Monday, November 30, 2015

Unchecked and Unbalanced

In my career with the state legislature, my job was to follow the obscure administrative rules process in the state. While I appreciated the ability to delegate technical language to the executive branch, I developed a strong sense of protectiveness for the legislative role in making sure that the executive drafted rules in accordance with legislative intent.

The state legislature's role was gutted by the courts as an exercise of a "legislative veto." The case for that in a narrow sense was strong, I admit. But the legislature never tried to rewrite the system to protect the legislative branch's role, and it became a bit player in the process unable to do more than be a speed bump against the executive branch.

My explanations of the change failed to inspire any interest in strengthening the legislature's role. I could not advocate, but I wrongly thought that a simple explanation of how the system changed would raise the hackles of the legislature, regardless of what party you were.

The federal system is far worse, as Will writes:

As the administrative state distorts America’s constitutional architecture, Clarence Thomas becomes America’s indispensable constitutionalist. Now in his 25th year on the Supreme Court, he is urging the judicial branch to limit the legislative branch’s practice of delegating its power to the executive branch. ...

The Constitution,” Thomas notes, “does not vest the federal government with an undifferentiated ‘governmental power.’” It vests three distinguishable types of power in three different branches. The Court, Thomas says, has the “judicial duty” to enforce the Vesting Clauses as absolute and exclusive by policing the branches’ boundaries.

Read more at:

Do read it all.

The system has tilted the balance of power toward the executive in ways that should not be allowed to continue.

We'll see if this explanation and advocacy moves the legislature to limit the ability of the executive branch to essentially write substantive laws through the rules process.

And while I'm at it, the older I get the more thoroughly convinced I am that it was a mistake to make United States Senators elected directly by the people instead of being appointed by the state legislatures.

Again, as a staff member in the legislature, I wrote many resolutions urging Congress to do this or that. They were mostly stored in the circular file when they reached Washington, D.C. But it fed the urge to do something about a problem at the federal level.

Back in the day, such resolutions would have directed the two Michigan United States Senators to vote a certain way.

And the senators would, since their jobs depended on the state legislature. That was their constituency. No more.

And so instead of being servants of their state to protect the interests of the state against the powers of the federal government, United States Senators are just a part of the Washington, D.C. undifferentiated governing blob that grows and grows. The senators have more in common with each other than with their state.

Many people are too young to remember the expression "don't make a federal case out of this," meaning don't make some relatively trivial issue or dispute more of a big deal than it justifies.

The assumption behind that admonition was that the federal government only interested itself in national issues or really important state issues, leaving smaller issues to states and local governments.

Who uses that expression now? It wouldn't even make sense given how far the power of Washington, D.C. reaches into our lives.

And so power has shifted from the legislative to the executive branch; and from the states to the federal government. All fed by growing revenue at the federal level and a growing sense that no issue is too local to escape federal power.

Can you really say that we've benefited from this shift?