June 13, 2016 at 4:14 p.m.
Our unelected parallel government
Our unelected parallel government
Those costs are dramatic, and they undermine the ability of states to fund their own initiatives. That threatens their means to self-govern, and it erodes the states' legitimacy as anything other than a subservient arm of the federal government.
That wasn't what the Founders had in mind, of course, and the Senate panel was wondering what to do about it.
One thing they could do about it, as one witness pointed out, is pass the REINS Act, which would require congressional approval of any regulation with a significant cost. And, if Congress fails to stand up for the states, the states could force them to do so by calling a constitutional convention to pass an amendment reasserting state and congressional authority over executive agencies.
It is long past time to do one or the other, for the federal bureaucracies, through the long reach of their regulations and unfunded mandates, have effectively taken state agencies hostage.
Indeed, if one examines the interconnections among the powerful bureaucracies at all government levels, state bureaucracies these days are more integrated with their federal counterparts than with the elected state polities to which they supposedly belong.
For example, as we have written before, throughout the country, the federal Department of Transportation issues directives for state departments of transportation to use in construction projects - most of them adhering to principles of the United Nations' Agenda 30 programme - and the state bureaucrats happily oblige. They funnel dividends and rewards to various private interests who sustain them and partner with them.
That's where the unions come in, and crony capitalists, too. And thus is formed a united front of federal and state agencies aligned with unions and sidekick businesses looking to line their pockets, and in so doing they force local communities to accept construction projects designed to kill them.
With its Partnership for Sustainable Communities, the DOT delivers federal money in return for federally prescribed transportation standards and formats: more bike paths and walking routes, less vehicular ingress and egress. They adopt access points to restrict highway entrances and to choke small businesses, to cite a common practice, and they channel traffic through small towns quickly, making it difficult to slow down, much less stop for a visit, as they pipe people to larger urban areas.
It's all by design, an intention to depopulate rural America, and it doesn't matter what the community desires or that there are no actual legal mandates or requirements to follow the federal directives. It doesn't matter because the DOT controls the money and gets its way, and no governor or state Legislature is going to stop it.
Amazingly, federal and state agencies form a parallel unelected government, from top to bottom, completely separate from elected state and local governments. It is a government that is virtually structured and closed off to competition or substantive public participation.
The Clean Air is another example of federal hegemony. The rule is so breathtaking in jurisdiction and impact, one might wonder just how the EPA manages to implement and enforce it.
Well, that's easy. The agency believes in its own form of states rights - the states have the right to do what the EPA tells them to do, and what it tells them to do will be an offer they can't refuse.
The EPA explains all this to the common folk on its website: "Under the Clean Air Act (CAA), as amended in 1990, each state must develop a plan describing how it will attain and maintain the (National Ambient Air Quality Standard)."
In other words, how it plans to clean up polluted areas and keep them clean.
As always, there's the fine print. As it turns out, it's the EPA, not Congress, deciding whether those plans meet federal standards, just as it is the EPA, not Congress, deciding what the emission standard is in the first place, and, if the agency doesn't like what the state is doing, it can substitute its own regulations.
And while Congress has ceded its authority to the EPA and other administrative rule makers, the U.S. Supreme Court has propped up the agencies' dominion over the states, even when the appropriate state agency balks. In 2004, again, as we have pointed out before, in Alaska Department of Environmental Conservation v. Environmental Protection Agency, the high court sided with the EPA in a permitting dispute involving the Clean Air Act and the installation of the best available control technology.
When a mine wanted to expand, it needed permits under the Act, and negotiated those permit requirements and allowable control technologies with the Alaska Department of Environmental Conservation, based on the latter's interpretation of the Clean Air Act.
Unfortunately, the EPA didn't like the deal and demanded tougher restrictions; the Alaska agency challenged the EPA's pre-emption in court-and lost. So when it comes to enforcing federal regulations and laws, the federal agencies have the last word on interpretation and reasonableness, not the states.
In a dissent by justice Anthony Kennedy and joined by chief justice William Rehnquist and justices Clarence Thomas and Antonin Scalia, the minority said the majority had set a dangerous precedent with reasoning that "conflicts with the express language of the Clean Air Act, with sound rules of administrative law, and with principles that preserve the integrity of states in our federal system."
Alaska had established procedures that complied with both the Clean Air Act and with EPA regulations, Kennedy wrote, procedures everyone agreed were compliant, which the state used to determine the allowable best available control technologies.
"EPA, however, sought to overturn the State's decision, not by the process of judicial review, but by administrative fiat," Kennedy wrote. "The Court errs, in my judgment, by failing to hold that EPA, based on nothing more than its substantive disagreement with the State's discretionary judgment, exceeded its powers in setting aside Alaska's BACT determination."
The ramifications were grave, the minority asserted.
"The broader implication of today's decision is more unfortunate still," Kennedy wrote. "The (Clean Air Act) is not the only statute that relies on a close and equal partnership between federal and state authorities to accomplish congressional objectives. Under the majority's reasoning, these other statutes, too, could be said to confer on federal agencies ultimate decision-making authority, relegating states to the role of mere provinces or political corporations, instead of coequal sovereigns entitled to the same dignity and respect. If cooperative federalism is to achieve Congress' goal of allowing state governments to be accountable to the democratic process in implementing environmental policies, federal agencies cannot consign states to the ministerial tasks of information gathering and making initial recommendations, while reserving to themselves the authority to make final judgments under the guise of surveillance and oversight."
In the 12 years since that case, time has proven the Supreme Court dissenters right. As the Senate hearing demonstrated this week, the states have been reduced to "mere provinces" of the federal government, and cooperative federalism is all but dead, having been replaced by a coerced and collectivized federal dominion.
It is a still-growing parallel and unelected government, and, if Congress does not act now, the states must, if federalism is to be revived and if the states' sovereignty is to survive.
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