Summer 2016

They want self-government back.

Haunting this year’s presidential contest is the sense that the U.S. government no longer belongs to the people and no longer represents them. And this uneasy feeling is not misplaced. It reflects the real state of affairs.

We have lost the government we learned about in civics class, with its democratic election of representatives to do the voters’ will in framing laws, which the president vows to execute faithfully, unless the Supreme Court rules them unconstitutional. That small government of limited powers that the Founders designed, hedged with checks and balances, hasn’t operated for a century. All its parts still have their old names and appear to be carrying out their old functions. But in fact, a new kind of government has grown up inside the old structure, like those parasites hatched in another organism that grow by eating up their host from within, until the adult creature bursts out of the host’s carcass. This transformation is not an evolution but a usurpation.

What has now largely displaced the Founders’ government is what’s called the Administrative State—a transformation premeditated by its main architect, Woodrow Wilson. The thin-skinned, self-righteous college-professor president, who thought himself enlightened far beyond the citizenry, dismissed the Declaration of Independence’s inalienable rights as so much outmoded “nonsense,” and he rejected the Founders’ clunky constitutional machinery as obsolete. (See “It’s Not Your Founding Fathers’ Republic Any More,” Summer 2014.) What a modern country needed, he said, was a “living constitution” that would keep pace with the fast-changing times by continual, Darwinian adaptation, as he called it, effected by federal courts acting as a permanent constitutional convention.

Modernity, Wilson thought, demanded efficient government by independent, nonpartisan, benevolent, hyper-educated experts, applying the latest scientific, economic, and sociological knowledge to industrial capitalism’s unprecedented problems, too complex for self-governing free citizens to solve. Accordingly, he got Congress to create executive-branch administrative agencies, such as the Federal Trade Commission, to do the job. During the Great Depression, President Franklin Roosevelt proliferated such agencies, from the National Labor Relations Board and the Federal Housing Administration to the Federal Communications Commission and the Securities and Exchange Commission, to put the New Deal into effect. Before they could do so, though, FDR had to scare the Supreme Court into stretching the Constitution’s Commerce Clause beyond recognition, putting the federal government in charge of all economic activity, not just interstate transactions. He also had to pressure the justices to allow Congress to delegate legislative power—which is, in effect, what the lawmakers did by setting up agencies with the power to make binding rules. The Constitution, of course, vests all legislative power in Congress, empowering it to make laws, not to make legislators.

But the Administrative State’s constitutional transgressions cut deeper still. If Congress can’t delegate its legislative powers, it certainly can’t delegate judicial powers, which the Constitution gives exclusively to the judiciary. Nevertheless, after these administrative agencies make rules like a legislature, they then exercise judicial authority like a court by prosecuting violations of their edicts and inflicting real criminal penalties, such as fines and cease-and-desist orders. As they perform all these functions, they also violate the principle of the separation of powers, which lies at the heart of our constitutional theory (senselessly curbing efficiency, Wilson thought), as well as the due process of law, for they trample the citizen’s Fifth Amendment right not to lose his property unless indicted by a grand jury and tried by a jury of his peers, and they search a citizen or a company’s private papers or premises, without bothering to get judge-issued subpoenas or search warrants based on probable cause, flouting the Fourth Amendment. They can issue waivers to their rules, so that the law is not the same for all citizens and companies but is instead an instrument of arbitrary power. FDR himself ruefully remarked that he had expanded a fourth branch of government that lacked constitutional legitimacy. Not only does it reincarnate the arbitrary power of the Stuarts’ tyrannical Star Chamber, but also it doesn’t even meet the minimal conditions of liberty that Magna Carta set forth 801 years ago.

Adding insult to injury, Wilson, his allies, and their current followers call themselves “progressives,” a fatuous boast implying that they are the embodiments and chosen instruments of the spirit of an ever-improving, irresistible future. In tune with the German idealist philosophy that Wilson and his circle studied, they claim to be marching toward an as-yet-unrealized goal of human perfection. But that perfection, the German philosophers believed, would look something like Prussia’s enlightened despotism. For Americans to think that it is progress to move from the Founders’ revolutionary achievement—a nation of free citizens, endowed with natural rights, living under laws that they themselves have made, pursuing their own vision of happiness in their own way and free to develop as fully as they can whatever talent or genius lies within them—to a regime in which individuals derive such rights as they have from a government superior to them is contemptible. How is a return to subjection an advance on freedom? No lover of liberty should ever call such left-wing statism “progressive.” In historical terms, this elevation of state power over individual freedom is not even “liberal” but quite the reverse.

As these agencies have metastasized, they have borne out not a single premise that justified their creation, and their increasingly glaring failure has drawn citizens’ angry attention to them. Expert? As a New Deal congressman immediately recognized with shock, many of those who staffed the Administrative State were kids just out of law school, with zero real-world experience or technical knowledge. Efficient? Can-do America, which built the Empire State Building in 11 months and ramped up airplane production during World War II from 2,000 in 1939 to nearly 100,000 in 1944, now takes years of bureaucratic EPA busywork to repair a bridge or lay a pipeline, and who knows how many businesses never expand or even start because the maze of government regulation is too daunting and costly to navigate? Only last year, EPA “experts” fecklessly stood by as workers under their supervision accidentally dumped 3 million gallons of toxic wastewater into the Colorado River, and the agency vouchsafed not a word of warning to downstream Colorado and New Mexico officials for an entire day before the poisonous, fluorescent-orange flood hit them. Over at Veterans Affairs, those who’ve fought for their country die in droves while waiting for medical care. But what’s the problem? asks agency head Robert MacDonald blithely. After all, at ever-popular Disneyland, “do they measure the number of hours you wait in line?”

Non-political? Ask Lois Lerner at the Internal Revenue Service. Oh wait: she pleaded the Fifth Amendment—and her boss, John Koskinen, simply ignores Congress’s orders, even as more than 2,000 of his enforcement agents have acquired military-grade weaponry, among 200,000 of such administrative-agency officers now similarly equipped with lethal arms, presumably for coercion of the citizens they supposedly serve. Or there’s the Federal Elections Commission and the Federal Communications Commission, lackeys of President Obama and his ultra-partisan agenda.

Protecting citizens from industrial capitalism’s giant corporations? Where were the Securities and Exchange Commission, the Federal Reserve, the Office of Thrift Supervision, and the Office of Federal Housing Enterprise Oversight as the mortgage bubble blew up in 2008, nearly taking the whole financial system with it and producing the worst economic bust since the Great Depression, which even today has sunk the labor-force participation rate and hiked the suicide rate among working-class men and women to record levels? Moreover, from the establishment of the first administrative agency—the Interstate Commerce Commission in 1887, essentially designed to create shared railroad cartels—these agencies have been key instruments of crony capitalism, which today often takes the form of senators and congressmen pressuring agencies for rule changes or waivers to benefit their contributors, usually at the expense of their competitors as well as the public, as the author of the recent Confessions of Congressman X complains of his fellow legislative “puppets.” Little wonder that today’s Americans think that such people don’t represent them. Pollsters report that trust in government is at its lowest level ever, with only 19 percent expecting government to do the right thing, according to last year’s Gallup and Pew polls.

Ensuring the citizens’ health and safety? Where is the Food and Drug Administration as counterfeit medicines and medical supplies from China infiltrate our hospitals? As for the infamously dysfunctional Transportation Security Administration, its Keystone Kops’ regularly reported inability to spot journalists carrying banned weapons onto airplanes, while they are too busy fondling travelers’ private parts or undressing grannies, is a standing national joke—on us. We lost our constitutional safeguards for this?

FDR spewed out his agencies in a “try anything” spirit to cure a Depression that his predecessor’s misguided palliatives had worsened, and debate still surges over whether the New Deal agencies did harm or good, putting aside their doubtful legitimacy. But the majority of Americans at the time gave the president credit for good intentions. By contrast, many voters give Barack Obama no such credit for his analogous response to the Great Recession. They see it as a cynically calculated ploy to extend government’s power over the people, especially given the White House chief of staff’s crack that a president should “never let a good crisis go to waste.” So on the pretext of addressing the financial crisis, the administration partially socialized American medicine with legislation that only Democrats voted for, without bothering to read it, and that citizens who opposed the measure—still a solid majority of those polled—saw as a kind of coup d’état, framed with utter irresponsibility and ignoring the scary financial mess. As happened during the New Deal, a timid Supreme Court found the act constitutional only by the politically driven legerdemain frequent in that institution’s checkered history. It struck many as flimflam, not government by consent.

The result was a spectacular expansion of the Administrative State, with some 150 new agencies and commissions created; no one knows the exact number. And these agencies purposely removed the Administrative State even further from government by the people. One agency, the Independent Payment Advisory Board—the so-called death panel—is so democratically unaccountable that Congress can only abolish it by a three-fifths vote in both houses within a seven-month period next year. After that, the law bars Congress from altering any of the board’s edicts, a provision as far from democratic self-government as you can get.

When the administration finally confronted the financial crisis, lengthened by Obamacare’s disincentives to hiring, its reflex response was to expand the Administrative State still further with the Dodd-Frank Act, named for its two legislative sponsors, both of whom had been in bed with the mortgage racket, one figuratively and one literally. Whether it solved the problem is dubious. What is certain is that it is as undemocratic as Obamacare, with its Consumer Financial Protection Bureau, whose budget Congress can’t control, its Financial Stability Oversight Council, whose rulings no court may review, and its army of regulators occupying the big banks and squeezing multimillion-dollar penalties out of CEOs clinging to their supersize compensation, regardless of what happens to the stockholders. Meanwhile, the opaque Federal Housing Finance Agency, formed during the crisis to salvage the misbegotten mortgage giants Fannie Mae and Freddie Mac, seems bent on nationalizing permanently this sizable chunk of the economy, putting the government in charge of citizens’ housing as well as their health care.

As for the “stimulus” that was supposed to give a Keynesian boost to the economy: since you can’t prove a negative, no one can show that if all that money had stayed in the private economy, it would have created more jobs and economic growth than the economically anemic Obama era has done. What unemployed or underemployed workers saw, though, is that a good portion of stimulus money went to protect the jobs of public employees, whose welfare evidently trumps that of the citizens whom they supposedly serve. Coal miners saw that, even as the administration aimed to kill their jobs, its stimulus shoveled out hundreds of millions of dollars to now-defunct Solyndra and other nonviable, crony-capitalist “green” energy companies, supposed solutions to a global-warming crisis that many think a hoax, though some two dozen public officials seem keen to suppress, Inquisition-style, the very utterance of that thought. And voters noticed that America’s three highest-income counties are in the Washington suburbs that house the federal government’s recession-proof functionaries. (See “Hail Columbia!,” Winter 2013.)

Unease over illegal immigration also has stoked today’s fear that the government no longer belongs to the people, and it’s important to understand the separate but mutually reinforcing ways that it has done so. Once again, President Obama has made a bad situation worse—this time, by his contemptuous refusal to execute the laws faithfully. His catch-and-release policy for illegal border-crossers, as well as his ban on deporting young aliens brought here by their illegal-immigrant parents, are imperial, antidemocratic edicts that might have sparked impeachment proceedings, had not Congress’s silly move to impeach Bill Clinton for lying about his sex games with an intern tainted that weapon for years to come. The result of Obama’s diktat, as contrary to the spirit of the Founders’ Constitution as is the Administrative State, is that law-abiding taxpayers must pay for the kids’ welfare support, health care, and schooling—as they already do for “anchor babies” born to mothers who have sneaked over the U.S. border for the purpose of having a child eligible for “child-only” welfare benefits, scarcely less than ordinary welfare payments and vastly more than the income of Central American peasant families. No American voted to incur these costs, which, if current trends continue, are likely to persist for several generations of such families, so they amount to taxation without representation as naked as George III’s.

As for the illegals who work, often for long hours at low pay, off the books: because immigrants, 13 percent of the population, hold 17 percent of the jobs—and no one knows the percentage of workers who are here illegally—jobless working-class citizens have understandably concluded that a lawless government, by countenancing such cheap labor, is taking the bread out of their mouths. Should they eat cake instead?
What citizens want to know is that, of all the world’s people who seek to live in America, our government will admit those who come legally, whose families will not harm us, and who will add to the wealth of the nation, not reap where they have not sown. After all, public safety—not clean energy or national health care—is government’s purpose. Nevertheless, Mexican criminals really have infiltrated the country and really have killed Americans, inevitably, under the administration’s anything-goes immigration stance. Further, it’s no comfort to any American who has suffered loss from an Islamist terror attack within our borders—from Ground Zero and Fort Hood to San Bernardino and Orlando—that such incidents pose no threat to our existence as a nation, as the president has said by way of reassurance, while refusing to call such outrages by their right name. How many citizens would have to die in a dirty-bomb attack in Grand Central Terminal for such events to strike him as a threat to the nation’s existence?

The question of providing a path to citizenship for the 12 million illegal aliens already here is also germane to the debate about whom the U.S. government serves and to whom it belongs. Talk radio’s Rush Limbaugh jokes that “illegal aliens” is a politically incorrect term; we must say “undocumented Democrats” instead. But it’s a joke with a barb, for no one can doubt that these 12 million, if they could vote, would vote for the Democratic program of an ever-larger, richly paid government extracting ever-larger transfer payments from productive workers to the dependent poor—James Madison’s definition of the tyranny of the majority in Federalist 10. With black poverty and exclusion steadily ameliorating, thanks to decades of striving by well-intentioned Americans of all races—even though Obama’s ex–attorney general Eric Holder devoted his tenure to denying this plain truth—the Democratic Party needs a new class of victims to justify its “helping” agenda and its immense cadre of well-paid government “helpers.” Central American peasants fill the bill.

Formerly, our open economy drew the enterprising and energetic to these shores, and our lack of a public safety net, with only private ethnic and religious charities to help the unfortunate, meant that those who couldn’t contribute to the U.S. economy went home. But today, when we have a vast welfare state that didn’t exist during earlier waves of immigration, the mothers of anchor babies come for handouts, and even the children of hardworking legal Hispanic immigrants end up on the welfare rolls at troublesomely high rates. In addition, our showering of self-proclaimed refugees with welfare benefits, which attracts the shiftless rather than the enterprising, only compounds the government-sustained dependency problem—dependency upon taxpayers who didn’t choose this particular philanthropy.

The phalanx of privately supported settlement houses and other institutions that met the great immigration wave around the turn of the twentieth century, along with the public school system, aimed to “Americanize” the new arrivals—teaching them our language, manners, and customs, and especially our republican civic ethic. Culture, after all, is as important an element of national identity as political institutions. To become an American in those days meant little more than learning English and subscribing to a broadly shared creed of self-reliance, self-government, self-improvement, and allegiance to a tolerant nation that most people agreed was unique in the freedom and opportunity it afforded—as well as in its readiness to confer citizenship on newcomers who almost universally desired it. But today’s legal Hispanic immigrants often don’t apply for American citizenship, or retain dual nationalities: Americanization often is not high on their agendas.

Moreover, our new doctrine of multiculturalism gives today’s immigrants nothing to assimilate to, since current intellectual fashion—set by the universities, Hollywood, and the mainstream media—celebrates everything that makes us different rather than the creed that once made one nation out of many individuals. And multiculturalism’s accompanying creed of victimology encourages dependency rather than self-reliance. Who are the victimizers of illegal Hispanic aliens? According to today’s politically correct “progressivism,” it is the neocolonial United States that has exploited the Third World’s natural resources, shored up its ruling oligarchies, and subverted its incipient democratic governments. And then it further victimizes them with racism when they try to escape to this country.

Deference to the greater wisdom of government, which Wilsonian progressivism deems a better judge of what the era needs and what the people “really” want than the people themselves, has been silently eroding our unique culture of enterprise, self-reliance, enlightenment, and love of liberty for decades. But if we cease to enshrine American exceptionalism at the heart of our culture—if we set equal value on such Third World cultural tendencies as passive resignation, fatalism, superstition, devaluation of learning, resentment of imaginary plots by the powerful, and a belief that gratification deferred is gratification forgone—the exceptionalism of our institutions becomes all the more precarious.

Supercharging American anger over illegal immigration and its consequences is the politically correct ban on openly discussing it, with even the most reasoned reservation dismissed as racism and yahooism. And political correctness generates its own quantum of anger among citizens, who think of freedom of speech and debate as central to American exceptionalism. But elite culture stigmatizes plain speaking, so that now a rapist or a murderer is a “person who committed a crime” or an “individual who was incarcerated,” says the Obama Department of Justice, or, according to the latest humbug from the Department of Education, a “justice-involved individual.” Implicit in these euphemisms is the theory that “society,” not the criminal, is to blame for crime, a long-exploded idea aimed at blurring the distinction between right and wrong.

That’s what makes it so disheartening to learn that the University of California has just deemed it a politically incorrect offense to declare America a land of opportunity, so as not to stigmatize those who’ve failed to seize it. It’s disheartening not only because such a retreat from our traditional culture will hold back immigrants, but also because our long cultural unraveling already has damagingly demoralized the native-born working class in the face of economic change. They dimly know that, and part of what makes them so angry is what they have allowed themselves to become.

When Theodore Roosevelt, who unsuccessfully ran against Woodrow Wilson in 1912 on the Progressive Party ticket, first declared his intention to go into politics, his fellow clubmen jeered at him for wanting to associate with the “saloon-keepers, horse-car conductors,” and other “rough and brutal” characters running the nation’s political parties. “I answered,” recalled TR, “that if this were so it merely meant that the people I knew did not belong to the governing class, and that the other people did—and that I intended to be one of the governing class.” That’s the true voice of “progressivism” speaking. As the Founders often cautioned, a self-governing republic doesn’t have a governing class. Part of America’s current predicament is that it now has such a class, and the American people are very angry about it.