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Government by Experts

by Andrew P. Napolitano
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I have often thought that after Abraham Lincoln, Woodrow Wilson was our worst president. By worst is meant least faithful to the Constitution and most destructive of personal liberty.

            With the exception of Lincoln’s dictatorship — during which the federal government used violence to crush the states’ natural right to secede from a union they had voluntarily joined and instead brought about the systematic murder of 750,000 persons — America from its founding to the early part of the 20th century more or less enjoyed the James Madison model for the federal government.

            Under this model, the federal government could only legislate, regulate and spend in the 16 discrete areas of governance that the Constitution delegated to it. All other areas of human behavior were left free to individual choices or governance by the states.

            From and after Wilson’s presidency, the Madisonian model was replaced by the Wilsonian one. Under this model, the feds could legislate, regulate and spend in any areas of governance for which there was a national political will, except for those areas that are expressly prohibited to them by the Constitution.

            It would take another generation before the courts fully caught up to this, during which they gradually permitted Congress basically to write any law, regulate any behavior, spend any money, tax any event and intrude upon any relationship so long as it did not confront an express constitutional prohibition.

            The Constitution itself — which Madison designed both to establish the federal government and to limit it — has been a dismal failure as an instrument of limitation. Madison himself wrote that only a structure external to the Constitution could be relied upon to keep the federal government in its place.

            He was referring to the power of the states to nullify acts of the federal government that the states determined were outside its constitutional authority.

            He was also referring to the natural right that individuals and political subdivisions have to leave the government, called secession. Just as the 13 colonies seceded from Great Britain, just as five of the original 13 states threatened to secede until a Bill of Rights was ratified, Madison argued, individuals can reject the government, smaller subdivisions can leave larger ones, and states can leave the feds.

            Without the threat of nullification and secession, there is no effective restraint on the feds.

            Now back to Wilson. His governmental sins were many — World War I, the Espionage Act that punishes speech, the federal income tax, the popular election of U.S. Senators, the Federal Reserve and his government by experts; the latter known today as the administrative state.

            This last insidious structure is not in any branch of constitutional government. It writes rules, interprets them, enforces them and punishes its victims.

            According to the late Justice Antonin Scalia, this is an unconstitutional delegation of Congress’ legislative powers to entities within the government who are not answerable to the voters. Administrative agency heads are appointed by the president and confirmed by the Senate. But the folks who write the rules are permanent bureaucrats who do not change, no matter who is in the White House.

            Last week, much of this was argued in the Supreme Court.

            Here is the backstory.

            Two sets of commercial fishermen, one in New Jersey and the other in Rhode Island, objected to a federal regulation — written by the National Marine Fisheries Service, not by Congress — that regulates the amount of lobsters they can extract from the sea. The regulation required these fishermen to have a federal agent on all of their boats when at sea and to reimburse the federal government for the $700 daily salary of each agent.

            The fishermen challenged these regulations in federal appellate courts. Why in appellate courts? Congress gave the administrative agencies an aura of correctness — even the Department of Justice doesn’t have this, thank God. Thus, challenged agency rulings are presumed correct, are not entitled to fact-finding hearings before federal judges, and go directly to appellate courts. There, the only issue is whether the administrative agency abused its discretion.

            The fishermen did have factfinding hearings of sorts before administrative law judges. This anti-constitutional system has judges who have the same boss as the agency prosecutors — here, the Secretary of Commerce — making recommendations to the Secretary. This is hardly the independent judiciary contemplated by the Fifth Amendment.

            The Third Circuit Court of Appeals in Philadelphia and the First Circuit Court of Appeals in Boston each affirmed the rulings of the Secretary, as based on the expertise of the Marine agency and the findings of the administrative law judges, and dismissed the fishermen’s appeals.

            It is rare in the modern era for courts to interfere with an administrative agency because of a monstrosity called the Chevron Doctrine. This rubric tells courts that they must show deference to an administrative agency’s interpretations of its own rules, because its bureaucrats are — channeling Wilson — experts.

            Both appellate courts followed Chevron. After reviewing the oral argument in the Supreme Court last week, it appears that the court is poised to reverse, to dump the Chevron Doctrine and to put the feds on an equal footing with those who challenge them in court.

            All regulations interfere with personal liberty. When the government interferes with liberty, not only should there be no deference to the government; there should be a presumption that the government’s behavior is wrong, immoral, unconstitutional and unlawful.

            Why? Because freedom is the default position. Government is the negation of freedom. Freedom is everyone’s personal natural birthright. The sovereignty of the person — made in the image and likeness of the Creator — can never be equal morally and legally to a gaggle of bureaucrats running an artificial monopoly of power in a geographic area, otherwise known as the government.

            Either our rights are inalienable or they are not. If they are not, freedom is an illusion. If they are inalienable, under the Constitution the government must leave our freedoms alone.

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