When teaching my college students, I always work to make the monstrosity that is the “bureaucracy” something simple and tangible. I want to unravel the web of confusion shrouding the bureaucracy. We’ve all heard of the bureaucracy but how many of us could simply explain what it is or what it does?
So, I always say to my students. “When Congress writes a law, do you think that the 535 members of Congress go out to the whole country to make sure that all Americans follow that law?“
Of course, the absurdity of that proposition is immediately apparent to my students. I follow that question with another question. “Ok, so if it’s not the members of Congress who go out and make sure we all follow the laws they wrote, who does and how does that happen?”
I get a litany of responses before finally clarifying.
Every time Congress writes a new law, they must also create a new agency or add funds to an existing agency for that agency to then carry out the newly created law.
The bureaucracy is as simple as that. It’s made up of all the agencies that Congress created to enforce the laws that Congress wrote. The President heads up those agencies since he’s the Chief Executive and his job is to see that “the laws be faithfully executed”.
Delegated Power Cannot Be Delegated
Which leads me to the topic of today’s article. Since Congress, our direct link to government power, our representatives, can’t themselves go out there and make sure we’re all following the laws they wrote on our behalf–exactly as they intended–they must delegate this job to others. This is reasonable, of course, but it must be done with care and the legislature must maintain a rigid amount of oversight over the agencies enforcing their laws. Legislative intent is critical.
Locke said that delegated power cannot be delegated. In other words, one example I give to my classes is this. If I give a student the power to hand out pens or pencils for a test, that student cannot then give away or delegate that power to another student. Why? Because it’s still my power. It’s not hers to give away. I gave it to her to help but ultimately, it’s still my power.
The same goes for government, friends. We delegated to Congress the power to make laws to protect us and private property from each other. We created Congress, then delegated to them certain enumerated powers specified in their job description-the Constitution-and then we hold them accountable to their decisions by choosing whether or not they get to keep their jobs.
So, if they give their lawmaking powers away to another government body, they’ve violated this maxim. They can delegate the implementation of the laws they wrote to the executive, but never allow the executive to take the power to write laws as well.
Locke says if delegated power is delegated, then we have the right to throw that government off and start a new one. That’s how serious this type of usurpation of power is.
West Virginia vs the EPA (2022)
What’s happened over the past few decades is this: Congress writes vague law, passes down those vague laws to large, all-encompassing federal agencies, who then determine the details and specifics about how to implement the vague law by writing “rules”. These rules are, effectively laws. They are more law that the “original big” law because they are the “laws” that affect citizens on a daily basis.
Today, appointed officials can decide, within rather broad limits, who shall own a television station, what safety features automobiles shall have, what kinds of scientific research shall be specifically encouraged, what drugs shall appear on the market, which dissident groups shall be investigated, what fumes an industrial smokestack may emit, which corporate mergers shall be allowed, what use shall be made of national forests, and what prices crop and diary farmers shall receive for their products.
…to name a few.
So, Congress has effectively handed over the majority of their delegated law-making powers to unelected bodies of bureaucratic appointed officials. We the citizens, government’s employers, have no way of keeping or holding these appointed officials accountable since we didn’t delegate to them the power to make law. We gave that power to Congress, who we voted for.
This Supreme Court case, West Virginia vs the EPA (2022) begins to reign in some of this arbitrary and uncontrollable bureaucratic power by requiring that there’s “clear Congressional authorization for an agency to regulate matters of great economic or political significance.”
Practically, the Court struck down the EPA’s Clean Power Plan, saying that it usurped legislative authority in this realm. “In West Virginia v. EPA, the Supreme Court of the United States ruled by a 6-3 majority that the Environmental Protection Agency (EPA) had exceeded its statutory authority by issuing regulations that would essentially dictate to power-generating utilities what fuel sources they must use. The EPA sought to force utilities to phase out fossil fuels and instead generate electricity from wind and solar technologies.”
Over the past few centuries the power of the legislative (called the “pre-eminent branch” by the founders) has slowly given away or lost power while the executive and judicial have gained power. Hence, delegated power has been delegated to the point that our representatives are not the ones governing us or king law, rather, courts and bureaucratic agencies are. Both branches of government that “we the people” have little to no control over.
The Court, with this case–in conjunction with their choice to over-rule Roe vs. Wade-has, in some small way, rolled back the power of the Court (Dobbs v. Jackson Women’s Health Organization 2022) and now the power of the executive (West Virginia vs the EPA 2022) in favor of legislative authority and autonomy.
Notice, in both cases, the issue was not the issue. In other words, the Court, the government and the citizens can believe what they want about climate change and abortion, but those issues must be dealt with by the realm of government the Constitution dictates. It’s not about the issue, it’s about the Constitution and avoiding arbitrary power–no matter our thoughts and feelings about certain issues.
We’re in an era of benevolent kings. The Court is full of unelected Justices with an immense amount of undefined arbitrary power. The pendulum will swing again and agencies will have their power again.
But for now, Locke’s maxim has been marginally re-asserted.
Delegated power can never be delegated.
The Liberty Belle