[Originally published at The Tenth Amendment Center – 7/29/2016]
When we think about unconstitutional federal overreach, we tend to focus on Congress, the president and the Supreme Court. But unelected, unaccountable bureaucrats staffing countless agencies like the DEA, FDA and the FCC arguably create just as much constitutional chaos as elected officials and judges.
With the proliferation of bureaucracy, governance in the United States has become quite different than the U.S. Constitution’s approach of a separation of powers, and checks and balances.
Bureaucracy creates, implements, and adjudicates rules and regulations impacting every aspect of daily life. Dealing with bureaucratic red tape at all levels is a daily reality for Americans. Progressive efforts over the past century have helped bureaucracy increase authority over people. Despite exponential growth of administrative law, today’s progressives still want more consolidation and delegation of power to the bureaus, especially federal bureaus.
Sen. Clarrie McCaskill (D-MO) was discussing why the government was currently so divided when she said, “Part of the problem is that our framers were a little maniacal in that if you look at other democracies around the world, when one party wins the congressional branch, they take the executive branch. Not in our country.” When challenged on the maniacal comment she explained, “They were. [The Founding Fathers] wanted us to have a divided government if the American people wanted to do that and that’s different [than other democracies].”
McCaskill sees separated powers, with their inherent checks and balances, as an imposition to governance. Her real error is in believing the U.S. is different from other democracies. In fact, America was never meant to be a democracy. Democratic governing, whether representative or direct, historically was not stable enough for the framers and founders of this country.
Progressive philosophy has long been in favor of calling the U.S. a democracy since the days of Woodrow Wilson. Consolidated, administrative rule over separated constitutional rule is fundamental to Wilson’s vision for governance. It is the fabric of the progressive movement’s history and more, not less, is their answer to today’s governing challenges. The party that has embraced progressivism insists more government is the answer according to their recently released platform. The party that claims to reject progressivism also insists more government is the answer.
Federal rules have grown rapidly, as have the number of departments under the executive branch. Over the past 40 years, based on the National Archives and Records Administration, Office of the Federal Register, for every one law passed by the U.S. Congress there are 30 rules passed by the bureaucracy. The Competitive Enterprise Institute (CEI) published its annual report on the cost of federal regulations to the economy. Ten Thousand Commandments 2015 shows for 2014 the hidden tax on consumers and businesses amounted to $1.88 trillion dollars. The total collected through income taxes was $1.82 trillion, so the regulatory compliance costs are more than all income taxes. The federal registry has more pages than at any time in history, and there is no sign of this regulatory onslaught slowing down.
It is much easier to create a new rule or regulation than pass legislation through Congress. However, this completely violates the constitutional order, with the legislative branch tasked with passing laws, the executive branch implementing them, and the judicial branch adjudicating cases. Instead, bureaucracy combines all three powers under a single agency.
Under the supreme law of the land, Congress was never given the authority to simply delegate its rule-making power to unelected, unaccountable bureaucrats. A president was never meant to have power, through fiat, simply writing an executive order, to add or change law. People are frustrated when dealing with bureaucracies, yet they have come to feel quite comfortable with them wielding so much power.
How much power?
A country with a $1.88 trillion dollar GDP would rank as the 10th largest in the world. Mind you, this just includes federal regulations. That is a lot of money, and many bureaus use it, along with their power to write rules, to grow their agencies so their ‘territory’ is protected. Congress is not controlling the bureaucracy, nor holding them accountable, nor taking back the powers they wrongfully delegate to rule makers in D.C. without approval.
Adding to the problem, states have grown their own extreme bureaucracies’ further impacting citizens simply trying to determine how to live free while dealing with ever growing local, state, and federal laws, rules, and regulations.
Beyond the costs are the extensive restrictions, abuses, and control over the smallest aspects of daily living as bureaus seek more rules to grow budgets and secure positions. This is progressivism in a nutshell. It is what Woodrow Wilson and other founders of the movement wanted, and it is what the factions are delivering. It is all controlled through lobbyists, PACs, a compliant media, and politicians more focused on special interests and authority than their oath to defend the Constitution. Interestingly, Wilson wanted to grow administrative law while ending factional influence. Instead factions have embraced the delegated approach of rules and regulations.
The same Constitution these groups ignore holds the key to helping citizens stop some of this growing disaster that is wreaking havoc on the economy, stifling individual and small business growth, and trapping citizens into compliance in areas they should be controlling for themselves. The 10th Amendment is still valid and citizens need to learn to demand their elected representatives’ start adhering to it rather than colluding with lobbyists, PACs, and the special interest groups many of the rules are designed to help. Twenty-eight simple words hold the key.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The “United States” refers to the federal government. Few powers were delegated to the federal government. Nearly everything impacting daily life of citizens was reserved to the states or left to the people in an effort to encourage self-government at the lowest level. This was a vital aspect of the separation of powers enacted under American federalism
Sen. McCaskill feels is a burden today. It is not. Maybe it is to the political class. But separating powers protects people from out of control, despotic governing.
Founding documents were crafted based on the fact local decision-making is much better than some faceless bureaucrat thousands of miles away trying to decide and plan daily life. Never was a president to be able to simply use a phone and a pen to demand a local school follow certain bathroom policies, or to set the amount someone minimally had to earn before being considered for a salaried position over an hourly position. Nowhere was the power given to the federal government for creating literally thousands of rules and regulations or laws.
Laws were meant to be very hard to enact with the idea being those that did get created were more likely to be good laws protecting all citizens. It is through the notion of a ‘living Constitution’ combined with over a century of abuse in federal governing we find ourselves in this situation.
Using the 10th Amendment to help stop the onslaught of an overbearing, faceless bureaucracy will require people to demand their state legislatures interpose, or put a stop between the federal government and the people (known as a check and balance). States can do this by simply refusing to help enforce the thousands of bureaucratic edicts. The feds can’t hope to enforce them all themselves. They depend on state cooperation. States can just say no and shut a lot of this down.
The Doctrine of Interposition is necessary today if we are to have any chance of restoring sanity to governing. More states need to begin protecting people from the runaway federal bureaucracy, while people need to elect better representatives and demand adherence to their oath.
Today’s political industrial complex and its vast bureaucracy is wreaking constitutional chaos. It will not go silently into the night, it will have to be ripped out by the people.
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