ALEXANDER: Don’t Abandon Our Constitution To The Administrative State

The U.S. Constitution is the rarest, most extraordinary governing document of all time and, with the exception of the Bible, has had the greatest impact of any written work in human history.   That’s because it contains the formal enshrinement, guarantee and protection of the precious rights and liberties we hold and cherish as individuals and citizens.  Perhaps most importantly, it stands as the bulwark of freedom against any and all encroachments and infringements by government upon those sacred rights.

Our Constitution is premised upon the transcendent belief that these unalienable, fundamental rights flow from natural law and do not flow from—are not given or bequeathed to us by—government.  Rather, they are God-given rights and, as such, we view them as intrinsic to and inherent in every human being.  We possess them merely based upon the fact of our birth (many of us believe deeply they should be extended to unborn babies, as well).

Further, as we know, the Constitution prescribes both the explicit powers and express limitations of government.  And, one of the painstakingly crafted provisions is found in Article 1, Section 1 which clearly states that “all legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”  Another carefully written provision involves Article 1, Section 7 which mandates that “every bill which shall have passed the House of Representatives and the Senate shall, before it become a law, be presented to the President of the United States.”

That, in summary form, is how laws are legitimately made in this country.  Well, that began to change dramatically with the start of massive federal spending and accompanying massive government programs.  Franklin Roosevelt’s New Deal was the beginning of this change but LBJ’s Great Society also sparked enormous growth of federal government spending and the creation of equally enormous federal programs.  This unprecedented federal spending and these huge programs had to be administered and this is what gave rise to the oppressive administrative state we live in today.

Well, this expansive administrative state—and the huge federal agencies that comprise it—are unconstitutional.  Why is that? Because these agencies and the career bureaucrats who run them are unknown, faceless and were never elected to anything.  Yet, they are making and enforcing laws upon the American people!  They make policy decisions every day that affect millions of Americans.

The issue is well stated here: “The Founders understood that there are two fundamental ways in which government can exercise its authority.  The first is a system of arbitrary rule, where the government decides how to act on an ad hoc basis, leaving decisions up to the whim of whatever official or officials happen to be in charge; the second way is to implement a system grounded in the rule of law, where legal rules are made in advance and published, binding both government and citizens and allowing the latter to know exactly what they have to do or not to do in order to avoid the coercive authority of the former.”  (Heritage Foundation, Ronald Pestritto).

Well, we chose the second way!  We opted for the rule of law which affords guarantees like notice, due process and equal protection of the laws to every citizen—a process designed to insure what we have come to call “fundamental fairness.”  Further, we govern ourselves in an equally predictable manner: we elect our President and our U.S. Senators and U.S. Representatives to implement in policy and law the will of the American people.  These elected officials are accountable to us because their every official action is heavily and constantly scrutinized and, in the next election, we may throw them out of office (of course, this assumes we have free and fair elections) and elect someone else when we feel our political will is not being honored.

There is no place in our constitutional scheme for powerful federal agencies who decide what the laws applicable to their agencies mean—they interpret statutes for themselves—and, unfortunately, the U.S. Supreme Court and lower federal courts, through the ill-advised legal doctrine of Chevron Deference, have given up their most important role—interpreting statutes and adjudicating agency disputes—instead choosing to defer to “agency expertise.”  The reason this is so dangerous is because a federal agency—like, for example, the Environmental Protection Agency (EPA)—has often abused its authority and been dictatorial in its view of its own power while being largely unaccountable to the Congress.

For example, the EPA, in conjunction with the Army Corps of Engineers, has jurisdiction under the Clean Water Act to regulate “navigable waters” which are defined as “the waters of the United States, including the territorial seas.”  (The Rivers and Harbors Act is often dubiously used also).  The dispute is almost always about what qualifies as “navigable water.”  Well, in the past, unsurprisingly, the EPA and the Corps have tried to expand their authority by implementing an agency rule that would define “navigable waters” as even including all ditches—any ditch, even a man-made ditch—in a farmer’s field, for example.  It even includes depressions or low points in a field that are dry most of the time except when it rains.  (Heritage Foundation, Daren Bakst).  This is insane.

This also means that if the EPA and Corps are not checked and reined in but continue to expand their authority over more waters, property owners will have to secure additional permits to use their own land!  They will have to get permission from federal bureaucrats to use and enjoy their property because of the presence of so-called “navigable waters” that were never intended to be regulated under the Clean Water Act.  If property owners don’t comply with the law, they can even face civil penalties as high as $37,500 per day per violation, or even criminal penalties. (Id.)

This is what is most concerning about the burgeoning growth of the administrative state in our country.  There is no accountability.  Ultimately the Congress is going to have to stop deferring—whether due to laziness or timidity—to these powerful federal agencies (who often have their own agendas) and reassert its authority to define what terms like “navigable waters” mean.  One of the most hallowed rights of all—private property rights—are at stake.  Congress must act to correct these kinds of agency abuses and, in the meantime, the federal courts—whose duty and province is emphatically to “say what the law is” (Marbury)—must stop deferring to these agencies and interpret these statutes for themselves.  Otherwise, we are not adhering to the rule of law in our constitutional scheme.

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