Among the things we have to thank the French for is the invention of the bureaucracy, which more than one dictionary defines as a system of government in which most of the important decisions are made by state officials rather than by elected representatives.
It may be that, more than anything else, the rise of the bureaucratic state is responsible for the erosion of the constitutional separation of powers envisioned by those who wrote the Constitution. More than partisanship (or as Madison called it “factionalism”) or the differences in the role the federal government should play in the life of the nation, the stasis that exists among the permanent class of clerks and lawyers and administrators that compose the actual working heart of the various departments and agencies that make up the executive branch may be the principle cause of our current concerns.
All too often those responsible for writing the nation’s laws turn over the responsibility for how they are to be carried out to the same people charged with enforcing them. To put it another way the devil is in the details – and the details are left to the professionals, the government employees who are supposed to serve each president with equal fervor and vigor.
To a considerable degree this is not possible. The first loyalty of a Washington bureaucrat is to his or her program, not to the president and not to the Constitution.
Consider the problem of “sue and settle” in which those working for a particular branch of government seeking to enact a change in policy will encourage an outside party to bring suit against the government. The decision by an agency, say the U.S. Department of Justice, to settle the suit rather than contest it allows for the making of what can and should be considered “new law” without Congress being involved. With more and more agencies writing regulations that have both civil and criminal penalties attached this is a trend that jeopardizes our basic liberties in a major way.
Scholars have only recently begun to examine this matter with any seriousness. There is no agreed upon number of federal regulations that carry criminal penalties that were not specifically authorized in legislation. It would be useful for Congress to order a study from the Government Accountability Office to find one so that a national conversation on the matter can start. But when the occupants of the nation’s prisons include commercial fisherman who caught too many fish or the wrong kind of fish on the wrong day and people whose lack of cooperation in a federal investigation were subjectively determined (meaning their activities were judged largely by the investigators rather than weighed against a black letter definition of the law) to have committed the crime of obstruction, things have gone too far.
Regulations themselves have very real costs associated with them. The Competitive Enterprise Institute, a Washington-based think tank, in its annual report Ten Thousand Commandments recently determined that the hidden tax imposed by the regulatory state has reached $1.88 trillion per year over and beyond what the U.S. Treasury collects.
These costs, which often originate from the decisions and actions of unelected, largely unaccountable individuals with their own policy axe to grind, inflate the price we pay for goods and services, affect the wages workers earn, the number of jobs created, and lead ultimately to a lower standard of living, prosperity and economic growth than might otherwise be the case.
Consider that, as the CEI report found:
• If U.S. federal regulation was a country, it would be the world’s 10th largest economy, ranking behind Russia and ahead of India.
• In 2014, agencies issued 3,554 new regulations compared to 224 new laws. That’s a pace of 16 regulations for every law.
• The 2014 Federal Register contains 77,687 pages, the sixth highest page count in its history. Among the six all-time-high Federal Register total page counts, five occurred under President Obama.
• Some 60 federal departments, agencies and commissions have 3,415 regulations in development at various stages in the pipeline. The top six federal rulemaking agencies account for 48 percent of all federal regulations. These are the Departments of the Treasury, Commerce, Interior, Health and Human Services and Transportation and the Environmental Protection Agency.
It is not too far a leap to presume that, through these actions and those like them, the departments and agencies (whether independent or not) that make up the executive branch have taken for themselves the role of legislator as well as executor. This was not what the founders envisioned for the federal government, which to succeed in perpetuity depended on a system of checks and balances producing tensions that slowed the actions of government. What the modern state has done is streamline the process, and not to the good.
Peter Roff, a member of Constituting America’s advisory board, is a U.S. News and World Report contributing editor and a commentator appearing on the One America News Network. He lives in Washington. DC.
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