The following example may be overdrawn just a tad. It shows a process that is not Constitutional legislation but rather administrative law.
The process works this way. Suppose the House passes a bill stating, “The EPA will do good work to protect the American environment.” The Senate amends the bill to add the phrase “preventing greenhouse gas emissions.” The Congressional conference committee agrees to replace the word “preventing” with the word “minimizing.” The legislation is passed, signed by the President and referred to the EPA for implementation.
This sequence results in 1,700 rules and regulations imposed on U.S. industry over the following decade. The populace is wrong to think that laws of this country are passed by Congress. The reality is that this administrative law is created by Executive agencies that make up the national bureaucracy. Administrative law is a specific violation of the U.S. Constitution, which does not give Congress powers to delegate its function.
A look at history is enlightening. English aristocracy first resisted royal “prerogative powers” (power that kings exercised when evading the law) and successfully curtailed them in the Magna Carta in 1215. Parliament then in 1354 and 1368 enacted due-process statutes, and the judicial system made royal proclamations unlawful in 1610. America’s founders studied these precursors, and the evolution of what is embodied in administrative law, and were quite clear and adamant in rejecting what we see happening today.
Thomas Jefferson in Notes on Virginia (1784) wrote, “All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating of these in the same hands is precisely the definition of despotic government.” James Madison in Federalist No. 47 stated, “The accumulation of all powers – in the same hands – whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.” Alexis de Tocqueville, an astute observer of what has become the American administrative state, warned that under such a government, citizens would become “nothing more than a herd of timid and industrious animals, of which the government is the shepherd.”
America embarked on this acquiescence to administrative law when Congress created the Interstate Commerce Commission in 1887 in spite of fact that the Constitution offers only two avenues to binding power: acts of Congress and acts of the Courts. Over the past 125 years, America has established what our Constitution most centrally forbade. Here are several examples that may affect you, the reader, to varying extent.
• In March 2011, the EPA announced the Clean Air Act allowed it to regulate mercury emissions from coal-burning plants. It is estimated to have affected electricity prices due to $10.9 billion in annual costs and possibly cause black-outs and unreliable power supply in many areas.
• The NLRB attempted to prevent Boeing from moving aircraft manufacturing to South Carolina, a right-to-work state. Through complicity, lawsuits on these matters are decided over 80% in favor of NLRB judgments (and this case is not over, folks).
• When cap-and-trade (CO2 emission controls) legislation failed in Congress in 2009, the EPA immediately proceeded with rule and regulation issuances (still under way) under fiat of administrative law.
• Neither the Occupational Safety and Health Review Commission nor the U.S. Tax Court are part of what they seemed – OSHA, the IRS or Department of Justice. Both were created to circumvent legal restrictions, because both have court powers and are outside Constitutional legal protections specified for citizens.
• Health and Human Services (HHS), which regulates ObamaCare, including industry participation and rules for operation and payments, has issued 1,700 exemptions to favored entities since January 2012.
It is wise to remember the admonition, “No government, any more than an individual, will long be respected without being truly respectable.” Now that a new Congress is getting started, it is time for all citizens to remind their elected representatives in the House and Senate to adhere to the Constitution and law, our tried-and-true form of government that Congress has allowed to lapse into disgrace. IH