Magazine | November 19, 2015, Issue

The Regulators’ Yoke

(Roman Genn)

Earlier this year, I published a book called “By the People” that laid out a plan for systematic civil disobedience of stupid and pointless regulations. It is a subversive position. The rule of law is the foundation of civilization. It is especially important for those of us who are devoted to freedom, because it is only through the rule of law that freedom can be protected — a truth that John Locke stated with ultimate concision: “Wherever law ends, tyranny begins.” To advocate that we undermine the rule of law is a hairsbreadth from treason.

I have been led to this position by what I believe to be a truth about where America stands: The federal government is no longer “us” but “them.” It is no longer an extension of the people through their elected representatives. It is no longer a republican bulwark against the arbitrary use of power. It has become an entity unto itself, separated from the American people and beyond the effective control of the political process. In this situation, the foundational principles of our nation come into play: The government does not command the blind allegiance of the citizenry. Government is instituted to protect our unalienable rights. The more destructive it becomes of those rights, the less it can call upon our allegiance.

I won’t try to lay out the whole case for concluding that our duty of allegiance has been radically diminished — that takes a few hundred pages. But let me summarize the ways in which the federal government has not simply become bigger and more intrusive since Bill Buckley founded National Review, but has also become “them,” and no longer an extension of “us.”

In 1955, the year National Review was born, the federal government’s domestic spending (i.e., the total budget minus spending on defense and interest on the national debt) came to $187 billion in today’s dollars. It was a small amount, comparatively speaking — domestic spending in 2014 is budgeted at $3 trillion. The Code of Federal Regulations had 17,989 pages in 1955, less than a tenth of the number of pages today. But the numbers do not begin to convey how small a role the federal government played in national life in 1955 compared with today. It had no role whatsoever in K–12 education and hardly any in higher education. It provided no support for, and exerted no control over, state and local law enforcement. Federal policy toward the family? Toward the practice of religion? In 1955, the idea that the federal government could have “policies” on such topics didn’t occur to most Americans. To get a sense of how small a role the federal government still played in business as of 1955, consider that only a handful of corporations maintained any sort of presence in Washington, D.C.

But even though the actual role of the federal government remained limited, its potential power had already been unleashed in ways that could not be reversed. In a handful of landmark decisions from 1937 to 1942, the Supreme Court did not merely nudge the limits of government power. It erased some of the most crucial boundaries.

In 1937, Helvering v. Davis explicitly held that the federal government could spend money on the “general welfare,” establishing that the government’s powers were not limited to those enumerated in the Constitution. In 1938, Carolene Products did what the Ninth Amendment had been intended to prevent — it limited the rights of the American people to those that were explicitly mentioned in the Constitution and its amendments. Making matters worse, the Court also limited the circumstances under which it would protect even those explicitly named rights. In 1942, Wickard v. Filburn completed the reinterpretation of “commerce” so that the commerce clause became, in the words of federal judge Alex Kozinski, the “Hey, you can do anything you feel like” clause.

Momentous as these decisions were, they were arguably not as crucial to the evolution of the federal government from “us” to “them” as the decisions that led to the regulatory state. Until the 1930s, a body of jurisprudence known as the “nondelegation doctrine” had put strict limits on how much power Congress could delegate to the executive branch. The agencies of the executive branch obviously had to be given some latitude to interpret the text of legislation, but Congress was required to specify an “intelligible principle” whenever it passed a law that gave the executive branch a new task. In 1943, National Broadcasting Co. v. United States dispensed with that requirement, holding that it was okay for Congress to tell the Federal Communications Commission (FCC) to write regulations for allocating radio licenses “as public convenience, interest, or necessity requires” — an undefined, and hence unintelligible, principle. And so we now live in a world in which Congress passes laws with grandiose goals, loosely defined, and delegates responsibility for interpreting those goals exclusively to regulatory agencies that have no accountability to the citizenry and only limited accountability to the president of the United States.

The de facto legislative power delegated to regulatory agencies is only one aspect of their illegitimacy. Citizens who have not been hit with an accusation of a violation may not realize how Orwellian the regulatory state has become. If you run afoul of an agency such as the FCC and want to defend yourself, you don’t go to a regular court. You go to an administrative court run by the agency. You don’t get a jury. The case is decided by an administrative judge who is an employee of the agency. You do not need to be found guilty beyond a reasonable doubt, but rather by the loosest of all legal standards, a preponderance of the evidence. The regulatory agency is also free of many of the rules that constrain police and prosecutors in the normal legal system. For example, regulatory agencies are not required to show probable cause for getting a search warrant. A regulatory agency can inspect a property or place of business under broad conditions that it has set for itself.

There’s much more, but it amounts to this: Regulatory agencies, or the regulatory divisions within cabinet agencies, operate as self-contained entities that create de facto laws that Congress would never have passed on an up-or-down vote. They then act as both police and judge in enforcing the laws they have created. It amounts to an extra-legal state within the state.

I have focused on the regulatory state because it now looms so large in daily life as to have provoked a reaction that crosses political divides: American government isn’t supposed to work this way.

The normal legal system has been complicit. Laws such as Sarbanes-Oxley, the Affordable Care Act, and Dodd-Frank are so complicated that they are impossible to obey without a platoon of lawyers ensuring compliance. The tax code is riddled with favors for people with connections and filled with hazards for ordinary Americans. The Department of Justice is zealous in prosecuting political adversaries but somehow doesn’t get around to prosecuting political friends. American government isn’t supposed to work this way.

Washington now openly operates as a favors-for-money bazaar. Substitute “campaign contribution” for “bribe” and you can describe Washington with the same sentences that describe how to get things done in a Third World kleptocracy. Almost anything is possible if the contribution is big enough; nothing is possible without a contribution. “Cashing in” has become a term of art to describe a typical career path for senior bureaucrats, elected officials, and Capitol Hill staff — parlay your years making a government salary into big bucks by going to work as a lobbyist. American government isn’t supposed to work this way.

So far, I haven’t mentioned President Obama, because the alienation of people from the federal government runs far deeper than the response to the current administration. But during the Obama years, we have seen a change in the government’s rhetoric. We the people are no longer celebrated as being fine Americans if we make an honest living and mind our own business. On the contrary, many of us who think we are making an honest living and minding our own business are told that we are selfish, greedy, racist, or homophobic when we haven’t the slightest internal sense that we are any of those things. The federal government has changed from being a vehicle through which presidents and officials celebrate the American people to being a platform for a ruling class to hector and pester us about our shortcomings. This, too, helps explain why so many of us have shifted from a broad loyalty to and affection for the government to alienation and anger.

These are just some of the reasons to conclude that the federal government over the 60 years of National Review’s existence has become an entity with agendas that have nothing to do with serving the American people and everything to do with the health and well-being of the federal government itself. The lawyer and commentator Philip K. Howard, writing from the political center, put it harshly but accurately: “A group that no longer shares basic values with the society is categorized by sociologists as a ‘deviant subculture.’ Washington has become a deviant subculture.”

In 1958, three years after National Review began publication, Gallup began to ask a new question: “How much of the time do you think you can trust government in Washington to do what is right: Just about always, most of the time, or only some of the time?” Seventy-three percent of the respondents said “just about always” or “most of the time.” As late as 1964, 76 percent so answered. Then that percentage began to decline. In the most recent poll, conducted in 2014, it had dwindled to 13 percent.

When 87 percent of Americans do not trust the federal government to do what is right even most of the time, it is obvious that the alienation does not break along party lines. When I propose systematic civil disobedience to regain some of our freedom, it is not against a government that has made a few unintentional missteps and should be given the benefit of the doubt. The civil disobedience I propose is against a federal government that has fully earned our distrust.

– Mr. Murray is the W. H. Brady Scholar at the American Enterprise Institute. This essay draws on his book By the People: Rebuilding Liberty without Permission.

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