Wednesday, August 9, 2017

Elimination of the “Administrative State”

The ultra-right wing – represented by think tanks like The Heritage Foundation – have consistently railed against the significant mass of federal administrative agencies, imbued by Congress with quasi-judicial power, that issue far more rules than Congress passes statutes. They view such agencies as violative of the separation of powers, expanding well beyond what they see as a constitutional limitation to three clearly differentiated branches of government – legislative, judicial and executive – by adding a fourth “administrative” branch. Despite the fact that the United States Supreme Court has ratified this congressionally authorized, presidentially signed, body of administrative agencies, these uber-conservatives argue that such agencies of unelected officials wield power beyond anything contemplated by our Founding Fathers.
Such conservatives argue that none of these agencies should exist. They maintain that if federal rule-making is necessary, it should only be accomplished by Congress itself… the only law-making body authorized by the Constitution. If administrative decisions are necessary in the application and enforcement of federal rules, they stress, only properly appointed courts should be empowered to render a formal resolution. The have longed for the complete eradication of this “administrative state.”
Aside from the fact that the constitutionality of such rule-making, quasi-judicial-deciding administrative structures have been sustained, there are some practical realities that suggest this tearing down of administrative power is beyond a quaint reach-back towards nostalgia. That atavistic yearning to return to the past embodied in that “Make America Great Again” slogan. First, our Constitution, the oldest in the truly democratic world, has become virtually unamendable, underscored by massive entrenched polarization reinforced by generations of increasingly powerful conservative gerrymandering. For example, the last constitutional amendment, the 27th (preventing Congress from giving itself a raise without an intervening election) passed in 1992, was introduced well over 200 years earlier (in 1789).
Further, the three branches of government, in their most simplistic Heritage Foundation vision, only had to deal with a 1776, mostly agrarian population of 2.5 million – versus 320 million mostly urban today – and the actions of the federal government (short of a declaration of war) had way fewer ramifications for both Americans and the rest of the world. Global competition and connectivity, the ability to move about the country and the planet (physically and electronically) were at their nascent stages back then. Other than adding a few judges and slightly expanding Congress, the original structure from the early 1800s remains pretty much intact today. They had no concept of excessive exploitation of natural resources; with so much open land, the thought of a national park would have reduced those denizens of the good ole days into gales of laughter. Pollution? What’s that? Hydroelectric power, transnational power grids, organized labor, national stock exchanges, public broadcast bandwidth, telephony, railroads, the Internet, satellite permits, etc., etc.
To any lawyer familiar with both federal courts and administrative agencies, it is extremely clear that the level of complexity and sophistication required in extremely technical fields, literally hundreds of such specialized fields, cannot sit within a body of generalized legal experts in the judicial system. Mere mortal judges simply cannot have that level of expertise across such a broad spectrum of required knowledge. It simply does not work.
Enter the Trump administration. As a tip of the hat to right wing conservatives not completely comfortable with the rest of the Trump commitment to populist platforms that are hardly consistent with this Heritage low tax, laissez faire perspective, Trump allowed alt-right spokesperson, Stephen K Bannon, to architect his administration’s response to eliminate this “administrative state” as completely as he could.
The policy is called the “deconstruction” of the administrative state. This platform is one of Trump’s highest priorities, sensing that billions of federal dollars could be saved – to allow Congress to lower taxes for the rich – is to significantly reduce if not shutter federal agencies entirely. Bannon has quietly architected the demise of just about every federal agency not directly providing armed resources to enforce federal mandates. The selection of cabinet-level appointments, the failure to restaff dwindling federal agencies stripped of unreplaced political appointees, and the general notion of repealing or simply refusing to enforce existing regulations remain at the heart of Trump policies.
Rick Perry (Energy, which also overseas our nuclear stockpile), Ben Carson (Housing), Betsey DeVos (Education), Scott Pruitt (Environmental Protection), Alex Acosta (Labor), Ryan Zinke (Interior), Sonny Perdue (Agriculture), Tom Price (Health & Human Services), etc. were all selected to tear apart the agencies they were appointed to run. Back in February, Bannon summarized exactly what these folks were expected to deliver: ““If you look at these Cabinet nominees, they were selected for a reason, and that is deconstruction.” The results have included opening federally-protected lands to open pit coal mining and deforestation without the litany of safeguards to insure that trees or landscape would return, allowing industrial waste to be dumped into major waterways around the country, the elimination of many federal parks and preserves, not to mention a failed effort to repeal the ACA itself.
To justify these horrific decisions, the Trump administration couldn’t exactly acknowledge that pollution impacts our drinking water, that our natural resources are not limitless, that any notion of global warming through man’s activities could remotely be correct or that the publicly-subsidized ACA was beginning to stabilize and work. What has been implemented in months may well take decades to reverse… provided that we act before a tipping point that would make living in a new, vastly-less-habitable planet a bigger priority than prevention or environmental improvement.
After that point is reached, we will have to deal with vast regions of new deserts with incredible flooding elsewhere, climate-heated regions where humans can no longer safely work or live, deeply polluted bodies of water (above and below ground), land loss from rising seas of some of the most valuable real estate on earth, the spread of disease from migrating insects and massive migration of populations struggling to survive with the concomitant violence that always accompanies such displacement.
While the last GOP administration (under George W Bush) began policies that radically destabilized the entire Middle East and parts of Central Asia, a plan of action not remotely reversed by the Dems (under Barack Obama), the Trump administration is inserting a going-forward legacy resulting in domestic chaos and instability coupled with an incredible plunge in our international credibility. The problems will not go away. A yearning for the good old days where the United States did not rely on global relationships and trade will never return. But the United States is being reconfigured under assumptions that progress can be stopped, isolationism is good and viable and that we cannot hurt ourselves through financial and environmental deregulation.
I’m Peter Dekom, and an increasing number of Republicans are joining a uniform chorus of Democrats to reverse the hideous and obvious stupidity of policies designed for a nation of two hundred years ago.

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