August 17, 2015 1 Comment
“Hi! I’m from the government, and I’m here to help!” —Ronald Reagan, citing what he thought were the Ten Most Dangerous Words in the English Language
A Big-Government Scandal
It looks like an Environment Protection Agency bureaucrat, to make the EPA more important in the minds of Americans, recently created an ecological catastrophe in New Mexico. A New Mexico resident with 47 years of relevant experience warned the EPA what would happen if they did not change what they were doing, but the decision was made to do it anyway. So the EPA’s shenanigans were on purpose!
Had there been no EPA, and local authorities had had oversight, this disaster would never have occurred. It is far-away central planners—disconnected from local communities—who so often choose to be negligent, since they are free from any local accountability. (Read about the latest EPA scandal here.)
Creating a Monster
The US government was created by the sovereign states, not the other way around. Therefore, the federal government is there to do the bidding of the states, and of the people, rather than dictating to them. There were three co-equal branches upon the nation’s founding, but there are, today, so many executive-branch departments—all of them massive in size and in the scope of their powers—that an imperial executive has been allowed to evolve. America has, indeed, created a Leviathan.
The Road to Hell . . .
The original intent of creating an executive department is to help our chief executive—the president—to enforce the laws passed by Congress. But each department has ended up hiring its own army of bureaucrats to “help.” And the result has been that each one has created rules that carry the force of law. And none of these rules has ever been given the consent of the governed. Many rules have even been scandalously written by lobbyists from the very organizations the departments were created to regulate. Hundreds of thousands of rules—known collectively as “administrative law”—have been instituted, regardless of the fact that there is no provision in the Constitution that lends legitimacy to most of these. So, good intentions are never enough; the proverbial road to hell is paved with good intentions.
Cutting the Executive Down to Size
The best alternative to reform the problem of tempting a potentially scofflaw executive—who might make end-runs around the Congress simply by having department heads make new rules—is to rid the government of its tyrannical departments. Rather than having so many executive departments, the enforcement mechanism for these laws should be the sovereign states themselves. If a state is not complying with a legitimate federal law—one falling within the scope of the Enumerated Powers Clause (see here) the Department of Justice could always sue the state to force compliance.
Washington’s Original Concept of a Cabinet of Advisors
When George Washington took office, he created four governmental departments: the Department of Justice, the Department of State, the Department of the Treasury, and the Department of War (now the Department of Defense). Any other departments should be eliminated. Some of them have functions that could be taken over by the four departments that remain. Others should have their functions subsumed by the states. The states should run all departments and programs not authorized in the Enumerated Powers Clause.
Nullification of Un-Constitutional Laws
The other thing that the sovereign states should do is to refuse to follow any federal law or mandate not within the federal government’s constitutional power to create. (And, it goes without saying, unconstitutional executive orders, executive memos, and other such executive creations should be treated the same way.) A federal law creating a welfare program should be nullified by the states, since such programs find no support in the Constitution. (The General Welfare Clause is a reference to public goods that are created for the protection or use of all the people equally, such as the US military or a public road.) Of course, a state could create welfare programs on its own, if it chose to do so.
Nullification of Un-Constitutional Court Rulings
The Supreme Court has made rulings that are unconstitutional. It is not the Court’s job to rewrite the Constitution. The power of judicial review does not render the Supreme Court capable of writing law, on its own, independent of the means that are constitutionally mandated for amending the Constitution or passing laws in the Congress. The Court’s only legitimate role is to rule on the laws as written.
States should ignore—and, therefore, nullify—decisions that are clearly not within the bounds of the Constitution. If states were to do this, the jurists on the Court would take great pains, in their opinions, to reference what parts of the Constitution authorize them to rule the way they do. This would mean the Court never could have ruled the way it did in Kelo v. City of New London. (Read about Kelo here.)
Falling in Love with the Constitution Again
In addition to implementing a policy reducing the executive branch and nullifying unconstitutional decisions by the Supreme Court—or any federal court, for that matter—the states should make sure that they themselves are not infringing the rights of Americans under the Constitution. Of course, the federal check on this kind of behavior would be a suit brought against a state by the Department of Justice.
Americans have lived under the Incorporation Doctrine for so long that it has become, without much ado, standard practice for each state to apply the federal Constitution locally. (Before the Incorporation Doctrine, the federal Constitution used to be applied only to areas of federal jurisdiction.) There needs to be a level playing field, to ensure that everyone is applying the rules fairly. And for this to happen, the people and their elected officials—if they have not done so already—need to take care to fall in love with the Constitution once again.