MEMO
TO: All Interested Parties
FROM: John E. Trumane
Account for Better Citizenship
DATE: January 21, 1993
SUBJECT: Mr. Lloyd Bentsen
former U.S. Senator
As you read the attached materials, please keep in mind the
following crucial provision of the Internal Revenue Code (i.e.,
Title 26, United States Code):
Section 7401. AUTHORIZATION.
No civil action for the collection or recovery of taxes, or
of any fine, penalty, or forfeiture, shall be commenced
unless the Secretary authorizes or sanctions the proceedings
and the Attorney General or his delegate directs that the
action be commenced.
[26 USC 7401, emphasis added]
Initially, I interpreted this to mean that the Secretary of the
Treasury could not delegate an authorization required by Section
7401. I subsequently discovered that this was incorrect,
however. The correct interpretation of this section depends
entirely upon the IRC definition of "Secretary":
(11) Secretary of the Treasury and Secretary. --
(A) Secretary of the Treasury. -- The term "Secretary
of the Treasury" means the Secretary of the
Treasury, personally, and shall not include any
delegate of his.
(B) Secretary. -- The term "Secretary" means the
Secretary of the Treasury or his delegate.
[26 U.S.C. 7701(a)(11)]
[emphasis added]
Therefore, the term "Secretary" by itself also refers to a
delegate of the Secretary of the Treasury. Further clarification
is provided at the definition of the term "or his delegate":
(12) Delegate. --
(A) In General. -- The term "or his delegate" --
(i) when used with reference to the Secretary of
the Treasury, means any officer, employee, or
agency of the Treasury Department duly
authorized by the Secretary of the Treasury
directly, or indirectly by one or more
redelegations of authority, to perform the
function mentioned or described in the
context; ....
[26 U.S.C. 7701(a)(12)]
[emphasis added]
The latest information available to me is that the Office of the
Federal Register has issued a statement indicating that Treasury
Department Orders 150-10 and 150-37 (regarding taxation) were not
published in the Federal Register. Evidently, there are no
published orders from the Secretary of the Treasury giving the
Commissioner of Internal Revenue the requisite authority to
enforce Title 26, the Internal Revenue Code, within the 50 States
of the Union. Furthermore, under Title 3, Section 103, the
President of the United States, by means of Presidential
Executive Order, has not delegated authority to enforce the
Internal Revenue Code within the 50 States of the Union.
A very good court authority on Section 7401 of the Internal
Revenue Code is United States of America v. One 1972 Cadillac
Coupe De Ville etc., 355 F.Supp. 513 (1973), to wit:
Thus, where the Congress prohibits the commencement of a
civil action unless certain specific acts are performed,
this Court has no jurisdiction over the subject matter until
the requisite conditions are met in fact and such compliance
is shown by the pleadings and, where necessary, established
by proof. ... [B]ut the mere allegation of facts necessary
for jurisdiction without supporting proof is fatally
defective. ... This Court holds that 26 U.S.C. Section 7401
requirements constitute facts essential to jurisdiction.
The failure to prove jurisdictional facts when specifically
denied is fatal to the maintenance of this action.
[ibid., page 515, emphasis added]
Lloyd Bentsen's Salary Increase,
Voted during His Latest Senate Term,
Violates 1:6:2 in the U.S. Constitution
"No Senator or Representative shall, during the Time for
which he was elected, be appointed to any civil Office under
the Authority of the United States which shall have been
created, or the Emoluments whereof shall have been encreased
during such time; ....
[Constitution for the United States of America]
[Article 1, Section 6, Clause 2, emphasis added]
Other relevant laws follow:
Salary levels of senior Government officials.
Act November 30, 1989, P.L. 101-194, Title VII, Section 703, 103
Stat. 1768, provides:
"(a) Salary levels. (1) Executive positions. Effective the
first day of the first applicable pay period that begins on or
after January 1, 1991, the rate of basic pay for positions in the
Executive Schedule shall be increased in the amount of 25 percent
of their respective rates (as last in effect before the
increase), rounded to the nearest multiple of $100 (or, if midway
between multiples of $100, to the next higher multiple of $100)."
[5 USC 5318, emphasis added]
The "Secretary of the Treasury" is a Level I position in the
Executive Schedule, per 5 USC 5312. The salary rate is
determined under 2 USC 351 et seq., as adjusted by 5 USC 5318.
As of February 10, 1987, positions at level I received $99,500,
per 2 USC 358 [see statutory history: Presidential Letter of
February 10, 1987, 52 Fed. Reg. 4125]
The above evidence proves that Lloyd Bentsen was, indeed, a
member of the U.S. Senate when the salary levels of senior
government officials were increased 25% on November 30, 1989.
The Secretary of the Treasury is a "Level I" position, per 5 USC
5312. The salary rate with respect to such a level is determined
by 2 USC 351 et seq. and adjusted by 5 USC 5318. Prior to
November 30, 1989, the salary for positions at Level I was
$99,500 per 2 USC 358 [see history, Presidential Letter of
February 10, 1987, 52 Fed. Reg. 4125]. Lloyd Bentsen's latest
senate term began in January of 1989.
D R A F T
Constitutional Research Associates
c/o USPS Post Office Box 550
South Holland, Illinois Republic
January 2, 1993
Senator Lloyd Bentsen, Chairman
Finance Committee
United States Senate
Washington, District of Columbia
Postal Zone 20510
Subject: NOTICE and DEMAND
Dear Senator Bentsen:
This is my lawful NOTICE to you that the Constitution for the
United States of America strictly bars you from occupying the
civil Office of Secretary of the Treasury before the end of your
current term as U.S. Senator. Specifically, Article 1, Section
6, Clause 2 reads as follows:
No Senator or Representative shall, during the Time for
which he was elected, be appointed to any civil Office under
the Authority of the United States which shall have been
created, or the Emoluments whereof shall have been encreased
during such time; and no Person holding any Office under
the United States, shall be a Member of either House during
his Continuance of Office.
[Constitution for the United States of America]
[Article 1, Section 6, Clause 2]
During a recent telephone conversation with staff in his
Washington office, I learned that your colleague, Senator John
Glenn, proposes to cure this problem by introducing a Senate
Resolution during the next Congress. Senator Bentsen, as one who
is sworn to uphold and defend the Constitution, you should know
by now that Congress has no power whatsoever to alter or
otherwise circumvent the Constitution for the United States of
America. The Supreme Court has left absolutely no doubt about
the limits of your power in this matter:
Congress ... cannot by legislation alter the Constitution,
from which alone it derives its power to legislate, and
within whose limitations alone that power can be lawfully
exercised.
[Eisner v. Macomber, 252 U.S. 189]
Moreover, the historical record entirely supports my claim that
you are presently barred from exercising any of the authorities
which are bestowed upon the Office of Secretary of the Treasury.
For example, in the year 1889, Congress increased the emoluments
for the civil Office of U.S. Minister to Mexico. This made it
impossible for a mid-term Senator to occupy that Office:
After a senator's term began Congress increased (1889) the
emoluments of our Minister to Mexico. Before the expiration
of his senatorial term the President appointed him Minister
to that country. The Attorney-General ruled that under this
provision he was not eligible.
[source: The Constitution of the United States:]
[Its Sources and Its Application, by Thomas J. Norton]
[Boston; Little, Brown, and Co., 1925, pages 32-33]
More recently, Senator Robert Byrd opposed Senate action in 1973
which was intended to circumvent this very same restriction. The
Senate voted against him, in clear violation of the Constitution,
thus rendering the results of that vote null and void ab initio.
For further details about this recent history, contact Senator
Byrd directly.
DEMAND
Therefore, Senator Bentsen, this is my lawful DEMAND that you
obey the Constitution and that you obey your solemn oath to
uphold and defend the Constitution. I hereby DEMAND that you
refrain from any attempts to occupy the civil Office of Secretary
of the Treasury at any time before the expiration of your current
Senate term. I hereby DEMAND that you refrain from any and all
acts done under color of Law in that capacity.
NOTICE OF PERSONAL LIABILITY
Any attempts by you to exercise the authorities endowed upon the
civil Office of Secretary of the Treasury, in the face of
contrary Law, will be noted and can be used as prima facie
evidence of your willingness and deliberate intention to violate
the Constitution, and of your willingness and deliberate
intention to contravene the unalienable rights secured by that
Constitution on behalf of the American people.
As the supreme Law of this Land, the United States Constitution
is a restraint upon the federal government, purposely ordained
and established upon consideration of all the Lawful consequences
which it permits and prohibits, making restraints upon government
the rights of the governed.
You are hereby warned that you can and will be held personally
liable for any and all attempts by you to compel our specific
performance to discharge any and all third-party debts or
obligations incurred by the Congress of the United States, its
agencies, assigns or instrumentalities.
Any and all acts which you commit under color of the authorities
of that civil Office will be null and void ab initio, thereby
removing any and all personal immunities which you might
otherwise enjoy in the Lawful occupation of that Office.
Senator Bentsen, your unlawful attempt to occupy the Office of
Secretary of the Treasury will be viewed as a willful and
malicious attempt to circumvent the clear and unambiguous
constitutional restriction against such an act.
Sir, you will now consider yourself warned.
Sincerely yours,
[not signed]
William J. Benson, Sui Juris
Sovereign Illinois Citizen
all rights reserved without prejudice
copies: The White House
U.S. Attorney General
Senate President Pro Tempore
Speaker, House of Representatives
Joint Chiefs of Staff, Pentagon
WJB/jet
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Benson v. Bentsen