Thanks to information I recently got from freeper Ben Fiklin in a related thread, I had done some scratching and discovered the following. In the early 20th century and with the help of activist justices, Congress had evidently used its power to negotiate treaties to usurp 10th Amendment-protected state power to regulate water rights imo.
More specifically, although I'm happy that Native Americans were insured a supply of water for agricultural purposes, as evidenced by the Supreme Court's decision in Winters v. United States activist justices had given Congress the green light to Congress to regulate intrastate water rights, such federal legislative powers wrongly interpolated from Congress's power to negotiate treaties imo.
More specifically, activist justices had argued that the Supremacy Clause, Section 2 of Article VII, in conjunction with Congress's power to negotiate treaties, trumped 10th Amendment-protected states power to regulate water. In fact, the justice who had argued that treaties trump the 10th Amendment, Oliver Wendell Holmes Jr., is one of main justices credited for fostering the idea of the "living Constitution."
However, regarding such a perspective on the scope of Congress's power to negotiate treaties, and as similarly noted with respect to controversial United Nations issues, please consider the following. Thomas Jefferson, based on his experience as Vice President and President of the Senate, had officially clarified that Congress cannot use its power to negotiate treaties as a back door to establish new powers for itself, powers not based on the limited powers which the states have delegated to Congress via the Constitution.
“In giving to the President and Senate a power to make treaties, the Constitution meant only to authorize them to carry into effect, by way of treaty, any powers they might constitutionally exercise.” —Thomas Jefferson: The Anas, 1793.“Surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way.” —Thomas Jefferson: Parliamentary Manual, 1812.
Also note that the Supreme Court had later reflected on Jefferson's words, clarifing that Congress cannot use it's power to negotiate treaties as a backdoor way to expand its constitutionally-limited powers.
"2. Insofar as Art. 2(11) of the Uniform Code of Military Justice provides for the military trial of civilian dependents accompanying the armed forces in foreign countries, it cannot be sustained as legislation which is "necessary and proper" to carry out obligations of the United States under international agreements made with those countries, since no agreement with a foreign nation can confer on Congress or any other branch of the Government power which is free from the restraints of the Constitution (emphasis added)." --Reid v. Covert, 1956.
So while patriots have recently been concerned about "closing the barn door so the horses can't escape," stopping corrupt Congress from using its power to negotiate treates to limit constitutional rights with the help of the UN, little did we know that one horse had already escaped from the barn in the early 20th century, compliments of activist justices.
Also regarding the EPA, note that the Founding States had made the first numbered clauses in the Constitution, Sections 1-3 of Article I, evidently a good place to hide them from Congress, to clarify that all federal legislative powers are vested in the elected members of Congress, not in the executive or judicial branches or in non-elected government bureaucrates. So Congress has a constitutional monopoly on federal legislative / regulatory powers whether it wants it or not imo. So not only has Congress wrongly delegated legislative powers to non-elected bureaucrats in blatant defiance of the previous mentioned clauses, but Congress has delegated powers that the states have never granted to Congress via the Constitution, regulating water rights in this example.
Are we having fun yet?
Well said, good post.
Are we having fun yet?
You bet!