DEFINITIONS: Federal Supremacy/Preemption
EDITORIAL: The power to write regulations federally originates in 5 U.S.C. §301, which limits the authority to regulate to heads of departments:
5 U.S. Code §301 – Departmental regulations
The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.
All regulations published federally originate in the above authority, which limits that authority to:
- Conduct of its employees.
- The custody, use, and preservation of its records, papers, and property.
NOTE that this delegation of authority to department heads does not authorize the regulation of:
- People or property OUTSIDE the department.
- People or property in OTHER departments or branches of government.
- Private property that is absolutely owned and constitutionally protected.
Any violation of the above would be what the U.S. Supreme Court calls a “regulatory taking” in violation of the Fifth Amendment. So you must be in custody of PUBLIC PROPERTY belonging to the department before they can regulate your conduct. That property includes all civil statutory statuses legislatively created and therefore OWNED by Congress to whom a department head has delegated authority to manage, such as CIVIL STATUTORY “persons”, “individuals”, “taxpayers”, etc.
Ordinarily, implementing regulations are NOT REQUIRED if the parties regulated are ONLY within the government. This is reflected in the following authorities, which permit regulation by STATUTES alone extraterritorially and within the borders of states:
- A military or foreign affairs function of the United States. 5 U.S.C. §553(a)(1). This includes:
1.1 Making or executing war. This is the Department of Defense (DOD), Title 50 of the U.S. Code, and the Uniform Code of Military Justice (U.C.M.J.), 10 U.S.C. Chapter 47.
1.2 Regulating aliens within the country. The presence test at 26 U.S.C. §7701(b) implements the tax aspect of this.
1.3 Protecting VOLUNTARY CIVIL citizens**+D (not POLITICAL citizens*) abroad. This is done through passports, 26 U.S.C. §911 which pays for the protection, the Department of State (DOS), and the military.
1.4 International commerce with foreign nations. This is done through the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. Chapter 97, U.S.C.I.S., Department of Homeland Security (DHS), and the foreign affairs supervision of the federal courts.
1.5 Economic sanctions on foreign countries and political rulers imposed by the Department of the Treasury. - A matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. 5 U.S.C. §553(a)(2). Note that:
2.1. ” Taxes” do NOT fall in the category of “public property, loans, grants, or benefits” , but the U.S. supreme court identified them as a “quasi-contract” in Milwaukee v. White, 296 U.S. 268 (1935).
2.2. In the case of “agency management or personnel”, they are talking about public officers serving within the national government as EXPRESSLY GEOGRAPHICALLY authorized by 4 U.S.C. §72 and NOT elsewhere. We’ll give you a HINT, there IS no “express legislative authorization” for “taxpayer” offices to be exercised outside the District of Columbia as required, so all those serving in such an office extraterritorially are DE FACTO officers (Form #05.043). The income tax is an excise tax upon the “trade or business” franchise, which is defined in in 26 U.S.C. §7701(a)(26) as “the functions of a public office”, but those offices may not lawfully be exercised outside the District of Columbia. That is why the statutory geographical “United States” defined in 26 U.S.C. §7701(a)(9) and (a)(10) is defined as the District of Columbia and NOWHERE expressly extended outside the District of Columbia or the Federal statutory “State” defined in 4 U.S.C. §110(d).
2.3. Civil statutory statuses such as “taxpayer”, “citizen”, “resident”, and “person” AND the PUBLIC RIGHTS and privileges that attach to them are PROPERTY legislatively created and therefore owned by the national government. Those claiming these statuses are in receipt, custody, or “benefit” of federal privileges no matter where they physically are, and thus are subject to Congress power to “make all needful rules respecting the Territory and other property” granted by Article 4, Section 3, Clause 2 of the Constitution. - Federal agencies or persons in their capacity as officers, agents, or employees thereof. 44 U.S.C. §1505(a)(1).
More on the above authorities is found in:
Challenging Jurisdiction Workbook, Form #09.082
https://sedm.org/Forms/09-Procs/ChalJurWorkbook.pdf
Lastly, if no PUBLIC property is involved, even Congress can’t regulate or tax it with statutes. There is therefore a PRESUMPTION by default that whatever Congress DOES enact CIVIL laws to regulate or control, that:
- The property regulated is PUBLIC property and never PRIVATE property.
- Every CIVIL enforcement action of any statute places the burden of proof on the government that they have some degree of ownership over as the origin of their power to regulate or tax.
- You have to CONVERT your PRIVATE property to the PUBLIC before it can be regulated, by such mechanisms as “effectively connecting” it.
This is a third rail issue, which is why NONE of that authorities listed on this page deal DIRECTLY with OWNERSHIP of public property as the origin of the authority to regulation. This subject, in fact, is the Achilles Heel of the Administrate State as documented in:
- The Achilles Heel of the Administrative State, SEDM
https://sedm.org/the-achilles-heel-of-the-administrative-state/ - Administrative State: Tactics and Defenses Course, Form #12.041
https://sedm.org/LibertyU/AdminState.pdf
Federal Preemption: A Legal Primer, Congressional Research Service
Charles W. Tyler & Heather K. Gerken, The Myth of the Laboratories of Democracy, 122 Colum. L. Rev. 2187, 2230 (2022) (“[W]herever [preemption] exists, federal law displaces state law, thereby ‘stifling state-by-state diversity and experimentation’ . . . .”);
Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 Wm. & Mary L. Rev. 1733, 1850 (2004) (“Preemption doctrine . . . goes to whether state governments actually have the opportunity to provide beneficial regulation for their citizens; there can be no experimentation or policy diversity, and little point to citizen participation, if such opportunities are supplanted by federal policy.”).
Robert R.M. Verchick & Nina Mendelson, Preemption and Theories of Federalism, in Preemption Choice: The Theory, Law, and Reality of Federalism’s Core Question 13, 17 (William W. Buzbee ed., 2009) (“Citizens are often presumed to be able to participate more directly in policy making at the state level. Greater state autonomy to regulate will mean more opportunities for citizens to participate in governance and seek responsive government.”);
Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. Rev. 1, 4 (2007) (“Federalism’s value, if there is any, lies in the often competitive interaction between the levels of government. In particular, a presumption against federal preemption of state law makes sense not because states are necessarily good regulators of conduct within their borders, but rather because state regulation makes Congress a more honest and democratically accountable regulator of conduct throughout the nation.”).
Federal Preemption of State and Local Law, American Bar Association
The Supremacy Clause and the Doctrine of Preemption, Findlaw
ArtVI.C2.3.4 Current Doctrine on the Supremacy Clause, LII