The Constitution, Part III: Erosion of the Constitution
March 22nd, 2022
By Peter Hill
Constitution, Part III: Erosion of the Constitution
This essay notes how two developments led to a fundamentally different federal government from the one the Framers created. There were other causes, but these two may be the most significant. These developments led to an erosion of the limits the Framers placed on the federal government so that its web has now permeated almost every area of American life. The first is the use of crises by ambitious politicians to expand the powers of government. The second is the replacement of Congress by the President as a maker as well as an enforcer of the law, or the rise of what I call the “Administrative State.”
The purpose of the Constitution was to create a federal government strong enough to govern the nation’s affairs, but not so strong as to endanger liberty or the federal structure. The structure was that of a constitutional federal republic with some democratic elements, such as voting for Congressional representatives, and frequent accountability of elected officials by making them subject to defeat or reelection. The Constitution provided that the three branches would not only cooperate with each other, but compete with each other, and each could stop the others in a “checks and balance” system. Legislation and policy, accordingly, had to be based on consensus. It was hard to pass legislation, and it was intended to be hard.
The Constitution created a federal government of very limited, enumerated (or listed) powers. It was not intended to do everything that was desirable. It left everything outside of the federal government – individuals, businesses, families, private organizations, states, churches, etc. – free to do anything so long as they were not usurping a federal enumerated power, such as taxing the whole country, recognizing foreign governments, raising an army, establishing currency, regulating interstate or international commerce, and so on. In this sense, it was almost libertarian, with the maximum amount of liberty. Not only was the federal government to perform only enumerated functions, but the Bill of Rights also limited what the federal government could do. It could not, e.g., deprive one of life, liberty, or property without due process of law, or abridge freedom of the press or of religion. And the Tenth Amendment made very clear that if a power had not been granted to the federal government, it was reserved to the states or to the people.
The federal government was supreme within its proper spheres of activity, but those spheres of activity were limited.
But now it seems that the federal government regulates everything, far beyond what is listed in its enumerated powers. Congress seems to be limited only by its own imagination. The President seems able to issue directives at will, on any subject. The policy initiatives might be good, or they might be bad, but they are not among the powers vested by the Constitution in the federal government. What happened?
Crises and Ambition. In the last essay I mentioned government activists’ love of crises. A crisis gives those who wield government power the ability to expand government to meet the needs of the crisis, and most people want and even expect the federal government to do so. Frequently, however, the actions of the federal government have little to do with a crisis or an emergency. The crisis is merely the occasion for the exercise of additional federal power, not its cause.
Examples are too numerous to list, but consider the recent “American Rescue Plan” of President Biden. Its purported purpose was to meet the economic needs created by the COVID virus. It can be found here: PUBL002.PS (congress.gov) Its sponsor was Kentucky’s own Progressive Democrat, Congressman John Yarmuth. This 243 page (!) law provided federal funding for nutritional programs for 24-year-olds, funding for Howard University, more money for Head Start, $50,000,000 for “family planning” in section 2605, funding for the State Department and Bureau of Indian Affairs, pensions, earned income tax credits, funding for funerals, and on and on and on. The table of contents itself is more than six single-spaced pages long. Its cost: $1,900,000,000,000. Even if we are not accountants, math teachers, or economists we recognize that all those zeros mean that is a whole lot of money. We may think these line items are good policy or bad policy, but many of them are far beyond the enumerated powers of Congress. And what do they have to do with COVID?
Do a little experiment. Look at the web pages for Fox News, CNN, and ABC News and count the number of times a “crisis” or an “emergency” is mentioned. News organizations sell advertising by alarming people and getting them to read their ads, and sometimes the news. But many of these crises – gun crisis, violence crisis, school crisis, nutrition crisis, health care crisis, college debt crisis, child care crisis, law enforcement crisis, mask mandate crisis, food supply crisis… – generate or satisfy a desire of someone (Person A) to get someone else (Person B) to pay for something or to do something he or she (Person A) wants. And those desires translate into Congressional votes, regardless of what the Constitution says. If there is a crisis, people expect the federal government to act. And there are a lot of crises.
Crisis. whether real or exaggerated, has almost always been the ally of and impetus for bigger government. The Civil War saw the first, but largely temporary, expansion of federal authority and federal expenditures. But the Great Depression brought a huge increase in federal power, and this power has so far been permanently transferred from families, states, businesses, individuals, and private organizations to Washington D.C.
In the last essay I examined three checks on the expansion of the federal government. The first was the enumeration of specific powers granted to the federal government. The second was the Bill of Rights. The third was the Tenth Amendment. In effect, the federal government was constrained by these three boxes. Federal power was to be kept within those three boxes, as illustrated below.
Tenth Amendment Controls
But the ambition of Presidents, and especially that of Progressive Democrat President Franklin Delano Roosevelt, the desire for power to enact laws to “help people” by Congress, and a compliant Supreme Court caused these three boxes to be weakened, if not eliminated altogether. Progressive Democrats want to pack the Supreme Court today so that it will pursue Progressive policies, not interpret the Constitution. President Roosevelt threatened to pack the Court in the 1930s so that it would permit him to enact all sorts of Progressive policies that were unconstitutional. His threat worked, and the Court declined to find his policies, whether good or bad, beyond the scope of the Constitutional limits of power.
This attitude can also be illustrated in the response of Progressive Democratic Speaker of the House Nancy Pelosi to a reporter’s question about the Constitutional basis for the Affordable Care Act (“Obamacare”) in 2010. She replied, “Are you kidding me?!” She was incredulous that a piece of legislation (and this one was huge – remember, “We have to pass the bill to find out what is in it”) must have a basis in the Constitution. But the Democrats insisted there was a “public health and insurance crisis” that they needed to address on the federal level.
Now there is only one box left. And instead of government being kept in the box, and leaving everything else outside the box to be determined by free people making their own choices, now the federal government is able to do anything outside of the box, and free people are left with only wiggle room inside the box. That is, the positions have been exactly reversed. instead of a huge universe of private activity, and limited federal activity, now there is a huge universe of federal activity, and limited free, private activity. Now, our relationship looks like this:
Instead of a small box within which the federal government can act, leaving everything else free, we now have a small box – the Bill of Rights – into which the federal government may not intrude. But the rest of the social universe can be regulated, penalized, subsidized, required, etc. by the government.
A Progressive, Democratic federal government thinks and acts as if it can do anything so long as it does not violate the Bill of Rights, such as establishing a religion, abridging a free press, inflicting cruel and unusual punishment, depriving one of a fair trial, and so on. But otherwise, it is free to do as it wills. What limits their agenda is not the Constitution, but their lack of a majority.
Presidential Legislation and the Administrative State There is another factor which has worked to make the federal government omnipresent. The very first substantive sentence of the Constitution provides that “All legislative power herein granted shall be vested in a Congress of the United States.” But the President now makes more legislation than Congress, the Constitutionally designated law-making branch. The President not only makes the laws, but then interprets them, and enforces them.
When one makes the rules, interprets the rules, and enforces the rules, that is a recipe for tyranny. In Kentucky, our legislature makes the laws (and they are signed by the Governor), and police officers may enforce them, and then judges interpret and adjudicate them. We do not let the police make the laws, interpret them, and enforce them. But we have allowed the Executive Branch to do this in the federal government.
Consider the Federal Register, a daily record of new federal regulations by the executive branch. Every day from 150-400 pages of new regulations are promulgated by federal agencies and the White House and published in the Federal Register. Here is an example as I write this essay. On Thursday, February 17, 2022, there were 293 pages of regulations, with 117 documents from 47 different agencies. Federal Register: Home – Thursday, February 17th These regulations have the force of law. People can be prosecuted, fined, or otherwise penalized for not complying with them. And these regulations certainly look like legislation. Where is Congress?
To be sure, these regulations are to have some basis in a law Congress passed. But Congress might pass a vague or very general law, and then permit the President to fill in the gaps with hundreds of pages of regulations. That is an abdication of Congressional legislative responsibility. And frequently the President will simply issue a regulation or executive order without any statutory authority, because it is a good idea and lets him unilaterally make policy and law. In prior essays we saw how Progressive Democratic President Joe Biden had one of his agencies, the CDC, issue an “eviction moratorium”, and on another occasion issued a vaccination mandate through OSHA that would have resulted in firings of employees, and fines for employers. These had no legal basis. There was no Congressional statutory authority. They were simply decrees issued by the Executive Branch, as if by a king or Commissar.
Fortunately, on occasion Constitutionally oriented judges may strike down these decrees as being unconstitutional. It does not matter if they are good or bad policy. They are beyond the authority of the President to issue.
These regulations have resulted in tens of thousands of pages of law generated by federal administrative agencies. Thus, we have the “Administrative State”, government by the Executive Branch, something the Framers were very wary of because of their experience with unchecked executive power in the person of King George III.
The first branch mentioned in the Constitution is Congress, in Article I. The most ink in the Constitution is devoted to Congress. The most duties or enumerated tasks given in the Constitution are given to Congress. Yet the desire of Americans for energetic executive action, the deference of Congress to the executive branch, ambitious presidents using crises to expand their power, and the rise of the Administrative State, or government by bureaucracy, have all resulted in an expansion of federal power in general, and presidential power in particular.
If you are concerned about the growth and influence of the unelected, largely unaccountable federal bureaucracy, and want to return to something more closely resembling the original government of the Constitution, you are likely a conservative. If you merely seek to use the power of the Administrative State to further your own policy ideas, you are likely a Progressive Democrat.
© Peter Hill, 18 Feb 22