All Things in Moderation

Three years ago I contributed several pieces to a 4th of July series here at ATiM celebrating American independence. I had hoped they would provide some sense of the way I feel about the birth of America, and perhaps spark those feelings in others, especially about the Founding Fathers who made that birth not only possible at all but an actual reality. Usually when I contemplate the birth of the US on Independence Day, I am genuinely filled with a mixture of gratitude, responsibility, and pride. Gratitude to both the people who risked, and sometimes gave, their lives to make it all happen, and to Providence (to use the lingo of the Founders) for landing me in this, a singular nation with an identity grounded not just in history but in unique philosophical ideals. Responsibility to help protect the legacy that has been given to us. And pride in knowing just what it is that has made this a nation of such promise. This year, however, I feel quite different.

When Ben Franklin left Independence Hall at the end of the Constitutional Convention in 1787, he was asked by a woman outside “Well, Doctor, what have we got? A monarchy or a republic?” Franklin replied “A republic. If you can keep it.” The implication of Franklin’s 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 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 forms of government. But we no longer operate under true republican rule, nor are the people any longer committed to protecting against the things that the structure of our government was supposed to protect against. Hence while we retain the forms of a republic, we have forfeited the substance of what it means to be a republic, and have become a nation of the ruled.

In 1887 congress, in its infinite wisdom, decided to create the Interstate Commerce Commission, the first regulatory agency in the nation. Nearly 130 years later we now have countless federal agencies. And I mean literally countless. Any attempt to identify exactly how many federal agencies now exist proves fruitless. Some lists will be qualified as “major” regulatory agencies, so as to be able to provide a definitive list. (14 regulatory agencies on that one.) Others, such as Wikipedia, settle for providing “examples” (28 of them) of “independent” agencies – not to be confused with independent regulatory agencies, it reminds us – 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, and 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 there actually are, are not populated with elected representatives. They are comprised of both career bureaucrats and political appointees. They are not us.

It is certainly the case that many of these agencies don’t really exercise any real power. For example the US Women’s Bureau, enabled by Public Law 66-259; 29 U.S.C. 11-16.29, doesn’t seem to do much of anything noteworthy except provide a living for its employees. But many others exercise nearly unchecked power to make laws which are never voted on by congress. The people, us, have virtually no say over these laws. The administrative state rules us. We do not rule it.

Defenders of the administrative state will say that is bunk. They will say that we have authorized these agencies through congress, and that they are merely enforcing laws that congress has written. They will also say that the agencies are not making law, but rather establishing “rules” that define their enforcement policies. That is indeed how the administrative state justifies its existence under a constitution that neither contemplates nor authorizes the existence of a law-making bureaucracy. But reality on the ground shows that it is that justification that is bunk.

An example. The Environmental Protection Agency is right now promulgating “rules” regulating carbon dioxide emissions. It does so ostensibly under the authority of the Clean Air Act which requires regulation of “air pollutants”. The Clean Air Act was written and passed in 1963. 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 carbon dioxide as an “air pollutant”. Which is not a surprise at all. Pollution is defined as “the introduction of contaminants into the natural environment that cause adverse change.” But carbon dioxide is a naturally occurring gas the presence of which is 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.

But due to the rise of “climate change” alarmism, carbon dioxide has now been classified by he EPA as an “air pollutant”. There was no vote. No congressional law. No popular referendum. In fact it wasn’t even the EPA itself that originally designated it as a air pollutant under its authority. It was sued by 11 states which claimed the the Clean Air Act required the EPA to regulate carbon emissions, and despite losing in the lower courts, by a 5-4 vote the Supreme Court ruled in favor of the plaintiffs, forcing the EPA into regulation. Of course, under a new administration that promotes climate alarmism, the EPA has embraced its newfound ability to write legislation regulating carbon. But it is perfectly clear that it is, in fact, writing legislation, not simply enforcing existing law. President Obama essentially ended any pretense to the contrary when he demanded that congress either pass carbon related climate change legislation or face the threat of him doing it unilaterally via the EPA. Which he has now done. One doesn’t ask for new legislation to enforce if one thinks that it already exists and needs to be enforced. The notion that Obama is just enforcing existing law is an obvious ruse.

That is just one particularly infamous example, 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. The Federal Register publishes between 2,500 and 4,500 new “rules” every single year. 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”.

In Federalist 62 James Madison wrote:

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.

The federal bureaucracy fails on both fronts. Not only is it making laws so voluminous and incoherent that they cannot be read or understood (or even known, to be honest) by the people, but they aren’t even made by men of their own choice. It would be easy to blame this on the institutions of government itself, and certainly there is blame to be laid there. Presidents have routinely expanded executive power through the creative use of the federal bureaucracy. Congress could stop it if wanted to by simply passing laws eliminating the agencies, but instead it does the opposite, not only creating more agencies but writing deliberately vague legislation that invites regulatory agencies to fill in the blanks with its own will. And the Supreme Court has long since ceased apply the law or constitution, choosing instead to rule based on political preferences.

But the real fault lies in we the people. It was the people that elected Franklin Roosevelt 4 times despite his expansive and unconstitutional use and abuse of the federal regulatory bureaucracy to do things that congress would not do. It is the people that elected Barack Obama twice, despite his open contempt for congress’ role as the voice of the people, proclaiming “We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone.” It is the people that elected a congress that thinks that knowing what is in legislation is what comes after having passed it. Franklin’s cynicism about the people was well founded. He gave us a Republic and we have frittered it away.

On this Fourth of July, our Independence Day, it might be useful to read through the Declaration of Independence, and remember what its purpose was. It was not merely a declaration of America’s independence from Britain, but it was also a justification for the Declaration itself. While the first few lines are the most remembered from grade school civics lessons, the body of the document is comprised largely of a list of transgressions that King George III was said to have rained down upon the colonists, compelling them to revolt. It is worth noting one of them in particular.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

A better description of the modern regulatory state has never been written. It is high time we took Jefferson’s lead and declare our independence from it.

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