May 30, 2019

The Real Constitutional Crisis: Unaccountable Bureaucracy

Bureaucrats not only threaten our Constitution but actively trample it all the time.

For the last few weeks, the lemming-like Democrat/Media Complex has been promoting the highly coordinated message that America is in the midst of a “constitutional crisis.” They’re right on the mark, but due to their reflexive hatred of Donald Trump, they’ve picked the wrong target. It isn’t the president who threatens the Constitution. It’s a cadre of unelected, unaccountable, insulated bureaucrats who not only threaten it but have actively trampled it — for years.

An investigation conducted by the Pacific Legal Foundation (PLF), a nonprofit legal organization “that defends Americans’ liberties when threatened by government overreach and abuse,” reveals the enormous implications of unaccountable power-mongering. In the midst of pursuing litigation against the Food and Drug Administration’s (FDA) labeling of vaping devices and e-cigarettes as tobacco products, and thus subjecting them to regulations that will damage the industry and perhaps adversely impact public health — all of which is antithetical to the FDA’s mission — they discovered a career bureaucrat had signed off on the rule.

The problem? The bureaucrat had no authority whatsoever to do so. “The Constitution’s Appointments Clause requires that rules binding Americans must be issued by ‘officers of the United States’ — i.e., government officials appointed by the president and confirmed by the U.S. Senate, or hired by cabinet secretaries under congressional authorization,” PLF’s legal policy director Clint V. Brown explains. “Such officials are subject to political accountability, which allows them to wield political power such as issuing binding rules.”

By contrast, career bureaucrats are government employees hired through a merit system that is supposed to be immune to political influence in both hiring and firing procedures.

Because of this ruling, PLF decided to look more extensively at the Department of Health and Human Services (HHS), which oversees the FDA. What they discovered should infuriate every American who supports the Rule of Law and the Constitution: “Looking at all rules issued by HHS from 2001 to 2017, we found that 71 percent of the 2,952 rules we reviewed were unconstitutional,” Brown reveals. “The worst offender within HHS is FDA, where 98 percent of rules are unconstitutional.”

Note first that a single government agency averaged implementing just under 174 rules every year for nearly two decades. Note further that even at the lower rate of 71%, 123 of those rules were unconstitutional. And while Brown notes that many of them are “highly technical’ and aimed at "scientific drug and food development,” others “are significant regulations that carry huge costs and have a substantive impact felt by businesses and consumers.”

Why has this occurred? Because we have a Ruling Class that is more than willing to abdicate responsibility and allow “faceless and unaccountable bureaucrats who never have to answer to the voters or the political process” to run the country. And because of the aforementioned merit system, firing many of these people is virtually impossible, no matter how badly they perform.

Is there any doubt that such a dynamic breeds arrogance?

Brown offers a partial solution to the problem, explaining that Trump could require that “only Senate-confirmed officials sign-off on his administration’s rules.” Yet that presumes those officials will be in charge of promulgating regulations and be beholden to the president should they fail to do his bidding.

Are they? In an effort to bash the president, the Miami Herald asserted that Trump was on the verge of “dumping” (more linguistic coordination) as many as 1,000 illegals per month on the state of Florida. Yet according to the president himself, he had no knowledge of the plan and subsequently killed it. White House and DHS officials characterized it as a “misunderstanding,” while both the Herald and Politico insisted Trump’s “chaotic” immigration policies were to blame.

Were they? Or was this incident indicative of unilateral action undertaken by officials interested in pursuing their own agenda, hoping Trump won’t notice or won’t care?

But Trump does care about immigration policy, and when he did take on the bureaucracy by removing DHS Secretary Kirstjen Nielsen and U.S. Secret Service Director Randolph D. “Tex” Alles because they weren’t in alignment with his agenda, The Washington Post characterized it as a “purge” while The New York Times portrayed it as “political bloodletting.”

That would be the same Washington Post and New York Times that both insisted there was no crisis at the border until there was a “new reality” (Post) and we had reached a “breaking point” (Times).

America’s real breaking point? Bureaucratic arrogance — and the lawlessness it engenders — is metastasizing, driven by a 2016 election that didn’t produce the properly “enlightened” results favored by those bureaucrats. “Real coups against democracies rarely are pulled off by jack-booted thugs in sunglasses or fanatical mobs storming the presidential palace,” Victor Davis Hanson writes. “More often, they are the insidious work of supercilious bureaucrats, bought intellectuals, toady journalists, and political activists who falsely project that their target might at some future date do precisely what they are currently planning and doing — and that they are noble patriots, risking their lives, careers, and reputations for all of us, and thus must strike first.”

This evolution of bureaucracy to the point where we have a de facto government-within-a-government was not unforeseen. “The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations,” wrote president Franklin Delano Roosevelt in 1937.

That’s because, as Roosevelt so astutely noted, “the employer is the whole people, who speak by means of laws enacted by their representatives in Congress.”

The Pacific Legal Foundation has blown up that long-cultivated fairy tale in no uncertain terms. And even more ominously, it’s not hard to conclude that unconstitutional rules perpetrated by the likes of bureaucrats at HHS might be among the most benign efforts to undermine the will of the American people. Far more brazen abuses of power has already been documented at agencies like the EPA, NSA, and the IRS.

In a better nation, the PLF’s revelations would engender a top-to-bottom review of every government agency, and every rule or regulation promulgated and enforced by unelected bureaucrats. In this one, Americans remain beholden to bureaucrats empowered by impotent, self-interested politicians, equally invested in avoiding accountability.

Or even worse. House Democrats called Housing and Urban Development (HUD) Secretary Ben Carson “cruel,” “mean-spirited” and “despicable” for not breaking the law that prohibits him from providing housing assistance to illegal aliens.

“Bureaucracy is the form of government in which everybody is deprived of political freedom, of the power to act; for the rule by Nobody is not no-rule, and where all are equally powerless we have a tyranny without a tyrant.” ―Hannah Arendt

That’s America’s real constitutional crisis.

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