Wednesday, June 1, 2016

Emboldenings

     Yes, it’s another Fran Porretto neologism. You won’t find it in the dictionary – at least, not in any dictionary I’m aware of. But the rules of construction should make its meaning clear.

     Boldness – confidence compounded with brassiness – arises from action that repeatedly meets with success, without undue negative consequences. A businessman becomes bold by making one successful innovation after another, without suffering a financial loss. A Lothario becomes bold by seducing one woman after another, without being thrashed by one of her male relatives. A thief becomes bold by pulling off a string of robberies, without getting caught, indicted, tried, convicted, and sent to prison.

     A bureaucracy becomes bold by repeatedly exercising powers and authorities it was never granted, without any of its personnel being hanged from lampposts.


     One of the fatal errors the American people have made this century past was to permit Congress to delegate its lawmaking power to unelected bureaucrats. This was done under quasi-Constitutional cover, via enabling legislation: laws that:

  • Established a justification for government action;
  • Created a bureaucracy with subsidiary authority for rule-making;
  • Proposed a fiction of “legislative oversight” of the bureaucracy’s rules and actions.

     The essential impossibility of a Congress of a few hundred, many with narrow regional or constituent interests at stake, properly overseeing (and by implication constraining) a bureaucracy of many thousands of persons should have been obvious from the start. Indeed, I would argue at this point that to assume that serious oversight of the resulting bureaucracies was nowhere in Congress’s intentions even when it began to delegate its authority. Whatever the case then, no one can plausibly claim that such oversight and constraint are in force today. Rather, Congress waits for the federal courts to exercise whatever limits the bureaucracies must observe – and in several cases, agencies have proceeded to ignore adverse court rulings in their subsequent behavior.

     It started early in the Twentieth Century, when Progressivism, powered by a widely held, well meant, but inherently wrongheaded meliorist sentiment, was first getting its wheels onto the track. It was greatly aided by the economic distortions the country endured during the two World Wars. Today it constitutes the indispensable method of the federal government for getting what it wants.

     Think about it! The bureaucracies aren’t arms of Congress; they’re parts of the executive branch, that portion of the federal government that enforces federal law. Apart from the bureaucracies, Washington’s enforcement power lies in the armed forces, which, except in case of invasion, operate only outside the United States. Without the bureaucracies, the executive branch would need to depend on the enforcement arms of the state governments to work its will – an aspect of the Constitutional design the Founders fully intended.

     The federal government’s original mission was to supervise the U.S.’s external relations. The seventeen enumerated powers of Congress nearly all point explicitly in that direction. Even the few exceptions, such as the power “to coin Money, regulate the Value thereof, and of foreign Coin, and to fix the Standard of Weights and Measures,” looked mainly toward the conduct of America’s foreign dealings.

     Despite the creation of a Department of the Interior and a Department of Justice, there was no contemplated role for the federal government in the lives and activities of private Americans when the nation was founded. Even the collection of federal taxes was in part delegated – subcontracted, if you will — to state-level authorities.

     Quite a throw from today, eh, Gentle Reader?


     When the first significant bureaucracies emerged during the Wilson Administration, the country was at war. The fury of a nation in arms was directed outward, toward “the Hun.” The absence of scrutiny that resulted allowed Washington to get away with many crimes against the Constitution, including some so shameful that even today most Americans, regardless of their political leanings, would regard them as beyond the pale; look up the life and doings of General Hugh Johnson for a sampling. Yet the citizenry, obsessed with “the war effort,” hardly protested at the intrusions into their lives and affairs.

     Once the seeds of bureaucratic rule were planted, the task of those who sought unbounded power was to keep them well fed and watered. That required occasions for action. The Twenties offered few...but the Great Depression and the resumption of world conflict in 1939 offered multitudes, as the legacies of the New Deal should demonstrate. With every supposed necessity to which they were applied, the bureaucracies grew in extra-Constitutional power. The justifications offered by the courts became ever thinner; Wickard v. Filburn is the most commonly cited example.

     Today the bureaucracies are untouchable, save perhaps by high explosives. Most bureaucrats are permitted to carry firearms; many do so daily, including in states where private citizens are forbidden to do so despite the clear wording of the Second Amendment. Their offices are among the most closely protected of all government buildings. The most intrusive of them labor to keep both the addresses of their offices and the names of their employees secret. Seldom does a bureaucrat face even a mild penalty for anything he might do ex officio.

     And all because we were too consumed by the “world wars” – wars in which, except for the Pacific campaign against Japan after Pearl Harbor, America had no national interest at stake – to pay attention to what was being done to us.


     The successes of a century have greatly emboldened the bureaucracies. At this point, they seldom even bother to cite their “enabling legislation” as justification for their actions. Consider the recent action against Gibson Guitars, which was in no way an enforcement of American law. Consider the EPA’s attempts to seize control of numerous private properties as “wetlands” or the “habitats of endangered species.” Consider the Bureau of Land Management’s highly publicized seizures and attempted seizures of land in the West – one of which went so far as to mandate a redrawing of state borders.

     Time was, Americans would have risen in a body, rifles in hand, to oppose such arrogance. After a century of citizen passivity, Americans of today are so accustomed to being ruled by unelected bureaucrats that the bureaucrats are convinced that they can get away with anything – and given the relative mildness of the reactions to their recent overreaches, more likely than not they’re correct.

     It’s possible that John Ross had the only workable idea. But every idea requires implementation: someone to “bell the cat.” And We the Sheeple seem incapable of more than talk.

2 comments:

  1. The Administrative Procedures Act, which formalizes and legitimizes all of this creation of Executive branch authority under Legislative powers, is a very questionable piece of work, in my opinion. But it was challenged and upheld at a fundamental level (based on the "oversight") that you refer to, which is clearly a joke.

    I think that this emboldening problem embodied by the APA and the proliferation of Executive branch "administrative" powers comes from the premise that the members of the Congress would simply be spread too thin to handle all of this type of thing (i.e., exercising their legitimate Constitutional authority, rather than delegating it), and so it's become accepted.

    Now, moving into my personal weird idea for a "solution" - I think that if we had maintained the number of constituents-per-House-Representative at a roughly constant level since the Constitution was enacted, we could have eliminated this issue entirely. This would result in a current House of Representatives with somewhere in the 5000-7000 member level (depending on exactly where you standardize the ratio).

    You might argue that this is trading a 435-person problem for a 5000 person problem, but I see it differently. This means that each representative would have about 50,000 to 70,000 constituents, instead of 800,000 constituents (on average), which I think would be great for (a) getting ordinary folks involved in national level politics (which is also good for eliminating a "professional legislator" mentality and class), (b) allow for much better accountability, since a relatively small number of dissatisfied constituents could oust a bad actor, (c) make election of important members of Congress, such as committee chairs and Speaker meaningful, (d) enable better grass-roots access to the federal level (since smaller amounts of money would effect each race), and (e) allow the members of congress to take part in "administering" all of those activities they are currently delegating to others.

    Sure, their staff would still have lots of power, but the Administrative decision-making could be centered back in Congress where it belongs, and no one could argue that there weren't enough Representatives to go around.


    Now this also has a tremendous impact on the Electoral College, and that effect might be a little less desirable (in the sense that it would make the current system even less Republican (in the sense of a Federal Republic, rather than "right-wing") since it would reduce the relative strength of the small population states. This might be reason enough not to like this idea, but from a Legislative view, I think that having Representatives that have Million-person districts makes each individual too powerful.

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  2. Bureaucrats wouldn't be a problem if we merely followed the constructs of the Constitution. No-one, I REPEAT: ***NO-ONE***, should be permitted to serve more than 10-12 years in federal service. 10-12 years is roughly equivalent to a quarter of one's working life! After which, everyone, no exceptions, MUST return to, and work in, the private sector. No-one is permitted to lobby, nor work as a Government contractor, or for one........COMPLETE and UTTER separation from the Government! If three quarters of your livelihood depended on the health and prosperity of the private sector, I guarantee bureaucrats would be greatly hesitant to pass, or support, and infringement on the private sector.....knowing they MUST return to it. If this were instituted, we could shrink the size of Government very quickly...who wants to work a relatively low pay job that is, at best, destined to be temporary? The glamour and security of living off the people would be stripped of incentive.

    Alas, as many times as I've suggested this to a great host of "conservative" pundits, political candidates, or anyone that might listen, I've yet to receive so much as a simple response from any of them. BAAAHHHH! Sheeple abound! Alas, it'll probably have to happen at the end of a gun and noose....if anyone can muster and courage, Unintended Consequences.

    Thanks for all your writings Fran!

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