Ever since the rise of the modern regulatory state during the New Deal and the transfer of vast discretionary power to a host of administrative agencies, the tension between the new fourth branch of government – administrative agencies – and the American experiment in self-government has been recognized. The classic legal treatises on administrative law of the period all wrestle with the question of whether those administrative agencies have usurped functions of Article III courts under the Constitution and whether the grants of vast discretion to the agencies constitute an improper delegation of the legislative power reserved to Congress.
The problem has only become more acute with the passage of time. Jonathan Turley, professor of public interest law at George Washington University Law School, writes in the May 24 Washington Post that the Constitution’s carefully constructed system of checks and balances is increasingly circumvented by the rise of the administrative state of sprawling departments and agencies “that govern with increasing autonomy and decreasing transparency.” He charges that this fourth branch, over which citizens and their elected representatives have little control, has a larger practical impact on the lives of citizens than all the other branches combined. In 2007, for instance, Congress passed 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.
Though Obamacare took the form of legislation, it is a classic example of the rapid expansion of the administrative state. The legislation itself runs over 2,800 pages and has already generated 20,000 pages of government regulations. It is a safe bet that none of the senators and congressmen who voted for Obamacare read the bill or had any idea how it would work. Former Speaker of the House Nancy Pelosi was not being facetious when she remarked, “We have to pass this bill so that you can find out what’s in it.”
Even after enactment and the initial steps towards implementation, each day brings new surprises as to what’s in Obamacare and the implications, such that one of its principal legislative sponsors, Senator Max Baucus (D.-Montana), has declared implementation a “train wreck” in the making.
Obamacare delegates vast discretion to numerous boards, which are subject to little congressional oversight, but whose decisions will largely determine the impact of the legislation. In some cases, the legislation limits the power of Congress to overrule the determinations of these independent boards, which may well be an unconstitutional limitation on Congress’s legislative power.
WITH GREAT POWER GOES THE POWER TO DISCRIMINATE. That discriminatory power is even more invidious the further it is hidden from view. Legislation too long and complex to be read is one means of hiding discrimination of various forms. Again, Obamacare is a classic example. One reason for its inordinate length is the large number of cooks, in the form of lobbyists and special pleaders, who had their hand in the final product. The “bulk of its pages,” writes Walter Russell Mead, “[are] filled with carve outs, exemptions, special provisions and good old fashioned train robberies.”
No power cuts more deeply against the constitutional requirement of equal protection of the laws than the power to exempt some and not others from the impact of a particular law. Obamacare gives the president broad authority to waive its provisions for a period of time. And guess what? That authority has been used to benefit friends. Ironically, the reward for support for Obamacare has frequently been exemption from its impact. Unions were among the most ardent supporters of Obamacare. Yet, from June17, 2011 through June 1, 2012, labor unions representing 543,812 workers were granted presidential waivers versus private employers, employing a total of 69,813 workers. In one month, 20% of the business waivers went to businesses located in the congressional district of Nancy Pelosi, the moving force behind Obamacare.
Government increasingly has its finger of the scales determining which businesses will succeed and which will fail. Entire industries have been created entirely by the government. “Alternative energy” is one such industry. That governmental support has repeatedly proven to be a lucrative boondoggle for the politically well-connected, such as the half a billion dollars lost on failed solar panel producer Solyndra.
Not only has government proven inept at picking viable businesses to support, it has failed to achieve its policy goals. The ethanol industry is another governmental creation by virtue of the Environmental Protection Agency regulatory requirements that ethanol constitute a certain percentage of all gasoline sold. Yet, the only result of the five billion dollars in annual subsidies to growers of corn for ethanol production has been rising grain prices worldwide and millions around the globe being plunged into starvation. And for good measure, it turns out that the ethanol production process generates more pollutants than it saves.
Its ethanol follies, however, have not deterred the EPA from continually threatening to impose a carbon tax via regulation after Congress has repeatedly failed to pass a carbon tax levy. The near interchangeability of regulatory requirements and legislation exemplifies how many traditional legislative functions have been siphoned off from Congress and transferred to non-elected branches.
WHETHER THE GOVERNMENT is tipping the economic playing field through provisions tucked away in omnibus legislation at the behest of lobbyists or via the grant of waivers from legislative impact or as the result of administrative regulations, the result is the decline of the self-reliant citizenry upon which self-government depends. That, even more than the budgetary deficit, is the primary Tea Party grievance.
Professor Angelo Codevilla, the most articulate Tea Party theoretician, divides the United States today between a “ruling class” – i.e., those who orient themselves to government to achieve their goals, and whose ranks include big business and big labor, the leaders of both major political parties, and the non-profit and philanthropic sectors – and the “country class” comprised of those who seek to achieve their goals through their individual efforts with as little hindrance or help from the government as possible.
It is against this backdrop that the seriousness of the current IRS scandals must be understood. The use of vast power of government to tilt the political playing field is an even greater departure from the founders’ original vision than the use of its heavy hand to determine economic winners. (The two frequently overlap. Almost all green energy grants, for instance, enriched Obama campaign contributors.)
No governmental agency collects more information on citizens or frightens them more than the IRS. Overwhelming evidence that the IRS has engaged as an agency in politics should scare all citizens. For a period of 27 months, not a single organization with Tea Party or similar words in its name was granted tax exempt status by the IRS, while numerous organizations with words like “Progress” or “Progressive” were, even though both types of organizations were engaged in similar efforts. The names themselves were the point of distinction. An organization with the suspicious name Media Trackers was going nowhere in the tax-exempt process, until it refiled as Greenhouse Solutions and sailed through.
There is enough anecdotal evidence of critics of the Obama administration suddenly being subjected to audits to suggest a pattern of trying to intimidate critics and political adversaries. Frank VanderSloot, for instance, was labeled a “wealthy individual” with a “less than reputable record” by an Obama campaign website after donating a million dollars to the Romney campaign. Shortly thereafter, he was subjected to two IRS audits and one by the Department of Labor. A Catholic academic, who criticized Obamacare’s treatment of religious institutions in The Wall Street Journal, was quizzed by the IRS about her piddling freelance income after her op-ed appeared. Despite filing a joint return, her husband was excluded from the hearing.
Other government agencies also appear to have used political affiliation as a principle of distinction. The EPA waived fees for 92% of the requests under the Freedom of Information Act filed by “green” groups, while denying the waiver in 93% of requests filed in the same time period by the Competitive Enterprise Institute.
It’s perhaps not surprising that an agency like the EPA has those it considers on the side of the angels and others who are on its enemies list. But that kind of mindset does not comport with original vision of a government that arises from the people – all the people – and serves them. Rather, government agencies have their own interests and agenda and seek to perpetuate themselves.
I highly doubt that President Obama had anything to do with the IRS tax-exempt scandal. As National Review’s Kevin Williamson writes, he did not have to issue instructions any more than university administrators have to tell department chairmen not to hire conservative faculty. They would not do so anyway. The overwhelming majority of career civil servants are Democrats and are likely supportive of big government. They know who threatens them without being told.
There were, however, plenty of “dog whistles” going around to guide the bureaucrats. Senators Charles Schumer and Al Franken, for instance, both wrote to the IRS seeking higher scrutiny of non-profit applications by political groups. They did not have to say what kind of political groups. And when the president’s campaign consistently disparages wealthy opponents as motivated solely by greed and having “more than their fair share” and especially when opposition donors are publicly slimed as disreputable, the bulls-eye has been drawn on their back.
Nor has the current administration been bashful about directly using the power of government to extract “favors” from those with whom it does business. When Secretary of Health Katherine Sebelius solicits private individuals and businesses that do a lot of business with the government for contributions to a fund to promote Obamacare, those contributions are about as voluntary as the quarter one used to give to neighborhood urchins offering to “watch your car, mister,” outside the old Chicago Stadium. The implicit threat “or have your tires slashed” did not have to be spoken.
When cabinet officials and government agencies act like street extortionists, citizens are entitled to despair about the future of our experiment in self-government.