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The Dangers of Consolidated Government, or, the Seperation of Powers Revisited

December 2, 2012

The Environmental Protection Agency (EPA) refused eight governors and 200 Members of Congress who requested, in the wake of last summer’s devastating drought and the resultant corn supply squeeze, a relaxation of the Agency’s ethanol standards.  EPA refused.  Now we learn that senior EPA administrators use fake e-mail accounts to avoid having their correspondence requested by Congress under the Freedom of Information Act (FOIA).  EPA officials’ blatant disregard of Congressional oversight begs the question of how they came to have the power to regulate ethanol in the first place, and who, if anyone, they answer to for their actions.

EPA, created by an act of Congress and signed into law by President Nixon, came into existence in 1970 and functions as the chief Federal environmental regulatory agency.  As such, it can make rules to implement the provisions of legislation granting it authority within the scope of its’ mandate.  These rules are basically mini-laws, designed to allow for executing the intent of the law itself.  EPA is the author of these rules (or regulations), the enforcer of them, and the judge of when they have been violated, meting our punishment as its’ leadership deems proper.  Thus, EPA,like all regulatory agencies of its’ kind at both the state and Federal level, is, within the field if its’ activity, a legislative (rule-making), executive (rule-enforcing) and judicial (rule violation adjudicating) entity – all three branches of government in one.

The Founders, in crafting a Constitution designed to be, in writing, what the unwritten English Constitution was (and is) to the Mother Counrty, created a system of ordered liberty that depends on limited power residing anywhere within its’ structure, on the separation of executive and legislative functions, and both of the former from the judicial branch, with the intent of using each branch of government to check and balance the others.  (The same applies to the concept of ‘dual sovereignty,’ whereby the states and the Federal government were each to be supreme in those areas delegated to them and subordinate or without power to act in the other’s sphere of influence.)

Combining executive and legislative functions, especially, was viewed as a form of tyranny, as a law-giver who also has police power can hardly be opposed.  (An Executive who makes the courts his creature also has the power to arrest at will without fearing that a judge or jury will interfere to stop him.)  While our system of ‘administrative law,’under which the regulating, enforcing and punishing authority of the EPAs, OSHAs and the myriad of others fall has procedural safeguards built into it, they typically amount to self-policing, as anyone haled before them for an alleged violation must depend on his accuser also being his protector, which calls for a standard of impartiality and restraint that is beyond most of us to meet, consistently, over time, in the face of every temptation and form of pressure to do likewise.  Self-regulation, in the hands of an enlightened despot, may provide good government for a season; but, if we are to believe Gibbon, the best the Roman Empire could do,under the administration of the ‘five good Emperors’ was to yield a single lifetime of reasonably un-tyrannical rule in the course of five centuries’ existence.  That is not a record to inspire confidence in the concept of self-restraint as guarantor of personal freedom.

while self-restraint is not a guarantee of good government or the protection of individual rights,administrative law usually allows for appeals to reach the regular court system after procedural remedies are exhausted, but that may be at the end of a lengthy, expensive and exhausting process.  As the old adage has it, ‘Justice delayed is justice denied.’

The systems of administrative law we have with us now are a fairly recent development.  One of the early pioneers of this was Robert Moses.  As Parks Commissioner for the State of New York from the time of Governor Al Smith until the administration of Nelson Rockefeller, he turned an unpaid office into a virtual dictatorship with authority over not only state parks, but also over ‘parkways,’ bridges, tunnels, et cetera.  The establishment of ‘authorities’ vested with executive and legislative powers, modeled on his operation in New York, spread across America by mid-century, becoming the familiar model for special units of government everywhere.

Regulatory agencies and ‘authorities’ charged with administering limited grants of power without check or balance pose a special problem for Americans.  These entities are not the kind of’ ‘government’ routinely taught in high school civics classes; yet they exercise powers which can affect our daily lives as much as any act of Congress.  (As noted above, many derive their powers from acts of Congress.) That they often operate in the shadows, away from the headlines, is al the more reason for our vigilance, and for our holding those who delegate their power to them (our legislators) to account.

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