The unequaled genius of the Founders produced an original form of government that included a system of checks and balances to maintain its integrity. That design has been substantially abandoned, and all three branches of government are guilty of creating this situation.
The Legislative Branch is now weaker and the Executive Branch now stronger due to malfeasance by the Congress and the eager acceptance of extra-constitutional power by administrative agencies. Likewise, failure of the duty to the Constitution’s original language and intent has increased power to the Judicial Branch.
The U.S. Constitution gives Congress, and only Congress, the authority to pass laws. But through laziness and other misfeasance through the years Congress has abdicated much of that duty by allowing administrative agencies to pass rules that are in effect laws. That is how the EPA is able to implement a rule that absurdly allows it to tell a farmer in Iowa that the drainage ditch along his dirt road is a waterway that falls under federal control.
That is also how the Department of Education justifies using SWAT teams to break down the doors of people because their education loan payments are past due. There are dozens of other examples of this unconstitutional over-reach by federal agencies.
Utah Republican Sen. Mike Lee confirms this unconstitutional transfer of power, and blames lawmakers, saying, “We are not, in fact, the victims, we are the perpetrators.” He went on to tell The Daily Signal that this was done to make Congress’ job easier, because it is less politically risky to let others do the lawmaking through the rule-making function.
Speaking at the Federalist Society’s 5th annual Executive Branch Review Conference, Lee talked about his efforts to combat this situation through the Article One Project. He outlined three pieces of legislation designed to address the problem.
The REINS Act would require both Congress and the president to approve any administrative rule with an economic impact of $100 million or more. Lee said that ultimately, “Congress would be responsible for every major regulation that went into effect.” The Act has passed the House, but not the Senate.
The second measure is the Separation of Powers Restoration Act (SOPRA), which Texas Republican Rep. John Ratcliffe told The Daily Signal would reverse the Supreme Court’s 1984 decision that established the “Chevron doctrine” that “determined that courts must defer to agencies’ interpretation of ambiguous laws as long as their interpretation is deemed ‘reasonable.’”
“This bill would end the dysfunctional status quo that tilts the legal playing field in favor of bureaucrats,” Lee said. SOPRA passed the House last year, and Ratcliffe has introduced it again this year.
Currently, federal agencies use funds received through fines, fees, and proceeds from legal settlements at their own discretion, thereby avoiding the formal appropriations process, and escaping congressional oversight. It may also encourage agency action aimed at raising funds. The Agency Accountability Act will require funds acquired by agencies outside the appropriations process to be turned over to the Treasury.
Lee commented, “You see the Constitution has this pesky little provision that … Congress has the power and the responsibility to direct spending of federal dollars. The power of the purse is one of Congress’ most potent tools for controlling bureaucracies.”
The Judicial Branch also has strayed from the straight and narrow path created by the Constitution through increasingly liberal interpretation of the language and intent of the Constitution and federal laws, citing how society has changed over the years as the need to reinterpret them. Amending them is too slow and difficult, you see.
Carson Holloway, author of “Hamilton versus Jefferson in the Washington Administration,” explains another liberal judicial technique. President Donald Trump’s revised Executive Order temporarily halting travel to the U.S. from several countries with ties to terrorism was found unconstitutional by some lower courts, which agreed with opponents that the order actually bans Muslim immigration.
The order does no such thing, Holloway notes, since it applies to only a fraction of Muslim countries, and that the lower courts reacted not to the language of the order, but to things Trump said during the campaign. In other words, the courts abandoned interpreting actual written language in favor of reading the president’s mind, and finding a hidden agenda there.
Looking back in history to the days of Chief Justice John Marshall, Holloway explains that while Marshall acknowledged both the letter and spirit of the law, Marshall said, “the spirit is to be collected chiefly from its words,” not the imagination of judges.
Holloway said, “rule of law does not mean rule by judges acting on their whim,” but that it requires “judicial modesty.” And Marshall noted in Fletcher v. Peck that “an inquiry into the subjective motives of the lawmaker quickly leads judges into a realm in which there are no clear, compelling standards of judgment.”
Holloway concludes with the hope that the Appellate Court “follows the path of judicial modesty … and not the endlessly debatable intentions that may lie behind” the order.
Our government is badly out of balance, and a quick return to constitutional government and originalism in the courts is essential.