Whatever Happened to the Constitution?

Consider this Part 1 of a series on the “administrative state” that has replaced the US Constitution and how we can restore the Constitution while we still have a choice other than armed revolution.

Over the past 100 years, the limited, constitutional, federal republic created by our founders has been transformed into a centralized administrative state that exists mostly outside of the authority of the Constitution while wielding nearly unlimited power. This administrative state stems from a massive expansion of the national government’s power.

Our Founders did not trust government. They’d lived under tyranny and they weren’t anxious to return to it, even if they were the ones in charge. Thus, they entrusted only limited powers to the national government, enumerating them specifically in the Constitution, so that government could only carry out a limited number of functions through the institutions and procedures established by the Constitution. The Founders were planning ahead for the time when they were no longer around to guide their children and grandchildren who would not remember what it had been like to live under tyranny.

As the national government expanded, it began to focus more and more on every aspect of citizens’ lives. This required a new form of government that could regulate the numerous activities of citizens rather than protect their individual rights. Alexis de Tocqueville had warned in Democracy in America that the administrative state would turn citizens into little “more than a herd of timid and industrious animals, of which the government is the shepherd.”

The administrative state has taken many forms as it has expanded and has become the primary method of politics and policymaking. The myriad agencies and departments of the administration operate as a “fourth branch” of government, typically combining the powers of the other three, and making policy with little, if any, regard for the rights and views of citizens. Congress and the President are largely secondary to this administrative “branch”. Unelected bureaucrats are running the show! Our elected representatives are merely window dressing.

Restoring limited constitutional government is one of the greatest long-term challenges facing the United States. Dismantling the administrative state is the first order of business if we want to return to a self-governing republic.

American constitutionalism boils down to three basic concepts:  representation, the rule of law, and the separation of powers. The administrative state damages all three of these principles.

The Constitution provides for Congress to pass laws. The members of Congress are elected by the people. We assume that we are indirectly consenting to the laws and therefore, we must follow them. In reality, this is no longer true. Agencies and departments of the executive branch create most federal law. Congress passes laws delegating its authority to these agencies and the agencies then develop the laws and demand our compliance.

When Nancy Pelosi famously declared that we would have to pass the Patient Protection and Affordable Care Act (popularly known as “Obamacare”) so that we could find out what is in it, she was not referring to the length of the bill. Rather, she was referring to the fact that most of the laws—such as the infamous Health and Human Services (HHS) requirement that all insurance providers cover contraception, abortifacients, and sterilization—would be made by HHS. I read the bill and so did a cousin of mine who is a research doctor. That law was not found in the bill Congress passed. It came later, in administrative code.

Similarly, in March 2011, the Environmental Protection Agency (EPA) announced that the Clean Air Act suddenly allowed it to regulate mercury emissions from coal plants. The rule would cost $10.9 billion annually over the next 10 years so that older plants could be retrofitted for new technology. In announcing the rule, the EPA acknowledged that many coal plants would have to be shut down, and several power companies testified that the rule would result in rolling blackouts and unreliable energy supply.

Why is an agency run by unelected officials making such massive decisions affecting the U.S. economy? The EPA operates under a mandate, created decades ago, that was designed to deal with a completely different problem. This is fundamentally contrary to the idea of republican government and the principle that all laws must be passed by our elected representatives.

The administrative state also undermines the rule of law. Bureaucrats regularly make exemptions to the regulations that they create. By January 2012, HHS admitted to granting over 1,700 waivers from its own regulations under Obamacare.  Bureaucrats write the laws and, because they execute them, they are able to exempt politically powerful groups and industries from those same laws. This violates the idea of equal treatment under the law, rich and poor, powerful and weak alike.

Finally, the administrative state violates the principle of the separation of powers by breaking down the divisions between the constitutional branches of government. Congress’s power is transferred to agencies and departments, which are then influenced by all three branches of government but not directly accountable to any, and the effect of checks and balances is reversed. All of the branches work together to control the unwieldy administrative apparatus that often combines all three powers of government—legislative, executive, and judicial.

The National Labor Relations Board is a perfect example of this combination of powers. In its infamous decision to sue to block airline manufacturer Boeing from moving some of its facilities to South Carolina, which is a “right-to-work” state, the NLRB acted as lawmaker, investigator, prosecutor, judge, jury, and executioner. The machinists union notified the NLRB that Boeing was moving some of its production from Washington State to South Carolina, prompting the NLRB’s lawsuit, which was resolved before an NLRB administrative law judge.

The NLRB itself decides several hundred similar cases per year, and only about 65 of those cases are appealed to an independent court. While the circuit courts are called upon to review the NRLB’s orders, the agency boasts on its website that “The majority [of cases]—nearly 80%—are decided in the Board’s favor,” which suggests these courts are not all that independent.

The NLRB, in short, makes rules governing employer–labor relations, investigates violations of the rules that it issues, decides particular cases involving employers and employees, and enforces the decisions that it orders. This combination of legislative, executive, and judicial power inevitably causes objectionable bureaucratic decisions. When we create institutions that violate our basic constitutional principles, we lay the groundwork for tyrannical decisions. The problem is not necessarily the specific people running the NLRB. The circular nature of the process makes a complaint into an immediate judgment of guilt because the entire case is handled by one agency that will rule in its own favor.

The administrative state centralizes power in Washington and then consolidates that power in the hands of agencies and departments that violate republican government, the rule of law, and the separation of powers. As a result, citizens find themselves at the mercy of government agencies and departments over which they have no control. With the removal of these controls, bureaucrats often overreach and cause profound damage with little accountability or public awareness.

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