Was channel hopping between Al Jazeera, CNN, MSNBC, Fox, and a couple of others and saw an interesting topic on CSPAN. Weekends tend not to be boring coverage of Congress pretending to do things…
This was an interview with a fellow named Charles Murray about his book “By the People, Rebuilding Liberty Without Permission”. The basic thesis being that the Government is now beyond redemption by the approved means ( elections, protests, public debate ) and the path left open is to basically use the courts as a means to pressure change via massive litigation clogging up the works. Essentially have every Government Stupidity event sent off to the courts.
While I’m sure that would overwhelm the legal system, I’m not seeing how it would undo the 75 years of legal precedent and decay that has led to the present mess. But at this point, it can’t do much harm… ;sarc>
OK, a couple of links so you can see what I’m talking about.
I THINK this is the interview, but they block me from seeing it as I don’t have FLASH (the bug haven security hole hotel) installed and they are too stupid to detect that I have a perfectly fine replacement plug-in on IceApe:
Then here is a book review:
Book Review: By the People, Charles Murray
by Andrew White | May 28, 2015
By the People, Charles Murray, 2015, Crown Forum. I found ‘Coming Apart’, Mr. Murray’s previous book, insightful and compelling- up until the last part of that book where his recommendations for putting us back together, which were rather mediocre. This outing is as insightful and compelling too.
The first third of the book highlights the craziness that has become government regulation. The premise of the book can be summed up by a quote from the last section:
“No other country throughout the history of the world began its existence with a charter focused on limiting the power of government and maximizing the freedom of its individual citizens.”
This part of the book will depress you as Murray lists the tyranny and lack of oversight that comes with regulation unfettered. The unseen hand has been wrapping every aspect of life in red tape and we, the people, are now in a straight-jacket. Even my oldest son just fell foul of a city ordinance that says no one can use a public field after dark. To think I pay the salary of the police man trolling the park for young people just wanting to find some privacy from a lunatic world is beyond me. Clearly there is not enough crime to keep the law enforcement staff busy.
The stories and examples given, mostly in the first third of this book, are maddening, alarming, and downright daft. We really have gone bananas. Worse, we won’t all agree with this view. There are some of us that truly believe that the visible hand of government is there to protect the small guy from the big guy. But we have gone way too far as some of us feel that we “know best”. And this is the basis for all that then follows. Because we lost the respect for the individual, sometime back between the 1930s and 1960s, what happened was probably inevitable. Now we face a mountain and with only a paddle to help. I hope America can find the courage to change and promote self-government, and governance, again. Recommend (for the first third alone) 7 out of 10.
In the CSPAN interview Murray presented an example that was not in the book. I’ll paraphrase it here.
At an event where 100% of patrons were to be “carded” by the bartenders, one bartender was fined $3000 for not carding ONE person. Even though that person was their father…
I note in passing that “between the 1930s and 1960s” is roughly when the Progressive Policies took full bite. Started back in the ’20s as a movement, it was under Wilson and FDR that things really took off. IMHO, that’s the “root cause”. Their dismantling of the bottom up distributed Nation of States and substitution of the Strong Central Power Federal Government. Then both “conservatives” and “liberals” in D.C. found they didn’t want to send any power back down to the “local yokels” and concentration of Central Authority has continued since under both.
Here’s an interview with the author:
May 11, 2015 1:24 pm | AEIdeas
‘By the People’: A Q&A with Charles Murray
Society and Culture
Dr. Charles Murray has a new book out May 12 titled “By the People: Rebuilding Liberty Without Permission.” In it, he explains why we can no longer hope to roll back the power of the federal government through the normal political process — and how we the people can use America’s unique civil society to put government back in its proper place. On May 14th, Murray will sit down to discuss his book at AEI — more details on the event here. Below, he answers a few questions on how regulation got out of control, if there’s any way to reduce it, and whether or not he’s hopeful about the future of Americans’ freedom. Be sure to check out his guide to civil disobedience at the end of the Q&A.
In “By the People” you talk about how government has determined it knows how to run our lives better than we do. Some might argue that we have elected officials – presumably because we think they are competent and intelligent — to look after our best interests and we should just let them do their job. How would you respond?
The regulations that are strangling everyday life aren’t created by our elected officials. That’s precisely the problem. Congress has been given permission by the Supreme Court to pass laws with vague, high-minded mandates that are then handed over to regulatory agencies to be implemented through whatever regulations the bureaucrats see fit. We have given de facto legislative power and de jure enforcement power to institutions that are extra-legal in the truest sense of that term. They lie outside the normal rule of law.
I find that a fairly accurate statement of the reality of Government today. There is also an interesting pointer to legal precedent on which much of this mess is built:
You discuss the serious problem of excessive and arbitrary regulation, citing James Madison in Federalist #62: “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” How did regulation get so out of control?
It goes back to that Supreme Court decision I mentioned. The first words of the Constitution after the preamble are “All legislative Powers herein granted shall be vested in a Congress of the United States.” But any law requires at least some administrative discretion, so it was accepted early in our history that government agencies could add administrative details to clearly stated legislative goals—“intelligible principles,” as the Supreme Court used to put it. Then, during the 1930s, the Court began to accept broader wording. In 1943, in NBC v. United States, the Supreme Court ignored the requirement for “intelligible principles” and said it was okay for the Federal Communications Commission to make regulations based on whatever “public convenience, interest, or necessity” requires. It was a declaration of independence for the regulatory state.
I’d not seen that before, but it is quite clear that “public convenience, interest, or necessity” covers damn near anything the bureaucrat wants to impose.
So I’d see one simple way out of this mess (or at least lessening of the future growth). Congress passes a law stating that all regulations promulgated by agencies must have demonstrable “intelligible principles” and that “public convenience, interest, or necessity” is insufficient grounds for rule making. I know, not going to happen, but a fella can dream… ( I’d also repeal the law that gave rule making authority to agencies, but need to look up the citation). Though even that seems to still have some contention about it.
Delegation of Legislative Power
Legal Research Home > United States Constitution > Delegation of Legislative Power
DELEGATION OF LEGISLATIVE POWER
The History of the Doctrine of Nondelegability
The Supreme Court has sometimes declared categorically that “the legislative power of Congress cannot be delegated,”51 and on other occasions has recognized more forthrightly, as Chief Justice Marshall did in 1825, that, although Congress may not delegate powers that “are strictly and exclusively legislative,” it may delegate “powers which [it] may rightfully exercise itself.”52 The categorical statement has never been literally true, the Court having upheld the delegation at issue in the very case in which the statement was made.53 The Court has long recognized that administra- tion of the law requires exercise of discretion,54 and that “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”55 The real issue is where to draw the line. Chief Justice Marshall recognized “that there is some difficulty in discerning the exact limits,” and that “the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily.”56 Accordingly, the Court’s solution has been to reject delegation challenges in all but the most extreme cases, and to accept delegations of vast powers to the President or to administrative agencies.
With the exception of a brief period in the 1930’s when the Court was striking down New Deal legislation on a variety of grounds, the Court has consistently upheld grants of authority that have been challenged as invalid delegations of legislative power.
The modern doctrine may be traced to the 1928 case J. W. Hampton, Jr. & Co. v. United States, in which the Court, speaking through Chief Justice Taft, upheld Congress’ delegation to the President of the authority to set tariff rates that would equalize production costs in the United States and competing countries.57 Although formally invoking the contingency theory, the Court’s opinion also looked forward, emphasizing that in seeking the cooperation of another branch Congress was restrained only according to “common sense and the inherent necessities” of the situation.58 This vague statement was elaborated somewhat in the statement that the Court would sustain delegations whenever Congress provided an “intelligible principle” to which the President or an agency must conform.59
and it goes on from there for pages…
IMHO, simply requiring that Congress make all the rules would result in far fewer of them. I’d also require only one rule per bill and debate / approval cycle, but I’m feeling sadistic toward Congress at the moment ;-)
Perhaps a Constitutional Amendment that ALL Federals laws, rules, regulations and everything must fit in a single set of volumes of no more than 25,000 pages (approx. 1/7 of present), single spaced typed 12 point 8 1/2 x 11 with 1 inch margins in Times Roman font; or 25,000,000 words, whichever is smaller…
What is clear is that something needs to be done to fix this or it will strangle the nation.