CDZ Individual Liberty vs. the Unelected Regulatory Bureaucracy

boedicca

Uppity Water Nymph from the Land of Funk
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Feb 12, 2007
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In many threads on the economy and our political culture, members blame Corporations, Lawyers, Wall Street etc. for the damage being done to The Constitution via undo influence on the government. These are off the mark. The problem is far more insidious: the 4th Branch of Government aka the Unelected Regulatory Bureaucracy.

The following link is to a rather long piece which frames the issue The Rule of Law vs. The Discretion of Regulatory Bureaucrats. The first is fixed and knowable, limiting government power to force compliance with political views. The latter is ambiguous and easily abused for political purposes. The Tyranny of the Bureaucracy began decades ago, and is currently snowballing to the point where Constitutionally protect liberties are at high risk. The author includes examples of various regulatory agencies, and how they use vagueness to ensure silence and political compliance.

I highly recommend reading the entire piece.

http://faculty.chicagobooth.edu/john.cochrane/research/papers/rule of law and regulation essay.pdf


Excerpts:


Rule of Law: the Devil in the Details
“Rule of law” and “regulation” are dangerous Big Vague Words. The rule of law is so morally
powerful that the worst tyrants go through the motions. Stalin bothered with show trials. Putin
put Pussy Riot on trial, and then they were “legally” convicted of and jailed for the crime of
”hooliganism.” Even Henry the Eighth had trials before chopping heads. Is this not rule of law?
No, of course, but it’s worth reminding ourselves why not as we think about bureaucracies

(snip)

“Rule of law” is not just about the existence of written laws, and the superficial mechanics of
trials, judges, lawyers, ad sentences. Rule of law lies deep in the details of how those
institutions work. Do you have the right to counsel, the right to question witnesses, the right to
discovery, the right to appeal, and so forth. Like laws, what matters about regulation, both in its
economic efficiency and in its insulation from politics, is not its presence but its character and
operation.

Regulators write rules too. They fine you, close down your business, send you to jail, or merely
harass you with endless requests, based on apparently written rules. We need criteria to think
about whether “rule of law” applies to this regulatory process. Here are some suggestions.

• Rule vs. Discretion?
• Simple/precise or vague/complex?
• Knowable rules vs. ex-post prosecutions?
• Permission or rule book?
• Plain text or fixers?
• Enforced commonly or arbitrarily?
• Right to discovery and challenge decisions.
• Right to appeal.
• Insulation from political process.
• Speed vs. delay.
• Consultation, consent of the governed.
 
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Would that the pseudo-line between regulatory bureaucrats and Corporatia actually existed.... aye, there's the rub.
 
The article cites quite a few examples, so it's clear you either didn't bother to read it, or don't get it.
 
The article cites quite a few examples, so it's clear you either didn't bother to read it, or don't get it.

That's a general contemporary observation, not a reaction to or comment on the link.

I have it open in a new tab, haven't read it yet. I can see it's an in-depth, read-y analysis, which is an approach of which I highly approve. That's why I gave the OP a like right away -- I may find stuff to learn or agree or disagree, but the fact that it's not superficial sound-bite-size sixty-second-commercial mindset is worthy in itself. Which is sad; that should be a given.
 
The article cites quite a few examples, so it's clear you either didn't bother to read it, or don't get it.

That's a general contemporary observation, not a reaction to or comment on the link.

I have it open in a new tab, haven't read it yet. I can see it's an in-depth, read-y analysis, which is an approach of which I highly approve. That's why I gave you a like.


Thank you - it's an excellent read, and non-partisan. I think the author frames the issue perfectly.
 
We have watched this dog and pony show before and it sucks. We need regulations or we become a third world hell hole of a small super rich and a huge poor population.


B'loney. We need an understandable Rule of Law which is fairly enforced.

The Whim of the Bureaucrat is too easily abused for political purposes.
 
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"Individual Liberty vs. the Unelected Regulatory Bureaucracy"

This fails as a false dilemma fallacy.

There are necessary, proper, and Constitutional regulatory measures which in no way 'violate' individual liberty; individual liberty and regulatory policy can co-exist in accordance with the law.

Regulatory policies are authorized by laws enacted by the people, at the behest of the people, where the people are at liberty to repeal such measures perceived to be unwarranted, or challenge them a court of law.

The Commerce Clause authorizes government to enact appropriate regulatory measures, and the constitutionality of regulatory policy is supported by that Commerce Clause jurisprudence.

Take this example from the linked article:

“[T]he modern EPA violates just about every one of my suggested bullet points for preserving rule of law in the regulatory bureaucracy, and is ripe for political misuse. Discretion vs. rules, the potential for endless delay, the need for ex-ante permission, and a politicized and partisan bureaucracy are just the beginning.”

Not according to the Supreme Court, which is the only entity authorized to determine whether or not regulatory policies comply with the rule of law, a Supreme Court which has consistently held that the basic mission of the EPA comports with the Constitution and intent of Congress with regard to environmental regulatory policy, where that mission, in addition to being Constitutional, in no way manifests as 'political misuse.' (See e.g. EPA v EME Homer City Generation (2014))

Also from the link:

“Does the regulation, in operation, function as a clear rule? Or is it simply an excuse for the regulator to impose his or her will on the regulated firm or person? Sometimes discretion is explicit. Sometimes discretion comes in the application of a rule book thousands of pages long with multiple contradictory and vague rules.”

The error here is to presume that the people are 'at the mercy' of regulators, or otherwise 'helpless' to respond to regulatory measures perceived to be unwarranted, when in fact nothing could be further from the truth.

Again, the people are at liberty to compel their elected representatives to amend or repeal laws authorizing a given regulatory policy if that policy is believed to be applied capriciously by regulators, or otherwise not in accordance with the intent of the law; and the people may seek relief in state or Federal court, where the court will decide within the context of the law and applicable precedent if the regulator sought to impose his or her will on the regulated firm or person, or if the regulator's interpretation of the statute comports with the will of the lawmaking entity, and by doing so, the will of the people.

Consequently, there is no “4th Branch of Government,” the notion is nothing but an unfounded partisan contrivance.

The premise of the article fails because it's predicated on the errant proposition that regulators function absent oversight, without accountability, and independent of the will of the people – which is factually not the case.
 
"Individual Liberty vs. the Unelected Regulatory Bureaucracy"

This fails as a false dilemma fallacy.

There are necessary, proper, and Constitutional regulatory measures which in no way 'violate' individual liberty; individual liberty and regulatory policy can co-exist in accordance with the law.

Regulatory policies are authorized by laws enacted by the people, at the behest of the people, where the people are at liberty to repeal such measures perceived to be unwarranted, or challenge them a court of law.

The Commerce Clause authorizes government to enact appropriate regulatory measures, and the constitutionality of regulatory policy is supported by that Commerce Clause jurisprudence.

Take this example from the linked article:

“[T]he modern EPA violates just about every one of my suggested bullet points for preserving rule of law in the regulatory bureaucracy, and is ripe for political misuse. Discretion vs. rules, the potential for endless delay, the need for ex-ante permission, and a politicized and partisan bureaucracy are just the beginning.”

Not according to the Supreme Court, which is the only entity authorized to determine whether or not regulatory policies comply with the rule of law, a Supreme Court which has consistently held that the basic mission of the EPA comports with the Constitution and intent of Congress with regard to environmental regulatory policy, where that mission, in addition to being Constitutional, in no way manifests as 'political misuse.' (See e.g. EPA v EME Homer City Generation (2014))

Also from the link:

“Does the regulation, in operation, function as a clear rule? Or is it simply an excuse for the regulator to impose his or her will on the regulated firm or person? Sometimes discretion is explicit. Sometimes discretion comes in the application of a rule book thousands of pages long with multiple contradictory and vague rules.”

The error here is to presume that the people are 'at the mercy' of regulators, or otherwise 'helpless' to respond to regulatory measures perceived to be unwarranted, when in fact nothing could be further from the truth.

Again, the people are at liberty to compel their elected representatives to amend or repeal laws authorizing a given regulatory policy if that policy is believed to be applied capriciously by regulators, or otherwise not in accordance with the intent of the law; and the people may seek relief in state or Federal court, where the court will decide within the context of the law and applicable precedent if the regulator sought to impose his or her will on the regulated firm or person, or if the regulator's interpretation of the statute comports with the will of the lawmaking entity, and by doing so, the will of the people.

Consequently, there is no “4th Branch of Government,” the notion is nothing but an unfounded partisan contrivance.

The premise of the article fails because it's predicated on the errant proposition that regulators function absent oversight, without accountability, and independent of the will of the people – which is factually not the case.



For regulation to be proper and effective, it needs to be in clear language that people can understand. What we have now is ex post facto - bill of attainder regulatory fiats, which are open to abuse by either party in power.
 
90% of new laws are regulatory rather than statutory. Special interest groups craft vaguely worded bills that give authority to bureaucrats to make up these new laws. Then these regulations are "interpreted" by the same bureaucrats to mean whatever they want them to mean, and the courts give them deference as "experts." This whole scheme stinks to high heaven, and is at its worst at the federal level, where a small group of devotees can dictate policy to the entire country.
 
"Individual Liberty vs. the Unelected Regulatory Bureaucracy"

This fails as a false dilemma fallacy.

There are necessary, proper, and Constitutional regulatory measures which in no way 'violate' individual liberty; individual liberty and regulatory policy can co-exist in accordance with the law.

Regulatory policies are authorized by laws enacted by the people, at the behest of the people, where the people are at liberty to repeal such measures perceived to be unwarranted, or challenge them a court of law.

The Commerce Clause authorizes government to enact appropriate regulatory measures, and the constitutionality of regulatory policy is supported by that Commerce Clause jurisprudence.

Take this example from the linked article:

“[T]he modern EPA violates just about every one of my suggested bullet points for preserving rule of law in the regulatory bureaucracy, and is ripe for political misuse. Discretion vs. rules, the potential for endless delay, the need for ex-ante permission, and a politicized and partisan bureaucracy are just the beginning.”

Not according to the Supreme Court, which is the only entity authorized to determine whether or not regulatory policies comply with the rule of law, a Supreme Court which has consistently held that the basic mission of the EPA comports with the Constitution and intent of Congress with regard to environmental regulatory policy, where that mission, in addition to being Constitutional, in no way manifests as 'political misuse.' (See e.g. EPA v EME Homer City Generation (2014))

Also from the link:

“Does the regulation, in operation, function as a clear rule? Or is it simply an excuse for the regulator to impose his or her will on the regulated firm or person? Sometimes discretion is explicit. Sometimes discretion comes in the application of a rule book thousands of pages long with multiple contradictory and vague rules.”

The error here is to presume that the people are 'at the mercy' of regulators, or otherwise 'helpless' to respond to regulatory measures perceived to be unwarranted, when in fact nothing could be further from the truth.

Again, the people are at liberty to compel their elected representatives to amend or repeal laws authorizing a given regulatory policy if that policy is believed to be applied capriciously by regulators, or otherwise not in accordance with the intent of the law; and the people may seek relief in state or Federal court, where the court will decide within the context of the law and applicable precedent if the regulator sought to impose his or her will on the regulated firm or person, or if the regulator's interpretation of the statute comports with the will of the lawmaking entity, and by doing so, the will of the people.

Consequently, there is no “4th Branch of Government,” the notion is nothing but an unfounded partisan contrivance.

The premise of the article fails because it's predicated on the errant proposition that regulators function absent oversight, without accountability, and independent of the will of the people – which is factually not the case.

Okay, "Individual Liberty vs. the Unelected Regulatory Bureaucracy" but what are the OP rules?
 
Would that the pseudo-line between regulatory bureaucrats and Corporatia actually existed.... aye, there's the rub.

Yet Corporations are always protesting fines. Are you saying they help fine themselves, then they protest getting fined all to fool people who are not as aware as others are?

Of course there are lines and the fact that some get crossed does not make the lines pseudo this or pseudo that.
 
"Individual Liberty vs. the Unelected Regulatory Bureaucracy"

This fails as a false dilemma fallacy.

There are necessary, proper, and Constitutional regulatory measures which in no way 'violate' individual liberty; individual liberty and regulatory policy can co-exist in accordance with the law.

Regulatory policies are authorized by laws enacted by the people, at the behest of the people, where the people are at liberty to repeal such measures perceived to be unwarranted, or challenge them a court of law.

The Commerce Clause authorizes government to enact appropriate regulatory measures, and the constitutionality of regulatory policy is supported by that Commerce Clause jurisprudence.

Take this example from the linked article:

“[T]he modern EPA violates just about every one of my suggested bullet points for preserving rule of law in the regulatory bureaucracy, and is ripe for political misuse. Discretion vs. rules, the potential for endless delay, the need for ex-ante permission, and a politicized and partisan bureaucracy are just the beginning.”

Not according to the Supreme Court, which is the only entity authorized to determine whether or not regulatory policies comply with the rule of law, a Supreme Court which has consistently held that the basic mission of the EPA comports with the Constitution and intent of Congress with regard to environmental regulatory policy, where that mission, in addition to being Constitutional, in no way manifests as 'political misuse.' (See e.g. EPA v EME Homer City Generation (2014))

Also from the link:

“Does the regulation, in operation, function as a clear rule? Or is it simply an excuse for the regulator to impose his or her will on the regulated firm or person? Sometimes discretion is explicit. Sometimes discretion comes in the application of a rule book thousands of pages long with multiple contradictory and vague rules.”

The error here is to presume that the people are 'at the mercy' of regulators, or otherwise 'helpless' to respond to regulatory measures perceived to be unwarranted, when in fact nothing could be further from the truth.

Again, the people are at liberty to compel their elected representatives to amend or repeal laws authorizing a given regulatory policy if that policy is believed to be applied capriciously by regulators, or otherwise not in accordance with the intent of the law; and the people may seek relief in state or Federal court, where the court will decide within the context of the law and applicable precedent if the regulator sought to impose his or her will on the regulated firm or person, or if the regulator's interpretation of the statute comports with the will of the lawmaking entity, and by doing so, the will of the people.

Consequently, there is no “4th Branch of Government,” the notion is nothing but an unfounded partisan contrivance.

The premise of the article fails because it's predicated on the errant proposition that regulators function absent oversight, without accountability, and independent of the will of the people – which is factually not the case.



For regulation to be proper and effective, it needs to be in clear language that people can understand. What we have now is ex post facto - bill of attainder regulatory fiats, which are open to abuse by either party in power.

The irony here is that you just used language that most people would not understand. It may be something that actually negates your premise
 
"Individual Liberty vs. the Unelected Regulatory Bureaucracy"

This fails as a false dilemma fallacy.

There are necessary, proper, and Constitutional regulatory measures which in no way 'violate' individual liberty; individual liberty and regulatory policy can co-exist in accordance with the law.

Regulatory policies are authorized by laws enacted by the people, at the behest of the people, where the people are at liberty to repeal such measures perceived to be unwarranted, or challenge them a court of law.

The Commerce Clause authorizes government to enact appropriate regulatory measures, and the constitutionality of regulatory policy is supported by that Commerce Clause jurisprudence.

Take this example from the linked article:

“[T]he modern EPA violates just about every one of my suggested bullet points for preserving rule of law in the regulatory bureaucracy, and is ripe for political misuse. Discretion vs. rules, the potential for endless delay, the need for ex-ante permission, and a politicized and partisan bureaucracy are just the beginning.”

Not according to the Supreme Court, which is the only entity authorized to determine whether or not regulatory policies comply with the rule of law, a Supreme Court which has consistently held that the basic mission of the EPA comports with the Constitution and intent of Congress with regard to environmental regulatory policy, where that mission, in addition to being Constitutional, in no way manifests as 'political misuse.' (See e.g. EPA v EME Homer City Generation (2014))

Also from the link:

“Does the regulation, in operation, function as a clear rule? Or is it simply an excuse for the regulator to impose his or her will on the regulated firm or person? Sometimes discretion is explicit. Sometimes discretion comes in the application of a rule book thousands of pages long with multiple contradictory and vague rules.”

The error here is to presume that the people are 'at the mercy' of regulators, or otherwise 'helpless' to respond to regulatory measures perceived to be unwarranted, when in fact nothing could be further from the truth.

Again, the people are at liberty to compel their elected representatives to amend or repeal laws authorizing a given regulatory policy if that policy is believed to be applied capriciously by regulators, or otherwise not in accordance with the intent of the law; and the people may seek relief in state or Federal court, where the court will decide within the context of the law and applicable precedent if the regulator sought to impose his or her will on the regulated firm or person, or if the regulator's interpretation of the statute comports with the will of the lawmaking entity, and by doing so, the will of the people.

Consequently, there is no “4th Branch of Government,” the notion is nothing but an unfounded partisan contrivance.

The premise of the article fails because it's predicated on the errant proposition that regulators function absent oversight, without accountability, and independent of the will of the people – which is factually not the case.

Methinks we agree with you -- partially or in spirit: "The error here is to presume that the people are 'at the mercy' of regulators..." which regulators, federal, state, county, local, or all? Because if the answer is all the premise fails completely.

With the OP's link: "That this power is damaging the economy is a commonplace complaint" -- a complaint? A common complaint? Is there a consensus on this complaint or is an an ideological and/or political complaint?

Can't get passed the 2nd paragraph:

What banker dares to speak out against the Fed, or trader against the SEC? What hospital or health insurer dares to speak out against HHS or Obamacare? What business needing environmental approval for a project dares to speak out against the EPA? What drug company dares to challenge the FDA? Our problems are not just national. What real estate developer needing zoning approval dares to speak out against the local zoning board?
there are far too many examples to prove this as a false premise. How many false premises does an inquiring mind have to go through in order to get to the faulty logic conclusion? The premises will lead to valid conclusion -- one based on faulty premises/logic.
 
We have watched this dog and pony show before and it sucks. We need regulations or we become a third world hell hole of a small super rich and a huge poor population.

Do you know of a nation or society that became great with no regulations or with little regulation?


No, civilization demands rules, regulations and boundaries. I am all for capitalism but we're all much better off not having the pure kind.
 
The OP reads like a twelve year old libertarian wrote it, and the thread title is off base as well. Regulation is an elected entity, it is what our elected officials promote or ignore. I think anyone would know the difference between FDR and Reagan Clinton Bush? Regulation kept the American economy stable till imaginary economic euphoria decided regulation didn't matter till the great recession shouted 'control me, my individual liberty needs more funds or you'll all die. ;)

The piece is too weak for much comment, but consider food without the FDA, air quality without the EPA, and Citizens United ended campaign reform, maybe the author sleep through our recent history. We live in a litigious society, the first time someone gets sick the same whiners will be suing government. Too funny. The Koch brothers puppet is not worth further consideration.
 
The OP reads like a twelve year old libertarian wrote it, and the thread title is off base as well.

It's always good to start a critique with a good introduction. Let them know you're serious and thoughtful, right out of the gate. Maybe you should ask a twelve-year old for some tips on persuasive writing.
 

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