07.02.2013 1

‘Alter or abolish it’

By Robert Romano

237 years ago, on July 4, 1776, the Declaration of Independence was adopted by the 13 colonies to affirm that governments are constituted to secure natural, individual rights and that they “deriv[e] their just powers from the consent of the governed.”

And, that “whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government.”

Looking back on these words, it is hard to defend the government in its present form as one that either secures individual rights or operates with the consent of the governed. Particularly, when one considers how meticulously those rights have been eroded over time and how feckless the three branches of government have become at reining in virtually limitless expansions of federal power.

Consider for example the existence of super agencies that possess the power of each of the three branches to make laws, enforce them, and apply them to individuals caught in the web of the administrative state — a topic of much interest to authors such as talk show host Mark Levin (Liberty and Tyranny, Ameritopia) to George Washington University professor Jonathan Turley writing recently in the Washington Post “The rise of the fourth branch of government.”

Levin in Ameritopia argues that the U.S. has become what he calls a “post-constitutional, democratic utopia.” He explains, “The federal government has become unmoored from its origins… It is not strictly a representative republic, because so many edicts are produced by a maze of administrative departments that are unknown to the public and detached from its sentiment.”

Turley agrees, noting “Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.”

Turley notes that federal agencies issue about 3,000 regulations a year, compared to Congress only enacting about 140 laws. On top of that, the agencies have their own courts — quasi-judicial bodies — that additionally issue almost 1 million adjudicatory rulings a year on those regulations. That compares with federal courts only issuing about 95,000 rulings a year.

Turley writes that, as a result, “a citizen is 10 times more likely to be tried by an agency than by an actual court,” lacking due process and “with one-sided presumptions and procedural rules favoring the agency.”

In Ameritopia, author Levin extensively quotes philosopher John Locke, who in 1689 warned precisely against such a concentration of powers into single entities: “it may be too great temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to have also in their hands the power to execute them.” Here, Locke famously argued — later refined by Charles de Montesquieu — that governmental powers should be separated.

For the uninitiated, as Levin’s book and daily broadcast make abundantly clear, Locke and Montesquieu together make two of the most influential philosophers whose works later advised the American Revolution, and then the form the federal government would take in the adoption of the Constitution, which made the separation of powers its cornerstone.

Locke called the concentration of power no less than tyrannical: “As usurpation is the exercise of power which another hath a right to, so tyranny is the exercise of power beyond right, which nobody can have a right to.”

Is today’s administrative state tyrannical?

It is hard to argue that it is anything but arbitrary and capricious in its rulemakings. Also, the sheer number of agencies and their many subdivisions that issue such quasi-judicial rulings on individuals and businesses is simply overwhelming. The University of Virginia has published a comprehensive listing of these linking to the many federal databases containing the hundreds of thousands of rulings made each year.

The university is careful to note that this is not a listing of regulations per se, but of adjudicatory rulings: “This page is not an attempt to link to Federal Register or the Code of Federal Regulations information for each federal agency. It links to other administrative actions which are outside the scope of the CFR or the FR.”

This is a concentration of powers without question, giving agencies — in addition to the ability to issue and enforce regulations — the power to legitimize their actions through official tribunal proceedings. Only a small percentage of these will ever be appealed to federal court — or even brought to Congress or the President’s attention — leaving the agencies with vast discretion.

Some of the major agencies with these superlative powers include but are not limited to: the National Labor Relations Board, the Consumer Financial Protection Bureau (housed in the Federal Reserve), the Federal Reserve itself, the Environmental Protection Agency, the Environmental Appeals Board, the Securities and Exchange Commission, the Bureau of Land Management, the Fish & Wildlife Service, the Occupational Safety and Health Administration, the Internal Revenue Service, the Patent and Trademark Office, the Food and Drug Administration, and the Housing and Urban Development Department’s Office of Hearings and Appeals.

The obstacles to reining in this vast overreach of powers are daunting to say the least. Supporters will argue that Congress is unqualified to regulate in these areas, so therefore unelected boards of self-proclaimed experts are necessary. Courts have been similarly abrogated.

Almost a century into the administrative state, these agencies have proven to exceedingly efficient at issuing regulations and then levying fines and directives for failure to comply.

This might advise a catch-all bill against quasi-judicial bodies and the agencies more broadly, capturing most of the administrative, regulatory state that lords over the populace like the unelected kings of old, and restoring to Congress powers to make laws, and courts to adjudicate them.  That is, if there were any political will in Congress to do so.

The primary challenge, therefore, is political. Does either party take a strong stand against this concentration of powers in executive agencies? Can one even find legislative majorities in both houses of Congress to do anything but perpetuate this pervasive administrative state?

No more so than one can find the votes to rein in the budget’s $2.2 trillion so-called “mandatory” spending programs that operate on autopilot without any annual appropriations votes in Congress.

Or to bring the Environmental Protection Agency to heel, which in its 2009 “carbon endangerment” finding essentially rewrote the Clean Air Act without a congressional vote to define carbon dioxide — a biological gas necessary for the very existence of life — to be a harmful pollutant regulable under the law.

Or to unwind Government Sponsored Enterprises Fannie Mae and Freddie Mac plus the Federal Reserve — whose administrative control of housing finance and low interest rates policies helped cultivate the housing bubble that almost wrecked the global economy. Or to curtail the Fed’s quantitative easing programs, which because such policies are not subject to congressional authorization, clearly abrogate Congress’ constitutional power to coin money.

One could go on, but suffice to say, the Framers never intended the vast bureaucracy with such wide powers seen today to be created when the Constitution was proposed in 1787.

Leaving the American people to wonder what can even be done about it. If the government is not following the Constitution, and elections alone will not rein in these dubious, extraconstitutional functions of government, what can be done?

A potential recourse for the American people would be the amendments process outlined in Article V of the Constitution. But, that requires two-thirds majorities in both houses of Congress to be invoked. Does anyone envision Congress voting for amendments to the Constitution to, for example, achieve a balanced budget or establish term limits for themselves?

If not — and if other reforms cannot and will not be achieved in the normal course of Congress’ business — it would appear that supporters of a constitutional, limited government lack any conventional recourse. Or do they?

In a May 30 broadcast, Levin promised his listeners he would soon address these problems in his upcoming book due to be published in August. “[O]ne day, we, you, me, millions of us have to take matters into our own hands. No, no, no, I don’t mean violence in any respect. One day, we have to take back our government, and there are ways to do it.”

He repeated, “There are ways to do it and we’ll talking about it in the months ahead.”

Is he referring to a constitutional convention, which can be called for by two-thirds, or 34 of the states? Time will tell, but if he is, he will undoubtedly have to be prepared to contend with Phyllis Shlafly’s 1987 objections to such an enterprise as a “runaway convention” that would “be wide open and able to consider any change in the Constitution.”

On the other hand, looking at the current body of the federal government, perhaps everything should be on the table anyway, since the government has already taken every conceivable power upon itself.

On war powers, the government envisions ways to deprive people of life and liberty without due process if somebody is merely labeled by the government to be an enemy combatant, or to conduct vast surveillance based merely on suspicion instead of probable cause. On monetary policy, it has outsourced the entire practice of creating dollars to an unelected bank. Levels of federal spending on most programs are subject to how many people apply and qualify for them, not on how much Congress appropriates annually to them. On regulatory policy, it has created agencies that consistently issue their own regulations and adjudicate their own rules with virtually no congressional or judicial oversight.

And so forth.

On the 237th anniversary of the Declaration of Independence of our nation’s founding, it is reasonable to question whether our current government reflects the principles in that document of freedom and the Constitution that followed 11 years later.

If not, the Founders anticipated that there may be a time when government “becomes destructive of these ends” and needs reformulation.

Ultimately, it will be up to the people if they want to tell their state legislators to invoke their constitutional prerogative to limit government via an Article V convention. With Congress seemingly powerless in the face of this federal Leviathan, the amendment process may be the only way left to “alter or abolish it.”

Robert  Romano is the Senior Editor of Americans for Limited Government.

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