The first month of President Biden’s tenure began with nearly two hits on the bow, signaling the continued strength of the Leviathan state. In his first days in office, the new president issued 37 Executive Orders (EOs), more than the Trump and Obama administrations combined over the same period. These and other early Biden initiatives give regulators a free hand and shake it off by reversing important constitutional and due process that has been put in place over the past four years to contain administrative power.
Rule by “instruction”
This trend is particularly noticeable in the Implementing Ordinance, with which two important, freedom-protecting implementation ordinances were revoked in October 2019: “Promotion of the rule of law through improved guidelines for authorities” and “Promotion of the rule of law through transparency and fairness in the enforcement of the Civil administration and jurisdiction. “These Trump-era EOs, as the name suggests, were developed to promote transparency and fairness in the work of federal regulators. Because they deal with processes – how all agencies must adapt their exercise of power to the rule of law – and not with substantive regulations, they fell largely under the radar when issued and have now been tacitly incinerated by revocation. The first, now revoked, order required all agencies to publish guidelines that they wanted to enforce online in searchable form, by signed by a politically accountable agency official, forcing the agency to “own” the regulation and throwing any remaining unpublished guidance into a regulatory dust heap.
The second, now revoked, order required the agencies to articulate the legal authority to exercise power before they could initiate proceedings with adverse legal consequences against anyone. The order also stipulated that individuals and businesses must be given the opportunity to respond to any alleged charges before the agency could take action against them. Americans across political divisions should have cheered these proclamations when they passed. No serious argument can be made against the transparency, accountability and restoration of due process illustrated by these orders.
And yet, on January 21, 2021, citing bogus arguments for its usefulness and an absurd claim that the repeal of these orders would somehow aid America’s recovery from the COVID-19 pandemic, the Biden administration revoked them, and failed on theirs first test of openness and concern for American civil liberties.
Federal agencies have used this type of regulatory “guideline” as law for decades, and the practice has long been recognized as secret and objectionable. In 2000, the DC Circuit Court of Appeals invalidated an example of such “guidance” saying, “The phenomenon we are seeing in this case is well known. The law is enacted without notice or comment, without public participation and without publication in the Federal Register or the Code of Federal Regulations. “Thousands of guidelines have embroiled countless Americans in government investigations or enforcement proceedings for unduly promulgated charges. Rulings before unaccountable and tenured administrative judges who are systematically biased in favor of the government deny procedural protection and the right to due process and trial. This system leads to draconian fines, confiscations, expropriations and license withdrawals, which are considered professional death sentences.
For far too long the courts have given up their duty to “tell what the law is” – and which branch of government should do it
As recognized by Justice Gorsuch, the penalties threatened or imposed in these lawless administrative proceedings are often more severe than criminal penalties themselves. Worse still, threatened with such dire prospects, the vast majority of Americans inevitably settle down, which means there is never a judicial review of these proceedings, directed so cruelly against any individual or company charged with “policy violations” who are never supposed to replace the law. Worst of all, the authorities are citing these settlements as precedents that expand their costly regulatory power in the dark. SEC commissioners across the political spectrum admit that the technique of regulation through enforcement and settlement too often leads agencies to overstep their powers, undermining their regulatory objectives and permanently undermining the rule of law.
The agency’s authority to involve the Americans in this costly calamity has now been restored, if not expanded. In line with this loss of regulation dogs, the SEC recently restored the authority to bring enforcement proceedings against subordinate, unappointed officers of the Enforcement Department, revoking SEC Commissioner Michael Piwowar’s reservation with the president four years ago. and therefore accountable – commissioners.
Ideology about rule of law
One of the most troubling political reversals is the lifting of a rule that prohibited government agencies from requiring payments to independent third parties as a condition of a government arrangement. This lawless practice has resulted in fortune transfers of millions of dollars to outside organizations favored by the presidential administration – organizations that are neither parties nor harmed by the conduct that is the subject of the government complaint. The infamous major mortgage shakedown following the 2008 banking crisis is just one egregious example of such unlawful government activity. The Obama DOJ urged banks settling mortgage claims to make “donations” to La Raza, the National Fish & Wildlife Foundation, the National Community Reinvestment Coalition, and other organizations not involved in bank law enforcement still victims of their alleged wrongdoing. Worse still, the larger the “donation” to these selected third parties, the lower the total settlement amount – every dollar the banks paid to these politically-favored organizations resulted in a $ 2 run-off reduction.
At the start of the Trump administration, the then attorneys general sent a memo to agencies banning this practice, which was also part of the Justice Department’s manual. It was finally appointed the Ministry of Justice in December 2020.
President Biden’s revocation of this rule cannot be justified. The sharing of loot demanded by a prosecutor by government agencies with preferred organizations violates the federal government’s miscellaneous income law and corrupts the administration of justice. Tax laws, which have been in place for centuries, require that all revenue from government operations be deposited with the Treasury Department, and these funds may only be spent through Congress funds. The most worrying aspect of the policy reversal is that tax laws already prohibit this practice. The rapid change in policy is a bad sign of the integrity of the Biden government.
Another memo from the President, released on January 20, 2021, is called the Modernizing Regulatory Review. This instructs the powerful Office of Administration and Budget, which oversees all federal agencies, how to take into account the costs and benefits of regulation, a process that has long served as a control of the regulatory power. Some estimates of regulatory costs suggest it could be as high as $ 1.9 trillion. Such regulation acts as a hidden and ingrained tax for Americans. Under the new OMB directive, agencies must ensure that the cost-benefit review process “fully takes into account regulatory benefits that are difficult or impossible to quantify”. This is Newspeak for “Put your regulatory thumb on the benefits of the scale and throw away strict cost accounting.” The memo instructs agencies to use the regulatory review process to “advance public health and safety, economic growth, social well-being, racial justice, environmental stewardship, human dignity, justice and the interests of future generations” – everything immeasurable. This can only be described as a blank check for regulation that has gotten out of hand.
The distorted tree of freedom
The administrative state extends its extraordinary powers through at least three mechanisms, which are uncomfortable in the original draft constitution: 1) Governing and judging by unaccountable bureaucrats who are not anchored in the rule of law and, despite the inherent power of the executive branch to remove them, are protected by their term of office Officers under Article II; 2) The vague and practically unlimited delegation of its legislative power to the agencies by Congress, although the legislative power is exclusively in the legislature under Art. I, Sec. 1 of the Constitution; and 3) a pernicious invention of various twentieth century “deference” doctrines that require Article III courts to postpone government power. All three branches of government were twisted like espaliered fruit trees to bear the bitter fruit of the freedom traded.
The founders knew that power would undermine the parchment barriers of their political imagination. Madison asked in Federalist 48: “Will it be enough to precisely mark the boundaries of these departments in the government constitution and trust these parchment barriers against the invading spirit of power?” A sentence later, Madison answered his own question with the somber observation that “Experience assures us that the effectiveness of the provision has been grossly overrated; and that more adequate defense is imperative for the weaker against the more powerful members of the government. “
These rapid regulatory U-turns are just three examples of many reversals of laudable deregulatory achievements over the past four years. The time has come and a judicial correction of course is great. The judicial rejection of the many dubious doctrines of honor that enshrine the administrative state would be a good start. For far too long the courts have given up their duty to “tell what the law is” – and which branch of government should do it. It remains to be seen whether Trump’s judicial officers are up to the task of harpooning the Leviathan.