On March 22, 2023, I put up the following post:
I retired after 30 years of federal employment as a low-level
office manager. While I am far from being an expert on government
affairs, that 30 years did teach me quite a lot about how our government
works. One of the things that always fascinated, instructed, and
infuriated me was the yawning gap between the literal content of legislation
passed by the Legislative branch and signed into law by our President and
precisely how that legislation was actually implemented by the Departments and
Agencies of the federal government. It always was…and continues to
be…one of those things that make you go “hmmm?”
The erosion of our Legislative branch’s influence on
governing...due to the explosion we have witnessed in the Executive branch’s
abuse of power and the Judicial branch’s rogue idealism projected onto law...is
largely due to the fact that Congress simply does not write what it
means. They leave too much wobble in the wheel. When
legislation is passed and the directions and rules are set forth for the
administrators to roll it out, the people who command and control our
Departments and Agencies use that legislation as a guide. That
legislation will use both the terms shall and may. Shall is
a clear directive to the civil service contingent of our government that they
should administer this legislation according to the text associated with it…as
it is written. If the Judicial branch is asked to rule on the
matter of how it is administered, they will consider the use of the word shall as
a clear directive to adhere to the details of the legislation. If
the legislation is clearly written, there should be little debate about how it
should be performed.
If the word may is used in the legislation,
there is a clear understanding that the government official ultimately in
charge of administering the legislation…typically a patronage appointee of
the Executive branch…can use their discretion while delivering the
product. That discretion will be a result of how they are told
by their superiors…the people who got them their job…the Executive
branch…to think and act. This opportunity to inject personal
interpretation into exactly what the legislation means leads to actions that
are tinged by politics and agenda-seeking idealism; oftentimes resulting in a
federal program that has little resemblance to the legislation that created
it. It allows the Executive branch to, in many cases, brazenly
ignore what Congress was trying to do and twist it into a delivery vehicle for
their own policy initiatives. It is a case where the Legislative
branch willfully and irresponsibly yields its authority to the Executive
branch. It is happening far too often and the Executive branch
has embraced it.
The staffs in Congress that write the legislation are not
stupid. They are intelligent and skilled people who are very good
with word composition and well understand how to write a document that says
what it means. Sometimes the lack of detail in legislation is
intentional due to compromise or necessary practical flexibility designed to
meet varied circumstances. Other times, legislation is left open to
interpretation because Congress is unwilling to do the heavy lifting involved
in researching, debating, and writing a clear document that specifically
describes their intent. It is instead a rushed, incomplete,
shallow, and arbitrary fill-in-the-blanks document intended to deliver a
political message as opposed to a federal action.
And then there are times when the Executive branch simply
ignores the legislation content and willfully strays from its intended
purpose. In this case, the ultimate remedy lies with the Judicial
branch ruling on the legality of the Executive branch
action. The problem here is that if the Executive branch is brazen
enough to simply ignore the clear intent of Congress and take its own and
different direction, it typically takes years for the rogue
Executive actions to work their way through the court system. By the
time the irresponsible Executive action is ruled upon, the Executive branch
version of the legislation has become part and parcel of our government and is
practically impossible to unwind.
This perversion of our nation’s government and constitution has
increasingly led us to a place where autocratic executive actions by the
president create results that have no clear connection to what Congress
intended in the first place. In a very real sense, it has tilted the
balance of power from the Legislative branch to the Executive branch and has
eroded the ability of voters to influence their government through local
elections. It has moved our nation to a point where many times,
our President appears more like a King than a Chief Executive.
If our nation’s government is ever going to regain its function
according to the constitutional blueprint laid out by our founders, the
Congress must reassert its authority and standing as an equal partner to the
Executive branch. It must
use its power to write clear, distinct, and considered legislation and it must
use its oversight authorities to monitor and address the incidence of Executive
branch over-reach and abuse of power. Senators and Representatives
are our true connections to government because they are closer to
us. They come from our home states and our communities. They
should be our true advocates in Washington, DC because they are one of
us. They are elected by their neighbors; not by the nation. These
are the people who should be deciding how our government functions and what it
addresses. The President should simply be the person implementing
those ideals. Congress must get back to using SHALL and
refrain from using MAY. The Constitution has given them
the power necessary to do their job; but if they continue to equivocate and
allow the Executive branch to walk over them, this and every future President
will continue to usurp their rightful place in our
government. Now…on to the happenings of today…………
The
issue I was addressing in this post is the explosive nature, since the mid-90’s,
of the “administrative state” in our
government. This phenomenon has resulted
in a dramatic shift of power and authority from the Legislative Branch to the
Executive Branch; it has distorted the fundamental representative nature of our
Constitution; and it has enabled ideologues of all persuasions to foist their
personal agendas on the American people while bypassing the Representatives and
Senators that those very people sent up to Washington, DC to run our government…and our lives.
One
of the top stories before us is the abortion
pill controversy that lies today before the Supreme Court of the United
States (SCOTUS). Here is a good, balanced, and brief summary
of what that case is about: https://reason.com/2023/04/07/the-abortion-debate-is-messy-two-lawsuits-against-the-fda-may-make-it-worse/
. It is anticipated that the SCOTUS will
issue their ruling today on that case, but the extent of impact from that ruling is yet to be determined. Any issue that has minimum tangential
connection to the subject of abortion gets sucked into the vortex of hyperbole,
mania, hypocrisy, and downright stupid debate rules. The substance typically gets lost in the
madness and the real issues being addressed are often overshadowed by the
collateral noise. I believe that to be the
case in this matter.
The
history of this episode demonstrates for anyone who cares to pay attention the
profoundly ridiculous way our legislative
branch interacts with our judicial
branch when trying to sort out the legalities
of executive administrative actions…often referred to as the Chevron Doctrine.
Note that in this case, the fundamental question in play was posed in the year
2000. Today…23 years later…we might
get clarification from the SCOTUS…or not. This
is the exact point I was trying to address in my post on March 22 that is
reprinted above. For 23 years, the prevailing
law on this abortion issue was not promulgated by our state governments or
legislatures, nor was it was issued from our Congress of elected representatives. Instead,
this ruling that has affected incalculable lives and emotions throughout our
society and culture was thrust upon us by some politically-appointed bureaucrat
in the Food and Drug Administration.
If
this distortion of our Constitution concerns you in the least, I urge you in the
strongest terms to take about an hour of your time and listen to the linked
podcast below. Andrew McCarthy is a
brilliant journalist who has the rare ability to distill complex issues down to
their basics and present them in an understandable fashion that can enable us to
understand what they are all about. In
this podcast, he addresses both my point about the epidemic-like growth of the
administrative state and the circus-like environment that now surrounds the issue
of abortion in America: https://www.nationalreview.com/podcasts/the-mccarthy-report/a-bitter-pill-you-shouldnt-swallow/
.
Somehow,
someway, and sometime soon…our nation MUST
return to the true intent of our Constitution.
We must restore the principles
of state rights sovereignty, limitations on the size and authorities of our
federal government, the balance of power between our branches of government,
and most important of all…a restoration of integrity to our justice system that
guarantees balanced, equal, unbiased, and SWIFT
administration of our laws.
In
this instance, a blatantly dangerous and grossly irresponsible FDA ruling that
began in the year 2000 has continued
unabated for 23 years; it has been the law of the land. This is not a
justice system. This is not representative
government. This is a clown show and a
perversion of our founder’s ideals for this nation.
