TRUST: An Income Tax Reform Proposal

Introduction

The first personal income tax in the United States was only in place for ten years as a component of the Revenue Act of 1861 which was enacted to pay for debts incurred due to the Civil War. Congress would enact another flat income tax of 2% in the 1894 Wilson-Gorman Tariff Act, however this was struck down the next year in the Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 428 (1895) Supreme Court decision. Finally, a federal income was permanently allowed with the ratification of the 16th Amendment in 1913.[1] This system has become notoriously complex and impossible for individuals who are responsible to pay them to completely understand how the system functions. This is directly antagonistic to the rule of law. In general, the rule of law is defines law as “clear, publicized, stable, and just; are evenly applied; and protect fundamental rights.[2]” This paper proposes a transparent, representative, understandable, and sustainable tax (TRUST) system which would comply with the rule of law.

The Current System

Based on Office of Management and Budget (OMB) Fiscal Year 2016 data, the personal income tax contributed $1.75 trillion (48% of total tax revenue) to the federal government. Payroll taxes (32%) also contributed $841 billion for Social Security, $257 billion for Medicare, and $51 billion for unemployment insurance.  The government also collects corporate income, excise (gas, cigarettes, airline travel, etc), estate, and gift taxes as well as tariffs, Federal Reserve earnings, and other miscellaneous fees.

These funds, along with borrowed funds ($587 billion in 2016[3]), are used to fund federal government agencies and programs. The Center of Budget and Policy Priorities provides a breakdown of spending in fiscal year 2015 which includes the following[4]:

  • Social Security trust funds provide monthly retirement benefits to retirees, spouses and children of retirees, and surviving spouses and children of deceased workers.
  • Social Security Disability provides monthly income for disabled workers and their eligible dependents
  • Medicare, Medicaid, Children’s Health Insurance Health Insurance Program (CHIP), and Affordable Care Act subsidies
  • Defense and international security assistance
  • Safety net programs which includes Supplemental Security Income (SSI), Earned Income Tax Credit and Child Tax Credit, Supplemental Nutritional Assistance Program (SNAP), Section 8 and other low-income housing assistance, and other low-moderate income programs.
  • Interest on national debt which in 2015 was $223 billion or approximately 6% of the budget.
  • Benefits for federal retirees and veterans benefits
  • Transportation infrastructure
  • Education
  • Medical and science research
  • Non-security international
  • All other

TRUST System

The Purpose

Article 1, Section 8 and the Sixteenth Amendment of the Constitution delegate the power to tax to Congress in order to pay the debts and provide for the common defense and general welfare of the United States. The debts (however, not the source of said debts) and the common defense are as obvious as the Constitution gets, the “general welfare” however is all but undefined. The TRUST system is structured to require Congress to pay down debts and maintain them at an ideal economic level and also provide adequate revenue for federal agencies and programs while replacing the majority of current safety net programs. In replacing these programs, we envision a significant decline in federal agency overhead, however we believe agencies still serve both regulatory and clearinghouse roles.

The primary rationale for TRUST, is to alleviate poverty in the United States, return influence to the states, increase individual liberties, and assign responsibility for government spending to individual legislatures. To accomplish the latter, TRUST requires Congress to determine itemized annual revenue required for spending and adjust tax rates based on those requirements. TRUST also requires Congress to vote on any adjustments to the budget including addition or cessation of government programs or in times of war. For example, if a new federal program was introduced or war was declared, Congress would have to vote on a specified income tax increase to pay for the proposal.

To develop a system to alleviate poverty we need to answer the question, what exactly is poverty in the United States? According to the United Nations Educational, Scientific, and Cultural Organization (UNESCO), “in pure economic terms, income poverty is when a family’s income fails to meet a federally established threshold that differs across countries.[5]” In the United States, the Census Bureau defines poverty based on income (of various sources) of less than $12,331 for a person under 65 years old and $11,367 for a person over 65.[6] However, we find simply defining poverty by income is largely inadequate. We agree with UNESCO’s concept that poverty is much broader and includes the ability to work and earn an income, have access to reasonable housing, healthcare, and education, have a voice in local, regional, and national politics, and be able to maintain a cultural identity.5 However, our intention in this paper is to focus on the economic component of poverty.

We will define poverty as an individual’s inability to meet fundamental cost of living needs. The Economic Policy Institute (EPI) includes the following in their cost of living index[7]:

Rent: The EPI family budgets assume a one-person household uses a studio. Rental costs include shelter plus all tenant-paid utilities, excluding telephone service, cable or satellite service, and Internet service

Food: EPI uses the United States Department of Agriculture (USDA) “Low-Cost Plan,” which assumes that almost all food is bought at a grocer and then prepared at home

Transportation: EPI assumes the use of a vehicle may be necessary to get to and from major destinations, such as work, medical appointments, a grocery store, etc. In areas in which public transportation is accessible for traveling to and from major destinations, transportation costs may be overstated.

Child care: [We will not be utilizing this information.]

Health care: Health care expenses have two components: Affordable Care Act (ACA) insurance premiums and out-of-pocket expenditures. Premiums are based on the lowest-cost bronze plan in the rating area, adjusted for family size, age of user, and tobacco surcharge. The health budget may be overestimated and can be reduced by the size of the subsidy. Out-of-pocket expenditures are from the 2012, Medical Expenditure Panel Survey (MPES).

Taxes: Similar to the tax code, the tax calculation is the most complicated component. EPI utilized the National Bureau of Economic Research’s Internet TAXSIM Version 9.3 with ATRA to calculate these tax rates. The TAXSIM model accepts 22 input variables, including state, marital status, dependent exemptions, wage income, other incomes, rent paid, child care expenses, and capital gains and losses

Other items of necessity: These items include apparel, entertainment, personal care expenses, household supplies (including furnishings and equipment, household operations, housekeeping supplies, and telephone services), reading materials, school supplies, and other miscellaneous items of necessity.

Sustainable Income Level

The basis of the TRUST system is the Sustainable Income Level (SIL). The SIL is the total annual income, allocated pro-rata monthly, every individual 18 years and older would be entitled to, eventually replacing all forms of social security and all other federal welfare subsides. Utilizing the EPI Family Budget Calculator we developed a proposed Sustainable Income Level (SIL) of $2027 monthly and $24,324 annually. The SIL would be reviewed by Congress annually based on national median cost of living fluctuation.

All individuals 18 years and older who do not work either by choice, disability, or retirement would be eligible to receive the full SIL annually. Individuals who are born with profound disabilities and would never be able to work would be entitled to the full SIL from birth.

For individuals 18 years and older who choose to work, the SIL functions as an income subsidy until the SIL gradually phases out as income rises. Following the SIL phase-out income is tax-free until a specified point in which income becomes subjected to progressive tax rates.

Deductions

To minimize distortions and limit federal manipulations, TRUST only allows for three deductions which all wage earning individuals would be eligible for, health, education, and retirement savings accounts. These accounts would be implemented by the private sector, but regulated by the federal government. Similar to current related deductions, Congress would determine annual contribution and deductible limits. The money contributed to these accounts would be deductible from earned wages, which may bring individuals into tax free wage ranges, however deductions may not qualify an individual for SIL subsidizes.

Health Savings: Each individual would have their own Health Savings Account (HSA) which they may designate as Self, Parent, or Retired. These funds may be used tax free for any health related expenses.

  • Self: Funds may only be utilized for the account owner’s expenses. Current contribution limit is set at $3,400
  • Parent: Funds may be utilized by account owner or their children under-18 only. Current contribution limit is set at $6,750
  • Retired: Funds may only be utilized by the retired account owner. Current contribution limit is set at $1,000 more than standard Self or Parent standards.

Education: Each individual would have their own Education Savings Account (ESA) which they may designate as Self, Parent, or Retired. These funds may be utilized tax free for daycare, K-12 education, post-secondary education, or adult continuing education such as professional, certificate or job training.

  • Self: Funds may be utilized for the account owner’s expenses.
  • Parent: Funds may be utilized by account owner or their children. Contribution limits would be higher than Self and Retired accounts.
  • Retired: Funds may be utilized by account owner or their children. May no longer contribute to account.

Retirement: Each individual would have their own Retirement Savings Account (RSA) which is designated Self or Retired. These funds may be utilized by account owner at retirement. Individuals would be required to utilize these funds in retirement and may not receive SIL until the total RSA value reached a specified level.

  • Self: Funds may be utilized by the account owner. Current deductible contribution limit $5,500 or age 50 and over $6,500.
  • Retired: Funds may be utilized as desired, however retirees may not receive SIL funds until their RSA value is at or below a specified value determined by Congress.

Tax Rates

Creating an understandable tax system is one of the core principles of the TRUST system. In order to maintain simplicity the TRUST system includes all forms of income including earned wages, interest, dividends, capital gains, etc. as income. TRUST also only allows for individual filing, thus removing married and head of household options as well as additional benefits for children. Finally, TRUST utilizes a progressive tax system which allows only three deductions previously described. The actual calculations to determine what tax rates would need to be utilized for this system to be sustainable need to be completed, the below numbers are the current numbers for 2017 taxes and serve only has a model for how the TRUST system would be structured. We hope the TRUST system would allow for a decrease in overall rates and an increase in the number of brackets.

Rate Taxable Income Bracket Tax Owed
SIL $0-24,324  
0% $24,324-$37,499 0
5% $37,499-$49,999 5% of income
10% $49,999-$62,499 2,499 plus 10% of income over 49,999
15% $62,499-$74,999 6,249 plus 15% of income over 74,999

Example:

  1. Rex earns $15,000 annually which averages $1,250 monthly. Rex would receive a SIL subsidy monthly of $777.
  2. Nora earns $30,000 annually and contributes a combined total of $3000 to her ESA and HAS. She is not responsible for any taxes. If she increases her contributions to any of her deductible savings accounts which would bring her income under $24,324 she would not be eligible for SIL subsidy.
  3. Lucy has $65,000 in annual income from various sources and maximizes all of her deductible savings account contributions which lowers her maximum taxable income bracket from 15% to 10%.

Conclusion

This paper serves as an income tax reform proposal and requires significant analysis to determine if the system could realistically function. We acknowledge a system like this would be a profound change and would need to be implemented over time, for instance a cutoff for social security recipients would need to be determined and the Social Security Trust Fund would need to be maintained through payroll taxes until TRUST would be fully implemented. We also acknowledge TRUST would significantly reduce federal employment in most agencies, but would require further support for the IRS in order to monitor income, taxation, and SIL on an ongoing basis. We hope to further the discussion to improve what has become a broken and inefficient system.

[1] Library of Congress provides a summary and reference materials http://www.loc.gov/rr/business/hottopic/irs_history.html

[2] What is the Rule of Law? World Justice Project. http://worldjusticeproject.org/what-rule-law

[3] https://www.cbo.gov/publication/52152

[4] http://www.cbpp.org/research/federal-budget/policy-basics-where-do-our-federal-tax-dollars-go

[5] United Nations Educational, Scientific, and Cultural Organization

http://www.unesco.org/new/en/social-and-human-sciences/themes/international-migration/glossary/poverty/

[6] Census: Poverty Thresholds

http://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html

[7] http://www.epi.org/publication/family-budget-calculator-technical-documentation/

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Virginia and Kentucky Resolutions and Constitutional Interpretation

Not Much of a Judicary Act of 1789

The next significant contribution to the federal judiciary system was the Judiciary Act of 1789. This law was responsible for establishing the federal court system, which included multi-tiered federal courts (District and Supreme Courts) which were to function, somewhat in parallel with the current state court systems. In the debates in the House of Representatives, the primary concern was the federal courts would eventually have full jurisdiction, thus wiping out the local state courts.

The Judiciary Act of 1789 primarily provided guidance on the structure of the federal courts and guidance to their jurisdiction. The only aspect of the law relevant to my purpose was Section 25, which may include on the longest sentences I have ever read in my life. This section granted the Supreme Court appellate jurisdiction of state court cases involving federal or constitutional law, however there was no instruction on how the justices were to inform their decisions, nor was there any provisions for the Court’s power to strike down law.

 

Hamilton’s “Least Dangerous” Branch

The Federalist Papers were the only documentation I was able to locate arguing in favor of the judiciary system as set forth in the Constitution. The primary essay focusing on the judiciary is the Federalist no. 78 written by Alexander Hamilton, which includes the most famous of all Federalist paper quotes…which is where I will begin.

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This argument may have been adequate during the ratification debates, based on how Hamilton and other fellow Federalists may have envisioned the Court, but the evolution of the Court has eviscerated this stance. The Court now has commanding influence (note not control) over both the sword and the purse. The legislature seemingly develops policy and law based on SCOTUS precedent instead of based on their constitutional authority…this is more in line with arguments presented by Brutus (see previous posts).

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two

This has been proven false, especially since the Hughes Court battled the will of the legislature and executive branches diligently.

And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments

Hamilton did have some foresight regarding concern related to SCOTUS adjudicating based on the individuals or party that nominated them. Hamilton expressed the need for an “independent” judiciary throughout his arguments, but I am not sure if he explained what exactly that was to look like. Presidents are now nominating justices based on their opinions on specific case law instead of their knowledge of the law and constitutional interpretation.

Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Hamilton believed the Supreme Court should have the authority to void unconstitutional law, which was a concern of many anti-federalists.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

When I first read this statement, I thought Hamilton was saying the will of the people was more important to judicial decision-making than the legislature’s. But when I read the paragraph again and took the entire document into consideration, he is saying the Courts need to defer to the Constitution, as ratified by the people, over any form of legislation. Hamilton did not have faith in the general public and was a firm believer in a representative democracy with a centralized federal government…there is no way he would have inferred the courts should take the will of the public into consideration over their representatives.

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.

As I just said, Hamilton had limited to no faith in mankind. However, my biggest issue with this statement and the general perspective of Hamilton believing the federal judiciary would be the weakest branch is the caveat the courts “should be bound down by strict rules and precedents.” Although the system is based on the common law and is still guided by precedent…there have never been any strict rules regarding interpretation of the Constitution and Hamilton never provided any, at least that I could find. So my question would be, would Hamilton maintain the same argument if he knew there would be no “strict rules” and “precedent” could be challenged in every case?

Brutus XV & Agrippa XIX: Anti-Federalists and the Judiciary

The national judiciary is addressed in two more essays, Brutus XV and Agrippa XIX. The principle of the Agrippa essay was to provide specific amendments to the Constitution prior to ratification. One of the proposed resolutions was related to the federal judiciary with the intention of drastically restricting jurisdiction.

The judicial department shall be confined to cases in which ambassadors are concerned, to cases depending upon treaties, to offences committed upon the high seas, to the capture of prizes, and to cases I which a foreigner residing in some foreign country shall be a party, and an American state or citizen shall be the other parted, provided no suit shall be brought upon a state note.

In Brutus XV, Brutus expressed concern related to the unprecedented common law system the federal judiciary would implement. He noted although the general common law procedures were based on the system from England, there would be no overseer in the United States government. In England, the courts are able to review constitutional questions, however they did not have the power to deem law unconstitutional, thus overturning law, and their decisions could be modified or overturned by the House of Lords, the Congress would lack this power in the United States.

Brutus also noted the Court in England was “bound by existing laws of the land,” and had no other option than to utilize strict construction of the law. This was one of his most significant concerns, as the United States judiciary would be allowed to use equitable construction and would eventually be able to structure the law as they so determined, undermining the legislative branch.

In my opinion, Brutus had magnificent insight into the future direction of what would eventually become the Supreme Court of the United States. He held a belief the Court was responsible for interpreting law based on strict construction, based on the words and context of the Constitution to determine if a law was constitutional. Laws which are bad and unjust are not necessarily constitutional. He feared each jurist would deem the constitutionality of law based on how they believed the law should be interpreted, and use any means necessary to back their interpretation as legitimate.

Although, the Supreme Court has not completely overpowered the legislative branch, they have undermined both the legislative and executive branches of government on various occasions. I am not yet saying whether or not these acts of the Supreme Court are constitutional legitimate or not, but I am saying Brutus has a clear and legitimate concerns.

In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.

Brutus XI and XII: The Preamble Will Lead to Judicial Overreach

Brutus did address his concerns relating to the judiciary in XI and XII and these articles were incredibly prophetic. Brutus stated the courts would have the power to interpret the constitution as they see fit, which will gradually lead to growth of the powers of the general government to the destruction of the states. He based this judgement on the concept the judiciary would interpret the Constitution based on the “reasoning spirit” of the document instead of the context of the words. This would allow the judiciary to use the Preamble of the Constitution to adjudicate in the manner they desire versus explaining and enforcing laws based on the document’s text. Below are several quotes from the two articles.

Brutus 11: The courts are to give such meaning to the constitution as comports best with the common, and generally received acceptation of the words in which it is expressed, regarding their ordinary and popular use, rather than their grammatical propriety. Where words are dubious they will be explained by the context.

The judicial are not only to decide questions arising upon the meaning of the constitution in law, but also equity. By this they are empowered, to explain the constitution according to the reasoning spirit of it, without being confined to the words or letter.

And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution.

Judges will be interested to extend the powers of the courts, and to construe the constitution as much as possible, in such a way as to favour it, and that they will do it appears probable.

When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? And they are authorized to construe its meaning and are not under any control?

 

Brutus XIIIt is easy to see that in their adjudications they may establish certain principles which being received by the legislature will enlarge the sphere of their power beyond all bounds.

The judgement of the judicial on the constitution, will become the rule to guide the legislature in their construction of their powers. What the principles are which the courts will adopt it is impossible for us to say…it is not difficult to see, that they may, and probably will be very liberal ones.

We have seen that they will be authorized to give the constitution a construction according to its spirit and reason, and not to confine themselves to its letter.

To determine the spirit of the constitution it is of the first importance to attend to the principal ends and designs it has in view. These are expressed in the preamble. The first object “to form a more perfect union,” it is not an union of states or bodies corporate, had this been the case the existence of the state governments might have been secured. In order to accomplish this, legislative, executive, and judicial powers must be given to the general government to the detriment of local and state governments. “To establish justice” Under this the courts will in their decisions extend the power of the government to all cases they possibly can, or otherwise they will be restricted in doing what appears to be the intent of the constitution they should do, to wit, pass laws and provide for the execution of them, for the general distribution of justice between man and man.

Limited Anti-Federalists Concerns to the Federal Judiciary

Similar to the federal convention, the debates on the ratification of the Constitution did not spend much time debating the federal court system. The primary contention of the anti-federalists was the concern the federal court system would basically eliminate state courts. Brutus and the Federal Farmer believed the federal courts would eventually have full jurisdiction thus severely crippling state’s rights. The other major concern expressed was the lack of right to jury trials, but I am focusing on the general responsibilities of the Supreme Court, especially judicial interpretation.

On judicial interpretation specifically, Brutus (XV) did not believe courts should have the authority to deem laws unconstitutional nor were they “vested with power of giving equitable construction to the Constitution.” An equitable construction is a broad construction versus strict construction. Brutus was basing his philosophy on the court system in England, which makes sense since the US was setting up a similar common law system.

I was hoping there would be more discussion regarding the expectations of the Supreme Court, but I guess neither the federalists nor the anti-federalists really had any idea what to expect at this time. Brutus’s addressing the fact the courts in England did not have the authority to interpret the Constitution broadly is interesting, but in context I am not sure what this means. I understand the idea of the Court not having the authority to deem a law unconstitutional, thus making the law void as this was not possible in the English assize courts.

I will be interested to see if either of these issues are addressed by any of the federalist papers or any other the supporting documents.

Original Intent of the Federal Judiciary

And that is all she wrote for constitutional judiciary debate. During the 15th week, William Samuel Johnson suggested the judicial power should include “equity as well as law and moved to insert the words ‘both in law and equity’” which George Read objected, but were included. There was no further judicial discussion during week 15 or 16, and week 17 was the presentation of the final document.

What do the notes on the federal convention mean in my search to answer the dead letter v. living document and reasonable judicial interpretation questions?

The delegates spent significant time on development of an amendment process for the document. As I stated in an earlier post, this leads me to believe the delegates intended the Constitution to be read strictly and narrowly. If the government believed the law was not being interpreted accurately, the amendment process would address the issue. Based on this simplified premise, I tend to think they would view the document as more of a living document which would evolve or time, correcting inefficiencies as they were identified versus a dead letter in which changes were to be restrained.

As far as the purpose of the federal judiciary, Supreme Court, and judicial interpretation, the delegates expected the Court to follow strict construction of the Constitution. They envisioned the Court looking at the literal meaning of the words, considering “what the language they used meant at that time.” This is evidenced by several delegates purposed a Revisionary Council or process in which members of all three branches of government, including representation from the judiciary to enact “good law,” to reduce the need for challenges. This was contested on the premise that judges should not be statesman and should not be directly involved with policy or politics. Other delegates did not believe the Supreme Court even had the authority to overrule law.

One group makes law, one group executes the law, and one group judges the constitutionality. This is in stark contrast to government we have today.

I will now peruse the debates on the Constitution, reviewing the Federalist v. Anti-Federalist discourse to obtain an understanding on the original interpretation of the written Constitution.

Quick Glimpse of a Bill of Rights

At the beginning of the day on August 20, 1787, Charles Pinckney presented a list of proposals for the Committee of Detail, many of which would eventually be included in the Bill of Rights. Mr. Pinckney presented a list of rights, but I present only those directly related to the judiciary

Each branch of the Legislature, as well as the supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions

The Jurisdiction of the Supreme Court shall be extended to all controversies between the U. S. and an individual State, or the U. S. and the Citizens of an individual State

My interpretation of the first proposition would have the Supreme Court providing advisory opinions, which has previously been debated at the convention as Councils of Revision. John Gomis provides good explanations on both what an advisory opinion, is, non-binding explanations of the legal implications of a situation that has not arisen in actual litigation, as well as why the Supreme Court, following the enactment of the Constitution, may not serve such a role.  As I have previously stated, I believe this would have contradicted the separation of powers philosophy and would have increased the politicization of law, more so than having the retrospective analysis which the Constitution enacted.

Following Mr. Pinckney, Gouverneur Morris also submitted a proposition to include a “Council of State,” in the Constitution. The envisioned Council of State would eventually develop into the Executive Cabinet. Although this proposition did not make the cut, there is minimal mention in the final Constitution, he (President) may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices. In Mr. Morris’s suggestion the Chief Justice of the Supreme Court was to be the primary official:

To assist the President in conducting the public affairs there shall be a council of State composed of the following officers-1. The Chief Justice of the Supreme Court, who shall from time to time recommend such alterations of and additions to the laws of the U. S. as may in his opinion, be necessary to the due administration of Justice, and such as may promote useful learning and inculcate sound morality throughout the Union: He shall be President of the Council in the absence of the President

The Cabinet has gradually evolved and grown and become an incredibly powerful component of the executive branch, however without any involvement of the Supreme Court.

Judiciary Debates Heating Up

Midway through Week 13 of the Convention, James Madison introduced his plan to have the Executive and Supreme Court review and revise legislation prior to approval. This process would have been a significant challenge to the separation of the powers, creating an early interbranch practice.

“Every bill which shall have passed the two houses, shall, before it become a law, be severally presented to the President of the United States, and to the judges of the supreme court for the revision of each. If, upon such revision, they shall approve of it, they shall respectively signify their approbation by signing it; but if, upon such revision, it shall appear improper to either, or both, to be passed into a law, it shall be returned, with the objections against it, to that house, in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider the bill: but if, after such reconsideration, two thirds of that house, when either the President, or a majority of the judges shall object, or three fourths, where both shall object, shall agree to pass it, it shall, together with the objections, be sent to the other house, by which it shall likewise be reconsidered; and, if approved by two thirds, or three fourths of the other house, as the case may be, it shall become a law.”

One of the Pinckney’s and Roger Sherman opposed the involvement of Judges directly in the legislative process due to the belief this would lead to involvement “in parties and politics.” Even though this proposal did not pass, since the implementation of the Constitution and the Supreme Court, politics have impacted decision-making. This seems almost irresolvable due to human nature and legal interpretation.

John Mercer of Maryland agreed with the proposal to limit “legislative usurpation and oppression,” believing the Executive and Judicial review would create “well and cautiously made” laws. Of note, Mr. Mercer and John Dickinson did not believe the Supreme Court should have the ability to declare laws unconstitutional.

Again the direct involvement of the Supreme Court, in legislative review, was ruled out.