A Nation Like No Other (20 page)

One hopes that the Tunisian and Egyptian people will finally get the chance to choose their own leaders. But even if they are democratically elected, if those leaders fail to firmly secure private property rights, we should expect to see no end to the corruption, lawlessness, and lack of economic opportunity that provoked the rebellions against their predecessors.

Today, some of the biggest threats to our liberties derive from abuses of the rule of law—just as was the case in our Founders' time, as shown in the grievances listed in the Declaration. Specifically, the rule of law faces three principal threats:

This chapter will explain each of these threats and why each marks a dramatic departure from the Founders' understanding of the rule of law.

The Founding Fathers had a precise term to describe the kind of backroom deal-making and vote-buying we witnessed in Congress during the passage of ObamaCare—“corruption.” The Founders used that word not only to describe outright criminal behavior, but also to refer to political acts that corrupt our constitutional system of checks and balances. They frequently accused the British Parliament of corruption, citing practices such as the Crown's use of “placemen”—members of Parliament who also held royal appointments, or were granted lucrative pensions by the Crown, in exchange for supporting the king's agenda.

In
The Creation of the American Republic
, Gordon Wood, a scholar of the American Revolution, describes the roots of the Founders' conception of corruption:

Wood then describes the growing sentiment in colonial America that its mother country was corrupt. Despite the reforms of the Glorious
Revolution [of 1688], the Crown had still found a way to “corrupt” the supposedly balanced English government:

More generally, professor John Wallis at the University of Maryland explains that such corruption occurs when “a group of politicians deliberately create rents by limiting entry into valuable economic activities, through grants of monopoly, restrictive corporate charters, tariffs, quotas, regulations, and the like. These rents bind the interests of the recipients to the politicians who create the rents. The purpose is to build a coalition that can dominate the government.”
⁷

The result, Wallis says, is the creation of “groups within the government whose interest ‘is that of men attached to the government; or to speak more properly, to the persons of those who govern; or, to speak more properly still, to the power profit, or protection they acquire by the favour of these persons, but enemies to the constitution.'”
⁸

Congress today is mired in this sort of corruption, as its independence is compromised by politicians who no longer serve the people based on their independent judgment, but act instead to create rents, restrict economic activity with regulations, form constituencies who depend on their largess, and of course, “build a coalition that could
dominate the government.” For example, let's examine a mere partial record of the maneuvers undertaken to pass ObamaCare, some of which had to be abandoned after provoking a public outcry:

These are textbook examples of what the Founders called corruption—and we need to expose it, denounce it, and fight it just as passionately as the Founders did. Such corruption robs legislators of their freedom to follow their own conscience, listen to the will of the people, and protect the citizens' liberties. Instead, they come to rely on their own power to direct special benefits and payments to favored recipients in exchange for the recipients' political support. Crucially, the prevalence of these sordid transactions in Congress diminishes the rule of law, as politicians increasingly gear their activities toward passing laws that privilege their most powerful and influential supporters.

The enforcement of broad-based legislation like ObamaCare presents another major form of Big Government corruption of the rule of law. Today, elected lawmakers and judges no longer play the primary role in working out the details of the laws that regulate most aspects of American life. Since the Progressive Era, beginning at the turn of the twentieth century, many of these essential functions have been delegated to bureaucrats who are neither directly accountable to the American people nor insulated from politics.

These bureaucrats should be non-partisan technocrats who faithfully implement laws according to the directives of Congress. But too often, they abuse their discretion to effectively create their own laws. This is accomplished through increasingly intrusive means, including through regulations, interpretive notices, adjudications, bulletins, permits, licenses, waivers, and private letter rulings. In fact, administrative agencies have become so powerful, they are now widely referred to as a fourth branch of government.

For example, the Federal Trade Commission has been “empowered and directed” by Congress “to prevent . . . unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce” [15 U.S.C. § 45(a)(2)]. But Congress has left it to the FTC to promulgate regulations defining “unfair or deceptive acts or practices,” and the commission has produced pages of regulations identifying unfair practices in everything from blog posts (16 C.F.R. 255.5) to imitation leather (16 C.F.R. § 24.2).

In addition to making the rules, the FTC interprets and enforces them. If the FTC decides that a person or business is not following its regulations, it can initiate cease-and-desist proceedings against the person [15 U.S.C. § 45(b)]. The person is then required to appear at a hearing, where one FTC lawyer acts as a prosecutor and presents evidence against the accused to another FTC lawyer, who acts as an administrative law judge and decides whether the evidence is sufficient to establish that the FTC's rules—written by another FTC lawyer—have been violated (16 C.F.R. §§ 3.2, 3.41). If the “judge” finds a violation,
he may enter an order requiring the accused to cease and desist from any practices that are determined to be unfair (16 C.F.R. § 3.51). Violating a cease and desist order can result in civil penalties of up to $10,000 per day and additional penalties if the violation is intentional [15 U.S.C. 45(l)-(m)].

The “judge's” decision can then be appealed to the FTC commissioners who decide the appeal by majority vote, like an administrative version of the Supreme Court (16 C.F.R. § 3.54). After completing this often lengthy administrative process, the accused can appeal the FTC's decision to a real federal court, established under Article III of the Constitution, but the court's review of the FTC's decision is highly deferential and quite limited.

The FTC, like many administrative agencies, is thus a miniature government unto itself, with its own legislature, executive, and judiciary. The Constitution, of course, contains no provision for creating such mini-governments, and this is no accident. In Federalist no. 47 James Madison warned that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many … may justly be pronounced the very definition of tyranny.” The Constitution's separation of powers was supposed to guard against precisely this kind of concentration of power.

Agency decision-making is often highly politicized. Agency heads are typically Washington insiders with good political connections, and are often positioning themselves to run for local or national political office or to become lobbyists. In order to advance their own political careers and also to protect their agency's budget, senior agency bureaucrats are closely attuned to the needs of the president, Congress, lobbyists, and the rest of the Beltway scene. But they have no constituency among U.S. citizens, no direct accountability to voters, and little contact with the average American.

By giving these agencies such wide latitude to interpret and implement laws, Congress has essentially outsourced a significant part of its legislative authority, leaving the courts to decide whether to take a share of that power for themselves or leave it to the agencies. In doing so, Congress knows it can always reclaim this authority when it wishes. But
the main reason Congress does this is, paradoxically, because it makes Congress more powerful.

Here's how it works: the Founders intended lawmaking to be difficult, with proposed bills requiring the approval of three different entities—the House of Representatives, the Senate, and the president—to become law. This structure was designed to produce moderation and compromise—a system in which laws were adopted slowly and only in response to a widespread consensus in their favor.

By outsourcing the task of devising a law's fine details, Congress creates more opportunity to pass new laws. That's because the more detailed a proposed law is, the more people might find something in it they oppose. If enough details offend enough people, the bill doesn't get passed. So legislators craft laws with vague language reflecting broad, popular principles. They punt the difficult part of lawmaking—working out the details in a way that is fair, sensible, and acceptable to a majority—to agencies.

Moreover, this process allows congressmen to avoid accountability. When a law proves unpopular, Congress calls a hearing to berate whichever unfortunate bureaucrat heads the agency that implements it. Congressmen then get to swoop in and save the public from the agency's high-handedness—never mind that Congress gave the job to the agency in the first place.

The administrative state has dramatically expanded the federal government since the administrations of Theodore Roosevelt and Woodrow Wilson. Appropriating many of the powers previously reserved to Congress and the courts, the administrative state essentially makes the laws, interprets them, and enforces them—a significant and growing departure from the rule of law principle that has historically made our nation the freest and fairest in the world.

ObamaCare is a radical departure from our tradition of rule of law, which holds that Congress can only exercise those powers clearly enumerated in Article 1, Section 8 of the Constitution.

ObamaCare's so-called “individual mandate,” which requires every American to procure “minimum essential [healthcare] coverage” or pay a financial penalty, is an unprecedented expansion of federal power. The government has assumed the authority to deem you a law-breaker if you don't buy a specific product—health insurance—according to its decrees.

When a Democrat-controlled Congress approved ObamaCare, the bill's supporters argued that the individual mandate was constitutionally justified under the Commerce Clause, a provision that gives Congress the power to “regulate Commerce … among the several States.” The Founders designed this clause to prevent American states from imposing tariffs on each other or engaging in other restrictive trade practices that would hamper the economy. But in the last century, Big Government advocates have misused this stipulation to justify federal regulation of energy, trucking, financial services, and assorted other activities that cross state lines.