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In just a few weeks time America will once again decide for themselves (?) who will be their elected representatives. Many are predicting that the political pendulum will swing more towards the right this time and Republicans will gain control of not just the House of Representatives but the Senate as well. What do you personally think will happen? What do you want to happen?
As with most elections I usually go with two main questions in mind: who if elected will most likely hurt me and my family with their policies and ideas once in office, and upon answering that question in my mind I vote against that candidate. Similarly for every new law proposed that ends up on our ballot I ask the question, will this new law help me or hurt me and my family and then I vote accordingly.
For me personally that usually means I vote the Republican candidate as there is not one single policy, or law proposed by Democrats in the last thirty plus years that I have supported. Not one. That is an amazing statistic but I am sure I am not alone. To be fair there are probably close to equal numbers of people out there that have never supported a Republican policy for thirty plus years.
The unfortunate reality in American politics is that there are only two directions our political process allows-left or right. We don’t live in a time of cooperation and compromise, not when so many traditional institutions in America each day are marginalized and at risk of disappearing completely openly challenged by Progressives with socialist and communist ideas, as well as moral relativists, and their various depraved and repugnant sub-culture suggestions.
I have no desire to get along with, associate with, or be led by people whose ideas would have got them censored at the least or put in jail just a few decades ago. I will not give these now mainstream ideas equal consideration with the ideas of Jefferson and Madison. For example the acceptance of government security agencies recording all phone and internet conversations to keep us “safe”; or the mandatory healthcare law known as Obamacare.
It is my belief that the baby boomer generation and its hippie culture have reached full maturation and we now are reaping what they have sown. They have greatly influenced most all of America’s schools and newsrooms thus influencing millions of young Americans. Each day their poison teaches our young to embrace everything and everyone without any reservation, judgement or discernment. They also ignore if not openly reject the founding father’s ideas of individual freedom and responsibility and trade it in instead for collectivist ideas and calling it social and civic responsibility.
To many the fact that Congress has not passed very much legislation recently is further example of the political stalemate and proof that our American system is broken. However I disagree. In light of the political realities and great divisions within our country I am not bothered by gridlock at all and believe the system is working. If Congress did not pass another piece of legislation for the next ten years and halted the Progressive agenda in its tracks that would be a good thing in my view since with each new law it passes it usually means I have a little less individual freedom.
I think the founding fathers had it exactly right by making the legislation process difficult not easy, so bills could not be fast tracked in the middle of the night in closed rooms but had to be very thoroughly discussed, debated, and understood by all to include and especially by the citizens themselves. If only our legislators and President would obey the rules and laws set forth by those very wise men so long ago.
Who will you vote for? Will it make a difference? We will have to just wait and see.
I suppose if you really want to make a difference you should not vote for incumbents of any party. However history has shown that even idealistic freshman Congressman do not stay that way for long. The system tends to corrupt them. To reverse a hundred plus years of Progressivism would take a similar amount of time and persistent dedication to that purpose. I have serious reservations and doubts we will survive that long.
The power of the Administrative State in America is growing with each passing year, with each election cycle and especially with the election of more Progressive representatives to government positions. Americans seem all too willing to accept this entity as necessary and inevitable even though the American Constitution was put in place to counter this idea. The idea that a country as big as ours cannot possibly function without many administrative rules and large bureaucracies managing every aspect of our lives seems so perfectly acceptable to Americans that any who challenge this idea are deemed just crazy.
I was reminded of this unsettling fact of 21st century America upon a recent trip to a very popular national park. Thousands upon thousands of acres of wilderness were set aside allegedly for the enjoyment of future generations of Americans. It would take a person with a very healthy physique a very long time, probably months to roam the entire length and breath of this wonderful park. However, there is very little roaming going on unless you agree to the park officials terms.
Upon arriving we are charged an admission price just to enter the place and told where to drive, where not to drive, where to park and where not to park, what objects we are permitted to bring into the park and what we are not to bring (don’t even think about trying to hunt here without getting special permission), and where our pets can and cannot go. We are told where and when to camp and when not to, where to hike and where not to, and upon reaching one of the summits, of one of the few accessible mountains with a paved road we are only permitted to walk on a two meter across paved trail about one hundred meters long. We are told with little signs everywhere to keep off ( literally hundreds of acres) the tundra surrounding the summit. It’s so the grasses on the frozen tundra are not damaged I heard one mother tell her small child.
I look at all of this with wonder not just at the raw beauty of nature has to offer but also the willingness of so many to exchange or surrender if you will, their personal freedom and individual rights to roam nature wherever and whenever they want, for the “order” allegedly provided by administrative rules.
Maybe it makes sense to not allow the crowds to trample on the grass on top of the summit even though there are thousands of acres of tundra surrounding the summit. Its apparently okay for Park Rangers to walk along the edges of the vast canyons and plateaus and interior of the park and the few brave and really fit hikers but for most of us Americans we will never see the interior of the park because it is administratively not possible to allow us. When I look at the millions upon millions of acres of land that the Federal government has stolen from “We the People” in this country for “preservation” or various purposes allegedly for our own benefit and at our tax expense; I wonder just how many actually see or experience that benefit. I am reminded of a quote attributed to Ayn Rand that is food for thought in this era of nanny government and administrative bureaucracies.
“Since there is no such thing as the “public” since the public is merely a number of individuals; the idea that “the public interest” supersedes private interests and rights can only have one meaning; that the rights and interests of some individuals take precedence over the rights and interests of others.” Ayn Rand
Call me crazy I guess but I found the below article from Hillsdale College’s free publication Imprimis to hit the nail on the head regarding this topic of administrative absolutism. If you have not already checked out Imprimis you should. Subscriptions are free and the articles, usually excerpts of speeches, are very informative and quoted by very qualified subject matter experts discussing current event issues we patriotic Americans face every day. I have copied their September 2014 issue below with their permission for your edification and enjoyment.
From Hillsdale College’s Imprimis
The following is adapted from a speech delivered on May 6, 2014, at Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., as part of the AWC Family Foundation Lecture Series.
The History and Danger of Administrative Law by
Columbia Law School
PHILIP HAMBURGER is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. He received his B.A. from Princeton University and his J.D. from Yale Law School. He has also taught at the University of Chicago Law School, the George Washington University Law School, the University of Virginia Law School, and Northwestern Law School. A contributor to National Review Online, he has written for several law reviews and journals, including the American Journal of Legal History, the Supreme Court Review, the Notre Dame Law Review, and the Journal of Law and Politics. He is the author of Separation of Church and State, Law and Judicial Duty, and, most recently, Is Administrative Law Unlawful?
There are many complaints about administrative law—including that it is arbitrary, that it is a burden on the economy, and that it is an intrusion on freedom. The question I will address here is whether administrative law is unlawful, and I will focus on constitutional history. Those who forget history, it is often said, are doomed to repeat it. And this is what has happened in the United States with the rise of administrative law—or, more accurately, administrative power.
Administrative law is commonly defended as a new sort of power, a product of the 19th and the 20th centuries that developed to deal with the problems of modern society in all its complexity. From this perspective, the Framers of the Constitution could not have anticipated it and the Constitution could not have barred it. What I will suggest, in contrast, is that administrative power is actually very old. It revives what used to be called prerogative or absolute power, and it is thus something that the Constitution centrally prohibited.
But first, what exactly do I mean by administrative law or administrative power? Put simply, administrative acts are binding or constraining edicts that come, not through law, but through other mechanisms or pathways. For example, when an executive agency issues a rule constraining Americans—barring an activity that results in pollution, for instance, or restricting how citizens can use their land—it is an attempt to exercise binding legislative power not through an act of Congress, but through an administrative edict. Similarly, when an executive agency adjudicates a violation of one of these edicts—in order to impose a fine or some other penalty—it is an attempt to exercise binding judicial power not through a judicial act, but again through an administrative act.Embed from Getty Images
In a way we can think of administrative law as a form of off-road driving. The Constitution offers two avenues of binding power—acts of Congress and acts of the courts. Administrative acts by executive agencies are a way of driving off-road, exercising power through other pathways. For those in the driver’s seat, this can be quite exhilarating. For the rest of us, it’s a little unnerving.
The Constitution authorizes three types of power, as we all learned in school—the legislative power is located in Congress, executive power is located in the president and his subordinates, and the judicial power is located in the courts. How does administrative power fit into that arrangement?
The conventional answer to this question is based on the claim of the modernity of administrative law. Administrative law, this argument usually goes, began in 1887 when Congress created the Interstate Commerce Commission, and it expanded decade by decade as Congress created more such agencies. A variant of this account suggests that administrative law is actually a little bit older—that it began to develop in the early practices of the federal government of the United States. But whether it began in the 1790s or in the 1880s, administrative law according to this account is a post-1789 development and—this is the key point—it arose as a pragmatic and necessary response to new and complex practical problems in American life. The pragmatic and necessitous character of this development is almost a mantra—and of course if looked at that way, opposition to administrative law is anti-modern and quixotic.
But there are problems with this conventional history of administrative law. Rather than being a modern, post-constitutional American development, I argue that the rise of administrative law is essentially a re-emergence of the absolute power practiced by pre-modern kings. Rather than a modern necessity, it is a latter-day version of a recurring threat—a threat inherent in human nature and in the temptations of power.Embed from Getty Images
The Prerogative Power of Kings
The constitutional history of the past thousand years in common law countries records the repeated ebb and flow of absolutism on the one side and law on the other. English kings were widely expected to rule through law. They had Parliament for making law and courts of law for adjudicating cases, and they were expected to govern through the acts of these bodies. But kings were discontent with governing through the law and often acted on their own. The personal power that kings exercised when evading the law was called prerogative power.
Whereas ordinarily kings bound their subjects through statutes passed by Parliament, when exercising prerogative power they bound subjects through proclamations or decrees—or what we today call rules or regulations. Whereas ordinarily kings would repeal old statutes by obtaining new statutes, when exercising prerogative power they issued dispensations and suspensions—or what we today call waivers. Whereas ordinarily kings enforced the law through the courts of law, when exercising prerogative power they enforced their commands through their prerogative courts—courts such as the King’s Council, the Star Chamber, and the High Commission—or what we today call administrative courts. Ordinarily, English judges resolved legal disputes in accordance with their independent judgment regarding the law. But when kings exercised prerogative power, they expected deference from judges, both to their own decrees and to the holdings and interpretations of their extra-legal prerogative courts.
Although England did not have a full separation of powers of the sort written into the American Constitution, it did have a basic division of powers. Parliament had the power to make laws, the law courts had the power to adjudicate, and the king had the power to exercise force. But when kings acted through prerogative power, they or their prerogative courts exercised all government powers, overriding these divisions. For example, the Star Chamber could make regulations, as well as prosecute and adjudicate infractions. And defenders of this sort of prerogative power were not squeamish about describing it as absolute power. Absolutism was their justification.
Conceptually, there were three central elements of this absolutism: extra-legal power, supra-legal power, and the consolidation of power. It was extra-legal or outside the law in the sense that it bound the public not through laws or statutes, but through other means. It was supra-legal or above the law in the sense that kings expected judges to defer to it—notwithstanding their duty to exercise their own independent judgment. And it was consolidated in the sense that it united all government powers—legislative, executive, and judicial—in the king or in his prerogative courts. And underlying these three central elements was the usual conceptual justification for absolute power: necessity. Necessity, it was said, was not bound by law.
These claims on behalf of absolutism, of course, did not go unchallenged. When King John called Englishmen to account extra legally in his Council, England’s barons demanded in Magna Carta in 1215 that no freeman shall be taken or imprisoned or even summoned except through the mechanisms of law. When 14th century English kings questioned men in the king’s Council, Parliament in 1354 and 1368 enacted due process statutes. When King James I attempted to make law through proclamations, judges responded in 1610 with an opinion that royal proclamations were unlawful and void. When James subsequently demanded judicial deference to prerogative interpretations of statutes, the judges refused. Indeed, in 1641 Parliament abolished the Star Chamber and the High Commission, the bodies then engaging in extra-legal lawmaking and adjudication. And most profoundly, English constitutional law began to develop—and it made clear that there could be no extra-legal, supra-legal, or consolidated power.
The Rise of Absolutism in America
The United States Constitution echoes this. Early Americans were very familiar with absolute power. They feared this extra-legal, supra-legal, and consolidated power because they knew from English history that such power could evade the law and override all legal rights. It is no surprise, then, that the United States Constitution was framed to bar this sort of power. To be precise, Americans established the Constitution to be the source of all government power and to bar any absolute power. Nonetheless, absolute power has come back to life in common law nations, including America.
After absolute power was defeated in England and America, it circled back from the continent through Germany, and especially through Prussia. There, what once had been the personal prerogative power of kings became the bureaucratic administrative power of the states. The Prussians were the leaders of this development in the 17th and 18th centuries. In the 19th century they became the primary theorists of administrative power, and many of them celebrated its evasion of constitutional law and constitutional rights.
This German theory would become the intellectual source of American administrative law. Thousands upon thousands of Americans studied administrative power in Germany, and what they learned there about administrative power became standard fare in American universities. At the same time, in the political sphere, American Progressives were becoming increasingly discontent with elected legislatures, and they increasingly embraced German theories of administration and defended the imposition of administrative law in America in terms of pragmatism and necessity.
The Progressives, moreover, understood what they were doing. For example, in 1927, a leading Progressive theorist openly said that the question of whether an American administrative officer could issue regulations was similar to the question of whether pre-modern English kings could issue binding proclamations. By the 1920s, however, Progressives increasingly were silent about the continuity between absolute power and modern administrative power, as this undermined their claims about its modernity and lawfulness.
In this way, over the past 120 years, Americans have reestablished the very sort of power that the Constitution most centrally forbade. Administrative law is extra-legal in that it binds Americans not through law but through other mechanisms—not through statutes but through regulations—and not through the decisions of courts but through other adjudications. It is supra-legal in that it requires judges to put aside their independent judgment and defer to administrative power as if it were above the law—which our judges do far more systematically than even the worst of 17th century English judges. And it is consolidated in that it combines the three powers of government—legislative, executive, and judicial—in administrative agencies.
Let me close by addressing just two of many constitutional problems illuminated by the re-emergence of absolutism in the form of administrative power: delegation and procedural rights.
One standard defense of administrative power is that Congress uses statutes to delegate its lawmaking power to administrative agencies. But this is a poor defense. The delegation of lawmaking has long been a familiar feature of absolute power. When kings exercised extra-legal power, they usually had at least some delegated authority from Parliament. Henry VIII, for example, issued binding proclamations under an authorizing statute called the Act of Proclamations. His binding proclamations were nonetheless understood to be exercises of absolute power. And in the 18th century the Act of Proclamations was condemned as unconstitutional.
Against this background, the United States Constitution expressly bars the delegation of legislative power. This may sound odd, given that the opposite is so commonly asserted by scholars and so routinely accepted by the courts. But read the Constitution. The Constitution’s very first substantive words are, “All legislative Powers herein granted shall be vested in a Congress of the United States.” The word “all” was not placed there by accident. The Framers understood that delegation had been a problem in English constitutional history, and the word “all” was placed there precisely to bar it.
As for procedural rights, the history is even more illuminating. Administrative adjudication evades almost all of the procedural rights guaranteed under the Constitution. It subjects Americans to adjudication without real judges, without juries, without grand juries, without full protection against self-incrimination, and so forth. Like the old prerogative courts, administrative courts substitute inquisitorial process for the due process of law—and that’s not just an abstract accusation; much early administrative procedure appears to have been modeled on civilian-derived inquisitorial process. Administrative adjudication thus becomes an open avenue for evasion of the Bill of Rights.Embed from Getty Images
The standard justification for the administrative evasion of procedural rights is that they apply centrally to the regular courts, but not entirely to administrative adjudication. But the history shows that procedural rights developed primarily to bar prerogative or administrative proceedings, not to regulate what the government does in regular courts of law. As I already mentioned, the principle of due process developed as early as the 14th century, when Parliament used it to prevent the exercise of extra-legal power by the King’s Council. It then became a constitutional principle in the 17th century in opposition to the prerogative courts. Similarly, jury rights developed partly in opposition to administrative proceedings, and thus some of the earliest constitutional cases in America held administrative proceedings unconstitutional for depriving defendants of a jury trial.
* * *
In sum, the conventional understanding of administrative law is utterly mistaken. It is wrong on the history and oblivious to the danger. That danger is absolutism: extra-legal, supra-legal, and consolidated power. And the danger matters because administrative power revives this absolutism. The Constitution carefully barred this threat, but constitutional doctrine has since legitimized this dangerous sort of power. It therefore is necessary to go back to basics. Among other things, we should no longer settle for some vague notion of “rule of law,” understood as something that allows the delegation of legislative and judicial powers to administrative agencies. We should demand rule through law and rule under law. Even more fundamentally, we need to reclaim the vocabulary of law: Rather than speak of administrative law, we should speak of administrative power—indeed, of absolute power or more concretely of extra-legal, supra-legal, and consolidated power. Then we at least can begin to recognize the danger.
Copyright © 2014 Hillsdale College. The opinions expressed in Imprimis are not necessarily the views of Hillsdale College. Permission to reprint in whole or in part is hereby granted, provided the following credit line is used: “Reprinted by permission from Imprimis, a publication of Hillsdale College.” SUBSCRIPTION FREE UPON REQUEST. ISSN 0277-8432. Imprimis trademark registered in U.S. Patent and Trade Office #1563325.
In a recent Linkedin story written by Richard Branson, the billionaire of Virgin Atlantic fame, he defends Democracy and calls on Democracies everywhere to consider looking at successful businesses and their structures as a role model presumably for better government. He makes note of China’s speedy economic growth and how they are able to move quickly and without gridlock. He then goes on to suggest government could cut costs by eliminating so many representatives we have now, and instead paying the remaining fewer representatives more money.
According to Branson:
“..Research has shown paying politicians more improves quality, and a talented, diverse new generation of people who would be attracted to positions where they could make a difference.”
First off I am not sure what research he is referring to but that sounds like a terrible idea. If anything we already pay politicians particularly US Congressmen far too much for too little return on investment. I fail to see how having less representatives somehow gives people equal or more representation than they already have now. It would appear Branson would like to see power concentrated into the hands of just a few representatives and given a freer hand to get things done. What “things” would remain to be seen, but you can be sure you and I won’t have a say in it if he gets his way.
Also, how does offering more pay for abysmal performance make for better representatives? For far too long we have elected people whose self-interest was the primary motivating factor for going into public service. You want to really start fixing things you have to change this paradigm. Political office currently attracts those seeking power, influence and money. How does that equate to good representation for the people? In the private sector money attracts more talent but does the type of person drawn to money, power, and influence make the best representatives of people who come from diverse backgrounds, cultures and economic conditions?
In today’s society once these money and power hungry people take office is it rational to believe that they will somehow shelve their own personal interests that have driven them their entire lives, and expect them instead to suddenly become altruistic and put their country and constituent’s needs first? I don’t think so. Offering more money like Branson suggests to attract a new diverse generation will only attract different sharks to the same pool, not better representatives.
We have drifted from the principle ideas of true representative government, perhaps out of ignorance or apathy I don’t know but we have grown too comfortable electing and putting our blind faith and trust in these type of people. The very same kind that thinks it’s okay to spy on you, lie to Congress, and ignore the Constitution.
In my view the compensation for any elected politician should be primarily the opportunity to serve the people. That should be reward enough. A small salary plus costs reimbursement should be in place but that’s it. Also there should be cumulative term limits for all those in public service. After eight or ten years in public life, that’s it, you’re off the public dole and you have to go find a real job or start a business of your own. The days of career politicians should be numbered.
The Congress is supposed to be a snapshot of the American people. All of them not just the successful power hungry ones that come from five or six different career professions primarily. One of the major problems I have noticed and have written about in the past is the demographics of the USA and the demographics of Congress are dramatically different.
In John Adams’s Thoughts on Government, Adams wrote about Congress saying
“..It should be in miniature an exact portrait of the people at large. It should think, feel, reason, and act like them.”
Ask yourself the question, do our current Congressmen and woman think, feel, and act like you? They probably don’t and most of you would probably have little in common with them.
I wonder what kind of people would then be attracted to public service if pay for elected office was nominal, had little perks, and service was required to end after a few years. Would we be better off represented by Joe Citizen, the plumber, the baker, the teacher, or the software guy who took four or six years off from his live to “serve” a bigger purpose? Would we get a better return on our investment than leaving it in the hands of the “political professionals”? Would people step up and do the job? I think they would despite what other political hacks might think.
Lastly, while I oppose government bureaucracy just like the next guy, some gridlock is not necessarily a bad thing, despite what Richard Branson, the business mogul thinks. Our system of government was built with gridlock in mind to prevent hastily written laws that have bad consequences later. The intention was not to put laws in place that could easily be changed or circumvented at the whim of the people, businesses or political influences of the moment. The government was structured so that the passions of the people and various special interests were to be given time to cool off, and rational discussion and input from all interested parties could follow before legislation was to be enacted. As Justice Scalia once said in support of the argument that the Constitution should be interpreted as the framers intended “If the Constitution means whatever we think it means today, why have a Constitution. Just have a legislature.”
In summary Branson’s off the cuff idea would further disenfranchise the average American citizen and would concentrate more power into the hands of an elite few and keep it there. I think he should stick to his business and leave We the People’s business alone.