Examples of bureaucrats gone wild abound. For example, the U.S. Fish and Wildlife Service (FWS), in pursuance of the lawmaking powers delegated to it by the Endangered Species Act (ESA), is authorized to list a species as either“threatened” or“endangered.” The agency also designates“critical habitat” for all listed species. Anyone affecting the habitat of a threatened or endangered species in any way is subject to substantial fines and even criminal charges.
Once a species is listed, in other words, FWS bureaucrats assume control over the use of all private property in the area where the threatened species lives. In New Jersey, a 77-year-old woman“was prohibited from building a home on land she had bought for her retirement because the FWS ruled that there was a federally protected plan species‘within five miles of the proposed project site.’” [7]
Under the broad powers delegated to it by the ESA, the FWS has delayed the building of schools and hospitals, dictated to landowners how their land is to be used, and generally prohibited development when any listed species may be affected in any way. For example, after“negotiations” between the FWS and biologist consultants hired by the Napa Valley Unified School District in California, the district was required to purchase 317 acres of vacant open space at a price of $4.6 million to mitigate risks to the California Red-Legged Frog. [8]
To save the same frog, the city of San Francisco proposed a series of projects to preserve a public golf course (the Sharp Park Golf Course) that would cost from $6 million to $10 million by relocating Red-Legged Frog egg masses to safer areas under the supervision of FWS authorities. However, environmental groups are using the ESA to sue the city of San Francisco, saying that these relocation measures are insufficient and that nothing short of shutting down the course is acceptable. [9] The California Red-Legged Frog and the California Tiger Salamander have caused similar vexation to the Northern California wine industry. [10]
In each of these cases, the rights of citizens were threatened by administrative agencies that have been given the power to make laws; investigate, prosecute, and enforce laws; and even in many cases to judge violations of their laws. In fact, most of the“laws” of this country are made, executed, and applied by administrative agencies and departments. They operate under the radar, largely insulated from the control of the people. They often combine the powers of government, and their personnel are primarily unelected. This is the predominant feature of our new form of government, the administrative state, and it’s where the action is.
When our elected representatives fail to enact policies because of popular opposition, they know that the institutions of the administrative state can carry these very policies out without resistance, using the powers delegated to them by Congress. After legislation to enact cap-and-trade climate change policies failed in the U.S. Congress in 2009, undaunted progressives declared that Congress did not need to act for cap-and-trade to happen: We had already given the EPA power to enact cap-and-trade by administrative fiat. The day after the Democrats lost the majority in the House of Representatives in the 2010 midterm congressional elections, the Huffington Post published a piece entitled“Obama Can Pursue Ambitious Agenda Without Congress’s Help,” [11] suggesting that if Congress were reluctant to pass cap-and-trade, the EPA should do so on its own.
Elections do not matter very much if agencies can make policy without the support of our elected representatives. Yet today, whether or not Congress makes law, administrative agencies and departments already have the power to make new rules, rendering the concept of representation nugatory.
From Administrative State to Constitutional Government
Once a species is listed, in other words, FWS bureaucrats assume control over the use of all private property in the area where the threatened species lives. In New Jersey, a 77-year-old woman“was prohibited from building a home on land she had bought for her retirement because the FWS ruled that there was a federally protected plan species‘within five miles of the proposed project site.’” [7]
Under the broad powers delegated to it by the ESA, the FWS has delayed the building of schools and hospitals, dictated to landowners how their land is to be used, and generally prohibited development when any listed species may be affected in any way. For example, after“negotiations” between the FWS and biologist consultants hired by the Napa Valley Unified School District in California, the district was required to purchase 317 acres of vacant open space at a price of $4.6 million to mitigate risks to the California Red-Legged Frog. [8]
To save the same frog, the city of San Francisco proposed a series of projects to preserve a public golf course (the Sharp Park Golf Course) that would cost from $6 million to $10 million by relocating Red-Legged Frog egg masses to safer areas under the supervision of FWS authorities. However, environmental groups are using the ESA to sue the city of San Francisco, saying that these relocation measures are insufficient and that nothing short of shutting down the course is acceptable. [9] The California Red-Legged Frog and the California Tiger Salamander have caused similar vexation to the Northern California wine industry. [10]
In each of these cases, the rights of citizens were threatened by administrative agencies that have been given the power to make laws; investigate, prosecute, and enforce laws; and even in many cases to judge violations of their laws. In fact, most of the“laws” of this country are made, executed, and applied by administrative agencies and departments. They operate under the radar, largely insulated from the control of the people. They often combine the powers of government, and their personnel are primarily unelected. This is the predominant feature of our new form of government, the administrative state, and it’s where the action is.
When our elected representatives fail to enact policies because of popular opposition, they know that the institutions of the administrative state can carry these very policies out without resistance, using the powers delegated to them by Congress. After legislation to enact cap-and-trade climate change policies failed in the U.S. Congress in 2009, undaunted progressives declared that Congress did not need to act for cap-and-trade to happen: We had already given the EPA power to enact cap-and-trade by administrative fiat. The day after the Democrats lost the majority in the House of Representatives in the 2010 midterm congressional elections, the Huffington Post published a piece entitled“Obama Can Pursue Ambitious Agenda Without Congress’s Help,” [11] suggesting that if Congress were reluctant to pass cap-and-trade, the EPA should do so on its own.
Elections do not matter very much if agencies can make policy without the support of our elected representatives. Yet today, whether or not Congress makes law, administrative agencies and departments already have the power to make new rules, rendering the concept of representation nugatory.
From Administrative State to Constitutional Government
