March 30, 2023

Taxation without representation? Sure looks like it to me.

A discussion of the unlimited power of the Administrative State in light of law of thoughts and research presented by professor Phillip Hamburger’s book “Is Administrative Law Unlawful?”.

While considering the thoughts and opinion expressed in the link above, think about the following.

The prohibition against taxation without representation began with this country’s founding. This prohibition is the reason that local boards, be they hospital districts, groundwater districts, municipal utility districts, city councils, county commissioners courts or other subdivision created by state government, are elected. The elected members of those local governments, because they are elected, represent us as they tax us.

Now consider Texas Water Code sec. 36.303 which purports to authorize an appointed state level board, the Texas Natural Resource Conservation Commission, to remove the members of a local groundwater district and call a new election to replace the board.

Sec. 36.303. ACTION BY COMMISSION. (a) If Section 36.108, 36.301, or 36.302(f) applies, the commission, after notice and hearing in accordance with Chapter 2001, Government Code, shall take action the commission considers appropriate, including:
(1) issuing an order requiring the district to take certain actions or to refrain from taking certain actions;
(2) dissolving the board in accordance with Sections 36.305 and 36.307 and calling an election for the purpose of electing a new board;
(3) requesting the attorney general to bring suit for the appointment of a receiver to collect the assets and carry on the business of the groundwater conservation district; or
(4) dissolving the district in accordance with Sections 36.304, 36.305, and 36.308.
(b) In addition to actions identified under Subsection (a), the commission may recommend to the legislature, based upon the report required by Section 35.018, actions the commission deems necessary to accomplish comprehensive management in the district.

Added by Acts 1997, 75th Leg., ch. 1010, Sec. 4.36, eff. Sept. 1, 1997. Amended by Acts 2001, 77th Leg., ch. 966, Sec. 2.56, eff. Sept. 1, 2001.

Note that Chapter 2001, Government Code, mentioned above, is the Administrative Procedure Act.

In other words, 36.303 claims it can, again by administrative procedure, centrally control the local district, and if the local district resists, “dissolve” the board.

In other words, a board that was elected by the voters to represent the voters that it taxes can be “dissolved” if the board does not represent the Texas Natural Resources Commission, an appointed board that pays no taxes and is not accountable to the voters who are taxed in the district.

And where does the issue get litigated? In the kangaroo court system according to Chapter 2001, Government Code, set up by the Administrative State in Austin, Travis County, Texas that likes to tell the Administrative Law Judges that the Constitution limits nothing in the administrative system.

Taxation without representation is not legal by any stretch of the imagination. So, who would have ever thought that the Administrative State would have gone this far? To keep it from violating other Constitutional limitations must we proactively sue in local district court to enjoin the Administrative State from violating a list of remaining Constitutional limitations? Does the Constitution mean nothing without such judicial action? If the Administrative State has no limits, how many more of our federally protected civil human rights can it eliminate? It appears that the current state of administrative law says that the Administrative State can assume control of any property, private or otherwise, wheresoever located in the state, whenever the Administrative State gets around to centrally controlling the whole Texas economy the way Karl Marx and others of his ilk such as Stalin and Hitler envisioned it.

And it seems to me that the whole mess violates Jones v. Ross 173 S.W.2d 1022, 1024 (Tex. 1943) holding that “It is fundamental that the Constitution is the paramount law of the state and cannot be altered by legislative amendments.” I also add that our Constitution cannot be altered by long-ago discredited notions of economic central control that work no where in the world except to create subhuman misery and enslavement.

Livy writes from a bunkhouse on the southern high plains of Texas.