Posts tagged ‘administrative agencies’

No Regulation Without Representation

When law in America can be made by executive “pen and phone” alone — indeed, by a White House press release — we’re faced starkly with a fundamental constitutional question: Is administrative law unlawful? Answering in the affirmative in this far-reaching, erudite new treatise, Philip Hamburger traces resistance to rule by administrative edict from the Middle Ages to the present. Far from a novel response to modern society and its complexities, executive prerogative has deep roots. It was beaten back by English constitutional ideas in the 17th century and even more decisively by American constitutions in the 18th century, but it reemerged during the Progressive Era and has grown ever since, regardless of the party in power.

Is Administrative Law Unlawful?

In this nation, we have a problem where Congress no longer represents the people. Because our representatives are more concerned about re-election, they have abrogated their authority to an unelected bureaucracy that passes rules We the People have no say over but that have a real effect on our daily lives. When we complain to Congress about these regulations, our representatives can play the good cop and claim they agree with us but there is nothing they can do because regulations are passed by the bad cop, bureaucracy.

. . .

It is time for We the People to stand up and let our voices be heard. No longer can our elected representatives allow an unelected bureaucracy do the job they were elected to do. We live in a republic, which means We the People are entitled to have our representatives vote on the laws that affect our lives.

The new slogan for this movement should be “No regulation without representation.” While some are pushing for a constitutional amendment that requires Congress to have a say in the regulation process, this effort should be extended to all 50 states. Each state should not allow its bureaucracy to pass rules absent the consent of the state legislature.

No Regulation Without Representation

Farewell to the Administrative State?

Is Administrative Law Unlawful?” by Philip Hamburger

Ozymandias

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Libertarian, Classical Liberal: Richard Epstein

Libertarians fall into two distinct groups: strict libertarians like Rand Paul and classical liberals such as myself. “Classical liberal” is not a term that rolls off of the tongue. Consequently, “libertarian” is the choice term in popular discourse when discussing policies that favor limited government. Libertarians of all stripes oppose President Obama’s endless attacks on market institutions and the rich. The umbrella term comfortably embraces both strands of libertarian theory vis-à-vis a common intellectual foe.

It is important to understand the differences in views between the strong libertarian and classical liberal position. Serious hard-line libertarian thinkers include Murray Rothbard and Karl Hess. Rothbard believes nonaggression is the sole requirement of a just social order. For Hess, “libertarianism is the view that each man is the absolute owner of his life, to use and dispose of as he sees fit.” There are large kernels of truth in both propositions. It is quite impossible to see how any social order could be maintained if there were no limitations against the use, or threatened use, of force to enslave or butcher other people, which Hess’s proposition of absolute self-ownership strongly counteracts.

Yet the overarching question is how does a group of people move from the Hobbesian “war of all against all” toward a peaceful society? Hess claims that stable institutions are created by “voluntary association and cooperation.” Again, strong libertarians are on solid ground in defending (most) private contracts against government interference, which is why Lochner v. New York (1905), reviled as it is by most constitutional thinkers, was right in striking down New York’s sixty hours per week maximum labor statute. Yet the hard-line libertarian position badly misfires in assuming that any set of voluntary contracts can solve the far larger problem of social order, which, as Rothbard notes, in practice requires each and every citizen to relinquish the use force against all others. Voluntary cooperation cannot secure unanimous consent, because the one violent holdout could upset the peace and tranquility of all others.

The sad experience of history is that high transaction costs and nonstop opportunism wreck the widespread voluntary effort to create a grand social alliance to limit the use of force. Society needs a coercive mechanism strong enough to keep defectors in line, but fair enough to command the allegiance of individuals, who must share the costs of creating that larger and mutually beneficial social order. The social contract that Locke said brought individuals out of the state of nature was one such device. The want of individual consent was displaced by a consciously designed substantive program to protect both liberty and property in ways that left all members of society better off than they were in the state of nature. Only constrained coercion can overcome the holdout problems needed to implement any principle of nonaggression.

The flat tax is preferred because it reduces private incentives to game the tax system and, likewise, the ability of government officials to unfairly target their opponents. The optimal theory of taxation minimizes the distortions created by the need to fund the government activities that maintain public order and supply infrastructure. The classical liberal thus agrees with the hard-line libertarian that progressive taxation, with its endless loopholes, is unsustainable in the long run. At the same time, the classical liberal finds it incomprehensible that anyone would want to condemn all taxes as government theft from a hapless citizenry. The hard-line libertarian’s blanket condemnation of taxes as theft means that he can add nothing to the discussion of which tax should be preferred and why. The classical liberal has a lot to say on that subject against both the hard-line libertarian and the modern progressive.

My Rand Paul Problem: Why classical liberalism is superior to hard-core libertarianism.

Acton Institute, Cato Institute

Wikipedia: Libertarianism | Classical Liberalism | Christian Libertarianism

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Federal Government Departments and Agencies

Within the federal government, there are two primary types of organizations: executive departments and independent agencies.

Hawk at FTC Apex Building
Creative Commons License photo credit: Mr. T in DC

Heading the executive departments are members of the president’s cabinet. They report directly to the president and serve at his pleasure by implementing his agenda and carrying out his policies. The heads of the executive departments cannot take a position regarding legislation without the express approval of the White House.

Independent agencies, such as the Federal Trade Commission or the Securities and Exchange Commission generally consist of multiple member boards. The members of these boards usually serve for a fixed term instead of serving at the pleasure of the president. In most cases, the statute that created the agency requires that most of the board for that agency come from the president’s party, with a minority coming from the other party.

Members of independent agencies are not required to follow the direction of the president. They may choose to take positions on legislation that are different from that of Persuading Congress, by Joseph Gibsonthe president. Practically speaking, agency members that are from the president’s party will typically follow his lead on policy simply because they received their appointment from him.

Both executive departments and independent agencies usually maintain close working relationships with the congressional committees that oversee them. This interaction occurs through informal briefings, phone calls, formal written requests, comments on proposed legislation, etc.

Helping to facilitate this communication are full-time staffs, known as congressional liaisons. It is their job to interact with Congress on behalf of the agencies. These staffs are typically comprised of both political appointees and career civil servants. It is important to note that while such staff members can work to educate Congress, they may not urge third parties to support their positions. If it is your goal to work with an agency regarding a congressional issue, the congressional liaison will typically be the best place to start.

Part of this process may involve the agency requesting Congress to enact legislation or Congress may request the views of an agency regarding a proposed law. If a member of Congress does not have a personal interest in a particular piece of legislation, but an agency does, it is not uncommon for members to defer to the agency’s views. This is particularly common when the issue is highly technical in nature.

To learn more about departments and agencies and how you can work with them, consider TheCapitol.Net’s 1-day course, Understanding the Regulatory Process: Working with Federal Regulatory Agencies, and the Capitol Learning Audio Course Understanding the Regulatory Process, A Five Course Series.

Reference: Persuading Congress, by Joseph Gibson, Ch. 9 The Departments and Agencies.

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For more information about working with Congress, see these resources from TheCapitol.Net:

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