"Human nature is above all things lazy." Harriet Beecher Stowe
The Fourth Branch of the Federal Government
The Framers of the Constitution were students of scripture and classical philosophy and, as such, understood human nature. Like Harriet Beecher Stowe, they did not underestimate the capacity of men to shirk responsibility and deflect blame. By establishing three branches of government, each operating with independence but also dependent on the others for validation, they hoped to ensure that the functions of government would be subject to contentious deliberation.
Congress would legislate, the President would enforce and the Judiciary would adjudicate. Congress alone was given the power to make laws (Nondelegation Doctrine Article I, Section1). Fast forward to the present day and the thousands of regulations (laws!) issued by alphabet agencies within the Executive branch.
The Legislative branch has yielded its Constitutional powers to the Executive agencies and the bureaucrats that run them. This is our new Fourth branch: the bureaucratic state (BS). The steps that have led to this state of affairs have played out over 100 years but Congress and the Court find it convenient.
Rise of the Unelected
Well crafted legislation is hard and laborious work. Vigorous debate and reasoned compromise ensure that the final product will stand up to scrutiny. Delegating law making to the Unelected BS has enabled our legislators to offload their responsibilities to the Executive branch.
Congress can now blame faceless BS agencies for lazily constructed law. The Court has deferred legal judgment to the BS agencies rather than stipulate redrafting overly broad legislation.
The 1984 Chevron v. NRDC Supreme Court ruling in favor of the EPA’s defense of commercial interests has been used over subsequent decades as an expansion mechanism for BS agencies. The BS agencies took a questionable SCOTUS decision and have run roughshod over the Framers intent. The road to Hell is paved with good intentions and navigated by the unelected bureaucracy.
Will SCOTUS Affirm or Ignore Separation of Powers?
The Supreme Court is revisiting the Chevron Doctrine in two separate cases before it. The first will decide the constitutionality of aspects granted to the Consumer Financial Protection Board created by Congress in 2008. The second will address whether Maine fishermen must pay for government monitors on their boats absent a clear law from Congress.
Justice Neil Gorsuch stated in 2016 that:
"There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth."
It would appear that SCOTUS may be uncomfortable with the centralization of power in the “Fourth Branch”. Although this is a welcome development, it is but a temporary speed bump for the Unelected. A later court may decide that the nondelegation doctrine was correctly decided in Chevron. A permanent solution is needed.
COS Simulated Convention Amendments Offer Control of the Unelected
The 2023 Simulated Convention of States provided proposed amendments that would wrest power from the Unelected. If Congress is restricted from delegating its legislative responsibilities then its intentions must be formed by unambiguous and clear laws. Federal Legislative & Executive Jurisdiction Proposals 1 & 2 provide the enforcement of the nondelegation doctrine necessary to corral the Unelected:
Federal Legislative & Executive Jurisdiction Proposal 1:
Section 2. Congress shall not delegate any rule making function related to commerce among the states to any executive official or agency.
Federal Legislative & Executive Jurisdiction Proposal 2:
Section 1. The Legislatures of the States shall have authority to abrogate any action of Congress, President, or administrative agencies of the United States, whether in the form of a statute, decree, order, regulation, rule, opinion, decision, or other form. This provision shall not apply to presidential action taken pursuant to Article II, Section 2, Clause 1, and to presidential appointments.
COS offers the American citizenry, through their elected state officials, the mechanism to reclaim the power that the Unelected have taken to themselves. We can tell DC “Stop being lazy! Do your jobs as the Framers intended.”
The Heritage Foundation’s John Malcolm attended the simulated convention and observed:
"Common themes that surfaced, not surprisingly, were that the federal government, including federal courts, makes too many decisions that have a dramatic effect on our local lives; that public officials in Washington are more concerned with getting and keeping power than they are with serving the people they are supposed to represent; and that the federal government too often simply tells the states what to do and then gives them some money to make sure they do it."
It is up to “We the People” to meet Ben Franklin’s challenge “A Republic if you can keep it.”
