Our legislative authority is being usurped

By Senator David Howard

President Abraham Lincoln once said, "America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves." The question is are we destroying ourselves? To answer we need to ask, has our form of government changed? Some would say we’re a democracy based on the majority vote. I say correctly we’re supposed to be a Constitutional Republic based on the rule of law. But today, both are inaccurate.

The truth is we are destroying ourselves, our Republic and our country, and to a lesser degree the state of Montana. Why because America is being operated as a regulatory state—ruled by mandarins in the executive branch and their close allies in the judicial branch. The legislative branch, the people’s direct link to control government to write all laws and set policy is becoming less significant by the day.

Herein lies the root of many of America’s problems. The regulatory state has become supreme. Nationally, we are ruled not by elected officials, but by unaccountable bureaucrats and judges. We’ve lost our ability to “vote the fish-turds out” because many of those who rule us today never stand for election.

President Biden has imposed radical changes on our country in his first few months and has done this almost entirely through executive edict. This is what our country has become—a government dominated by the temporary dictates of a President with little regard for the legislative body, the true representatives of the people.

In Montana this problem manifests most profoundly in our courts where legislative authority has been usurped at an increasing pace by judges. The examples are legion of our judiciary overstepping their authority to make new law. Montana law specifically instructs judges “simply to ascertain and declare what is in terms or in substance (of the law), not to insert what has been omitted or to omit what has been inserted.” When Judges legislate from the bench they violate six clauses of the Constitution of the State of Montana (namely, The Legislative Power Clause, The Popular Sovereignty Clause, The Self-Government Clause, The Judicial Power Clause, The Separation of Powers Clause, and the Oath of Office Clause), and they also violate five laws of the State of Montana.

The problem is accountability. We do elect our judges in Montana, but they can get away with judicial activism because most cases are so low profile as to never catch the attention of voters. A judge who rewrites the law will trigger outrage from the handful of people who are a party to a specific case, but will be ignored by the vast majority of the public and the press. These usurpations add up over time and have a profound cumulative effect as the judiciary slowly takes the place of your representative government and impose law by judicial fiat.

Believe it or not today in Montana judges cannot be impeached or removed from office for engaging in judicial activism. I’ve brought legislation to change this, and enable your legislature to impeach activist judges who violate the supreme law of Montana.

I believe this will reestablish the accountability missing today that has led some judges to brazenly impose their own political agenda in place of the laws enacted by your duly elected legislators.

I’m not sure how long our country can last as a regulatory state. The frustration all of us feel toward our government is at an all-time high. The answer is for your legislature to make structural changes that re-establish the important link between the people and their “Republic for which We Stand.”

David Howard, from Park City, represents Senate District 29. He is the chairman of the Senate Public Health Committee.