In a recent LinkedIn poll I conducted, 94% of the respondents indicated that they believe that the federal government is overstepping its constitutional powers. This travesty was eloquently conveyed by Ben Shapiro in an August 2,2021 tweet, “Essentially, our government is now merely a series of unelected bureaucrats in the executive branch deciding how we live our lives, enabled by 3,000 page bills compiled by anonymous staffers and voted on by legislators who have never read them.”
Many other studies and surveys mirror the views expressed above. This points to the fact that a large percentage of American citizens believe that the federal government has become power hungry and oppressive, ignoring and dishonoring the Constitution.
The Pew Research Center conducted a study titled “Civil War at 150: Still Relevant, Still Divisive.” When respondents were asked what they believed was the main cause of the Civil War, surprisingly, only 38% checked off slavery whereas 48% believed the main cause was the federal government not honoring State’s Rights. “The union is a compact, a legal agreement, one that can be annulled if the states are not satisfied that the federal government is operating within the confines of the Constitution,” notes Pew.
The Cato Institute, a think tank dedicated to increasing and enhancing the understanding of key public policies, also analyzes public policies impact on individual liberty, limited government, and free markets. Cato Institute published a handbook for policymakers which in section 2, Limited Government and the Rule of Law, clarifies the responsibilities of the various branches of government. It notes, “Congress should live up to its constitutional obligations and cease the practice of delegating legislative powers to administrative agencies — legislation should be passed by Congress, not by unelected administration officials. In addition, before voting on any proposed act, Congress should ask whether that exercise of power is authorized by the Constitution.”
The Cato Institute also opines “limited government means that government is limited both in the exercise of its delegated powers and in the means it can employ, which must be both ‘necessary and proper.’” Furthermore, it states “one of the biggest failures of the legislative branch to fulfill its responsibilities is when it delegates its legislative powers to administrative agencies of the executive branch, such as the Department of Labor, the Federal Trade Commission, and the Consumer Financial Protection Bureau. In addition to violating the Constitution, that failure has led to the erosion of the rule of law, as administrative agencies have burdened us with an unimaginably complex welter of edicts.”
The Cato Report additionally highlighted the degree of minute government regulation that is unreasonable and burdensome by referring to the Federal Register, the official journal of the United States, which contains government agency rules, proposed rules, and public policies. It commented on the 97,000 pages the Federal Register published in 2016 “virtually guaranteeing that any citizen involved in a commercial transaction, for example, will run afoul of some part of it, no matter how well intentioned or scrupulous he or she may be. This situation is an invitation to the arbitrary exercise of power, rather than the application of law. Such extensive delegation of powers is an abdication of the representative function described in the Federalist Papers and elsewhere by the Founders. Members of Congress are thereby converted from representatives of their constituents into “fixers,” who offer to intercede on behalf of constituents with the agencies that are illegally exercising the authority of the legislative branch. Thus, members of Congress can avoid responsibility for onerous laws but can take credit for gaining special treatment for their constituents.”
The New York Times ran an opinion piece called “Most of Government is Unconstitutional.” The author noted that the conservative wing of the Supreme Court called into question the whole project of modern American governance, opining that the Constitution assigns to Congress “all legislative powers herein granted.” Very broad delegations of power from Congress to administrative agencies amount to an unconstitutional dereliction of Congress’s responsibilities.
Lastly, an article titled “10 terrifying examples of federal overreach,” written by Utah Rep. Merrill Nelson, states “most people would agree that the federal government has exceeded its constitutional bounds — that it is too big, too intrusive and too expensive. Congress functions as a national legislature, far beyond its ‘few and defined’ powers, to encroach on those reserved to the states and the people. Examples include education, health care and various criminal laws. Even more intrusive, however, are the more than 400 federal agencies created by Congress that issue thousands of regulations controlling every aspect of our lives, from our air and water to our farms and factories. The executive branch now chooses which laws to enforce and issues its own laws through executive orders and administrative rules. And the federal courts now routinely decide matters of public policy historically reserved to the states, including life, marriage and morality. In short, we have lost the balance of federalism — that apportionment of powers between the federal and state governments so carefully crafted by our Founders.”
I believe one can strongly argue that Congress, our representatives in government, is being derelict in upholding its responsibility to legislate by delegating its power to various federal administrative agencies. “Unchecked federal power is not only oppressive, but a distant central government is less efficient, less responsive and more expensive.” So, returning to the initial question posed, “If the original 13 states knew then what they know now, how many, if any, would have agreed to join the union?” I believe one can reasonably conclude not many, if any.
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