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.
