Monday, June 10, 2013

The Borg-ocracy

Your legislature will be assimilated. Resistance is futile.

On May 24, Jonathan Turley, the Shapiro professor of public interest law at George Washington University (i.e., an intelligent, mainstream legal mind) caused a bit of a stir in the Washington Post by writing that
[t]he growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.
Turley spends the rest of the piece detailing the rise of the administrative state over the past century or so, and fleshing out the dangers this entails for Constitutional governance. Steven Hayward reacted to Turley's piece as many conservatives did: in a word, “duh.” Conservatives have long questioned the coexistence of the administrative state with legitimate self-representation—where does one go to vote out a bureaucrat? But two recent pieces of legislation surpass this basic critique and strongly suggest that the administrative state under President Obama is now actively undermining our constitutional framework.

The first of these laws passed was the Dodd–Frank Wall Street Reform and Consumer Protection Act, the final text of which runs 849 pages (an affront unto itself; who could ever possibly know what's inside?). The Act contains a whole host of provisions that no one will ever read (by design), which nameless, faceless bureaucrats will instead interpret and implement. One such provision details how the Consumer Financial Protection Bureau, a government agency (of sorts) established by the act, will receive its funding:
.—Each year (or quarter of such year), beginning on the designated transfer date, and each quarter thereafter, the Board of Governors shall transfer to the Bureau from the combined earnings of the Federal Reserve System, the amount determined by the Director to be reasonably necessary to carry out the authorities of the Bureau under Federal consumer financial law, taking into account such other sums  made available to the Bureau from the preceding year (or quarter of such year).
.—Notwithstanding paragraph (1), and
in accordance with this paragraph, the amount that shall be transferred to the Bureau in each fiscal year shall not exceed a fixed percentage of the total operating expenses of the Federal Reserve System, as reported in the Annual Report, 2009, of the Board of Governors, equal to— (i) 10 percent of such expenses in fiscal year 2011;
(ii) 11 percent of such expenses in fiscal year 2012; and (iii) 12 percent of such expenses in fiscal year 2013, and in each year thereafter. (B) ADJUSTMENT OF AMOUNT
.—The dollar amount referred to in subparagraph (A)(iii) shall be adjusted annually, using the percent increase, if any, in the employment cost index for total compensation for State and local government workers published by the Federal Government, or the successor index thereto, for the 12-month period ending on September 30 of the year preceding the transfer. (C) REVIEWABILITY
.—Notwithstanding any other provision in this title, the funds derived from the Federal Reserve System pursuant to this subsection shall not be subject to review by the Committees on Appropriations of the House of Representatives and the Senate. [emphasis added]
To summarize: the CFPB receives its funding from the Federal Reserve, and Congress cannot scrutinize its operations. In case you’ve forgotten, here’s what the Constitution says about “bills of revenue”—i.e., funding for government operations:
All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
What part of “all” did the authors of Dodd-Frank not understand? Actually, that question may be too narrow. Perhaps one should ask: what parts of the Constitution did they understand?

Would that these defilements of the Constitution by the administrative state end with Dodd-Frank. But buried within the 906 pages of the Patient Protection and Affordable Care Act, one finds a similar provision, creating a similar agency: the Independent Payment Advisory Board (IPAB). George Will of the Washington Post explained what this agency does:
The PPACA repeatedly refers to any IPAB proposal as a “legislative proposal” and speaks of “the legislation introduced” by the IPAB. Each proposal automatically becomes law unless Congress passes — with a three-fifths supermajority required in the Senate — a measure cutting medical spending as much as the IPAB proposal would.
This is a travesty of constitutional lawmaking: An executive branch agency makes laws unless Congress enacts legislation to achieve the executive agency’s aim.
And it gets worse. Any resolution to abolish the IPAB must pass both houses of Congress. And no such resolution can be introduced before 2017 or after Feb. 1, 2017, and must be enacted by Aug. 15 of that year. And if passed, it cannot take effect until 2020. Defenders of all this audaciously call it a “fast track” process for considering termination of IPAB. It is, however, transparently designed to permanently entrench IPAB — never mind the principle that one Congress cannot by statute bind another Congress from altering that statute.
 Don't believe Will? Here is one of the passages to which he refers:
.—There is established an independent board to be known as the ‘Independent Medicare Advisory Board’.
.—It is the purpose of this section to, in accordance with the following provisions of this section, reduce the per capita rate of growth in Medicare spending—
‘‘(1) by requiring the Chief Actuary of the Centers for Medicare & Medicaid Services to determine in each year to which this section applies (in this section referred to as ‘a determination year’) the projected per capita growth rate under Medicare for the second year following the determination year (in this section referred to as ‘an implementation year’);
‘‘(2) if the projection for the implementation year exceeds the target growth rate for that year, by requiring the Board to develop and submit during the first year following the determination year (in this section referred to as ‘a proposal year’) a proposal containing recommendations to reduce the Medicare per capita growth rate to the extent required by this section; and ‘‘(3) by requiring the Secretary to implement such proposals unless Congress enacts legislation pursuant to this section [emphasis added].
Got that? “…unless Congress enacts legislation pursuant to this section.” In that one clause, you have a bureaucratic body elevated to and supplanting the status of our elected legislature. How did this happen? How did we arrive at a place where the unelected parts of our government now bear the weight of governance? Merely regulating finance and healthcare is one thing—proponents of the acts can point, however weakly, to the power of Congress in Article 1, Section 8 to “regulate Commerce.” But these are legislative usurpations of a higher order. Again, the question remains: how?

In part, we can blame our representatives, who did not bother to fight the disappearance of their actual power; in fact, they enjoy being able simply to write legislation that stipulates the outcomes they desire, and letting bureaucrats figure out how it’s going to work: legislative laziness and ignorance, in other words. Examples below:


But our representatives are supposed to represent us—at least, theoretically. Thus, any egregious actions they undertake without consequence signal our own negligence, our own failure to hold them accountable. Only a restored understanding and appreciation of the Constitution among citizens can wrest control of the government back to where it belongs: the places--local, state, and federal--where one can approve or disapprove of its actions, and prevent the Borg-ocracy from assimilating America's unique self-governance.

Thanks to a another D.C. area law professor, who wrote a New York Times op-ed titled “Let’s Give Up on the Constitution” we know that the ultimate aim of the Constitution’s enemies is either to discard it or render it meaningless. Its supporters must fight this mindset.

Are they up to the challenge?

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