Plunder and Deceit (18 page)

Today, however, the people have not been sufficiently aroused. In fact, despite the overwhelming evidence of the federal government's ubiquity and omnipresence, and its engorgement on all manner of affairs through an ever-expanding and coercive centralized administrative apparatus, too many among the rising generation seem not in the least alarmed by the statists' abandonment of the essential elements of separation of powers.

A healthy civil society and vibrant republic ultimately cannot survive without a properly functioning constitutional system. Consequently, statists relentlessly attack and manipulate the system with endless top-down interventions in human behavior, deceptive and outright false promises tied to government programs and entitlements, and coercive if not oppressive governmental actions, all intended to reshape not only society but the individual. Individual sovereignty—that is, the unalienable individual rights of life, liberty, and the pursuit of happiness—is denounced as a quaint and outdated notion of a bygone era, as are the traditions, customs, and institutions that have developed over time and through generational experience. They must give way to notions of modernity and progressivism, hatched by self-anointed and deluded masterminds who claim to act for “the greater good” and “the public interest,” requiring the endless reshuffling and rearranging of society.

In 1848, Karl Marx and Friedrich Engels, writing in
The Communist Manifesto,
declared: “In bourgeois society . . . the past dominates the present; in Communist society, the present dominates the past.”
¹³
This view is shared by contemporary statists, including the current occupants of the White House. On May 14, 2008, the future First Lady of the United States, Michelle Obama, while campaigning for her husband, Barack Obama, proclaimed: “We are going to have to change our conversation; we're going to have to change our traditions, our history. We're going to have to move into a different place as a nation.”
¹⁴
On October 30, 2008, when the polls showed him the likely winner of the upcoming presidential election, Barack Obama shouted during a campaign stop days before the vote: “We are five days away from fundamentally transforming the United States of America.”
¹⁵

Statism and its utopian ends require the subversion of the constitutional order, for the Constitution limits the power of the statists and leaves to the people their own aspirations and pursuits. Unfortunately, as I explained in
Ameritopia
, the nation has already been fundamentally transformed. And as I pointed out in
Liberty and Tyranny
, it is now difficult to describe the nature of the American government. “It is not strictly a constitutional republic, because the Constitution has been and continues to be easily altered by a judicial oligarchy that mostly enforces, if not expands, the Statist's agenda. It is not strictly a representative republic, because so many edicts are produced by a maze of administrative departments that are unknown to the public and detached from its sentiment. It is not strictly a federal republic, because the states that gave the central government life now live at its behest. What, then, is it? It is a society steadily transitioning toward statism.”
¹⁶

The product of this degradation, and its effect on a people, is best described by French thinker and philosopher Alexis de Tocqueville. Writing in
Democracy in America,
Tocqueville stated, in part, that this soft tyranny “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 cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.”
¹⁷
As a result, the virtuousness of the people, essential to the survivability of a republic, is trounced or expunged from the body politic.

The preceding chapters in this book, although necessarily truncated given the practical limits of book writing, bear out Tocqueville's observation. The evidence is unequivocal and overwhelming that much of what the federal government does is without constitutional foundation. In fact, much has been achieved through political and legal deceit and deformation. And, for the most part, the people, particularly younger people, tolerate this, acquiesce to it, if not encourage it.

In
The Liberty Amendments
I noted that “Congress . . . often delegates unconstitutionally lawmaking power to a gigantic yet ever-growing administrative state that, in turn, unleashes on society myriad regulations and rules at such a rapid rate the people cannot possibly know of them . . . and, if by chance, they do, they cannot possibly comprehend them.”
¹⁸
Moreover, “[h]aving delegated broad lawmaking power to executive branch departments and agencies of its own creation . . . Congress now watches as the president inflates the congressional delegations even further and proclaims repeatedly the authority to rule by executive fiat in defiance of, or over the top of, the same Congress that sanctioned a domineering executive branch in the first place.”
¹⁹

The unconstitutional transfer of lawmaking power from Congress to the executive branch and the seizure by the executive branch from Congress of additional lawmaking power have led to disastrous effects.

To demonstrate the problem, consider that each year the executive branch is engaged in frenzied regulatory activity with virtually no oversight by Congress or input from the public. In 2014 alone, the executive branch issued 3,541 regulations,
²⁰
comprising 79,066 pages of the
Federal Register
, the yearly compilation of federal regulations.
²¹
And these thousands of pages of regulations are piled on top of tens of thousands of pages of regulations from prior years.
Federal Register
page numbers for successive years starting in 2005 are as follows:

That is a total of
768,920
pages of federal regulations in the past ten years.
²²

In addition, the number of actual regulations issued by the executive branch during this period is astounding:

That is 36,877
²³
regulations, many of which carry heavy fines and penalties, including prison terms upon conviction.

By comparison, Congress, which is supposed to be the federal lawmaking body, has passed the following number of bills in the past ten years:

The purpose here is not to encourage more congressional legislating and meddling in private life, nor to suggest that statistics alone determine the extent of a regulation's reach, as a single overarching regulation can potentially have more economic and societal impact that one hundred regulations. However, these numbers clearly expose the extent to which the basic precept that guides constitutional government has been gutted by both usurpers and abdicators. But this has been the statists' design for more than a century. Indeed, in his 1908 treatise,
Constitutional Government in the United States
, President Woodrow Wilson, a leading advocate for centralized, postconstitutional government, argued that “the President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit; and if Congress be overborne by him, it will be no fault of the makers of the Constitution,— it will be from no lack of constitutional powers on its part, but only because the President has the nation behind him, and Congress has not.”
²⁴
Obviously, Wilson wrote of the Constitution not as it is but as he wanted it to be—stripped of its limits on central power. Wilson's political dogma is on neon display with Barack Obama's conduct as president. Obama has repeatedly defied the limits of his constitutional authority, aggregating powers unto himself in ways past presidents have not. During more than six years as president, Obama has nullified laws, created laws, delayed the implementation of laws, and issued exemptions from and waivers to laws, much of which has been accomplished through executive branch rule making.

For example, despite the fact that Article I, Section I clearly vests legislative power in Congress, the Obama administration has repeatedly altered provisions of the Patient Protection and Affordable Care Act, or Obamacare, including offering employer contributions to members of Congress and their staffs when they purchase insurance on the exchanges created by Obamacare; delaying the deadline for the individual mandate; delaying the deadline for the employer mandate; exempting union reinsurance fees from the law's coverage; creating federal exchanges where states have chosen not to create exchanges; expanding funding of insurer bailouts; and so on.
²⁵

The Obama administration's Environmental Protection Agency (EPA) has been extremely aggressive in implementing economically crushing regulations, for the most part without congressional authority. It has replaced provisions of the Clean Air Act to claim regulatory control over greenhouse gases and, in turn, vast segments of the American economy.
²⁶
Even Harvard law professor Laurence Tribe found that “[t]he Proposed rule rests on a fatally flawed interpretation of Section 111. According to EPA . . . Congress effectively created two different versions of Section 111, and the agency should be allowed to pick and choose which version it wishes to enforce.” “According to EPA, since 1990 the U.S. Code has reflected the wrong version of Section 111, and EPA has discovered a mistake [made by Congress]. According to EPA, both the D.C. Circuit and the U.S. Supreme Court have previously misinterpreted Section 111. According to EPA, the two different versions of Section 111 have created ‘ambiguity' triggering deference to the agency's [interpretation]. Every part of this narrative is flawed.”
²⁷
Later, Tribe wrote: “[t]he EPA, like every administrative agency, is constitutionally forbidden to exercise powers Congress never delegated to it in the first place. The brute fact is that the Obama administration failed to get climate legislation through Congress. Yet the EPA is acting as though it has the legislative authority anyway to re-engineer the nation's electric generating system and power grid. It does not.”
²⁸

The EPA has done much more. Again without statutory authority, the EPA has also unilaterally replaced provisions of the Clean Water Act to claim regulatory authority over vast areas of land.
²⁹

In immigration-related matters, Obama has nullified core parts of existing law and substituted for them his own political preferences through unchecked “executive action.”
³⁰
After instituting a string of executive directives altering existing immigration law, and insisting that if Congress did not act to adopt his immigration agenda he would act on his own, on November 20, 2014, just days after the 2014 midterm elections in which the Democratic Party lost the Senate, Obama took his most far-reaching immigration-related executive action. Among other things, he ordered the deferral of deportation (“deferred action”) of several million illegal aliens, assigning them temporary legal status, and instituted scores of additional immigration policy changes. The temporary legal status results in formerly illegal immigrants receiving extensive taxpayer-subsidized benefits from such programs as Social Security, Medicare, earned income tax credits, and so on. Robert Rector, senior research fellow at the Heritage Foundation, estimates the lifetime costs of these benefits to the United States Treasury at $1.3 trillion.
³¹

In a rare judicial rebuke of presidential overreach, and at the behest of more than two dozen states, U.S. District Judge Andrew Hanen issued a temporary injunction, writing, in part, that Obama's executive actions created “a massive change in immigration practice” affecting “the nation's entire immigration scheme.” Moreover, the executive actions did not comply with the executive branch's own procedures for issuing regulations.
³²
There will be more litigation, with the case likely reaching the U.S. Supreme Court.