Our Regulatory Tyranny How progressives erode the guardrails of the Constitution. by Bruce Thornton *****
https://www.frontpagemag.com/our-regulatory-tyranny/
Nearly 190 years ago, Alexis de Tocqueville in Democracy in America presciently described the “soft despotism” he feared the young United States could devolve into––one that would control and direct its citizens not by force, but by a centralized power “more extensive and more mild [that] would degrade men without tormenting them” physically.
Thanks to over a century of progressive technocratic expansion through the metastasizing of federal agencies, their imperious regulatory regime has spread ever more widely, one that as Tocqueville prophesized “covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and most energetic characters can penetrate.” The purpose is “to keep them [citizens] in perpetual childhood.”
Understanding this malign dynamic of big government and diminishing freedom, Donald Trump has charged Elon Musk and Vivek Ramaswamy with creating and managing a Department of Government Efficiency to begin cleaning out our regulatory Augean Stables. A good place for anyone to start grasping just how enormous, intrusive, and expensive this problem is, should start with Supreme Court Justice Neil Gorsuch’s recent book Overruled.
Regulatory hypertrophy began with the multiplication of laws. Progressivism, believing that credentialed “experts” are better at governing people than the people themselves, started increasing federal laws to fix “problems” or “crises” that states, counties, and cities––closer to their people’s circumstance, mores, and problems––were better placed to deal with. Yet firm believers in not letting “a good crises go to waste,” progressives began manufacturing crises, then passing laws and creating agencies tasked with managing those problems.
What followed is what Gorsuch calls a “paper blizzard.” In a span of about 100 years, the federal laws comprising the U.S. Code grew from fitting in one volume, to needing 54 in 2018. Laws also got longer and denser: the legislation dealing with inter alia Covid 19 relief, clocked in at more than 5000 words. The 1964 Civil Rights Act took a mere 28 pages.
This gigantism in large part reflects the way bills are typically stuffed with provisions that have little or nothing to do with the “crisis” that the bill is supposed to mitigate. “Buried in the [Covid] bill],” Gorsuch writes, “were provisions for horse racing, approvals for two new Smithsonian museums, and a section on foreign policy regarding Tibet.”
But that’s just Congress’s output, Gorsuch adds. Federal agencies “write new rules and regulations implementing or interpreting Congress’s laws. Many take the force of laws” ––a violation of the Constitution’s Article 1 that gives Congress, elected by the people, the power to make laws. Now that power is offloaded onto unelected, unaccountable bureaucratic clerks.
This state of affairs is another example of how progressives have been revising the Constitution in order to weaken the guardrails, such as electoral accountability and the divided and balanced powers created to forestall the concentrated power that enables tyranny.
Furthermore, these agency provisions and finalized rules are published in the Code of Federal Regulations, and they too have obviously expanded. When the Code began in 1936, “it was 16 pages,” Gorsuch tells us. “In recent years that publication has grown by an average of 70,000 pages annually,” Gorsuch emphasizes.
The result is that nobody, whether citizen or Congressman, can read all these laws, let alone understand them. And to add insult to injury, another intrusion by federal agencies into Congress’s law-making powers comprises “guidance documents” ––that sometimes can’t even be found––produced by federal agencies, allegedly to clarify a regulation, but which “often carry the implicit threat of enforcement action if the regulated public does not comply,” Gorsuch writes, quoting Executive Order 1399.
Moreover, the Office of Management and Budget asked agencies to make their “guidance documents” available on online searchable databases. “But some agencies resisted,” Gorsuch writes. “Why? By some accounts, they simply had no idea where to find all of their own guidance.”
Indeed, Gorsuch continues, “Our legal institutions have become so complicated and so numerous that even federal agencies cannot agree on how many federal agencies exist.” A Forbes editorial writer has written that there is “no authoritative list of government agencies,” while two federal databases each “maintains different and competing lists” that “differ from the list kept by the Federal Register, “which pegs the number of federal agencies at 436.”
Nor does anyone really know how many federal crimes there are. But as the “American Bar Association has put it,” Gorsuch references, “‘whatever the exact number of crimes that comprises today’s “federal crime law,” it is clear that the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades.’” As Gorsuch notes, it evokes Stalin’s infamous chief of the secret police, Lavrentiy Beria, who said, “‘Show me the man and I’ll show you the crime.’”
Finally, this regulatory behemoth damages our economy––$3.079 trillion in 2022. We complain about our crumbling infrastructure, and the long delays in construction necessary for improvements, but much of the blame for that comes from the extensive regulations that require a plethora of permits, reports, and inspections, many of them for issues that have nothing to do with the function of the structures or its safety.
The Environmental Protection Agency is one of the worst offenders. The impact of its rules, regulations, and necessary permits ranges widely, affecting private construction, government, and private property. And the agency focuses not on the needs of citizens, but the political agenda of the environmental lobby, which often idealizes nature with Disneyesque fantasies at the expense of people and their well-being.
For example, in California, blessed with abundant water from the snowmelt of the Sierra Nevada, EPA regulations are barriers to building new dams and reservoirs. So instead, billions of acre-feet of water are dumped into the Pacific–– in part to protect the Delta Smelt, a two-inch bait-fish supposedly threatened with extinction. As a result, during the recent virulent wildfires in the Los Angeles area, fire hydrants and storage tanks ran out of water, leaving thousands of homes to be burned to the ground.
From the earliest days of rule by laws that are written down, clearly expressed, and posted in a public space, there have been the necessary provision for keeping rulers from arbitrarily interpreting the laws to suit their own interests and avoid accountability––the very essence of tyranny. In our world, the federal Leviathan state created by a century of progressive assault on the Constitution and its unalienable rights has brought us closer to tyranny through federal agencies staffed by unaccountable clerks who are armed with all three major powers of the federal government––legislative, judicial, and executive–– that the Framers wisely divided, each one checking and balancing the others.
Thankfully, we now have a president who understands the threat to our rights and freedoms from the progressives’ technocratic hubris and lust for power. Let’s hope that DOGE will succeed in putting the regulatory Leviathan’s on a strict diet before it devours more of our freedom.
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