AEI resident scholar, Norman Ornstein
, isn't very happy with a fellow named Donald McGahn. It seems that Mr. McGahn, who serves on the Federal Election Commission, recently told an audience at the University of Virginia Law School, "I'm not enforcing the law as Congress passed it." Instead, McGahn announced, he's enforcing the federal election laws as the Supreme Court has interpreted them . . . except that's not quite accurate, either. It seems Mr. McGahn (who is a Republican) is also selective about that. McGahn, "refused to enforce the parts of the law that the court has not reversed
or changed, making his own judgments about what he wants the court to do
or thinks it might do at some point down the road." Ornstein senses something amiss in this chain of events. Where is the rule of law? How is it that some guy--appointed to serve on a federal commission--is now tasked with making his own judgments about federal election laws instead of looking to Congress for guidance. Ornstein condemns McGahn for this and puts his violation on a par with Donald Trump's dalliance with the "birthers."
Not so fast, says our own Steve Hayward
. To be sure, there are plenty of reasons to worry about the rule of law (or, rather, the lack of it) in today's administrative state. But is it fair to single out one guy at the FEC who could (at least conceivably) offer up Article 6 of the Constitution as a defense for his actions. If Congress and the Courts are filled with people who, when questioned about the constitutionality of a piece of legislation, respond as Nancy Pelosi did, with "Are you serious?" why shouldn't a mere apparatchik in some federal agency take the cue that all bets are off and it's every man's interpretation for itself?
Steve notes that other Pelosi gem--the one about figuring out what's in the health care legislation after we pass it--not in order to ridicule her, as so many other pundits have (over) done, but in order to take Pelosi at her word and as a serious representation of her brand of progressive. In fact, her statement was and is an brilliant summation of the current reality in Washington. Missing from the ridicule is a true understanding of the import of Pelosi's words. It's not just that the bill was too long or that not enough people had read it. Would their reading it have made it any better? A stricter page count made it more faithful to the Constitution? No. The problem Pelosi's statement actually demonstrates is, as Steve puts it, "the enormous discretion and policy responsibility delegated to
executive branch agencies." This means, "in effect the actual operating law [will] be formulated by administrators rather than Congress." So if administrators are now law-makers, don't they have at least a perfunctory claim to use their own best judgment with respect to the Constitution and constitutionality? Can't they enter the Separation of Powers game of push and pull vis
the Court? What is to stop them if Congress has delegated some of its legislative power to them?
Unfortunately, spreading the legislative power around in this way (a way that is only very tangentially connected to consent) invites even more opportunities for the vices of faction and arbitrary usurpation. We are seeing this now with the implementation of the recent health care legislation. With all the special waivers and exemptions granted to the "right" people, the rule of law is suffering. According to Steve, these waivers show "the essentially arbitrary (some might say lawless) nature of administrative government." The only thing that might be said in favor of all of this is that it does present an opportunity for clarity about fundamental questions of good government. This may be the kind of government we deserve right now . . . but, in seeing that, can't we re-group aspire to something better and more worthy of free men?