1
State, United States, and citizen
(a) When used in
the regulations in this subpart, the term "State" includes the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, and Territories of Alaska and Hawaii before their
admission as States, and (when used with respect to services
performed after 1960) Guam and American Samoa.
(b) When used in
the regulations in this subpart, the term "United States", when
used in a geographical sense, means the several states (including
the Territories of Alaska and Hawaii before their admission as
States), the District of Columbia, the Commonwealth of Puerto
Rico, and the Virgin Islands. When used in the regulations in this
subpart with respect to services performed after 1960, the term
"United States" also includes Guam and American Samoa when the
term is used in a geographical sense. The term "citizen of the
United States" includes a citizen of the Commonwealth of Puerto
Rico or the Virgin Islands, and, effective January 1, 1961, a
citizen of Guam or American Samoa.
Application of the
definitions above have already been determined to be limited to
territory of the United States, so we don't have to engage in
speculation. The regulation, and the corresponding definition at 26
U.S.C. § 3121, say what they say. Social Security and kindred taxes
have always been applicable only in territory of the United States,
including Alaska and Hawaii prior to admission as States of the
Union. There is and never has been a constitutionally enumerated
power authorizing Congress to institutionalize socialistic
government policy throughout the nation. This is one of the more
sinister elements of Cooperative Federalism that travels
hand-in-hand with the entire social welfare system -- a
mathematically impossible scheme that of necessity will bankrupt the
American people.
The first
exclusionary provision in § 31.3121(h)-1 for "American employer" is
§ 31.3121(b)-3(c)(3):
(3) By a
citizen of the United States as an employee for an American
employer. Services performed after 1954 outside the United
States by a citizen of the United States as an employee for an
American employer constitutes employment provided the services are
not specifically excepted under section 3121(d). For definitions
of "citizen of the United States" and "American employer", see §§
31.3121(e)-1 and 3121(h)-1, respectively.
The second
exclusionary cite is § 31.3121(e)-1, and applies to "Services
performed on or in connection with a non-American vessel or
aircraft." It's remote enough that it won't be reproduced
here.
The definition of
"citizen of the United States" has been problematic for many people.
"Am I a citizen of the United States?" The definition above provides
clarification: Even if the Fourteenth Article of Amendment extended
"citizen of the United States" status to people throughout the
several States party to the Union, which it didn't, the "citizen of
the United States" the Internal Revenue Code addresses is
geographically determined. The Fourteenth Amendment was promulgated,
never properly ratified, in order to extend citizenship status to
African Americans liberated following the Civil War, and might be
broadly construed to include other minorities of color who didn't
enjoy the status of State citizens prior to the Civil War.
Governments of the several States extended universal State
citizenship without regard to race, color or creed, so as those the
Fourteenth Amendment directly affected died, their lineage enjoyed
the status of State citizen in their respective States, and were not
"citizens of the United States" where the Fourteenth Amendment is
concerned unless they went through the prescribed process necessary
to become citizens of the United States.
However, Congress
employed this mechanism beginning in 1917 to confer "citizen of the
United States" status on people indigenous to insular possessions.
The first act of this nature conferred "citizen of the United
States" status on the people of Puerto Rico, then in the next
decade, citizen of the United States status was conferred on people
of the Virgin Islands. Dates when the indigenous people of American
Samoa and Guam became "citizens of the United States" are referenced
in the "citizen" definition above.
The effect is
this: While the "People of the United States" (Constitution,
Preamble) think of themselves as "citizens of the United States," a
rhetorical claim that had no substantive existence prior to 1868,
the vast majority are not "citizens of the geographical United
States," as defined in § 3121(d) of the Internal Revenue Code of
1954, as amended. General application definitions of "United States"
and "State" at 26 U.S.C. § 7701(a)(9) & (10) have the same
effect as they include only insular possessions of the United States
and the District of Columbia. In other words, being a "citizen of
the United States," as created in Section 1 of the Fourteenth
Article of Amendment, and a "citizen of Oklahoma" or any other State
of the Union, is irrelevant where the Internal Revenue Code is
concerned. In order for "citizen of the United States" status to
make any difference, the status must be determined by the "citizen
of the United States" being so by virtue of citizenship in the
District of Columbia, Puerto Rico, the Virgin Islands, Guam or
American Samoa. It is a municipal or geographically specific
citizenship, not a citizenship universal throughout the several
States and possessions of the United States. Consequently, even if I
as a citizen of Oklahoma am also a citizen of the United States, my
United States citizenship is of no consequence where the Internal
Revenue Code is concerned as I am not a citizen of the United States
of the District of Columbia, Puerto Rico, etc. Application of the
Internal Revenue Code is geographically specific, limited to
territory and insular possessions of the United States subject to
the Article IV § 3.2 territorial clause.
Evidence to this
effect was already established when we tracked the President's
authority to establish revenue districts (26 U.S.C. § 7621) through
Executive Order #10289 and Treasury Delegation Order #150-42 (1956).
The only revenue districts applicable to the several States are
customs districts, administered by the United States Customs
Service. There is absolutely no authority, whether statutory or
regulatory, for the Internal Revenue Service and the Bureau of
Alcohol, Tobacco and Firearms to establish revenue districts in the
several States party to the Constitution.
Possibly a comment
concerning the Parallel Table of Authorities and Rules is in order:
In the past a few critics have attempted to discredit the Table..
However, Congress mandated construction of reliable finding aids in
the Federal Register Act (44 U.S.C. § 1510), and via a court order
cited earlier, the Director of the Federal Register was ordered to
compile and publish the prescribed finding aids. The purpose, as
articulated by the court, is to avert imposition of secret law. In
other words, the Parallel Table of Authorities and Rules is a
disclosure mechanism intended for use by those who need to know what
application Code sections and regulations have. And as is the case
for the United States Code relative to the Statutes at Large, that
which is published in the Code of Federal Regulations is prima facie
evidence of publication in the Federal Register. Further,
responsibility for accuracy rests on the officer or agency
responsible for maintaining the Table, per requirements set out at 1
CFR § 8.5:
§ 8..5
Ancillaries.
The Code shall
provide, among others, the following-described finding
aids:
(a) Parallel
tables of statutory authorities and rules. In the Code of
Federal Regulations Index or at such other place as the Director
of the Federal Register considers appropriate, numerical lists of
all sections of the current edition of the United States Code
(except section 301 of title 5) which are cite by issuing agencies
as rule-making authority for currently effective regulations in
the Code of Federal Regulations. The lists shall be arranged in
the order of the titles and sections of the United States Code
with parallel citations to the pertinent titles and parts of the
Code of Federal Regulations.
(b) Parallel
tables of Presidential documents and agency rules. In the Code
of Federal Regulations Index, or at such other place as the
Director of the Federal Register considers appropriate, tables of
proclamations, Executive orders, and similar Presidential
documents which are cited as rulemaking authority in currently
effective regulations in the Code of Federal
Regulations.
(c) List of
CFR sections affected. Following the text of each Code of
Federal Regulations volume, a numerical list of sections which are
affected by documents published in the Federal Register. (Separate
volumes, "List of Sections Affected, 1949-1963" and "List of CFR
Sections Affected, 1964-1972)", list all sections of the Code
which have been affected by documents published during the period
January 1, 1949, to December 31, 1963, and January 1, 1964, to
December 31, 1972, respectively.) Listings shall refer to Federal
Register pages and shall be designed to enable the user of the
Code to find the precise text that was in effect on a given date
in the period covered.
Responsibility of
the various government agencies is at § 8.7:
§ 8..7 Agency
cooperation.
Each agency
shall cooperate in keeping publication of the Code current by
complying promptly with deadlines set by the Director of the
Federal Register and the Public Printer.
The Director and
staff of the Federal Register set standards and provide support
for agencies responsible for publishing documents in the various
Federal Register publications (1 CFR, § 15), but responsibility
for accuracy lies with the agencies respectively. Each agency has
stiff requirements set out in 1 CFR, § 16, reproduced in
applicable part below:
§ 16.1
Designation
(a) Each agency
shall designate, from its officers or employees, persons to serve
in the following capacities with relation to the Office of the
Federal Register:
(1) A liaison
officer and an alternate.
(2) A certifying
officer and an alternate.
(3) An
authorizing officer and an alternate.
The same person
may be designated to serve in one or more of these
positions.
(b) In choosing
its liaison officer, each agency should consider that this officer
will be the main contact between that agency and the Office of the
Federal Register and that the liaison officer will be charged with
the duties set forth in § 16.2. Therefore, the agency should
choose a person who is directly involve in the agency's regulatory
program.
(c) Each agency
shall notify the Director of the name, title, address, and
telephone number of each person it designates under this section
and shall promptly notify the Director of any changes.
§ 16.2 Liaison
duties.
Each agency
liaison officer shall --
(a) represent
the agency in all matters relating to the submission of documents
to the Office of the Federal Register, and respecting general
compliance with this chapter;
(b) Be
responsible for the effective distribution and use within the
agency of Federal Register information on document drafting and
publication assistance authorized by § 15.10 of this
chapter;
(c) Promote the
agency's participation in the technical instruction authorized by
§ 15.10 of this chapter; and
(b) Be available
to discuss documents submitted for publication with the editors of
the Federal Register.
§ 16.3
Certifying duties.
The agency
certifying officer is responsible for attaching the required
number of true copies of each original document submitted by the
agency to the Office of the Federal Register and for making the
certification required by §§ 18.5 and 18.6 of this
chapter.
Each document
must be certified under signature as correct, the seal of the
office is optional. See referenced cites.
The Parallel Table
of Authorities and Rules takes up 108 pages in the 1996 Index volume
of the Code of Federal Regulations, which I've used for desktop
convenience in construction of this discourse rather than constantly
calling up the 1998 edition on computer CD. It isn't there for
nothing. Congress mandated it by law, a court ordered it, the
Director of the Federal Register set out requirements by regulation,
and the agency responsible for maintaining any given section is
required to certify authenticity. The Table must therefore be given
the same credibility as other documents reproduced in the Code of
Federal Regulations -- it is prima facie evidence of publication in
the Federal Register, or in this case, application of documents
published in the Federal Register. If it isn't, it's a waste of time
and a tremendous amount of public money.
Even at that, we
haven't relied exclusively on the Parallel Table of Authorities and
Rules. Instead, we've gone to the United States Code, tracked
authority to original sources in the Statutes at Large, reproduced
relative portions of Executive Orders, reorganization plans and
presidential letters, examined regulations reproduced in the Code of
Federal Regulations, reproduced original delegations of authority
directly from the Federal Register, and otherwise filled gaps with
principles of law and precedent court decisions.
The test is this:
Is evidence of law, regulations, Executive Orders, executive
delegations of authority, reorganization plans, statutory authority,
et al, consistent with what the Parallel Table of Authority and
Rules reflects? We've merely used the Parallel Table of Authorities
and Rules as a navigation tool. Authorities it cites have proven to
be authentic. By examining 26 CFR § 31, we demonstrated that the tax
reform act of 1986 did not expand application of the Internal
Revenue Code -- IRS jurisdiction is limited to insular possessions
of the United States and the District of Columbia.
In order to
demonstrate accuracy of the Table, we'll go through one more
exercise that will be of considerable interest to people plagued by
notices of lien and levy issued under signature of Internal Revenue
Service revenue offices. To do that, we'll track 26 U.S.C. § 6331
and related sections of the Internal Revenue Code, the core section
headed, "Levy and distraint". In the course of the general analysis,
we'll rely to a certain extent on research pertaining to seizures
and levies by John J. Schlabach, an Internal Revenue
Service-enrolled agent (tax accounting, etc., certified by IRS) from
Colbert, Washington. Mr. Schlabach's research reinforces conclusions
we'll demonstrate when finally returning to address implications of
26 U.S.C. § 7804: That is, administrative seizures via "notice of
levy", without orders of a court of competent jurisdiction, are
patently illegal. We will see when returning to § 7804 that the
Internal Revenue Code preserves the right to due process of law, as
contemplated by the Fifth, Sixth, and Seventh Articles of Amendment,
and remedies for "redress of grievance" against those responsible
for fraudulently seizing assets without properly executed court
orders.
We'll begin the
analysis by reproduction of 26 U.S.C. § 6331(a), the general
authority subsection of the levy and distraint section. This should
be of interest particularly to people who have had the unfortunate
experience of receiving notices of lien and levy from IRS revenue
officers and the like as alleged statutory authority is reproduced
on the backs of most of these instruments, but § 6331(a) isn't
cited. This omission roughly falls under the axiom, "Figures don't
lie, but liars figure." The subsection is as follows:
Sec. 6331. Levy
and distraint
(a) Authority of
Secretary
If any person
liable to pay any tax neglects or refuses to pay the same within
10 days after notice and demand, it shall be lawful for the
Secretary to collect such tax (an such further sum as shall be
sufficient to cover the expenses of the levy) by levy upon all
property and rights to property (except such property as is exempt
under section 6334) belonging to such person or on which there is
a lien provided in this chapter for the payment of such tax. Levy
may be made upon the accrued salary on wages of any officer,
employee, or elected official, of the United States, the District
of Columbia, or any agency or instrumentality of the United States
or the District of Columbia, by serving a notice of levy on the
employer (as defined in section 3401(d)) of such officer,
employee, or elected official. If the Secretary makes a finding
that the collection of such tax is in jeopardy, notice and demand
for immediate payment of such tax may be made by the Secretary
and, upon failure or refusal to pay such tax, collection thereof
by levy shall be lawful without regard to the 10-day period
provide in this section.
The first obvious
difficulty with this section is that it is an amalgamation or
composite, as is the case for 28 U.S.C. § 132 relating to United
States District Courts. At this juncture, I haven't had time to
track down exactly when the amalgamation was effected, but suspect
it was via the act for enactment of the Internal Revenue Code of
1954, or the act of Nov. 2, 1966, Pub. L. 89-719, title I, Sec.
104(a), 85 Stat. 520. The latter made significant changes in the
entire lien and levy process as it came at approximately the time
legislatures of all fifty States of the Union had fraudulently
enacted the Uniform Commercial Code. The 1966 act was effected to
reconcile Federal lien and levy process with the UCC. In the 1934
edition of the United States Code, the section appeared
approximately as follows (portion added is left in strike-through
text):
If any person
liable to pay any tax neglects or refuses to pay the same within
10 days after notice and demand, it shall be lawful for the
Secretary to collect such tax (an such further sum as shall be
sufficient to cover the expenses of the levy) by levy upon all
property and rights to property (except such property as is exempt
under section 6334) belonging to such person or on which there is
a lien provided in this chapter for the payment of such tax. Levy
may be made upon the accrued salary on wages of any officer,
employee, or elected official, of the United States, the District
of Columbia, or any agency or instrumentality of the United States
or the District of Columbia, by serving a notice of levy on the
employer (as defined in section 3401(d)) of such officer,
employee, or elected official. If the Secretary makes a finding
that the collection of such tax is in jeopardy, notice and demand
for immediate payment of such tax may be made by the Secretary
and, upon failure or refusal to pay such tax, collection thereof
by levy shall be lawful without regard to the 10-day period
provided in this section.
This portion was
added, possibly as early as 1939, but more probably in 1954 or
1966:
Levy may be made
upon the accrued salary on wages of any officer, employee, or
elected official, of the United States, the District of Columbia,
or any agency or instrumentality of the United States or the
District of Columbia, by serving a notice of levy on the employer
(as defined in section 3401(d)) of such officer, employee, or
elected official.
The employer
definition at 26 U.S.C. § 3401(d) has already been cited; the
employer employs officers and employees of the United States, United
States political subdivisions, and officers of corporations where
the United States has a proprietary interest, as defined at 3401(c).
The person made liable for tax withheld at the source is the
withholding agent. The balance of § 6331(a) is applicable to excise
taxes in Subtitle E, most of these taxes pertaining to alcohol,
tobacco and firearms.
Here we'll pick up
Mr. Schlabach's line: Whatever authority the Secretary of the
Treasury and/or his delegates have is prescribed by statute. The
Secretary's seizure authority is at 26 U.S.C. § 7321:
Sec. 7321.
Authority to seize property subject to forfeiture.
Any property
subject to forfeiture to the United States under any provision of
this title may be seized by the Secretary.
We're going to
pick this up again, so remember the phrase, "Any property subject
to forfeiture..," as it is key to understanding § 6331 and other
sections that address lien, levy, and seizure. We will now
consider authority of internal revenue enforcement officers, at §
7608:
Sec. 7608.
Authority of internal revenue enforcement officers.
(a) Enforcement
of subtitle E and other laws pertaining to liquor, tobacco, and
firearms.
Any
investigator, agent, or other internal revenue officer by whatever
term designated, whom the Secretary charges with the duty of
enforcing any of the criminal, seizure, or forfeiture provisions
of subtitle E or of any other law of the United States pertaining
to the commodities subject to tax under such subtitle for the
enforcement of which the Secretary is responsible may
--
(1) carry
firearms;
(2) execute and
serve search warrants and arrest warrants, and serve subpoenas and
summonses issued under authority of the United States;
(3) in respect
to the performance of such duty, make arrests without warrant for
any offense against the United States committed in his presence,
or for any felony cognizable under the laws of the Unite States if
he has reasonable grounds to believe that the person to be
arrested has committed, or is committing, such felony;
and
(4) in respect
to the performance of such duty, make seizures of property subject
to forfeiture to the United States.
(b) Enforcement
of laws relating to internal revenue other than subtitle
E.
(1) Any criminal
investigator of the Intelligence Division or the Internal Security
Division of the Internal Revenue Service whom the Secretary
charges with the duty of enforcing any of the criminal provisions
of the internal revenue laws, any other criminal provisions of law
relating to internal revenue for the enforcement of which the
Secretary is responsible, or any other law for which the Secretary
has delegated investigatory authority to the Internal Revenue
Service, in the performance of his duties, authorized to perform
the functions described in paragraph (2).
(2) The
functions authorized under this subsection to be performed by an
officer referred to in paragraph (1) are --
(A) to execute
and serve search warrants and arrest warrants, and serve subpoenas
and summonses issued under authority of the United
States;
(B) to make
arrests without warrant for any offense against the United States
relating to the internal revenue laws committed in his presence,
or for any felony cognizable under such laws if he has reasonable
grounds to believe that the person to be arrested has committed or
is committing any such felony; and
(C) to make
seizures of property subject to forfeiture under the internal
revenue laws.
[subsection (c)
not reproduced]
We find authority
to "make seizures of property subject to forfeiture" at §§ 7321
& 7608(a)(4) & (b)(2)(C). The language is explicit -- the
Secretary and properly designated revenue officers may all seizure
property subject to forfeiture. Statutory language does not go
beyond that point. And as it so happens, the Internal Revenue Code
is very explicit when it comes to what property is subject to
forfeiture, specific statutory provisions in Chapter 75, Subchapter
C -- Forfeitures. By appearance, the list is limited to Part I,
Property subject to forfeiture, but there is a hidden gem in Part II
that is the IRS back door out of the Internal Revenue Code. The
escape hatch will be addressed in due course. The main list of
property subject to forfeiture is at § 7301:
Sec. 7301.
Property subject to tax.
(a) Taxable
articles.
Any property on
which, or for or in respect whereof, any tax is imposed by this
title which shall be found in the possession or custody or within
the control of any person, for the purpose of being sold or
removed by him in fraud of the internal revenue laws, or with
design to avoid payment of such tax, or which is removed,
deposited, or concealed, with intent to defraud the United States
of such tax or any part thereof, may be seized, an shall be
forfeited to the United States.
(b) Raw
materials.
All property
found in the possession of any person intending to manufacture the
same into property of a kind subject to tax for the purpose of
selling such taxable property in fraud of the internal revenue
laws, or with design to evade the payment of such tax, may also be
seized, and shall be forfeited to the United States.
(c)
Equipment.
All property
whatsoever, in the place or building, or any yard or enclosure,
where the property described in subsection (a) or (b) is found, or
which is intended to be used in the making of property described
in subsection (a), with intent to defraud the United States of tax
or any part thereof, on the property described in subsection (a)
may also be seized, and shall be forfeited to the United
States.
(d)
Packages.
All property
used as a container for, or which shall have contained, property
described in subsection (a) or (b) may also be seize, and shall be
forfeited to the United States.
(e)
Conveyances.
Any property
(including aircraft, vehicles, vessels, or draft animals) used to
transport or for the deposit or concealment of property described
in subsection (a) or (b), or any property used to transport or for
the deposit or concealment of property which is intended to be
used in the making or packaging of property described in
subsection (a), may also be seized, and shall be forfeited to the
United States.
Property described
in § 7301 is obviously related to production and distribution of
distilled spirits subject to licensing under the Federal Alcohol
Administration Act. It might be construed as being applicable to
production of tobacco products and conceivably even firearms, but we
know application is to insular possessions of the United States, not
the several States. Even at that, we are narrowing the range of
forfeiture by listing those things the Internal Revenue Code
itemizes as subject to forfeiture.
The next section
identifying property subject to forfeiture provides the approach
ramp for IRS' leap from the Internal Revenue Code:
§ 7302. Property
used in violation of internal revenue laws.
It shall be
unlawful to have or possess any property intended for use in
violating the provisions of the internal revenue laws, or
regulations prescribed under such laws, or which has been so used,
and no property rights shall exist in any such property. A search
warrant may issue as provided in chapter 205 of title 18 of the
United States Code and the Federal Rules of Criminal Procedure for
the seizure of such property. Nothing in this section shall in any
manner limit or affect any criminal or forfeiture provision of the
internal revenue laws, or of any other law. The seizure and
forfeiture of any property under the provisions of this section
and the disposition of such property subsequent to seizure and
forfeiture, or the disposition of the proceeds from the sale of
such property, shall be in accordance with existing laws or those
hereafter in existence relating to seizures, forfeitures, and
disposition of property or proceeds, for violation of the internal
revenue laws.
Implications of §
7302 will become evident momentarily. In the meantime, the balance
of property subject to forfeiture listed in §§ 7303 & 7304 needs
to be accounted for to complete the survey:
§ 7303. Other
property subject to forfeiture.
There may be
seized and forfeited to the United States the
following:
(1) Counterfeit
stamps. Every stamp involved in the offense described in section
7208 (relating to counterfeit, reused, canceled, etc., stamps),
and the vellum, parchment, document, paper, package, or article
upon which such stamp was placed or impressed in connection with
such offense.
(2) False
stamping of packages. Any container involve in the offense
described in section 7271 (relating to disposal of stamped
packages), and of the contents of such container.
(3) Fraudulent
bonds, permits, an entries. All property to which any false or
fraudulent instrument involved in the offense described in section
7207 relates.
§ 7304. Penalty
for fraudulently claiming drawback.
Whenever any
person fraudulently claims or seeks to obtain an allowance of
drawback on goods, wares, or merchandise on which no internal tax
shall have been paid, or fraudulently claims any greater allowance
of drawback than the tax actually paid, he shall forfeit triple
the amount wrongfully or fraudulently claimed or sought to be
obtained, or the sum of $500, at the election of the
Secretary.
When we consult
the Parallel Table of Authorities and Rules, we find that §§ 6301
& 7302 aren't listed, regulations for § 7302 are 27 CFR §§ 24
& 252, and regulations for § 7304 are 27 CFR § 70. Title 27 of
the Code of Federal Regulations includes the Federal Alcohol
Administration Act, and is under Bureau of Alcohol, Tobacco and
Firearms administrative jurisdiction. No general application
regulations under these sections issue from Title 26 of the Code of
Federal Regulations.
Remember, all
judicial action to enforce forfeiture is supposed to issue as an
in rem action in a United States District Court, per 26
U.S.C. § 7323, so we know that "venue" established by § 7323 is in
one of the three remaining territorial courts, defined as courts of
the United States at 18 U.S.C. § 23 -- the United States District
Courts of Guam, the Northern Mariana Islands, and the Virgin
Islands. Therefore, we know that all forfeitures must be in insular
possessions of the United States, or territorial waters. This
conclusion reinforces the allegation that IRS and BATF, both
successors of the Bureau of Internal Revenue, Puerto Rico, have
absolutely no legitimate jurisdiction in the Union of several
States. The legitimate United States District Court is a territorial
court that does not exercise Article III judicial authority of the
United States -- it is an Article I legislative court. And beyond
that, the in rem forfeiture action is admiralty-maritime in
nature, proceeding in the course of the civil law, contrary to due
process in the course of the common law assured by the Fifth, Sixth,
and Seventh Articles of Amendment.
How is the IRS
leap from the Internal Revenue Code accomplished? Via 26 U.S.C. §
7327:
§ 7327. Customs
laws applicable.
The provisions
of law applicable to the remission and mitigation by the Secretary
of forfeitures under the customs laws shall apply to forfeitures
incurred or alleged to have been incurred under the internal
revenue laws.
The exit begins
with § 7302, property used in violation of internal revenue laws,
then the exit from the Internal Revenue Code is via § 7327, customs
laws applicable. Seizures, including garnishment, are predicated on
the notion of property used in violation of internal revenue laws.
We know that this is the case as for the last several years,
researchers across the country have decoded classification documents
for literally hundreds of people subjected to IRS seizure and
forfeiture. They are invariable red flagged as "illegal tax
protesters", which is a trigger label, and are classified as high
level and illegal drug dealers out of the Virgin Islands, Cayman
Islands, etc. This is the underlying presumption IRS uses as
justification for administrative seizures and/or criminal and civil
prosecution in private United States District Courts situated in the
Union of several States. These courts, without notice, presume to
accommodate a change of venue from the District Court of the Virgin
Islands under that court's concurrent maritime jurisdiction with
district courts of the United States, 18 U.S.C. § 3241. The victim
simply isn't informed that even if he is being prosecuted in a civil
case, he is presumed to have committed an offense against customs
laws of the United States in territorial waters of the Virgin
Islands.
Those who haven't
been exposed to the institutionalized criminal element of government
have to be saying, "This can't be true! This is the most outrageous
account imaginable!"
I hope that's the
case, and I hope those who have read this far are sufficiently
motivated to (1) take time to verify authorities that support
conclusions presented in this discourse, and (2) demand that people
who hold elected and appointed offices in United States government
rebut conclusions with lawful authorities which satisfy criteria
established in the section on five essential legal authorities. Most
of this information is already in court pleadings around the
country, it has been submitted to Federal judges in their respective
administrative capacities, and has been submitted via the Director
of the Administrative Office of United States Courts; IRS officials
have failed to rebut or correct it, and various members of Congress
stand mute, unwilling or unable to rebut the documented evidence.
The best any of them can hope for -- that the truth doesn't reach a
sufficient number of people that there is a general demand for
accountability.
This is not the
place for sermonizing, so we will proceed. Again consulting the
Parallel Table of Authorities and Rules, regulations for 26 U.S..C.
§ 7327 are listed as 27 CFR § 72, regulations under BATF
administration. However, at this juncture we're not concerned with
BATF, so there is obviously no regulation in Title 26 of the Code of
Federal Regulations with general application within the Union of
several States. However, there is an unlisted regulation at 26 CFR
403 pertaining to Internal Revenue Service enforcement of customs
laws. This is the Internal Revenue Code off ramp. The route is from
26 U.S.C. § 7302, property used in violation of Internal revenue
laws, to § 7327, customs laws, to 26 CFR § 403, which pertains to
customs laws in Title 19 of the U.S.C. The exit is predicated on
classification to whoever illicit IRS actions are against, whether
in civil or criminal forums, being classified as an illegal tax
protestor who has drug-related operations in insular possessions and
territorial waters subject to Congress' Article IV § 3.2 legislative
jurisdiction.
The scope of the
regulation is set out at 26 CFR § 403.1:
§ 403.1 Personal
property seized by the Internal Revenue Service.
Regulations in
this part relate to personal property seized by officers of the
Internal Revenue Service as subject to forfeiture as being
involved, used, or intended to be used, as the case may be in any
violation of the internal revenue laws other than Chapters 51
(distilled spirits), 52 (tobacco) and 53 (firearms), of the
Internal Revenue Code of 1954 (I.R.C.).
The object of this
seizure authority is personal property valued at $100,000 or less
(26 U.S.C. § 7325), and coin-operated gaming devices (§
7326(a)).
The delegation of
authority to the Commissioner of Internal Revenue (T.D. 7433, 41 FR
39312, Sept. 15, 1976, as amended by T.D. 7525, 42 FR 64334, Dec.
23, 1977), is reproduced at 26 CFR § 403.25:
§ 403.25
Personal property subject to seizure.
Personal
property may be seized by the Commissioner of Internal Revenue or
his delegate for forfeiture to the United States when involved,
used, or intended to be used, in violation of the internal revenue
laws, other than Chapter 51 (distilled spirits), 52 (tobacco) and
53 (firearms) of the I.R.C. (Sec. 7321, 68A Stat. 869; 26 U.S..C.
7321).)
What does 26
U.S.C. § 7321 relate to?
Sec. 7321. Authority to seize property
subject to forfeiture.
Any property subject to forfeiture to the United
States under any provision of this title may be seized by the
Secretary.
As demonstrated,
property subject to forfeiture within the covers of the Internal
Revenue Code is specifically enumerated save that which is "used in
violation of internal revenue laws" (§ 7302). Therefore, property
which is the object of seizure must be personal property valued
under $100,000 (§ 7325), or coin-operated gaming devices (§
7326(a)), under applicable customs laws (§ 7327). This conclusion is
locked down by Subpart D -- Remission or Mitigation of Forfeitures,
at 26 CFR § 403.35:
§ 403.35 Laws
applicable.
Remission or
mitigation of forfeitures shall be governed by the customs laws
applicable to remission or mitigation of penalties as contained in
19 U.S.C. 1613 and 19 U.S.C. 1618.
(Sec. 613, 46
Stat. 756, as amended, sec. 618, 46 Stat. 757, as amended, sec
7327, 68A Stat. 871; (19 U.S.C. 1613, 1618, 26 U.S.C.
7327))
The customs laws
at issue grow out of the Tariff Act of 1930; Subtitle III --
Administrative Provisions; Part V --Enforcement Provisions, but
there have been several amendments since that cast a fog over how
manipulation of administration was accomplished. We'll address some
of the conspicuous incongruities, but first need to see authority of
19 U.S.C. §§ 1613 & 1618:
Sec. 1613.
Disposition of proceeds of forfeited property
(a) Application
for remission of forfeiture and restoration of proceeds of sale;
disposition of proceeds when no application has been
made
Except as
provided in subsection (b) of this section, any person claiming
any vessel, vehicle, aircraft, merchandise, or baggage, or any
interest therein, which has been forfeited and sold under the
provisions of this chapter, may at any time within three months
after the date of sale apply to the Secretary of the Treasury if
the forfeiture and sale was under the customs laws, or to the
Commandant of the Coast Guard or the Commissioner of Customs, as
the case may be, if the forfeiture and sale was under the
navigation laws, for a remission of the forfeiture and restoration
of the proceeds of such sale, or such part thereof as may be
claimed by him. Upon the production of satisfactory proof that the
applicant did not know of the seizure prior to the declaration or
condemnation of forfeiture, and was in such circumstance as
prevented him from knowing of the same, and that such forfeiture
was incurred without any willful negligence or intention to
defraud on the part of the applicant, the Secretary of the
Treasury, the Commandant of the Coast Guard, or the Commissioner
of Customs may order the proceeds of the sale, or any part
thereof, restored to the applicant, after deducting the cost of
seizure and of sale, the duties, if any, accruing on the
merchandise or baggage, and any sum due on a lien for freight,
charges, or contribution in general average that may have been
filed. If no application for such remission or restoration is made
within three months after such sale, or if the application be
denied by the Secretary of the Treasury, the Commandant of the
Coast Guard, or the Commissioner of Customs, the proceeds of sale
shall be disposed of as follows:
(1) For the
payment of all proper expenses of the proceedings of forfeiture
and sale, including expenses of seizure, maintaining the custody
of the property, advertising and sale, and if condemned by a
decree of a district court and a bond for such costs was not
given, the costs as taxed by the court;
(2) For the
satisfaction of liens for freight, charges, and contributions in
general average, notice of which has been filed with the
appropriate customs officer according to law; and
(3) The residue
shall be deposited in the general fund of the Treasury of the
United States.
(b) Disposition
of proceeds in excess of penalty assessed under section
1592
If merchandise
is forfeited under section 1592 of this title, any proceeds from
the sale thereof in excess of the monetary penalty finally
assessed thereunder and the expenses and costs described in
subsection (a)(1) and (2) of this section or subsection (a)(1),
(a)(3), or (a)(4) of section 1613b of this title incurred in such
sale shall be returned to the person against whom the penalty was
assessed.
(c) Treatment of
deposits
If property is
seized by the Secretary under law enforcement or administrated by
the Customs Service, or otherwise acquired under section 1605 of
this title, and relief from the forfeiture is granted by the
Secretary, or his designee, upon terms requiring the deposit or
retention of a monetary amount in lieu of the forfeiture, the
amount recovered shall be treated in the same manner as the
proceeds of sale of a forfeited item.
(d)
Expenses
In any judicial
or administrative proceeding to forfeit property under any law
enforce or administered by the Customs Service or the Coast Guard,
the seizure, storage, and other expenses related to the forfeiture
that are incurred by the Customs Service or the Coast Guard after
the seizure, but before the institution of, or during, the
proceedings, shall be a priority claim in the same manner as the
court costs and the expenses of the Federal marshal.
Sec. 1618.
Remission or mitigation of penalties
Whenever any
person interested in any vessel, vehicle, aircraft, merchandise,
or baggage seized under the provisions of this chapter, or who has
incurred, or is alleged to have incurred, any fine or penalty
thereunder, files with the Secretary of the Treasury if under the
customs laws, and with the Commandant of the Coast Guard or the
Commissioner of Customs, as the case may be, if under the
navigation laws, before the sale of such vessel, vehicle,
aircraft, merchandise, or baggage a petition for the remission or
mitigation of such fine, penalty, or forfeiture, the Secretary of
the Treasury, the Commandant of the Coast Guard, or the
Commissioner of Customs, if he finds that such fine, penalty, or
forfeiture was incurred without willful negligence or without any
intent on the part of the petitioner to defraud the revenue or to
violate the law, or finds the existence of such mitigating
circumstances as to justify the remission or mitigation of such
fine, penalty, or forfeiture, may remit or mitigate the same upon
such terms and conditions as he deems reasonable and just, or
order discontinuance of any prosecution relating thereto. In order
to enable him to ascertain the facts, the Secretary of the
Treasury may issue a commission to any customs officer to take
testimony upon such petition: Provided, That nothing in this
section shall be construed to deprive any person of an award of
compensation made before the filing of such petition.
By following
references in the text of these two sections from Title 19, the link
to drug-related offenses is reasonably easy to establish. However,
at the moment, the link to Reorganization Plan 26 of 1950, cited in
26 U.S.C. § 7804, and subsequent authority delegated by E.O. #10289,
and T.D.O. #150-42 (1956), is probably more important. The
reorganization plan, and another plan promulgated in 1946, are cited
as authorities in historical and revision notes following §
1613:
__________________________
TRANSFER OF
FUNCTIONS
By Reorg. Plan No. 3 of 1946, set
out in the Appendix to Title 5, Government Organization and
Employees, functions of Secretary of Commerce relating to
remission and mitigation of fines, penalties and forfeitures
incurred for violation of navigation laws were transferred to
Commandant of Coast Guard and Commissioner of Customs, subject to
direction and control of Secretary of the Treasury, except as
otherwise required by law with respect to United States Coast
Guard whenever it operates as a part of Navy. Accordingly,
references to Commandant of Coast Guard and Commissioner of
Customs substituted in text for "the Secretary of
Commerce".
For transfer of functions of other
officers, employees, and agencies of Department of the Treasury,
with certain exceptions, to Secretary of the Treasury with power
to delegate, see Reorg. Plan No. 26 of 1950, Sec. 1, 2, eff. July
31, 1950, 15 F.R. 4935, 64 Stat. 1280, 1281, set out in the
Appendix to Title 5, Government Organization and Employees.
Commissioner of Customs, referred to in text, is an officer in
Department of the Treasury. Functions of Coast Guard and
Commandant of Coast Guard excepted from transfer when Coast Guard
is operating as part of Navy under sections 1 and 3 of Title 14,
Coast Guard.
Coast Guard transferred to
Department of Transportation, and functions, powers, and duties
relating to Coast Guard of Secretary of the Treasury and of other
officers and offices of Department of the Treasury transferred to
Secretary of Transportation by Pub. L. 89-670, Sec. 6(b)(1), Oct.
15, 1966, 80 Stat. 938. Section 6(b)(2) of Pub. L. 89-670,
however, provided that notwithstanding such transfer of functions,
Coast Guard shall operate as part of Navy in time of war or when
President directs as provided in section 3 of Title 14. See
section 108 of Title 49, Transportation.
Aside from connecting these customs
duties-related sections to the 1950 reorganization plan that
restructured basic administration authority by way of the Internal
Revenue Code of 1954, the above note reflects some of the difficulty
behind determining who has what authority, where it came from, where
it might be applicable, and how legitimate it is. It's like playing,
"Button, button, who has the button?"
Here is an example: During war, the
Coast Guard operates under direction of the Navy; in peacetime, the
Coast Guard operates under direction of the Director of the
Department of Transportation, but at all times the Coast Guard is a
military department subject to direct orders of the President. In
other words, whether operating under military or civilian direction,
the Coast Guard is a military organization. Consequently, the Coast
Guard has absolutely no civil enforcement authority in the Union of
several States save possibly during times of invasion or rebellion
(Art. IV § 4, Constitution).
The above sections, when understood
properly, demonstrate three jurisdictions or areas of
responsibility: The Coast Guard has primary responsibility over
navigation laws on the high seas; the United States Customs Service
has primary responsibility relating to customs districts in the
Union of several States, as demonstrated earlier; and the Secretary
of the Treasury, via his delegate, the Commissioner of Internal
Revenue, has primary responsibility in insular possessions of the
United States and their respective territorial waters. Delegation of
territorial jurisdiction or venue authority to the Commissioner of
Internal Revenue, and subsequently to IRS and BATF, was via T.D.O.
#150-42 (1956), as amended by T.D.O. #150-1 (1986), under authority
of E.O. #10289 and 26 U.S.C. § 7621.
We found in the Parallel Table of
Authorities and Rules that authority for 26 U.S.C. § 7327 is listed
as 27 CFR § 72. This corresponding regulation is acknowledged and
specifically cited at 26 CFR § 403.2:
§ 403.2 Personal property seized by
the Bureau of Alcohol, Tobacco and Firearms.
Regulations in 27 CFR Part 72 relate
to personal property seized by officers of the Bureau of Alcohol,
Tobacco and Firearms, as subject to forfeiture as being involved,
used, or intended to be used, as the case may be, in any violation
of Chapters 51 (distilled spirits), 52 (tobacco) and 53
(firearms), of the I.R.C., as well as certain other federal laws
(Treasury Dept. Order No. 221 (June 6, 1972), 37 FR 11696;
Treasury Dept. Order No. 221-3 (December 24, 1974), 40 FR 1084;
Treasury Dept. Order No. 221-3 (Revision 2) (Jan. 14, 1977), 42 FR
3725)
Those interested in the pedigree of
BATF can get a pretty good scope on the entity by looking up
Treasury Delegation Orders listed above. BATF was split from IRS via
the order of June 6, 1972, then scope of authority was fine-tuned by
the other orders.
Providing there is IRS seizure under
provisions of 26 U.S.C. § 7327, an innocent party may petition for
return of the property or proceeds from sale. There is no particular
form, although 26 CFR § 403.37 specifies that the petition should be
typewritten on legal size paper and must be executed under oath,
prepared in triplicate, and addressed to the District Director of
the internal revenue district in which the property was seized. All
copies must be certified under penalties of perjury, and copies of
support exhibits should be attached to each of the triplicate
petitions. Contents of the petition are prescribed in § 403.38.
We'll reproduce only § 403.38(d) & (e) as these paragraphs list
the drug-related crimes which are prosecutable in civil and criminal
forums and ultimately make the connection with Title 18, the
Criminal Code:
(d) Petitioner innocent
party.. If the petitioner did not commit the act which caused
the seizure of his property, the petitioner should state how the
property came into the possession of the person whose act did
cause the seizure, and it should also state that the petitioner
had no knowledge or reason to believe that the property would be
involved or used in violation of the internal revenue laws. If the
petitioner knows, at the time he files the petition, that the
person in whose possession the seized property was at the time of
the seizure had a record or reputation for committing commercial
crimes, the petitioner should state in the petition whether the
petitioner knew of such record or reputation before the petitioner
acquired his interest in the property or before such other person
came into possession of the property, whichever occurred later.
For purposes of this paragraph, the term "commercial crimes"
includes, but is not limited to any of the following federal or
state crimes:
(1) Offenses against the revenue
laws; burglary; counterfeiting, forgery; kidnapping; larceny;
robbery; illegal sale or possession of deadly weapons;
prostitution (including soliciting, procuring, pandering, white
slaving, keeping house of ill fame, and like offenses); extortion;
swindling and confidence games; and attempting to commit,
conspiring to commit, or compounding any of the foregoing crimes.
Addiction to narcotic drugs and use of marijuana will be treated
as commercial crimes.
(e) Documents supporting
claim. The petition should be accompanied by copies, certified
by the petitioner under oath as correct, of contracts, bills of
sale, chattel mortgages, reports of investigators or credit
reporting agencies, affidavits, and any other documents that would
support the claims made in the petition.
Again, internal clues which reveal
proper territorial application abound. Can IRS or any other Federal
agency enforce "state and federal laws" within the several States
party to the Constitution? The Constantine case, decided in December
1935, should have put that matter to rest for good. And merely
reclassifying what are normally considered common law crimes subject
to jurisdiction of each of the several States respectively as
commercial crimes doesn't place them under Federal
jurisdiction.
The revelation most people who have
lost homes to IRS administrative seizure might be offended by is the
notion that their respective homes were being used for prostitution
or some other such offense against revenue laws of the United
States. But, of course, they are never informed of what crime a
home, car, occupational tools and the like have been used in, so
they don't know how to defend against the in rem procedure
presumed in administrative seizure. Yet, even that is fraud where a
court of competent jurisdiction hasn't made a judicial award, as we
shall see.
Now for the next significant clue,
found at § 403.43(a):
§ 403.43 Final action.
(a) Petitions for remission or
mitigation of forfeiture. (1) The Commissioner or his delegate
shall either allow or deny any petition filed pursuant to these
regulations. Such allowance or denial will constitute final
action. If he allows the petition, the Commissioner or his
delegate shall state the conditions, if any, of the
allowance.
It would appear that the Secretary of
the Treasury has delegated authority that isn't his to delegate.
Congress has made the General Accounting Office general agent of the
Treasury of the United States, and GAO, through the Comptroller
General, now the Director, has final disposition of all claims of
and against the United States. Since there is absolutely no
statutory authority for the Secretary to delegate authority that is
not vested in him or the President, we're left with one or two
conclusions: Either the Secretary of the Treasury has usurped the
legislative power of Congress, or such exercise of authority is
applicable only in insular possessions of the United
States.
The next giggle is this:
Administrative seizure even in insular possessions of the United
States is limited to property valued at $2,500 or less, and a
reasonably small bond will force the matter to
court:
§ 403.26 Forfeiture of seized
personal property.
(a) Administrative
forfeiture.. (1) Personal property seized as subject to
forfeiture under the internal revenue laws and this part which has
an appraised value of $2,500.00 or less shall be forfeited to the
United States in administrative forfeiture proceedings except as
otherwise provided in this section.
(2) If the Commissioner or his
delegate seizes personal property which is forfeitable under the
internal revenue laws and this part and which in his opinion is
valued at $2,500.00 or less, he shall cause a list containing a
particular description of the seized property to be prepared in
duplicate and an appraisal thereof to be made by three sworn
appraisers, selected by the Commissioner or his delegate, who
shall be respectable and disinterested citizens of the United
States residing within the internal revenue district wherein the
seizure was made. Such list and appraisement shall be properly
attested by the Commissioner or his delegate and such
appraisers.
(3) If such forfeitable personal
property is found by the appraisers to be of the value of
$2,500.00 or less, the Commissioner or his delegate shall publish
a notice once a week for three consecutive weeks, in some
newspaper of the judicial district where property was seized,
describing the articles and stating the time, place, and cause of
their seizure, and requiring any person claiming them to appear
and make such claim within 30 days from the date of the first
publication of such notice.
(4) Any person claiming the personal
property so seized, within the time specified in the notice, may
file with the District Director of the internal revenue district
in which the property was seized a claim, stating his interest in
the articles seized, and may execute a bond to the United States
in the penal sum of $250, conditioned that, in case of
condemnation of the articles so seized, the obligors shall pay all
the costs and expenses of the proceedings to obtain such
condemnation. The District Director shall transmit such claim,
together with the duplicate list or description of the property
seized, to the United States Attorney for the district in which
such property was seized. Both the claim and the cost bond should
be executed in quadruplicate.
(b) Judicial condemnation..
Personal property seized as subject to forfeiture under the
internal revenue laws and this part which has an appraised value
of more than $2,500 and such seized property which has an
appraised value of $2,500 or less with respect to which a bond has
been filed pursuant to paragraph (a)(4) of this section, shall be
forfeited to the United States in judicial condemnation
proceedings, as authorized by the Director, General Legal Services
Division, Office of Chief Counsel, Internal Revenue Service, or
his delegate.
There are a few obvious problems with
the regulation above, aside from it demonstrating that internal
revenue laws preserve due process requirements even for seizures
under $2,500. One of the conspicuous problems is that the
appraisers, being "citizens of the United States," must be resident
in the district where the seizure takes place. Since we know the
only internal revenue districts in the several States are customs
districts under administration of the United States Customs Service,
the regulation must apply to a jurisdiction other than the several
States. Next, the Seventh Article of Amendment secures the right to
jury trial in the course of the common law for all controversies
involving in excess of twenty dollars: "In Suits at common law,
where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved..."
The Fifth Article of Amendment locks
in the remedy: "No person shall be ... deprived of life, liberty, or
property, without due process of law," in the course of the common
law.
The condemnation proceeding, in the
course of the civil law, is an in rem admiralty-maritime
action which is strictly prohibited by the Fifth, Sixth, and Seventh
Articles of Amendment, per former Chief Justice John Marshall in
Wayman v. Southard (1825), previously cited. Consequently, the
nature of the proceeding again condemns process prescribed in 26 CFR
§ 403. It cannot apply to or in the Union of several States party to
the Constitution. The only merit the regulation has is for people in
the District of Columbia, Puerto Rico, the Virgin Islands, etc., to
know they have recourse against IRS vandals who exceed lawful
authority in territory of the United States.
This is one of the major virtues of 26
U.S.C. § 7804: The section secures remedies against revenue
officers, agents and employees when they exceed lawful authority. We
will examine the section in more detail, but first we have other
fish to fry.
At 26 U.S.C. § 7321, we found that,
"Any property subject to forfeiture to the United States under any
provision of this title may be seized by the Secretary," then at §
7608(b)(2)(C), we found that the Internal Revenue Service has
authority, "to make seizures of property subject to forfeiture under
the internal revenue laws."
We have listed and examined all items
made subject to forfeiture in Chapter 75, Subchapter C, including
items subject to forfeiture under customs laws. The Internal Revenue
Code is explicit and limited as to what is or isn't subject to
forfeiture, i.e., levy, and generally speaking, wages subject to
withholding at source do not fall into the category of "property"
subject to forfeiture and the in rem admiralty-maritime
action prescribed in territorial United States District Courts at §
7323. As demonstrated, the action prescribed at § 7323 is applicable
(1) in territory of the United States where there is some licensed
enterprise (alcohol, tobacco, firearms, etc.), under customs laws,
and under navigation laws. The items subject to forfeiture include
(1) those things subject to lien by virtue of licensing where liens
are agreed to in the licensing process, (2) items subject to customs
taxes, and (3) items used in the process of breaking internal
revenue laws.
In the first case, the lien exists by
virtue of conditions of the licensing agreement. In the latter two
cases, liens arise out of judgments, with forfeitures under 26 CFR §
403 & 27 CFR § 72 arising via judgment subsequent to
determination of specified criminal activity. If there is no
criminal judgment, there can be no civil forfeiture judgment. The
initial seizure, prior to judicial forfeiture via condemnation
proceeding, must proceed on criminal probable cause. In the latter
instance, if no crime has been committed, there is no basis for
seizure or forfeiture, which are all part of the levy process, with
judgment being antecedent to levy.
We'll address this in more detail, and
demonstrate that this process is preserved in the Internal Revenue
Code, but we need to return to the questionable provision in § 6331
relating to garnishment of wages for officers and employees of
United States government, etc. By consulting the Parallel Table of
Authorities and Rules, it is found that regulations prescribed for
26 U.S.C. §§ 6331-6343 are 27 CFR § 70. There is a regulation for 26
U.S.C. § 6334 at 26 CFR § 404, and for 26 U.S.C. § 6343 at 26 CFR §
301, but the basic authority for levy and distraint is in § 6331(a),
and the only listed regulation is at 27 CFR § 70. This application
is reinforced by the only regulation for liens (26 U.S.C. § 6321)
also being 27 CFR § 70.
On the title page of Title 27 of the
Code of Federal Regulations, the following is
found:
Title 27 -- Alcohol, Tobacco
Products, and Firearms is composed of two volumes, parts 1-199 and
part 200 to end. The contents of these volumes represent all
current regulations issued by the Bureau of Alcohol, Tobacco and
Firearms, Department of the Treasury, as of April 1,
1995.
Here I'm using the 1995 printed
edition of Title 27 CFR distributed by the Government Printing
Office rather than the electronic 1998 edition on CD as these
regulations haven't changed much for several years and at the moment
it is easier to use the printed copy rather than the computer-base
CD. The above paragraph would suggest that all of Title 27 CFR is
under administration of BATF, so at first blush it would be
surprising to find regulations in Title 27 pertaining to garnishment
of wages.. That's a presumption I and other researchers made for
several years when first discovering the Parallel Table of
Authorities and Rules -- I presumed that 27 CFR § 70 includes only
regulations pertaining to liens and levy and distraint relating to
licensing under Subtitle E of the Internal Revenue Code. That was a
mistake. Somehow or another, the garnishment against government
employees makes a magical appearance in the title and
part.
Below are relevant portions of 27 CFR
§ 70, beginning with § 70.161, with certain portions highlighted by
my underscoring for emphasis:
§ 70.161 Levy and
distraint.
(a) Authority to levy -- (1)
In General. If any person liable to pay any tax neglects or
refuses to pay the tax within 10 days after notice and demand, the
regional director (compliance) or Chief, Tax Processing Center who
initiated the assessment (or, on that official's request, any
other regional director (compliance) or the Chief, Tax Processing
Center) may proceed to collect the tax by levy, provided the
taxpayer has been furnished the notice described in § 70.162(a) of
this part. The regional director (compliance) or the Chief, Tax
Processing Center may levy upon any property, or rights to
property, whether real or personal, tangible or intangible,
belonging to the taxpayer. The regional director (compliance) or
the Chief, Tax Processing Center may also levy upon property with
respect to which there is a lien provided by 26 U.S.C. 6321 for
the payment of the tax ... As used in 26 U.S.C. 6331 and this
section, the term "tax" includes any interest, additional amount,
addition to tax, or assessable penalty, together with costs and
expenses ... Levy may be made by serving Notice of Levy on any
person in possession of, or obligated with respect to, property or
rights to property subject to levy, including receivables, bank
accounts, evidences of debt, securities and salaries, wages,
commissions, or other compensation. Except as provided in §
70.162(c) of this part with regard to a levy on salary or wages, a
levy extends only to property possessed and obligations which
exist at the time of the levy. Obligations exist when the
liability of the obligor is fixed and determinable although the
right to receive payment thereof may be deferred until a later
date ... Similarly, a levy only reaches property in the possession
of the person levied upon at the time the levy is made. For
example, a levy made on a bank with respect to the account of a
delinquent taxpayer is satisfied if the bank surrenders the amount
of the taxpayer's balance at the time the levy is made, including
interest thereon to the date of surrender. The levy has no effect
upon any subsequent deposit made in the bank by the taxpayer.
Subsequent deposits may be reached only by a subsequent levy on
the bank.
[paragraphs (2) & (3)
omitted]
(4) Certain types of
compensation. -- (i) Federal employees. Levy may be
made upon the salary or wages of any officer or employee
(including members of the Armed Forces), or elected or appointed
official, of the United States, the District of Columbia, or any
agency or instrumentality of either, by serving a notice of levy
on the employer of the delinquent taxpayer. As used in this
paragraph, the term "employer" means:
(A) The officer or employee of
the United States, the District of Columbia, or of the agency or
instrumentality of the United States or the District of Columbia,
who has control of the payment of the wages, or
(B) Any other officer or employee
designated by the head of the branch, department, or agency, or
instrumentality of the United States or of the District of
Columbia as the party upon whom service of the notice of levy may
be made.
If the head of such branch,
department, agency or instrumentality designates an officer or
employee other than one who has control of the payment of the
wages, as the party upon whom service of the notice of levy may be
made, such head shall promptly notify the Director of the name and
address of each officer or employee so designated and the scope or
extent of the authority of such designee.
(ii) State and municipal
employees. Salaries, wages, or other compensation of any
officer, employee, or elected or appointed official of a State or
Territory, or of any agency, instrumentality, or political
subdivision thereof, are also subject to levy to enforce
collection of any Federal Tax.
§ 70.162 Levy and distraint on
salary and wages.
(a) Notice of intent to levy.
Levy may be made for any unpaid tax only after the regional
director (compliance) or the Chief, Tax Processing Center has
notified the taxpayer in writing of the intent to levy. The notice
must be given in person, left at the dwelling or usual place of
business of the taxpayer, or be sent by certified or registered
mail to the taxpayer's last known address, no less than 30 days
before the day of levy. The notice of intent to levy is in
addition to, and may be given at the same time as, the notice and
demand described in § 70.161 of this part.
(b) Jeopardy. Paragraph (a)
of this section does not apply to a levy if the regional director
(compliance) or the Chief, Tax Processing Center has made a
finding under § 70.161(a)(2) of this part that the collection of
tax is in jeopardy.
(c) Continuing effect of levy on
salary on wages. A levy on salary or wages is continuous from
the time of the levy until the liability of which the levy arose
is release under 26 U.S.C. 6343 and § 70.167 of this part... [most
of this paragraph is omitted]
§ 70.163 Surrender of property
subject to levy.
(a) Requirement -- (1) In
general. Except as otherwise provided in 26 U.S.C. 6332,
relating to levy in the case of banks or life insurance and
endowment contracts, any person in possession of (or obligated
with respect to) property or rights to property subject to levy
and upon which a levy has been made shall, upon demand of the
official who made the levy, surrender the property or rights (or
discharge the obligation) to the official who made the levy,
except that part of the property or rights (or obligation) which,
at the time of the demand, is actually or constructively under the
jurisdiction of a court because of an attachment or execution
under any judicial process.
(2) Property held by banks.
(i) Any bank shall surrender any deposits (including interest
thereon) in such bank only after 21 days after service of
levy.
(ii) Notwithstanding paragraph
(a)(1) of this section, if a levy has been made upon property or
rights to property subject to levy which a bank engaged in the
banking business in the United States or a possession of the
United States is in possession of (or obligated with respect to),
the Director shall not enforce the levy with respect to any
deposits held in an office of the bank outside the United States
or a possession of the United States, unless the notice of levy
specifies that the regional director (compliance) or the Chief,
Tax Processing Center intends to reach such deposits. The
notice of levy shall not specify that the regional director
(compliance) or the Chief, Tax Processing Center intends to reach
such deposits unless that official believes:
(A) That the taxpayer is within the
jurisdiction of a U.S. court at the time the levy is made and that
the bank is in possession of (or obligated with respect to)
deposits of the taxpayer in an office of the bank outside the
United States or a possession of the United States; or
(B) That the taxpayer is not within
the jurisdiction of a U.S. court a[t] the time the levy is made,
that the bank is in possession of (or obligated with respect to)
deposits of the taxpayer in an office outside the United States or
a possession of the United States, and that such deposits consist,
in whole or in part, of funds transferred from the United States
or a possession of the United States in order to hinder or delay
the collection of a tax imposed by provisions of 26 U.S.C.
enforced and administered by the Bureau.
(b) Enforcement of levy. --
(1) Extent of personal liability. Any person who, upon
demand of the regional director (compliance) or the chief, Tax
Processing Center, fails or refuses to surrender any property or
right to property subject to levy is liable in his/her own person
and estate in a sum equal to the value of the property or rights
not so surrendered, together with costs and interests. The
liability, however, may not exceed the amount of the taxes for the
collection of which the levy was made. Interest is to be computed
at the annual rate referred to in regulations under 26 U.S.C. 6221
from the date of the levy, or, in the case of a continuing levy on
salary or wages (see 26 U.S.C. 6331(e)), from the date the person
would otherwise have been obligated to pay over the wages or
salary to the taxpayer. Any amount recovered, other than cost,
will be credited against the tax liability for the collection of
which the levy was made.
(2) Penalty for violation. In
addition to the personal liability described in paragraph (b)(1)
of this section, any person who is required to surrender property
or rights to property and who fails or refuses to surrender them
without reasonable cause is liable for a penalty equal to 50
percent of the amount recoverable under 26 U.S.C. 6332(d)(2). No
part of the penalty described in this subparagraph shall be
credited against the tax liability for the collection of which the
levy was made. The penalty described in this subparagraph is
not applicable in cases where a bona fide dispute exists
concerning the amount of the property to be surrendered pursuant
to a levy or concerning the legal effectiveness of the levy.
However, if a court in a later enforcement suit sustains the levy,
then reasonable cause would usually not exist to refuse to honor a
later levy made under similar circumstances.
(c) Effect of honoring levy.
Any person in possession of, or obligated with respect to,
property or rights to property subject to levy and upon which a
levy has been made who, upon demand by the regional director
(compliance) or the Chief, Tax Processing Center, surrenders the
property or rights to property, or discharges the obligation, to
that official, or who pays a liability described in paragraph
(b)(1) of this section, is discharged from any obligation or
liability to the delinquent taxpayer with respect to the property
or rights to property arising from the surrender or payment. If an
insuring organization satisfies a levy with respect to a life
insurance or endowment contract in accordance with § 70.164 of
this part, the insuring organization is discharge from any
obligation or liability to any beneficiaries of the contract
arising from the surrender of payment. Also, it is discharged from
any obligation or liability to the insured or other owner. Any
person who mistakenly surrenders to the United States property or
rights to property not properly subject to levy is not relieved
from liability to a third party who owns the property. The owners
of mistakenly surrendered property may, however, secure from the
United States the administrative relief provided for in 26 U.S.C.
6343(b) or may bring suit to recover the property under 26 U.S.C.
7426.
Underscored portions of regulations
reproduced above should provide adequate orientation for those who
have read through and studied material in this discourse to this
point, but a certain amount of discussion is probably warranted..
Two important facts need to be set out at the onset: (1) The
majority of these regulations address levy of property in possession
of third parties, and (2) there are two provisions relating to wages
and salaries. The first might relate to levy arising from a claim
under obligations from miscellaneous excise taxes or customs duties
where an employer isn't directly involved with that particular
enterprise. In that event, each levy issues only against existing
obligations. Only levies against wages of officers and employees of
the United States and its political subdivisions have continuing
effect, and the "employer" in that case is the government agency
employing the officer or employee. It's exclusive of private
enterprise, whether in the several States or possessions of the
United States. These regulations are from Title 27 of the Code of
Federal Regulations, of course, and administration is tacitly under
BATF (IRS?) rather than General Accounting Office administration, so
application here is in insular possessions of the United States and
the District of Columbia. When William Cooper and Bill Bentson
published research demonstrating that IRS and BATF are agencies of
the Department of the Treasury, Puerto Rico, they were somewhat
amazed by a Treasury Delegation Order that names IRS as director of
BATF -- these regulations appear to explain reasoning behind the
strange delegation order.
These regulations also determine the
location of banks required to surrender money on deposit in §
70.163(a)(2): If a branch of a bank is outside the geographical
United States, including insular possessions, there is no legal
obligation to surrender accounts on a levy unless the regional
director (compliance) or the Chief of the Tax Processing Center has
so designated, the designation of necessity supported by order of a
court of competent jurisdiction. Since territorial United States
District Courts do not exercise Article III judicial authority of
the United States, the court order extending to a bank in Kansas
would have to come from the Article III district court of the United
States for the District of Kansas.
Litigation to determine liability
would issue in the name and by authority of the United States
against the alleged taxpayer with a bona fide tax liability. Once
the liability was adjudicated against the taxpayer, the judgment
would become a lien against him or her. The judgment would then be
the basis of levy and distraint. Third parties in possession of
property belonging to the taxpayer would be obligated to surrender
whatever property belonging to the taxpayer they had in possession
or had control of. The responsible officer, whether the General
Accounting Office in the several States, or BATF or IRS in the
District of Columbia or any given insular possession of the United
States, would be responsible for issuing a "notice of levy", along
with proof of claim, being an authentic court order, to whoever was
in possession of property being seized.
IRS agents are fully aware of the due
process requirement. The first rule governing administrative
settlements, at 26 CFR § 601.106(f)(1), acknowledges the Fifth
Amendment requirement of due process of law:
(1) Rule I. An exaction by
the U.S. Government, which is not based upon law, statutory or
otherwise, is a taking of property without due process of law, in
violation of the Fifth Amendment to the U.S.
Constitution...
In light of the due process
requirement in the Union of several States and in territory and
insular possessions of the United States, liability of the third
party in possession of property subject to levy is clarified.
Liability for surrender of property belonging to a third person is
exonerated providing the levy has been judicially executed, but not
if it hasn't been. Surrender of wages, bank accounts or anything
else where there is no evidence of a court order to support a
"notice of levy" leaves an employer, bank, or whatever in jeopardy
to the proper owner. If the owner sues for recovery and damages, the
third party middleman might recover loss and expense under
provisions of 26 U.S.C. §§ 6343(b) & 7426, but the probability
of an IRS agent volunteering to serve time if the injured party
elects to seek criminal prosecution of whoever has deprived him or
her of property without due process of law is pretty remote.
Therefore, the middleman third party might find it prudent to demand
certified court orders, as specified in the latter part of 27 CFR §
70.163(b)(2), before surrendering anything to the Internal Revenue
Service, the Bureau of Alcohol, Tobacco an Firearms, the United
States Customs Service, or even the General Accounting Office.
Unless or until the Fifth Amendment is repealed or amended, the
mandate for due process of law is absolute and without exception. To
abridge that constitutionally-secure right is criminal, it is not
simply a civil matter.
As Mr. Schlabach points out in his
research, levy and distraint are elements of a process, they are not
stand-alone actions. In his May 27, 1997 analysis prepared for a
client, Mr. Schlabach makes the following
observation:
There are two concepts for me to get
across. It is important to discuss the difference between a "levy"
and a "seizure". A "seizure" means the act of taking into custody
or control something which before was not in custody or control. A
"levy" is not a single act, but rather is the whole process by
which the money needed to pay a tax is raised, either by
exercising control over something already in custody and control
of the government or by distraining and seizing property not
already in custody of the government. The levy process includes
the sale of levied property and the application of the proceeds to
the unpaid tax.
I must now advise you that a,
"Notice of Levy", is not a levy or seizure. The "Notice of Levy"
has no legal effect in the private sector unless it is accompanied
with a Judicial Court Order and a "Notice of
Seizure"...
The easy way to get through the maze
is simply to go to Chapter 76, Judicial Proceedings: We've already
cited original jurisdiction of the district court of the United
States, "at the instance of the United States," for civil actions at
26 U.S.C. § 7402. It's a reasonably simple matter to read the next
section, which clarifies the need for judicial determination of
legitimacy of liens, and to bring property under control of the
United States when it isn't specifically secured by a
lien:
Sec. 7403. Action to enforce lien or
to subject property to payment of tax.
(a) Filing.
In any case where there has been a
refusal or neglect to pay any tax, or to discharge any liability
in respect thereof, whether or not levy has been made, the
Attorney General or his delegate, at the request of the Secretary,
may direct a civil action to be filed in a district court of the
United States to enforce the lien of the United States under this
title with respect to such tax or liability or to subject any
property, of whatever nature, of the delinquent, or in which he
has any right, title, or interest, to the payment of such tax or
liability. For purposes of the proceeding sentence, any
acceleration of payment under section 6166(g) shall be treated as
a neglect to pay tax.
(b) Parties.
All persons having liens upon or
claiming any interest in the property involved in such action
shall be made parties thereto.
(c) Adjudication and
degree.
The court shall, after the parties
have been duly notified or the action, proceed to adjudicate all
matters involved therein and finally determine the merits of all
claims to and liens upon the property, and, in all cases where a
claim or interest of the United States therein is established, may
decree a sale of such property, by the proper officer of the
court, and a distribution of the proceeds of such sale according
to the findings of the court in respect to the interests of the
parties and of the United States. If the property is sold to
satisfy a first lien held by the United States, the United States
may bid at the sale such sum, not exceeding the amount of such
lien with expenses of sale, as the Secretary directs.
(d) Receivership.
In any such proceeding, at the
instance of the United States, the court may appoint a receiver to
enforce the lien, or, upon certification by the Secretary during
the pendency of such proceedings that it is in the public
interest, may appoint a receiver with all the powers of a receiver
in equity.
Sections in the Internal Revenue Code
relating to administration and administrative enforcement are simply
grouped together in 6000 numbering ahead of the judicial, numbered
7401 and up, for classification convenience. Each of the sections
may be prima facie the law, or evidence of law, but as stipulated at
§ 7806, "Construction of title," no legislative construction is
implied by location of any section in the Internal Revenue Code..
There obviously must be adjudication by a court of competent
jurisdiction before any agency that purports to represent the
executive branch of government can deprive any of the sovereign
American people of life, liberty, or property. This conclusion
should be so obvious as not to warrant question or discussion, but
bully tactics of the Federal Alphabet Brotherhood have so cowed the
general population that most grow shag and play carpet rather than
stand on the law either in defense or to secure redress for illegal
acts which many times result in the compromise of third parties..
This is the purpose of 26 U.S.C. § 7804(b), reproduced a second time
below:
(b) Preservation of existing rights
and remedies.
Nothing in Reorganization Plan
Numbered 26 of 1950 or Reorganization Plan Numbered 1 of 1952
shall be considered to impair any right or remedy, including trial
by jury, to recover any internal revenue tax alleged to have been
erroneously or illegally assessed or collected, or any penalty
claimed to have been collected without authority, or any sum
alleged to have been excessive or in any manner wrongfully
collected under the internal revenue laws. For purposes of any
action to recover any such tax, penalty, or sum, all statutes,
rules, and regulations referring to the collector of internal
revenue, the principal officer for the internal revenue district,
or the Secretary, shall be deemed to refer to the officer whose
act or acts referred to in the preceding sentence gave rise to
such action. The venue of any such action shall be the same as
under existing law.
What rights and remedies are
"existing"? If the Constitution of the United States is still the
law of the land, all rights secured by the Bill of Rights, and
whatever other rights the Constitution secures, are "existing
rights." In the Union of several States, due process in the course
of the common law is among the existing rights, and in insular
possessions of the United States, due process in the course of the
civil law. Through legislation and court rulings, people indigenous
to insular possessions have for the most part secured the right to
jury trial, even if under quasi-admiralty rules, so application of §
7804(b) is universal within the "American empire."
With that in mind, we'll examine the
first sentence of § 7804(b) with editorial modification that
clarifies what it means: "Nothing in [the Internal Revenue Code]
shall be considered to impair any right [including trial by jury],
or remedy, including trial by jury, to recover any internal revenue
tax alleged to have been erroneously or illegally assessed or
collected, or any penalty claimed to have been collected without
authority, or any sum alleged to have been excessive or in any
manner wrongfully collected under the internal revenue
laws."
A basic concept needs to be
emphasized: He who has no rights has no remedies. Since the
Constitution secures rights of the People via the Bill of Rights,
appropriate remedies are assumed. So far as the people of the Union
of several States are concerned, both rights an remedies secured by
eight centuries of British-American common law heritage are assumed,
so the right to trial by jury is preserved for both defendant and
plaintiff.
Further, the first sentence of §
7804(b) throws the door wide open so far as causes are concerned. An
action may proceed on the allegation of "erroneously or illegally
assessed or collected" tax. And, of course, if an assessment or
collection action was patently illegal, an affidavit of criminal
complaint should naturally proceed against whoever was responsible
for assessment and/or collection proceedings. In the event a
properly constructed affidavit of criminal complaint is filed in the
appropriate district court of the United States, the district judge
is obligated to hold a probable cause hearing. Whoever files the
affidavit of criminal complaint may support the complaint with
personal testimony, documentary evidence, and witnesses, even if
hostile. They simply have to be subpoenaed, and some documents might
have to be secured by subpoena duces tecum.
The second sentence of § 7804(b) is
just as important: "For purposes of any action to recover any such
tax, penalty, or sum, all statutes, rules, and regulations referring
to the collector of internal revenue, the principal officer for the
internal revenue district, or the Secretary, shall be deemed to
refer to the officer whose act or acts referred to in the preceding
sentence gave rise to such action."
It's a somewhat jaded notion that
dates to the time North American colonies settled by English people
were still British subjects, but the idea that the sovereign could
not commit a crime against his subjects is preserved in our judicial
lineage. When the People of the United States delegated powers to
the United States via the Constitution, United States Government
became a sovereign of sorts. The government, being a legal fiction,
cannot transgress rights of the people. Therefore, the government,
which cannot act of its own accord, cannot be sued except by
consent. Congress has enacted consent statutes for certain
situations, but where the Internal Revenue Code is concerned,
Congress has specified that litigation for civil remedies must issue
against the actual perpetrator, being the revenue officer or whoever
else was involved in an erroneous or illegal assessment or
collection action.
However, consider this: If a complaint
against the erroneous or illegal assessment or collection action is
filed with the district director, and subsequently with the
Commissioner of Internal Revenue, either or both are obligated first
to correct erroneous or illegal assessment or collection actions,
and if the actions were illegal, to file appropriate complaints.. Of
course, a cover letter might stipulate that the injured party will
file an enclosed affidavit of criminal complaint with the
stipulation that the district director, Commissioner of Internal
Revenue, or whatever other officer is implicated will be a witness
to facts and law set out in the complaint. Approached properly,
superior officers become witnesses in support of criminal
prosecution, or they become accessories after the fact who might be
prosecuted for misprision of felony, or where the Internal Revenue
Service and other Federal agencies are de facto agents of a
government foreign to the United States, misprision of treason. And
there might be an excellent case for conspiracy to defraud the
lawful government of the United States.
Finally, the last sentence has
considerable merit: "The venue of any such action shall be the same
as under existing law."
IRS and BATF are agencies of the
Department of the Treasury, Puerto Rico, with jurisdiction in the
District of Columbia and insular possessions of the United States.
They have no lawful authority in the Union of several States.
Therefore, if IRS officers and agents execute illegal assessments
and collections in one of the several States party to the
Constitution, venue is determined by the location of the criminal
enterprise. It's my opinion that the injured party has a choice
between prosecution under law of his home asylum State or Federal
law. However, civil and criminal remedies must be prosecuted in the
same forum, whether State or Federal.
In his analysis of the required
levy-seizure process, Mr. Schlabach cites several decisions
researchers will want to pursue: Brewer v. U.S., 764 F. Supp. 309,
315 (S.D.N.Y. 1991); Arfor v. United States, 934 F.2 229 (9th Cir.
1991); Freeman v. Meyer, 152 F. Supp. 383, Affd 253 F.2d 1295 (3rd
Circuit 1968); United States v. O'Dell, 160 F. 2d 304, 307 (6th Cir.
1947); Goodwin v. United States, 935 F.2d 1061 (9th Cir. 1991);
Kulway v. United States, 917 F.2d 729, 735 (2nd Cir. 1990). O'Dell
and Kulway decisions are relied on most.
_________________________
Underlying Compromise of the U.S.
Marshal
One of the cruelest hoaxes ever has
been perpetrated against what are generally capable, loyal Americans
now employed in capacities that used to exercise legitimate law
enforcement authority of United States Government, United States
marshals and their deputies. The position of United States Marshal
was created in 1789; the U.S. marshal and his deputies had the same
powers in the several States as the State or county sheriff, as
applicable, when and if there was legitimate United States
jurisdiction. However, the United States Marshal, as an independent
office, was abolished, with the successor merged into the Department
of Justice under direction of the Attorney General, by Public Law
89-554, § 4(c), Sept. 6, 1966, 80 Stat. 619. This 1966 act was
amended by Pub.L. 95-530, § 2, Oct. 27, 1978, 92 Stat. 2028, which
related to appointment, term, and residence of United States
Marshals, the 1978 act repealed by Pub.L. 100-690, Title VII, §
7608(a)(1), Nov. 18, 1988, 102 Stat. 4512. Pub. L. 100-690 governs
most activity of what is now the United States Marshals Service in
the Department of Justice. The United States Marshals Service,
except within the narrow range of authority vested in the Department
of Justice and/or the Attorney General, no longer has authority
under laws of the United States as they might apply to the Union of
several States in the framework of Congress' general legislative
authority delegated primarily in Article I § 8 of the Constitution.
Sections of the United States Code which reflect authority of the
U.S. Marshals Service are at 28 U.S.C. §§ 561-569. Space will be
dedicated to analysis of these sections, as applicable in the
framework of this effort, because the office of United States
Marshal was the original civil enforcement authority of the United
States, where today the United States Marshals Service has
considerably different character and jurisdiction.
Basic authority, and chain of command,
for the United States Marshals Service is at 28 U.S.C. § 561,
reproduced in relative part below:
§ 561. United States Marshals
Service
(a) There is hereby established a
United States Marshals Service as a bureau within the Department
of Justice under the authority and direction of the Attorney
General. There shall be at the head of the United States Marshals
Service (hereafter in this chapter referred to as the "Service") a
Director who shall be appointed by the President, by and with the
advice and consent of the Senate.
(b) The Director of the United
States Marshals Service (hereafter in this chapter referred to as
the "Director") shall, in addition to the powers and duties set
forth in this chapter, exercise such other functions as may be
delegated by the Attorney General.
(c) The President shall appoint, by
and with the advice and consent of the Senate, a United States
marshal for each judicial district of the United States and for
the Superior Court of the District of Columbia, except that any
marshal appointed for the Northern Mariana Islands may at the same
time serve as marshal of another judicial district. Each United
States marshal shall be an official of the Service and shall serve
under the direction of the Director.
[(d) & (f) not
reproduced]
(g) The director shall supervise and
direct the United States Marshals Service in the performance of
its duties.
[(h) & (i) not
reproduced]
The old authority of the United States
marshal appears to be conveyed to the United States marshals at 28
U.S.C. § 564, but this is an illusion that is dispelled by
examination of underlying authorities:
§ 564. Powers as sheriff
United States marshals, deputy
marshals and such other officials of the Service as may be
designated by the Director, in executing the laws of the United
States within a State, may exercise the same powers which a
sheriff of the State may exercise in executing the laws
thereof.
The term "State" in § 564 is
all-important as the reference is to insular possessions of the
United States, not to the Union of several States. This conclusion
will be demonstrated in due course.
The first check on authority is to
consult the Parallel Table of Authorities and Rules, which begins on
page 721 of the Index volume of the Code of Federal Regulations,
1996 edition. If there were implementing regulations for 28 U.S.C.
§§ 561-569, they would be on page 768. However, these sections of
the United States Code are not listed, so there are no applicable
delegations of authority or implementing regulations for any of the
sections. However, there are regulations applicable under two of the
three Public Laws listed above, the first being Pub. L. 89-544
(1966): On page 818 of the 1996 CFR Index volume, it is found that
sections of the 1966 law not repealed by subsequent acts are under
the implementing regulation at 32 CFR § 716.
By referencing the List of CFR Titles,
Chapters, Subchapters, and Parts, beginning on page 831 of the 1996
Index, it is found that Title 32 of the Code of Federal Regulations
pertains to National Defense, and § 716 is in Chapter VI --
Department of the Navy (Parts 700-799); § 716 is in Subchapter C --
Personnel, and § 716 specifies a "Death gratuity."
Here we can demonstrate how the Code
is convoluted as authority of the Attorney General, and the Federal
Bureau of Investigation, is also under Pub. L. 89-544, found at 28
U.S.C. § 535, part of which is reproduced elsewhere in this
discourse. It is reproduced in its entirety below:
§ 535. Investigation of crimes
involving Government officers and employees;
limitations.
(a) The Attorney General and the
Federal Bureau of Investigation may investigate any violation of
title 18 involving Government officers and employees
--
(1) notwithstanding any other
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