tommyrp12
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It's a lengthy article so i'll just post the introduction and a few supplemental videos. I am unsure if there will be a solution to all this. Some of the authors suggestions are wishful thinking IMO. But at least it might help to grasp our current situation and the cause of so many gripes on these forums. Enjoy.
From Administrative State to Constitutional Government
From Administrative State to Constitutional Government
Abstract: The administrative state is an assault on constitutional principles—government by consent, the separation of powers, and the rights of individuals—that liberals and conservatives hold dear. The key to reform is that it be grounded in a proper understanding of these principles, not in the hope of immediate short-term gain or narrow self-interest. If we begin from constitutional principles and can communicate those principles and their relevance to the public in a clear manner, the reforms envisioned in this report are not too far from our grasp. It is high time that Americans work together to forge an alternative to the administrative state so that we preserve our constitutional principles for future generations.
Over the past 100 years, our government has been transformed from a limited, constitutional, federal republic to a centralized administrative state that for the most part exists outside the structure of the Constitution and wields nearly unlimited power. This administrative state has been constructed as a result of a massive expansion of the national government’s power.
When the Founders created our Constitution, they entrusted only limited powers to the national government and specifically enumerated those powers in the Constitution itself. A government that only had to carry out a limited number of functions could do so through the institutions and procedures established by the Constitution.
But as the national government expanded and began to focus more and more on every aspect of citizens’ lives, the need for a new kind of government—one focused on regulating the numerous activities of citizens rather than on protecting their individual rights—became apparent. In the United States, this new form of government is the administrative state. In Democracy in America , Alexis de Tocqueville warned that under such a government, citizens would become“nothing more than a herd of timid and industrious animals, of which the government is the shepherd.” [1]
As the modern administrative state has grown and metastasized over the past decades, it has taken many forms, to the point of becoming the primary method of politics and policymaking. The myriad agencies and departments that make up this administrative state operate as a“fourth branch” of government that typically combines the powers of the other three and makes policy with little regard for the rights and views of citizens. In terms of actual policy, most of the action is located in administrative agencies and departments, not in the Congress and the President as is commonly thought. Unelected bureaucrats—not elected representatives—are running the show.
One of the greatest long-term challenges facing the United States is the restoration of limited constitutional government. Central to that objective, and an essential aspect of changing America’s course, is the dismantling of the administrative state that so threatens our self-governing republic. [2]
The Constitution vs. the Administrative State
Central to the idea of American constitutionalism are the concepts of representation, the rule of law, and the separation of powers. The administrative state does damage to all of these principles. A few examples demonstrate how these principles are violated by the administrative state.
We often think that the laws of this country are passed by Congress. Since Members of Congress are elected by the people, we assume that we have therefore indirectly consented to the laws that we must follow. The reality is much different. Most federal law is created by the agencies and departments that make up the national bureaucracy, not by Congress. Congress passes laws delegating its legislative power to these agencies and departments, and they in turn develop the laws with which we must comply.
When Nancy Pelosi famously declared that we would have to pass the Patient Protection and Affordable Care Act (popularly known as“Obamacare”) so that we could find out what is in it, she was not referring to the length of the bill. Rather, she was referring to the fact that most of the laws—such as the infamous Health and Human Services (HHS) requirement that all insurance providers cover contraception, abortifacients, and sterilization—would be made by HHS, not found in the statute that Congress was passing.
Similarly, in March 2011, the Environmental Protection Agency (EPA) announced that the Clean Air Act suddenly allowed it to regulate mercury emissions from coal plants. The EPA announced that the rule would cost $10.9 billion annually over the next 10 years so that older plants could be retrofitted for the new technology. In announcing the rule, the EPA acknowledged that many coal plants would have to be shut down, and several power companies testified that the rule would result in rolling blackouts and unreliable energy supply. [3]
Why is an agency run by unelected officials making such massive decisions affecting the U.S. economy? And why is it doing this under a mandate, created decades ago, that was designed to deal with a completely different problem? This is fundamentally contrary to the idea of republican government and the principle that all laws must be passed by our elected representatives.
The administrative state also undermines the rule of law. Bureaucrats regularly make exemptions to the regulations that they create. By its own recent count in January 2012, HHS has granted over 1,700 waivers from its own regulations under Obamacare. [4] Bureaucrats therefore write the laws and, because they execute them, are also able to exempt politically powerful groups and industries from those same laws. This violates the idea that we are all to be treated equally under the law, rich and poor, powerful and weak alike.
Finally, the administrative state violates the principle of the separation of powers by breaking down the divisions between the constitutional branches of government. Power is transferred from Congress to agencies and departments, which are then influenced by all three branches of government but not directly accountable to any, and the effect of checks and balances is reversed. All of the branches work together to control the unwieldy administrative apparatus that often combines all three powers of government—legislative, executive, and judicial.
The National Labor Relations Board is a perfect example of this combination of powers. In its infamous decision to sue to block airline manufacturer Boeing from moving some of its facilities to South Carolina, which is a“right to work” state, the NLRB acted as lawmaker, investigator, prosecutor, judge, jury, and executioner.
This is clear from the facts of the decision. The machinists union notified the NLRB that Boeing was moving some of its production to South Carolina from Washington State, and this prompted the NLRB’s lawsuit.
In specific cases where an employee alleges that an employer is engaging in“unfair labor practices” (a vague phrase that is defined, of course, by NLRB rules), the employee’s allegation is typically resolved in a hearing before an NLRB administrative law judge. These administrative law judges issue decisions on behalf of the agency. Employers who receive an adverse decision by the NLRB’s administrative law judge can appeal to…the NLRB. [5] The NLRB itself decides several hundred cases per year, and only about 65 of those cases are appealed to an independent“Article III” court. While the circuit courts are called upon to review the NRLB’s orders, the agency boasts on its website that“The majority [of cases]—nearly 80%—are decided in the Board’s favor.” [6]
The NLRB, in short, makes rules governing employer–labor relations, investigates violations of the rules that it issues, decides particular cases involving employers and employees, and enforces the decisions that it orders. This combination of legislative, executive, and judicial power inevitably causes objectionable bureaucratic decisions. When we create institutions that violate our basic constitutional principles, we lay the groundwork for tyrannical decisions. The problem, in other words, is not necessarily the specific people running the NLRB. The agency was set up to act in a dysfunctional manner.
In sum, the administrative state centralizes power in Washington and then consolidates that power in the hands of agencies and departments that violate republican government, the rule of law, and the separation of powers. As a result, citizens find themselves at the mercy of government agencies and departments over which they have no control. With the removal of these controls, bureaucrats often overreach and cause profound damage with little accountability or public awareness.
Bureaucrats Gone Wild
Examples of bureaucrats gone wild abound. For example, the U.S. Fish and Wildlife Service (FWS), in pursuance of the lawmaking powers delegated to it by the Endangered Species Act (ESA), is authorized to list a species as either“threatened” or“endangered.” The agency also designates“critical habitat” for all listed species. Anyone affecting the habitat of a threatened or endangered species in any way is subject to substantial fines and even criminal charges.
Once a species is listed, in other words, FWS bureaucrats assume control over the use of all private property in the area where the threatened species lives. In New Jersey, a 77-year-old woman“was prohibited from building a home on land she had bought for her retirement because the FWS ruled that there was a federally protected plan species‘within five miles of the proposed project site.’” [7]
Under the broad powers delegated to it by the ESA, the FWS has delayed the building of schools and hospitals, dictated to landowners how their land is to be used, and generally prohibited development when any listed species may be affected in any way. For example, after“negotiations” between the FWS and biologist consultants hired by the Napa Valley Unified School District in California, the district was required to purchase 317 acres of vacant open space at a price of $4.6 million to mitigate risks to the California Red-Legged Frog. [8]
To save the same frog, the city of San Francisco proposed a series of projects to preserve a public golf course (the Sharp Park Golf Course) that would cost from $6 million to $10 million by relocating Red-Legged Frog egg masses to safer areas under the supervision of FWS authorities. However, environmental groups are using the ESA to sue the city of San Francisco, saying that these relocation measures are insufficient and that nothing short of shutting down the course is acceptable. [9] The California Red-Legged Frog and the California Tiger Salamander have caused similar vexation to the Northern California wine industry. [10]
In each of these cases, the rights of citizens were threatened by administrative agencies that have been given the power to make laws; investigate, prosecute, and enforce laws; and even in many cases to judge violations of their laws. In fact, most of the“laws” of this country are made, executed, and applied by administrative agencies and departments. They operate under the radar, largely insulated from the control of the people. They often combine the powers of government, and their personnel are primarily unelected. This is the predominant feature of our new form of government, the administrative state, and it’s where the action is.
When our elected representatives fail to enact policies because of popular opposition, they know that the institutions of the administrative state can carry these very policies out without resistance, using the powers delegated to them by Congress. After legislation to enact cap-and-trade climate change policies failed in the U.S. Congress in 2009, undaunted progressives declared that Congress did not need to act for cap-and-trade to happen: We had already given the EPA power to enact cap-and-trade by administrative fiat. The day after the Democrats lost the majority in the House of Representatives in the 2010 midterm congressional elections, the Huffington Post published a piece entitled“Obama Can Pursue Ambitious Agenda Without Congress’s Help,” [11] suggesting that if Congress were reluctant to pass cap-and-trade, the EPA should do so on its own.
Elections do not matter very much if agencies can make policy without the support of our elected representatives. Yet today, whether or not Congress makes law, administrative agencies and departments already have the power to make new rules, rendering the concept of representation nugatory.
Structure of This Report
In order to begin the restoration of constitutional government, we must first understand what the administrative state is and why it is profoundly at odds with the principles of the Constitution. However, understanding the problem of the administrative state is not sufficient. We must also devise an effective strategy, one that is feasible and acceptable to the American people, to begin this process of restoration.
This report offers both an explanation of the problem and a guide to thinking about the solution.
Part 1 explains what the term“administrative state” means. There is a lot of confusion surrounding the administrative state, so Part 1 provides a straightforward explanation of what exactly it is and also explains the process by which it was created in America.
Part 2 explains why the administrative state is a profoundly unconstitutional form of government. It highlights the four major constitutional problems with the administrative state: the combination of powers, the delegation of legislative power, the erosion of government by consent, and an adjudicative process unmoored from the rule of law.
Part 3 lays out the alternative: regulation that is accountable and that respects the natural rights of citizens to liberty and property. The alternative is not a laissez-faire economic policy. The American Founders accepted the need and legitimacy of regulation. But they made sure that it was consistent with the principles and the Constitution that they worked so hard to establish. Our efforts to reform the administrative state should be in the same spirit.
Part 4 suggests some practical steps that citizens and elected representatives can take to restore constitutional government and tackle the profound challenge posed by the administrative state.
