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calendar   Wednesday - April 15, 2015

The Burger Book

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Mike Lee, Writ Larger



If you liked the taste of Utah Senator Mike Lee’s The Forgotten Constitution I wrote about the other week, here is the “big kids” version of that book. So to speak. Philip Hamburger hammers out, in 648 pages of fine detail, every last step our federal government has taken towards tyranny in the past bunch of decades.

Allow me to quote a couple of wonderful heavy duty paragraphs from the City Journal blog‘s review by (nom de plume?) Myron Magnet:

For over 400 pages of a 511-page, doorstopper-weight text, Hamburger counts the ways in which the slithery Medusa’s head of executive-branch agencies—from the Interstate Commerce Commission and the National Labor Relations Board to the Environmental Protection Agency and the Consumer Financial Protection Bureau, all spitting out the venom of administrative law—constitutes a flagrant affront to the Constitution. For starters, the Constitution lodges all legislative power in Congress, which therefore cannot delegate its lawmaking function. So it’s forbidden for Congress to pass a law creating an executive-branch agency that writes rules legally binding on citizens—for example, to set up an agency charged with making a clean environment and then to let it make rules with the force of law to accomplish that end as it sees fit. “The power of the legislative,” as the Founding Fathers’ tutelary political philosopher, John Locke, wrote, is “only to make laws and not to make legislators.” And if Congress can’t delegate the legislative power that the Constitution gives it, it certainly cannot delegate power that the Constitution doesn’t give it—namely, the power to hand out selective exemptions from its laws, which is what agencies do when they grant waivers.

Second, Constitution architect James Madison, following political theorist Baron de Montesquieu, saw the separation of powers as an essential bulwark of American liberty. But administrative agencies, which make rules, carry them out, and adjudge and punish infractions of them, blend together legislative, executive, and judicial powers in one giant anti-constitutional Cuisinart. Moreover, judicial power is as undelegatable as legislative power, since the Constitution lodges all of it in the judicial branch. So third, while administrative judges may look “just like real judges,” says Hamburger, they are no such thing—and not only because the Constitution makes it impossible for them to be so but also because, unlike real judges, their sole duty, rather than using their independent and expert judgment to carry out the law of the land, is to carry out the policy of their agency, as set and overseen by their department chief or the relevant cabinet secretary who in turn oversees him. As Justice William Howard Taft pronounced, an administrative tribunal is “miscalled a court.”

It’s a tome. No question about it. And one which could use a more active editor in Magnet’s opinion, to snip off redundancies and repetitions that could cut the book nearly in half. Let’s face it, there’s “making your point” and then there’s “driving your readers nuts”. Be that as it may, when I can find a spare $50 I’m going to get a copy. It’s that important to me, even though I noticed in the comments that Hamburger is rather long on criticism but short on solutions. The first step of problem solving is always recognizing that a problem exists, and finding out just how severe it really is.

Sure, I can hear you saying “But Congress has to delegate! There’s no way they could do all the work the dozens, hundreds of federal agencies turn out.” And that’s the whole point: those other federal agencies SHOULD NOT EXIST. Even Mike Lee’s partial solution - his RAIS plan that would require actual congressional debate and signing of all regulations passed by these subsidiary agencies - is nearly untenable. Almost a Herculean task by itself. And thus the point is hammered again, and again, and again ... because such agencies are all illegal. Every one of them, because of this:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

It is NOT a truism. Precedent be damned, the cowardly Supreme Court of 1931 buckled under FDR’s kingly threat and delivered a bad decision in United States v. Sprague. Far from being superfluous icing on the cake, the 10th Amendment, along with the commerce clause - also corrupted by FDR’s totalitarianism - are the key bulwarks against runaway federal power. Without them, the fundamental concept of limited federal government is a joke. And a poor one at that.

It’s time to push back. Long since past time. RAIS might work a little, but a better first step would be an amendment that limits the size of the Supreme Court to 9 justices. That would protect them against another tyrant trying to pack them. And why shouldn’t such a limit exist? We have a rule that says one president, one vice president, two senators per state, and a rough algorithm for determining the number of representatives in the House based on a State’s population. It should have been in there from the get-go. Five is too few. Seven could work. Eleven or more is too many. So make it seven to nine, with a rider that says as long as they have at least six they can continue working, with the caveat that all decisions made while understaffed can be revisited once the bench is full again.

Time to push the RESET button.


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Posted by Drew458   United States  on 04/15/2015 at 12:21 AM   
Filed Under: • FREEDOMGovernment •  
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