Saturday, April 19, 2014

The Fourth Branch Amendment ...

Mark Levin has advanced the proposal that a convention of the States (as contemplated by Article V of the U.S. Constitution) is now required to return the Federal government to its legitimate functions as set forth in the Constitution.  While various States and private groups have made fragmented attempts at this project over many decades, Levin's brief but deeply researched The Liberty Amendments has added the energy of a complete rationale for the process and spurred organizing efforts in numerous State Legislatures.  In addition to making the argument for the Article V process, Levin proposed a eleven specific amendments he hopes would have the cumulative effect of restoring the Federal Government to the place defined for it in the founding and constitutive documents that legitimize all of the Federal Government's actions.  

Personally, I have no problem with any or all of the proposals advanced by Mr. Levin.  I would, however, add one more to directly address the problem of the runaway administrative state that not only increasingly eludes the control of the executive, legislative and judicial branches, but in many ways drives the policy agenda.

I would propose the 

Fourth Branch Amendment:

Section 1.  Each State Legislature shall appoint an Administration Judge to act for that State and its people as set forth herein, with the first term to begin in the year immediately following ratification of this Amendment.  If the State Legislature fails to make the appointment by the first day of January of the first year of the term, the Governor of the State shall have the power to make the appointment for that State.  Each Administration Judge appointed shall be a citizen of the United States and have attained an age of at least fifty years by the beginning of his or her term.

On the first Wednesday after the first Wednesday in January at the beginning of each term, the Administration Judges appointed by the States shall convene The Council of Judges, which will convene annually thereafter.   The Council of Judges shall elect by a plurality vote two Administration Judges who are not at that time appointed Administration Judges, each to a term with specific jurisdiction.  One Elected Administration Judge shall  have jurisdiction to exercise the Powers set forth herein over the Federal District of Columbia and the other Elected Administration Judge will have jurisdiction over the territories and Indian Nations of the United States.  

Section 2.  The Treasury of the United States shall deposit a sum of money equal to one-twentieth of one percent of all revenues from all sources collected by the Government of the United States in the previous fiscal year, excluding borrowings on the credit of the United States, equally allocated in Special Accounts on the first Tuesday after the first day in January of each year with the respective account to be solely controlled by each Administration Judge to fund the activities of the Office.  Each Administration Judge shall publish for the public a complete accounting of all expenditures at the end of each year of the term naming each entity paid and the purpose of each payment.  Any unused funds in the Special Account shall be returned to the Treasury of the United States on the date the account is funded for the next year.  

Section 3.  The term and compensation of each Administration Judge shall be governed as follows:

The term of the each appointed Administration Judge shall commence on the first day of January for the year of the appointment and shall run for four consecutive years.  The term of each Elected Administration Judge shall commence on the day of election and shall run to the end of the term of the appointed Administration Judges.

Any person appointed or elected Administration Judge may only be appointed to serve a single term in that office for the State.

Each Administration Judge shall be compensated from the Special Account at the level established by the Congress of the United States for the President of the United States.

Each State Legislature may remove and replace for the remainder of the current term the Administration Judge appointed by that State Legislature or that State's Governor for acts that constitute a breach of duty as set forth herein and reappoint a successor to fulfill the remainder of the term.  An Administration Judge shall be in breach of duty for embezzlement of funds, failure to publish an accurate accounting of the expenditures of the office, conflicts of interest that compromise the functions of the Office or failure to exercise the functions of the office with due care.

The Elected Administration Judges may be removed and replaced by a sixty percent vote of the State appointed Administration Judges at the annual meeting of the Council of Judges.

Section 4.  Powers exercised by the Administration Judge are:

Subject to the funds available in the Special Account, each Administration Judge may hire and compensate such personnel as in his or her sole discretion deems necessary to perform the functions set forth in this Article.  Such employees shall serve at the pleasure of the Administration Judge that engages them.

Any Administration Judge has the discretionary power to transfer funds from his or her Special Account to the Special Account of another Administration Judge in another jurisdiction.  

All direct employees, contractors or other persons receiving compensation or remuneration in exchange for for goods or services from appropriations of Congress or any other sources or proceeds of borrowings received by the United States, other than those employees of the United States elected by the people, electors or the Legislatures of the States, are Subject Persons to the oversight and lawful decisions of the appointed Administration Judge in the State in which they reside.  No Administration Judge may discuss the conduct of the duties of the Office with any elected employee of the United States except in an open public hearing initiated by the Administration Judge.  No elected employee of the Untied States may approach or initiate communication with an Administration Judge while serving in an elected office for the United States.  Any elected employee of the United States judged by the Council of Judges to be guilty of violating this restriction shall become a Subject Person under the jurisdiction of the Administration Judge where he or she resides.

Each Administration Judge shall have the power to conduct investigations of all Subject Persons with an independent power to subpoena information in any form from Subject Persons to support such investigations by the Office without recourse to the courts as established by Congress or this Constitution.  Any Subject Person failing to comply with a subpoena issued by the Administration Judge may be removed from office and banned from receiving any compensation from the United States from any source at the sole discretion of the Administration Judge.

Each Administration Judge may receive information about the conduct of a Subject Person from any citizen of the Untied States and at the Administration Judge's discretion, initiate inquiries based upon that information.

If an Administration Judge makes a finding that any Subject Person has abused his or her office or exceeded his or her authority in a way that violates or abridges the personal or property rights of any citizen of the United States as defined in this Constitution,  an Administration Judge may ban that Subject Person from receiving any compensation from the United States from any source, and declare such Subject Person ineligible from employment by the United States for any time period up to the end of his or her natural or legal life.  Upon making a finding that results in any penalty, The Administration Judge shall make available a public record of all of the evidence and determinations used to render the finding.

Section 5.  Any Subject Person declared ineligible for employment or compensation from the United States may appeal such a decision to the Council of Judges.  A finding by any Administration Judge may be reversed and eligibility for employment and compensation by the United States restored by a vote of sixty percent of the members of the Council of Judges.  No decision by an Administration Judge or the Council of Judges may be reviewed by any court of the United States or any State thereof, nor be subject to interference by the Congress or the President.  

I welcome any comments or suggested refinements or modifications to the proposed Fourth Branch Amendment.


  1. So the Administrative Judges oversee the bureaucracy that survives and operates outside of the election cycles. I like that.

  2. Just the existence of Administrative Judges would curtail corruption