Turley to Testify On The “Administrative State” In Senate Hearing

senate_large_sealJonathan-Turley-e1416865770538I will be testifying this morning at 10 am before the Senate Committee on Homeland Security and Governmental Affairs in SD-342, Dirksen Senate Office Building . The hearing, entitled “The Administrative State: An Examination of Federal Rulemaking” will look at the role of agencies in rulemaking in the federal system.

As I state in my testimony below, I have long written about the rise of a “fourth branch” in our system and, while academics have good-faith disagreements over the implications of this trend, I believe that this rise of an Administrative State is neither benign nor inevitable. By dismissing the rising power of federal agencies as irreversible and inevitable, many academics portray the changes in our constitutional system as a fait accompli—a reality as fixed as the weather in our system. Conversely, critics are often portrayed as quixotic figures tilting at the windmills of federal agencies. There is a false association with the natural growth of the size of government and the emergence of an Administrative State. Clearly, the government has necessarily grown with the increasing size of our population and governmental function. That does not mean, however, that federal agencies must inevitably possess the type of insulated, independent power that they wield today. No one is seriously questioning the need for federal agencies and no one should deny the myriad of important and beneficial actions that agencies take in supporting our security, public health, economy, and environment. Citing the need for federal agencies therefore is hardly an answer to the criticism of the Administrative State—no more than recognizing the need for banks is an answer to a criticism of banking abuses. The fundamental issue raised in hearings like this is how to maintain a large system of federal agencies and offices, without altering the foundation of our constitutional system—particularly our system of separation of powers.

I am honored to appear with the following witnesses:

Jonathan Turley
Professor of Public Interest Law
George Washington University

Randolph J. May
The Free State Foundation

The Honorable Bradford P. Campbell
Counsel, Drinker Biddle & Reath, LLP and Former Assistant Secretary for Employee Benefits at the U.S. Department of Labor

William Kovacs
Senior Vice President for the Environment, Technology & Regulatory Affairs
U.S. Chamber of Commerce

Robert Weissman
Public Citizen

Here is my testimony.

18 thoughts on “Turley to Testify On The “Administrative State” In Senate Hearing”

  1. John q….you well know we are beyond quoting framers. You well know if any “illiget” govt was going to ever be cast off…we failed. Maybe not …..trump gives a third of us hope. And do not underestimate that remaining power….that is all we need for the house. Who can stonewalll or impeach. As a white guy impeach will be an option again. Trump is our man ….if we love america. The american dream…..his interest is america doing well. Cruz can soap box but his dream requires china footing the bill and kicking the can. Their “funders” are different. At least i want to believe so…..god dammit why isn’t sessions running himself?

  2. Meanwhile if you use your joe binen double barrel shotgun to scare a drone away….the faa says you’ll do twenty in a super max…..as a felon.

  3. “Citing the need for federal agencies therefore is hardly an answer to the criticism of the Administrative State—”

    Any business consultant that would be retained to improve efficiency and effectiveness in our system of government would take one look at what we’ve done with the original design, $18 trillion in debt and recommend shutting it down and starting over.

    Our founding fathers gave this country a vision statement in the Declaration of Independence. It defines for us the purpose for government, “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,” and it gives the People direction on what to do when the government exceeds (administrative state) that purpose, “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

    From that charter came the Articles of Confederation. The states fearing giving too much power to a central government left it too weak to conduct affairs efficiently and effectively during wartime. They were not established with enough power to full the DoI’s stated purpose. Our pre-amendments constitution was intended to correct those weaknesses with the first 10 amendments to protect the people AND the states from an abusive central government.

    Our constitution is our mission statement to fulfill the vision in the DoI. It is supposed to define the LEAST we need from a federal government with ALL other power retained by the states AS NEEDED and the people. Remember in Federalist 51 Madison states if Men were angels, no government would be necessary. We as a people entered civil society and established a government to better secure our unalienable rights. If we could achieve that on our own then no government would even be necessary. We as a culture have been transformed from an active and independent body of people reluctantly willing to provide a government with LIMITED powers to one that is weak and dependent and ignorantly eager to provide whatever power our government tells us they need. Ever since the 17th amendment, the federal government has consumed so much power that the states are often found begging from the federal government for the right to do things IN THEIR OWN STATES.

    The entire system is flipped with the 9th and 10th amendments effectively blown up. Our current Administrative State is more than just administrative; they are WEAPONIZED. Not just in the literal sense, which is bad enough, but in the abuse of power sense. They have the power to destroy our lives, our liberty and our property.

    “No one is seriously questioning the need for federal agencies and no one should deny the myriad of important and beneficial actions that agencies take in supporting our security, public health, economy, and environment.”

    No Professor Turley, people ARE seriously questioning the need for many federal agencies. This administrative state has grown BECAUSE the people have been convinced to ignorantly believe it was “important and beneficial” to support “our security, public health, economy, and environment.” blah, blah blah.

    How did all this happen? Most people have no idea how correct Ronald Reagan was when he said, “The nine most terrifying words in the English language are, ‘I’m from the government and I’m here to help.”

  4. There are a whole bunch of judicial nominations which Congress is sitting on and not holding hearings or not voting to confirm or deny. Congress is lame duck. Congress goes home and on holiday too often. Early and often. Vote your congressman or congresswoman OUT. O U T means Out and Out You Go. People need to speak. Congress is weak. The times they are a wasting. Ask not what your Congress can do for you. Ask what you can do to change Congress.

  5. Article I vests the legislative power in Congress, not executive agencies. Congress has the power to pass legislation but not to create other legislative bodies. The administrative state is clearly unconstitutional but some justify it on the basis that Congress has not the capacity to churn out the details of legislation.

    How about this: perhaps Congress should not try to run our lives and restrict its regulatory legislation to a few important things that it can do properly.

  6. Most bureaucrats are subordinate order-takers and have little control of their agency’s management. Those that refuse to follow orders from supervisors usually pay the price.

    One way to counter those voters that want to carelessly cut or abolish entire agencies altogether is “customer focused performance pay”.

    For example: Veterans go homeless because the top-management at the Veterans Administration can’t cut a check in a timely manner. If those VA managers received a 10-20% docking of their paycheck (or were rewarded financially) – this system would be reformed very quickly.

    If the so-called “War on Terror” agencies were “probable cause-based” on real evidence (along with financial incentives or disincentives for bureaucrats) most of those agencies would shrink to a portion of their current size. Today there aren’t enough real terror suspects so they mission-creeped to include legal groups like Black Lives Matter transforming from terror threats to the Thought Police.

    The fact that agencies like the VA don’t function properly creates voters that want to carelessly start cutting or abolishing entire agencies. It’s in the agencies own best interests to embrace customer focused performance pay.

  7. This country is in dire need of a Revolution.

    “The powers granted by the proposed Constitution are the gift of the people, and may be resumed by them when perverted to their oppression, and every power not granted thereby remains with the people.”- James Madison

  8. If you “tell” a mule to go right or go left, he/she may follow direction. If you guide the mule with the slight tug of the reign then the mule will usually go the direction you indicated by the tug. If you kick the mule in the side with your foot you are asking for trouble and you are certainly offending the mule. Once you have offended the mule you will hear grunts of resentment. When you are not watching the mule will drop poop in your yard near the house rather than further out.
    One thing you should not do is ignore the mule, fail to feed the mule, or give it some attention and guidance.

    Congress needs to realize just who the mule is. Congress needs to take fewer days off. If a mule has a Congressman or Congresswoman as an owner the mule would be a good mule because Congress allows its members to go home to house, hearth and mule early and often. On the other hand when the government owns mules it is unclear about who is the human guiding the mule. If President Obama is the leader of the pack then Congress has delegated or abdicated power. If Obama has delegated power to federal agencies then things have gone downhill. If federal agencies get out of control then who has the reigns.

    Now you must consider whether the mule is a Missouri Mule or not. A Missouri Mule is a certain kind of gal or guy. A Missouri Mule originates from the heartland and Missouri is in the middle. I did not say “muddle”. A Missouri Mule has a brain. Congress might have some control over Missoiuri Mules but only if it is guided with slight tug of the reign. If Congress tries to tug the reigns over the Mule running the department of egg control then there will be broken eggs. If Congress falls asleep in the saddle often then things can go wrong. Right now the mules are on the wrong path in many instances. Congress itself is on the road to hell’s half acre.

    If you are a member of Congress and you listen to Professor Turley today then you might read about his blog and then read this blog today and these comments. If you are a Congressman or Congresswoman from Missouri and do not just hail from Ladue or some rich suburb then you might be aware of the role of the Missouri Mule in life. If Congress does not learn to guide then Congress will continue to slide. No pun intended.

  9. The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people

    James Madison
    Federalist Papers 45


  10. The Federalist Papers are not used nearly enough to defend the people from growing govt and bad judicial decisions. The personal words of the very people who wrote our Constitution should be relied on much more in decision making. Even the Supreme Court has fallen victim to idiocy and poor context.

    “Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity” James Madison

  11. The General Welfare Clause is heinously abused. It must be relentlessly attacked and the 9th and 10th constantly spoken of and supported

  12. Most Federal agencies are in violation of either one or both the 9th and 10th Amendments

  13. The 2 forgotten Amendments

    Amendment IX
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Amendment X
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  14. I warched a “banker” on cspan today blame the ” govt” fir “letting” ppl get house loans…hello who underwrote the loans? Not bbt. If the govt would have stopped the loans….caputalism would have worked. Bs. Look at bbt. But whatever as long as you are there spewing “facts” ….ask them tge natuonality of john nelson’s wife. Then tell trump. Ask them the ethnicity of rich comer. Egyptian? Then ask them how a little farm girl from minnesota heard about 911 before they did. Three years before it happened.

  15. The FAA civilian private aviation rule making process is akin to watching cooled lava flow. There is no control of the process; simple procedures or qualification updates can be hung up by just one desk without accountability.
    It’s the reason private aircraft industry is in the Stone Age. What’s amazing is that the European Union, with all its sovereign states, is seeing exponential growth in small aircraft sales. The US?? Yeah right…

  16. The agencies are too big and they make too many errors. They are out of control and staff have no fear of losing a job. As one that had all of my personal data taken, including finger prints, from government records. I am offended that nothing happened and little was said. Think of what happened at Target and other security breaches in private firms. The government should be held to the highest standard and always thing of efficiency.

  17. I love quixotic endeavors. I think your being a Cub fan helps keep up the enthusiasm. We are simpatico on this topic and all things libertarian.

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