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May 6, 2010
The Bureaucratic State
One of the things that so concern we conservatives is the movement of power in our government from democratic institutions to bureaucratic ones. This shift in power has been going on for a long time, but has been brought home by the radicalism of Barack Obama. Conservatives came awake when last December the EPA announced that it would regulate 'emissions' whether Congress passed "climate legislation" allowing them to do so or not.
It has long been a goal of the progressives to get power as far away from democratic institutions as possible and into the hands of "experts" who, they believe, know what is best for you. Western Europe is far ahead of us in this transition. The European Union grants vast powers to unelected bureaucrats far removed from the various legislatures, and mostly unaccountable to them. The bureaucracy hires, fires, and is almost an independent self-sustaining body. One more step and we'll be there.
"The Four Horsemen of Progressivism: Richard Ely, John Dewey, Oliver Wendell Holmes, Jr., and Herbert Croly" (National Review, digital subscription required) outlined some of the history. Jonah Goldberg laid out more history in Liberal Fascism. Joseph Postrell tells us where we are today in today's Washington Times
Constitution in Decline
The Washington Times
By Joseph Postell
May 6, 2010It's time to reform our administrative state. House Speaker Nancy Pelosi was right when she said Congress would have to "pass the health care bill so you can find out what's in it." That's because the health care bill, like most major laws passed by Congress over the past hundred years, isn't really a law. Rather, Obamacare is a series of assignments to bureaucrats in the Department of Health and Human Services. It is emblematic of what scholars call the administrative state, where legislative, executive and judicial powers are delegated to unaccountable experts sequestered in a fourth branch of government.
If we are seeking the most effective means of defending - and restoring - the Constitution, we must pay attention to the rise of the administrative state and the decline of constitutional government in the United States.
The Founders confronted a basic problem: How to vest government with sufficient power to get things done without giving it the instruments to exercise tyrannical control? To protect individual liberty and rights, they established (among others) two basic principles at the center of our constitutional order: representation and the separation of powers. To assure that government operated by consent, they provided that those responsible for making laws would be held accountable through elections. Moreover, legislative, executive and judicial power would be separated so those who made the laws were not in charge of executing and applying them.
Our modern administrative state violates these principles. That also is by design, courtesy of the progressives - the original architects of the administrative state. Progressives such as Woodrow Wilson disdained the idea of government "by the people" and sought to replace it with government by the experts. Wilson complained of America's "besetting error of ... trying to do too much by vote." "Self-government does not consist in having a hand in everything," he argued.The progressives sought to circumvent representative government by transferring power from Congress to a newly created fourth branch of government, our modern bureaucracy. Congress would no longer make laws but merely pass bills that consist of assignments to agencies. The actual laws then would be passed by agencies in the form of "rules" carrying the full force of law.
However, Article I of the Constitution requires that "all legislative powers herein granted shall be vested in a Congress." This is not optional. The people, through the Constitution, delegate legislative powers to the Congress. Only the people can delegate legislative power, because they are sovereign according to our founding principles. Legislative power cannot be further delegated.
James Madison wrote in the Federalist No. 62, "Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed?" Todays administrative state violates Madison's principle.
The progressives also had contempt for the Constitution's separation of powers. James Landis, an influential adviser to Franklin Delano Roosevelt, explained that administrative agencies arose in response to "the inadequacy of a simple tripartite form of government to deal with modern problems." Circumventing the separation of powers, these agencies would not only have the power to make laws - they also would be authorized to investigate, prosecute, adjudicate and enforce violations of those laws.
Herbert Croly, progressive intellectual and founder of the New Republic, explained that such agencies composed "a fourth department of the government" that "does not fit into the traditional classification of governmental powers. It exercises an authority which is in part executive, in part legislative and in part judicial." Agencies would be "a convenient means of consolidating the divided activities of the government for certain practical social purposes."
The administrative state holds sway today. The overwhelming majority of laws in this country are made not by Congress, but by administrative agencies. They execute their laws and adjudicate alleged violations of their laws through agency-employed hearing officers or administrative law judges. In this fourth branch of government, filled with unelected and unaccountable experts, all three powers of government are consolidated.
But all is not lost. In the minds of the people, the Constitution is still the governing document of this country. Most just haven't paused to ponder how far we have strayed from its structural design. But the political will to return to the Constitution is there, and increasing daily.
Two things are needed urgently. First, we need a public education program explaining the pervasiveness of our administrative state and how it departs from the Constitution's vision.
Second, and more difficult, is a practical road map for restoring the principles of representation and the separation of powers. The question is not necessarily how to make government smaller, but how to get it back under popular control and accountability.
We must devise a strategy to: bar Congress from delegating legislative power to agencies, eliminate the consolidation of all three powers in these agencies and make these agencies accountable to the people.
Such reforms would ensure that the only burdens we suffer are those we impose upon ourselves, with a government over which we, the people, finally have regained control.
Posted by Tom at May 6, 2010 10:00 PM
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Comments
Each side is guilty of hypocrisy. Few conservatives complained when Dick Cheney consolidated, expanded and exercised unprecedented levels of power as VP, which is an extremely liberal (dare I say a living) interpretation to the role of the VP established in the Constitution. In the Bush executive order EO 13292, the executive unilaterally gave the VP the power to classify government documents and increase executive branch secrecy. At least Byron York had an article in the NR in 2006 expressing concern about the expanded powers of the "Imperial VP".
The Constitution grants the VP no executive powers and the only related powers are to assume the presidency upon the death of the president and to cast votes to break ties in the Senate. But there was hardly a peep about the constitutionality of the expanded powers Cheney exercised, because most conservatives really supported him.
Many Americans are somewhat confused by those "strict constitutionalists" who say that suspected terrorists should not be granted their Miranda rights, and should be subject to water boarding, but that they should also retain their rights to buy weapons. It was shocking to read that the GOA found that about 90% of 1,228 people who are on the watch list succeeding in legally buying guns. Faisal Shahzad legally bought himself a Kel-tec 2000, as he had been taught to in his Pakistani terrorist training camp.
Posted by: jason at May 7, 2010 3:58 PM
I see your point, jason, but if all you can pick out is VP Cheney's actions and the (alleged) violation of terrorist's rights I'd say that's pretty weak. Comparing that to the entire bureaucracy/administrative state set up by progressives over the years is a spark to an atom bomb.
Your last paragraph is off topic and more than I have time to respond to properly, so suffice it say that I think you're comparing apples to oranges.
But tell you what; if those folks on the watch list allegedly being able to buy weapons bothers you, I'll trade you that for all of the "administrative law" in the federal government. Deal?
Posted by: Tom the Redhunter at May 8, 2010 9:50 AM
You're right, I was off topic. Let me come back to this evil and growing 4th column, the nefarious federal administrative law. I am no legal scholar, but after I did some research , and learned this whole thing was indeed enacted by Congress, in the Administrative Procedure Act (APA) in 1946. As you point out , all these bureaucracies have the power to set up their own laws, administer them, enforce them and adjudicate over their own cases. They do this through the Code of Federal Regulations.
So, this evil 4th column of creeping socialism, the Code of Federal Regulations (CFR) includes the following:
-Seismic Building Codes (Title 41 CFR 128-1.8005)
-Tranportation of Hazardous materials (Title 49 CRF Ch I, 100-185)
http://www.access.gpo.gov/nara/cfr/waisidx_09/49cfrv2_09.html
- Vehicle safety standards (Title 49, CFR...)
- Pensions for Veterans (Title 38, CRF Ch. I)
Seriously go look at all these laws you claim to want to throw out. It is one thing for libertarian think tanks to pontificate that we need to cut creeping Socialist-progressive government out of our lives, but I am happy living in a building that doesn't crush me during earthquakes (being in California, I have survived many of them, and not a single building crushed me). The same cannot be said for Haiti, but at least they don't to deal with red tape. I am also thankful tankers full of bleach, pesticides, explosive and flammable materials driving on the highway with me have to comply with safety standards.
Posted by: jason at May 8, 2010 9:48 PM
jason, I don't want to throw out any of those laws. All I want is Congress to make them and not bureaucrats.
Here again, you turn process into results. If I want Congress to make laws, I must want people to die in building collapses.
A house built on a foundation of sand will not stand for long. Likewise, laws not based on the Constitution will not stand. All I and other conservatives want is for us to follow the Constitution. What you think are correct results are not justified if you arrive at them through an invalid procedure.
I'm done, I always give guests the last word.
Posted by: Tom the Redhunter at May 10, 2010 9:33 PM
I prefer bureaucrats to the frat party boys and meth and porn addicts like the Bush administration hired for the Minerals and Management Services.
Posted by: John at May 25, 2010 9:36 PM
