On June 23, 2016, the British People throughout the United Kingdom voted to end forty plus years of membership in the European Union. As one writer put it, many Britons felt forsaken by the country’s political and cultural leadership. Many believed that their lives were controlled by “gray-suited Brussels bureaucrats” at the EU’s headquarters.”[1]
Many Americans and possibly a large majority feel they, too, are being controlled by a vast army of gray-suited governmental officials and bureaucrats who are no longer responsive to the will and wishes of a majority of the people. There are three principal culprits in the marginalization of the American electorate in the governing process.
Judiciary
The problem with the modern judiciary is that it has crossed the line of its Constitutionally-mandated powers by creating legislation as opposed to interpreting the law. In the first eight decades following the writing of the Constitution in 1787, the Supreme Court ruled only twice that a law created by Congress was unconstitutional, and both times the ruling was ignored by Congress and the President.
In Marbury v. Madison, President Jefferson rejected the belief that the Judiciary was the final voice and described the damage to the Constitution of a contrary opinion.
[O]ur Constitution…has given – according to this opinion – to one of them alone the right to prescribe rules for the government of the others; and to that one, too, which is unelected by and independent of the nation…The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary which they may twist and shape into any form they please.[2] [emphasis added]
Sixty-two years later, Abraham Lincoln and the Congress ignored the ruling of the Supreme Court in the Dred Scott case. Not only was the ruling ignored but directly disobeyed. On June 9, 1862, Congress prohibited the extension of slavery into free territories and in 1863 Lincoln issued the Emancipation Proclamation ending slavery throughout the nation.[3] Several of Abraham Lincoln’s remarks in his first Inaugural Address were prompted by the Dred Scott decision.
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court…At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made…the people will have ceased to be their own rulers, having…resigned their government into the hands of that eminent tribunal.[4] [emphasis added]
Contrary to popular belief, the Supreme Court does not make its ruling the “law of the land.” In defending his veto of legislation passed by Congress and deemed Constitutional by the Supreme Court, President Andrew Jackson made a noteworthy description of the duties of the three branches of government with regard to interpreting the Constitution.
The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others…The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.[5]
Irrespective of words of Jefferson, Jackson, and Lincoln, the modern judiciary in the age of the “living” Constitution has made it increasingly pliable in order to accommodate the humanistic worldview and philosophies of society’s elites and overseers in order to impose their socially-engineered laws and regulations which stand in opposition to the popular will and wishes of the people and their mores, norms, traditions, and voices of the past.
Executive Branch
The rule of law implies that governmental authority (power) is limited and may only be exercised in accordance with written laws adopted through an established procedure. When elected or appointed officials and bureaucrats exercise power beyond the limits established by the law, it is called abuse.
The brazen overreach of the Executive Branch under the Obama administration has occurred through the disregard of Constitutional limits on executive powers and may be unparalleled in American history. In addition to scorning the rebukes by the Supreme Court for his un-Constitutional executive actions, the President has violated his Constitutional duty to faithfully execute the laws through his selective enforcement and/or changes to laws enacted by Congress. Additionally, the administration has regularly circumvented the powers of the legislative branch through the issuance of illegitimate executive orders to accomplish what Congress would not approve and to frustrate implementation of legislation that Congress has approved.[6]
The two pillars of Barack Obama’s crumbling legacy are Obamacare and the American foreign policy of disengagement marked by diplomacy and multilateralism.[7] But perhaps Barack Obama’s presidency will be most remembered for his above-the-law actions in the Executive Branch and the attendant widespread lawlessness at all levels of the federal government under his administration.
Unelected bureaucracy
Regardless of President Obama’s involvement in or prior knowledge of the various scandals that have been endemic throughout his administration, his arrogant example sent the message that his decrees and agenda were superior to the laws of the land. Although an abusive bureaucracy was not the invention of President Obama, he has dramatically accelerated the level of abuse.
Regulatory oversight is a necessary and proper function of government. However, under the expansive interpretation of the Constitution’s general welfare clause beginning in 1936, much of regulatory oversight has become an autocratic function of a nanny-state bureaucracy intruding into the lives of a free people capable of making rational decisions without government interference.[8] The burden and cost of regulations on average Americans and businesses is staggering. To give insight into the massive size of the federal bureaucracy we look to Title 27 of the U.S. Code of Federal Regulations. This is the U.S. Tax Code which contains 16,845 pages including the part written by Congress. It is available for purchase from the U.S. Government Printing office for $1,153. However, the U.S. Tax Code is just one of 50 titles found in the U.S. Code of Federal Regulations, each of which contains one or more individual volumes, which are updated once each calendar year, on a staggered basis.[9] To these we add a multitude of state, county, city, and other regulatory entities’ rules and regulations.
In recent years there has been a frightening new adversarial mutation to the once overbearing but benign American governmental bureaucracy. The most recent scandals at the IRS and Departments of State, Justice, and Health and Human Services have exposed the dark underbelly of the rapacious bureaucratic monster. The goal of these agencies and bureaucracies is self-perpetuation which is accomplished by aiding those in power that are most friendly to their continued existence, financial health, and growth. A recent op-ed piece written by John Brock reveals how this symbiotic system works.
Government agencies are extorting billions of dollars from companies they regulate to the extent they are becoming independent of congressional appropriations and congressional oversight. For example, a Tulsa manufacturing firm was recently notified by the Environmental protection agency that a report was late. The company’s government consultant informed the company that previously such an error would have resulted in a $10,000 fine. The fine this time was $300,000. However, if the company would agree not to appeal through courts, the EPA would reduce the fine to $200,000. That is about the legal cost of an appeal. The delinquent report was that “there is nothing to report.” Early on regulators required a report only if there was a rule violation.
Most think that fines and penalties assessed by regulators go into the Treasury. Not so. The agency gets to keep the money, which it uses for bonuses to employees, employee parties, hiring more employees and buying equipment. For example, in the last eight years most agencies, using funds acquired from fines, have created their own police departments in lieu of using federal marshals. There are now more agency police than there are Marines in the U.S. Marine Corp. This extortion happens every day and all over the country and is increasing.[10]
In a 2008 speech, presidential candidate Barack Obama said that, “We cannot continue to rely only on our military. “We’ve got to have a civilian national security force that’s just as powerful, just as strong, just as well-funded.” Where is this civilian national security force? It is housed in over seventy agencies according to a 2012 report and includes such agencies as the National Oceanic and Atmospheric Administration which has an enforcement division manned by 191 employees and a budget of $65 million. Also, these agencies are often called on to conduct joint enforcement operations. And to whom do these seventy agencies ultimately report? That’s right, the president.[11]
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It is time for the states, Congress, and the American people to reign in the excesses of the Judiciary and Executive branch of government that has undermined Constitutional balanced of powers as designed by Madison and the Founders during the Constitutional Convention. Can there be a Brexit for America to shut down these gray-suited bureaucrats who are threatening the freedom of ordinary Americans? No, but there is a Constitutional solution. More on that in Part II.
Larry G. Johnson
Sources:
[1] Amanda Taub, “Brexit, explained: 7 Questions About What It Means and Why It Matters,” The New York Times, June 23, 2016. http://www.nytimes.com/2016/06/21/world/europe/brexit-britain-eu-explained.html?_r=0 (accessed October 5, 2016).
[2] David Barton, Original Intent, (Alledo, Texas: Wallbuider Press, 2008), p. 271. Quoting: Thomas Jefferson, Writings of Thomas Jefferson, Albert Ellery Bergh, ed., (Washington, DC: Thomas Jefferson Memorial Association, 1904), Vol. XV, p. 213, to Spencer Roane, September 6, 1819.
[3] Ibid. p. 272.
[4] Ibid.
[5] Ibid.
[6] Larry G. Johnson, “The end of sustainable government,” CultureWarrior.net, August 15, 2014. https://www.culturewarrior.net/2014/08/15/the-end-of-sustainable-government/
[7] Charles Krauthammer, “The Stillborn Legacy of Barak Obama,” The Patriot Post, October 7, 2016. https://patriotpost.us/opinion/45242 (accessed October 10, 2016).
[8] Larry G. Johnson, “The fragility of free speech in America,” CultureWarrior.net, March 21,2014. https://www.culturewarrior.net/2014/03/21/the-fragility-of-free-speech-in-america/
[9] “What is the Real Size of the U.S. Federal Tax Code,” Isaac Brock Society, February 12, 2012. http://isaacbrocksociety.ca/2012/02/12/what-is-the-real-size-of-the-u-s-federal-tax-code/ (accessed April 9, 2014).
[10] John Brock, “Citizens deliver a vote of no confidence,” Tulsa World, July 15, 2016, A-9.
[11] “Beware the increasing militarization of government,” Investor’s Business Daily, April 16, 2014. http://www.investors.com/politics/editorials/many-federal-agencies-have-armed-divisions/ (accessed October 10, 2016).
