A Republic or an Administrative State?
Our Republic has been largely frittered away to the authoritarian bureaucracy, but SCOTUS is trying to save it
When Ben Franklin left Independence Hall at the end of the Constitutional Convention in 1787, he was purportedly asked by a woman outside “Well, Doctor, what have we got? A monarchy or a republic?” Franklin is said to have cynically replied “A republic. If you can keep it.” That response was prophetic.
A republic is defined as "a state or nation in which the supreme power rests in all the citizens entitled to vote and is exercised by representatives elected, directly or indirectly, by them and responsible to them." And it is certainly true that, some 237 years later, we retain the forms, the institutional manifestations, of the Republic that Franklin and his fellow delegates created. We still have a legislative branch comprised of two elected houses of congress. We still have an executive branch headed by an elected president. We still have a judicial branch headed by a Supreme Court comprised of 9 judges, appointed by the president and approved by congress. We still have the several states, with their own constitutions and republican forms of government.
But the unfortunate truth is that we no longer operate under true republican rule. Our democratic law-making institutions have largely been replaced by a regulatory bureaucracy populated and run by unelected, career bureaucrats, which rules an administrative state that was never even contemplated, much less instituted, by the Constitution.
It took congress nearly 100 years after the Constitution was adopted before it came up with the idea of putting in place the the first federal regulatory body, the Interstate Commerce Commission, which was created in 1887. Since then such bodies have proliferated like cockroaches, with the creation of countless more of these agencies. And I mean literally countless. Any attempt to identify exactly how many federal agencies now exist proves fruitless. Some lists, in an attempt to be definitive, will be qualified as "major" regulatory agencies. Others, such as Wikipedia, settle for providing "examples" of "independent" agencies, a comprehensive list, apparently, being impossible to provide. A totally different Wikipedia entry on federal agencies explains the problem:
Legislative definitions of a federal agency are varied, and even contradictory. The official United States Government Manual offers no definition. While the Administrative Procedure Act definition of "agency" applies to most executive branch agencies, Congress may define an agency however it chooses in enabling legislation, and subsequent litigation, often involving the Freedom of Information Act and the Government in the Sunshine Act, further cloud attempts to enumerate a list of agencies.
And these agencies, however many actually exist, are not populated with elected representatives. They are comprised of both career bureaucrats and political appointees. They are not us.
Ostensibly, regulatory agencies are merely implementing and enforcing laws that Congress has written and passed, and the “rules” generated by them are simply the agencies’ clarification of how they will do so. But in reality these agencies often have their own agendas, and will either seize on ambiguities in the written law in order to implement the law they want to have been written, or more often, Congress writes deliberately vague laws, and essentially gives the bureaucrats themselves the power to define what the law means.
A good example of the former is the Environmental Protection Agency’s regulation of carbon emissions. Ostensibly, the EPA is regulating CO2 emissions under the authority of the Clean Air Act, which was written and passed by Congress in 1963 and required regulation of “air pollutants”. But for over 40 years no one, not the original authors of the act, not any subsequent congress, not "the people", not even the EPA itself thought of CO2 as an "air pollutant". Which isn’t really that surprising, since pollution is defined as "the introduction of contaminants into the natural environment that cause adverse change," while carbon is a naturally occurring gas the presence of which is actually vital to life on earth. It is naturally produced by all living beings that have lungs, through the simple act of breathing. It is absorbed by plants during photosynthesis. It is, again, essential to the existence of life on earth. It is not a pollutant.
But due to the rise of "climate change" alarmism, and the absence of Congressional legislation about it, carbon dioxide has now been classified by he EPA as an "air pollutant", so that it can thus be regulated by the EPA. There was no vote. No congressional law. No popular referendum. Just a decision by unelected bureaucrats.
A good example of the latter, ie Congress writing deliberately vague statutes and empowering regulatory bureaucrats to define the law, is the paradoxically named Affordable Care Act, more commonly known as Obamacare. The ACA is a veritable cornucopia of power delegation from the Congress to unelected bureaucrats, giving the power to determine what must be included in employer provided insurance plans to bodies such as the Preventive Services Task Force and the Health Resources & Services Administration. The latter used this delegated power to, in just one instance, legally require employers to cover employee costs of contraception. This “contraceptive mandate” has since been the subject of all kinds of litigation, perhaps most famously the Hobby Lobby and Little Sisters of the Poor cases that went to the Supreme Court. But again, the point is simply that there was no vote on this mandate, no congressional law passed, and no popular referendum. Just a decision by unelected bureaucrats.
These are just two particularly infamous examples, but this is how the administrative state routinely operates, on big issues and small, constantly writing and re-writing the "rules" to impose whatever desires it currently might have, regardless of whether or not the law itself has changed, and often precisely because the law hasn't been changed. There are so many regulatory actions that it is impossible for the average citizen to have any idea what his government is doing. Trying to keep up with regulatory agencies production of new “rules” is more difficult than keeping up with Delores Umbridge’s educational decrees at Hogwarts.
The Federal Register publishes between 2,500 and 4,500 new "rules" every single year. Some of them are proposed rules, some of them are final rules and some of them are self-refutingly called “interim final” rules, a notion all too indicative of the kind of minds that are proliferating them.
The effects of these regulations, laws really, permeates every area of American life. There is not an industry in existence that is left untouched by the federal bureaucracy. Even the most basic and simple of our daily actions are governed by regulatory "rules". The people, us, have virtually no say over these laws. The administrative state rules us. We do not rule it. For all the election year talk about “saving our democracy”, the vast majority of policy implementation takes place outside of it. And, in what should be a surprise to no sentient person at all, it is the very people who most loudly cast their opponents as enemies of democracy that are the most eager to get around it.
The news isn’t all bad, however. SCOTUS has recently struck a small but welcome blow to the ever-encroaching administrative state. Back in 1984, the Court issued a ruling that formally adopted a doctrine called Chevron deference, which essentially means that, with regard to any ambiguity in a Congressional statute, the courts must defer to the regulatory agency’s interpretation of that ambiguity, thus vastly expanding the power of the regulatory bureaucracy to define the scope of the laws it is ostensibly implementing. But two weeks ago SCOTUS overturned that 1984 ruling.
The case at hand, Loper Bright Enterprises v Raimondo, is actually quite instructive on the general evil of the administrative state and specifically its power under Chevron. In 1975, Congress passed a law which empowered the National Marine Fisheries Service to require Atlantic coast fishing vessels to carry federal monitors on their boats, so that the monitors could enforce regulations regarding overfishing. However, due to budget constraints, the NMFS’s ability to place monitors on vessels was limited. So in 2013, the agency decided to force the fishing vessels themselves to pay for the very monitors that they were being compelled by regulation to carry on their boats. The fishermen sued, saying that the law did not require them to pay.
And they were right. The 1975 law said nothing at all about the fishing vessels themselves having to pay for the cost of the federal monitors. But nor did the law say that they didn’t have to pay the cost, and in the eyes of the bureaucrats at NMFS, that created an “ambiguous” opportunity. Under Chevron, that meant that they could “interpret” the law pretty much however they wanted, and naturally they interpreted it to require that the fishermen pay for the upkeep of their very own overlords.
Just think about that for a moment. The agency was claiming that the fact that a statute neither explicitly empowered them to do nor disempowered them from doing something meant that the issue of whether or not they were empowered to do that thing was ambiguous, and thus they were implicitly empowered to choose to either do or not do that thing, as they wished. Again, think about that proposition, and the amount of power that would give to these unelected bureaucrats to do whatever they wanted, even things, indeed especially things, that it hadn’t even occurred to Congress to legislate. And under Chevron, that is exactly the kind of power they had.
Happily, SCOTUS has shut that down, ruling in favor of the fisheries and overturning its Chevron doctrine. There was much wailing and gnashing of teeth from the usual suspects, of course, but for anyone who genuinely cares about our Constitutional form of government, this was a substantial win. That being said, it is not substantial enough.
In the wake of our recent celebrations of Independence Day, it is worth noting a particularly bitter irony about our founding document, the Declaration of Independence. More than just a statement of separation from Great Britain, the Declaration was in fact the Founders’ list of “causes which impel(led) them to separation”, a list of the “injuries and usurpations” inflicted upon the American colonies by King George III. And if you read closely, among that list of horribles you will find these:
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation
A better description of our modern administrative state and the unelected bureaucrats that infest it has never been written. It is a sad statement of our times that we live under many of the very conditions that compelled the Founding Fathers to revolt against their King. The overturning of Chevron is nice step in the right direction, but the “swarms of Officers” of the unconstitutional federal bureaucracy are still sitting there, eager to eat out our substance. There is much more work to be done. Much more work.
Nice article, especially the historical irony. As you well know, the British learned little from the events of 1776 and we are similarly afflicted by faceless, unelected, unaccountable, wasteful bureaucracies known colloquially as quangos (quasi autonomous non-governmental organisations) but officially as NDPBs (Non- Departmental Public Bodies).
In 2010, the Tories had a bonfire of the quangos when the 901 then known to exist were reduced to 648. However, the current count (depending on your definition) is circa 1,000.
And of course, despite BrExit, we are still subject to the whims of much of the unelected EU machinery in Brusells.
The Pendleton Act preceded the Interstate Commerce Commission. As bad as the Spoils system was, at least there was accountability with the (then) current admin and hence, Executive Branch policy would be responsive to and carry out the will of the elected executive. To me, it’s the nefariousness of the idea that all things, especially people, can be perfected. It’s just weird that people think you can wring partisanship out of people.