Dictatorship of the Bureaucrats

A nation choking on endless laws

By MICHAEL A. WALSH

Last Updated: 12:32 AM, January 7, 2011

Posted: 10:01 PM, January 6, 2011

Heading back to work this week, Americans were greeted not only by a new year but also by a whole slew of new laws -- 31,000 of them at the state level -- covering everything from guns to 100-watt light bulbs to, of course, "health care." As usual, most of these laws tell us what we can't do: texting while driving (duh), cyberbullying and smoking in bars.

In the near future, everyone will be a criminal for at least 15 minutes, whether they know it or not.

But aside from some laws easing state restrictions on lawful gun ownership, precious few of them tell the government what it can't do. To the ruling class, there is almost nothing the government, at some level, can't do -- not only via legislation, but regulation as well. Two recent examples come to mind:

First, the federal Environmental Protection Agency, under Lisa Jackson, has decided that its mandate now includes the very air we exhale -- carbon dioxide --and is introducing stringent standards to help fight such "pollutants" and so-called greenhouse gases.

Never mind that the "science" is far from settled, that the Climategate e-mails showed active collusion among researchers to misrepresent the facts about alleged "global warming," that some of the 1,700 British scientists who signed a declaration defending the researchers' professional integrity have said they felt pressured into doing it (or didn't work on "climate change" at all) and that Al Gore is a certified crackpot.

Never mind, as well, that the US Senate rejected the Kyoto Treaty by a vote of 95-0 -- during the Clinton administration. Never mind that the Waxman-Markey anti-warming "cap and trade" bill died in the Democratic-controlled 111th Congress. Jackson will simply "phase in" the regulations.

A second example is the Federal Communications Commission's December party-line vote to enforce "net neutrality." It's a complex, debatable subject, but it's not the wisdom of the decision that's at issue here. Rather it's the fact that the FCC under Julius Genachowski, a classmate of President Obama's at Harvard, went ahead despite a) the clear wishes of Congress, which expressly declined to give the commission authority over the Internet and b) a ruling by a DC federal court pointing out precisely that.

Both the EPA (a child of the Nixon administration) and the FCC (which dates back to FDR's first term) nominally answer to Congress but have become, like Frankenstein's monster, rogue agencies that threaten both our economy and our liberty.

When a mere agency can thumb its nose at its nominal masters, then we are on the road away from republican democracy and toward tyranny -- not the imaginary "dictatorship of the proletariat" beloved of Marx, but something even worse: dictatorship of the bureaucrats.

Which is why it's encouraging that the first major act of the Republican-controlled House under John Boehner will be a vote to repeal the bureaucratic nightmare of ObamaCare. The 2,000-page Reid-Pelosi monstrosity stands as a monument to the perversion of the legislative process, cobbled together in back rooms by a cabal of staffers, lawyers, ideologues, hacks and stooges and rammed through using every parliamentary maneuver the desperate Democrats could think of.

Repeal is unlikely to pass the Senate and would certainly fall victim to the presidential veto pen, but as a statement of principle over process it's a banner to which freedom-loving Americans will happily rally -- and which will pay off handsomely in 2012.

So it wasn't just symbolic when the Constitution was read aloud yesterday in Congress. Short, clearly written and to the point, the Constitution is not just another one of 31,000 new laws -- it is the law. It tells us what the government must do -- roads, post offices, patents, armies -- and, more important, what the government can't do. The Bill of Rights is one long Thou Shalt Not aimed at the feds.

It's high time Congress stopped worrying about being "productive" -- which means "passing more laws" -- and started undoing the very real mess it's made. Repeal of ObamaCare is a good place to start. So is putting Lisa Jackson on the hot seat, and abolishing the FCC.

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Ignoring the Constitution

Outsourcing Democracy

by Daniel J. Flynn

Posted 01/03/2011 ET

The 112th Congress opens today with a reading of the Constitution in the House of Representatives. Hopefully, the lawmakers pay special attention to Article 1, where the Founders outlined the powers of Congress. These include coining money, declaring war, and making law.

The past century or so has witnessed Congress outsource these and other powers to the Federal Reserve, the regulatory bureaucracy, the executive branch, and the courts. This is bad news for the American people, whose direct role in electing congressmen stands in contrast to their indirect role in electing presidents and approving judges—let alone their impotence to hold anonymous bureaucrats accountable. We have become more a government of, by, and for people unknown to the people.

Bypassing the democratic process has become more popular within the Obama administration as the Obama administration has become less popular within the country.

The American people rejected the idea of saving the feds money by incentivizing end-of-life-counseling, the so-called “death panels.” Rather than accept the judgment of Congress, the Obama administration quietly slipped the rejected measure into the federal code. Though apparently decided upon in early November and included in the Federal Register published in early December, the rule buried beneath a byzantine labyrinth of regulations was not reported until Christmas Day by the New York Times.

How might the controversial incentive be implemented? A University of Michigan doctor offered a hypothetical counseling situation to theTimes: “If you have another heart attack and your heart stops beating, would you want us to try to restart it?” One can see why the Obama administration would cover-up “health care” policies perversely dedicated to saving money at the cost of lives.

The stimulus depressed the economy. The appetite in the Congress for a second stimulus was unsurprisingly nil. But within the Federal Reserve, the notion of a monetary stimulus to supplant the fiscal stimulus was popular. So, the Federal Reserve decided in late October to print $600 billion dollars. The Constitution didn’t award them such powers. But they exercised them nevertheless.

The Democrats, despite their control of the Congress and the presidency, couldn’t pass so-called cap-and-trade. So, the Environmental Protection Agency is imposing new limits on carbon emissions. The unelected bureaucracy decrees a decrease of 5 percent of 2005 emissions by 2020. One can debate the efficacy of legislation to combat global warming. Debating whether that legislation should be devised by duly elected lawmakers or by unelected usurpers is a slur upon republican government.

These issues were all raised before the elected representatives of the people and rejected by the elected representatives of the people. There was no stomach for end-of-life counseling, a second stimulus, or cap-and-trade. Yet, the Obama administration refused to take “no” for an answer.

Given that the president circumvented Congress when his party controlled it, his willingness to sidestep the process now that Republicans have upped their numbers will likely be much greater. Expect executive orders, bureaucratic legislation, and judicial fiat to implement the Obama agenda that lawmakers, and their constituents, increasingly balk at. This is to say nothing of the Constitution’s objections to the substance (and not just the process) of the administration’s program.

One would be tempted to see Congress as the victim of all this usurpation if Congress hadn’t itself outsourced its powers to other entities. Since the establishment of the now-defunct Interstate Commerce Commission 124 years ago, Congress has given its imprimatur to a slew of alphabet-soup agencies—FDA, SEC, FCC, etc.—with quasi-legislative powers. But the people delegated the lawmaking function to Congress. It wasn’t theirs to give away.

Changing its constitutional responsibilities is not one of Congress’s powers. The people entrusted legislators to exercise these powers, not to hand them over to entities unaccountable to the people. A century of lazy, cowardly, and masochistic Congresses have engineered Congress’s own irrelevance.

One can no longer say that lawmaking by the unelected is unprecedented in America; one can still say that it is unconstitutional.

The problem of America 2011 is the problem of America 1776: government governs without the consent of the governed. The solution then as now is Constitutional government.

A good first step is for congressmen to read the Constitution. An even better step would be for the president to do so too.

Daniel J. Flynn is the author of A Conservative History of the American Left (Crown Forum, 2008), Intellectual Morons (Crown Forum, 2004), and Why the Left Hates America (Prima Forum, 2002). He has appeared on Fox News, MSNBC, CNN, Sky News, PBS, CSPAN, and other broadcast networks. His articles have appeared in National Review, the Boston Globe, and City Journal. He blogs at www.flynnfiles.com.