Sunday, April 1, 2012

Rule by Regulation: Have we lost control of the law-making process?

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. (U.S. Constitution, Art. I, Sec.1)
As a law student in the 1990’s, I was required to study Administrative Law. This is the body of law that deals with regulations that implement the laws passed by Congress. Once laws are passed, agencies or departments of government are created (or empowered) to define, and enforce the law. Administrative (Regulatory) law has become such a useful tool of government that the principle way in which the public interacts with government is through some regulatory body. Most regulatory agencies are under the Executive branch.
I was (and remain) concerned that Administrative Law permits government to govern without sufficient “checks and balances” and that a “Republican form” of government was (and is) being subverted because the citizen has (almost) no control over the process. This happens at two levels: (1) because an administrative “shift” of authority takes place by delegation from congress (which members we exert at least theoretical control through periodic elections) to “appointed” (and often, not vetted) political hacks who operate quite beyond any form of control by the people being governed. (2) Denial of Due Process. The Fifth and Fourteenth Amendments guarantee that the federal government and the state governments, respectively, will not deprive a person of his or her life, liberty, or property without DUE PROCESS OF LAW. Due process, those constitutional guarantees that preserve a citizen’s sovereign status are often missing altogether in administrative proceedings. As long as the regulations or rules imposed on the citizen are “rationally related to the goal” of the legislation (which is presumptively constitutional), then the government is not burdened to provide further protections.
The process that is “due” in civil and criminal cases is more clear and has been determined more by judicial decisions than legislative acts. The level of process that is owed to the people by the government is dependent upon the level of harm (or punishment) that is possible to the defendant. “In our criminal law, we assert that the accused is entitled to DUE PROCESS. That term was understood to mean: a high degree of process (procedure) that is due (owed) to man by virtue of his natural sovereignty. In other words, because man is a special creature in the divine order, he is DUE a higher degree of procedural safeguards to insure the protection of his other rights. The term itself is an acknowledgment of man’s divine origin. Further, DUE PROCESS is not merely the right of American Citizens, but is a right accorded to every person tried in our jurisdiction, regardless of citizenship. It is UNIVERSAL. The exact application may be a little “fuzzy” as Due Process is manipulated by various courts and regulatory agencies.”
In administrative law, the courts have generally held that as long as a person has some right of appeal within the agency of the government from which they have been aggrieved (injured, harmed in some way) then the citizen must “exhaust all administrative remedies” before an action may then be commenced in federal district court. The level of this process is often confusing, inefficient, and ineffective, yet the courts have consistently ruled that, as long there is some procedure in place for the citizen to appeal the judgment of that administrative body, that is all that is “DUE” that person, at least, at the administrative level. After being “wrung out” by that process, a citizen (if he has any resources left) may bring an action in District Court where there are different rules of evidence and different and different procedures and protocols.
“The fundamental problem of administrative law is trying to design a system of checks that will minimize the risks of bureaucratic arbitrariness and overreaching, while preserving for the agencies the flexibility they need to act effectively. It contrasts with traditional notions that the three branches of the U.S. government must be kept separate, that they must not delegate their responsibilities to bureaucrats, and that the formalities of due process must be observed.”[i]
Just because a process exists, and every facet of that process is exploited to the fullest extent by the defendant, it does not mean that the process is sufficient to protect the interests of the accused. As suggested by the definition given by Black's Dictionary, every material fact that bears on the case must be exposed to the scrutiny of the court with a presumption of innocence given to the accused. Unfortunately, this is often not the case, especially in cases involving administrative law and procedure.
“The history of regulatory process reform deals with the ultimate paradox: relying on the bureaucratic process to remedy the shortcomings of the bureaucracy. As would be expected, the very serious shortcomings of the regulatory review process have become increasingly apparent over the past two decades, ….” [ii]
In reaction to, and repudiation of, parts of the English parliamentary system, America’s founders sought to establish Self-government by the people, through frequent elections of qualified representatives, under sacred oath to bear true faith and allegiance to the U. S. Constitution. The Constitution was considered “supreme” and worthy of obedience by all who would serve in public office. The sovereignty of the people is the foundation of a Republican form of government. Government by rulemaking reduces the transparency and accountability of democratic (participatory) self-government. In some cases Administrative Law (Rule by Regulation) bypasses the critical constitutional checks and balances.
“The constitution is the compact made between the society at large and each individual. The society therefore, cannot without breach of faith and injustice, refuse to any individual, a single advantage which he derives under that compact. . . . If the community have good reasons for abrogating the old compact, and establishing a new one, it undoubtedly has a right to do it; but until the compact is dissolved with the same solemnity and certainty with which it was made, the society, as well as individuals, are bound by it.” [iii]
“To the founders, "republicanism" required the people to have ultimate control of the government while "democracy" meant naked rule by the majority.” “In the founders' republican form of government, the people retain their sovereignty through numerous checks on government power but do not themselves rule day to day. The founders' concern was somehow to empower an "energetic" government to advance the general welfare while preventing it from violating the rights of the majority or a minority, or even the rights of a single individual.” “In today's understanding, democracy allows a place for majority rule, but only as filtered through a complex system of federalism, separation of powers, and expressed protections of rights. As a result, it cannot be said that the Constitution is undemocratic simply because it has substantial counter-majoritarian features. Majority rule checked by counter-majoritarian procedures defines the modern conception of democracy itself.” [iv]
Regulatory laws are designed to implement legislation (statutory law) at an operational level. Regulations (should) provide clarity, detail, and flexibility to the governing process, but SHOULD NOT deny constructive and reasonable access by citizens to the process. While regulations make governing more “convenient”, I contend, government “convenience” is precisely what the founders sought to avoid.
The increasing use of Presidential executive orders creates a situation where day-to-day governing comes more from the president than congress. It may be convenient but it looks more like dictatorship than a republic.
“Another shortcoming of the regulatory review process is that it has been established by presidential executive order rather than statute. As a result, the various independent regulatory agencies are exempt from the process. As noted earlier, they may voluntarily choose to follow some of the procedures. In practice, that limitation means that large agencies of the regulatory establishment are beyond the purview of reform efforts, namely the Federal Communications Commission, the Federal Energy Regulatory Commission, the Federal Trade Commission, the International Trade Commission, the National Labor Relations Board, the Nuclear Regulatory Commission, the Securities and Exchange Commission, and the Federal Reserve Board.” [v]
While the concept of administrative (regulatory) law is constitutional, in practice it seems to be used more to circumvent the constitution thereby exposing Americans to the threat of a dictatorship. Unless Americans know their Constitution, and the limits of government (particularly executive) authority, we may wake up one day living under a tyrant and not know quite how we got there.

[ii] Regulatory Process Reform; from Ford to Clinton, by Murray Weidenbaum , the Mallinckrodt Distinguished University Professor and chairman of the Center for the Study of American Business at Washington University.
[iii] Alexander Hamilton, “Second Letter from Phocion” -April 1784
[iv] A review of Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It), by Sanford Levinson. Written by Randy E. Barnett, this article appeared in the Summer 2007 issue of the Claremont Review of Books. Posted online on July 23, 2007,
[v] Regulatory Process Reform; from Ford to Clinton, by Murray Weidenbaum , the Mallinckrodt Distinguished University Professor and chairman of the Center for the Study of American Business at Washington University.

1 comment:

  1. In the NYTimes today (4/23/2012) online POLITICS sections, the writer notes that President Obama is increasingly using his "power" of executive order to circumvent congress, and exert ever greater control over the lives of citizens. As my article notes, when Congress creates departments, and bureaus and committees, and delegates authority to them through the executive branch, it potentially gives the President dictatorial powers. THIS president is all too willing to USE those powers. Even though the executive order is ONLY BINDING on the executive branch, it has the effect of DIRECT EXECUTIVE RULE when Congress abdicates its responsibility by delegation. If it does not violate the LETTER of the law, it certainly violates the SPIRIT (intent) of the law.


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