The Texas Plan, Part III

The third of Abbott's proposed amendments would restore the balance of legislative and executive power that existed before the New Deal, and specifically before Roosevelt's Supreme Court-packing scheme intimidated the Court into letting him do what they had repeatedly held to be unconstitutional.
III. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.
At this point, this would make a massive change in the way the Federal government does business. Administrative rules now make up the bulk of Federal law, including the bulk of Federal felonies for which you can be sent to prison for years. This is another one of those issues that readers of the Hall have read about for years.  Here's a longer piece from 2007 that talks about administrative regulation as well as the explosiveness of SCOTUS picks.  (Here is a post from the same year on the problems of over-regulation for government itself, from the perspective of trying to be sympathetic and helpful to the State Department.)

Looking back over my work in assembling that quite incomplete list, I see that Abbott's solution is the very one I was endorsing eight years ago: not just this shift, but a constitutional convention to restrain the SCOTUS and the regulatory agencies. It would be a huge change. The argument against it has to do with the complexity of the economy and society: a Congress that had to pass all the laws would be unable to come up with nearly so many laws and regulations and standards. We would have a much less managed society and economy.

The compensation would come in the legitimacy of the rules we did pass. Now, most of Federal law is created without you or your representatives being involved in the process, or even knowing about it. That's not obviously legitimate in a representative democracy, or a democratic Republic. If "No taxation without Representation" is a founding principle, well, every regulation is a kind of tax: compliance takes time and, yes, money. Regulations of such complexity that you cannot be sure you are following them all -- and we are very far past that threshold -- destroy the legitimacy of the whole scheme. They also create a great danger of partisan tyranny through prosecutorial discretion: if we are all guilty of transgressing these hidden laws, the government can punish its enemies and reward its favorites simply by choosing where and on whom it enforces the law.

The amendment suggests a course that will not be easy, but I think the hardships are necessary to the legitimacy, and stability, of our government. I have thought so for a long time.


raven said...

A very good case could be made that agencies themselves ARE the government, and the rest of it is just eye candy for the masses.

The only way to control the government excesses is to limit their money supply. I favor a national strike. Maybe one day a week. We can call it National Fry-day.

You know what really pisses me off? Going to work, with a bunch of things that need to be done to make ends meet, and seeing Government workers having the day off with pay, on what seems to be an almost monthly occurrence.

Ymar Sakar said...

It's a good thing I saw a few tricks and tips from the Stasi and the Commissars of Russia, otherwise this might all have been a little surprising. Even to the Abraham Lincoln brigade.