Sunday, February 14, 2016

Nipping at the Heels of the Administrative State - By Clarice Feldman

Despite the fact that the Constitution sets forth three branches of government, each with discrete powers and limitations -- the executive, legislative, and judicial -- various agencies, boards, bureaus, departments that today make up the federal administrative state often render the roles and powers of those branches nugatory. The Constitution’s checks and balances which provide limits on the three branches often are unavailing when it comes to the administrative operations. In effect, citizens’ votes are worthless -- who voters elect or what policies they prefer, the head of agencies like the EPA call the shots. No matter that candidates for public office talk about restoring constitutional democracy and reining in the state, without some fundamental changes we will remain serfs under the power of unelected officials and bureaucrats. Instead of asking candidates boxers or briefs questions, we must demand they that tell us how they’d assure that legislation which hands over extraordinary powers to a federal bureaucracy (such as the Clean Air Act, the Endangered Species Act, and ObamaCare) would be reformulated, abolished, or vetoed to limit the discretion of the administrative state and devolve more regulatory powers to elected state officials more accountable to citizens and their views…..

(Full text at link below)

The delegation of broad powers to the bureaucracy is now clearly out of hand.
In recent years, laws like ObamaCare, the Endangered Species Act, and the Clean Air Act seem little more than blank checks for unelected officials to expand their jurisdiction. In the process they also too often act as legislators, judges, enforcers, and prosecutors, and just as often, it seems that the slow-moving judiciary is by turns too deferential to the unelected bureaucrats or is unable to remedy administrative branch overreaching.
The Supreme Court this week, in an extraordinary step occasioned doubtless by the EPA’s arrogant flaunting of its power to evade judicial control, did nip that agency’s ever-expanding powers, and they did so by the narrowest of margins even though the record clearly warranted that action. It remains to be seen whether this is a harbinger for the judiciary to cease its overly accommodating approach to the federal bureaucracy………

This is to be sure a big step in the right direction, but to keep this from being an anomaly -- to halt and reverse the administrative state (the Leviathan fourth branch, if you will) we need to elect Congresses that retake their authority by passing bills which grant only limited discrete powers to the federal bureaucracy, presidents who respect the right of the governed to have their views respected and their interests, including their interest in the predictability of law, protected, and a judiciary which stops the inexorable overreaching of the federal administrative state.
With the news that Justice Scalia has died this weekend, reining in the Administrative state will become even harder and the outcome  of the general election of even greater import. At a minimum Congress must not even consider rubber stamping an Obama-picked successor to the Court. It must seriously examine any nominee's position on reducing the power of the bureaucracy and reject anyone who won't follow in Scalia's path.