Trump dismantling a ‘government by experts’

OPINION:

I have often thought Woodrow Wilson was our worst president after Abraham Lincoln. By worst, I mean least faithful to the Constitution and most destructive of personal liberty.

Except for Lincoln’s dictatorship — during which the federal government used violence to crush the states’ natural right to secede from a union they had voluntarily joined, and instead brought about the systematic murder of 750,000 Americans, many civilians — America from its founding to the early part of the 20th century more or less enjoyed the James Madison model for the federal government.

Under this model, the federal government could only legislate, regulate, spend and govern in the 16 discrete areas of governance that the Constitution delegated to it. All other areas of human behavior and governance were left free to individual choices or governance by the states.

From and after Wilson’s presidency, the Madisonian model was replaced by the Wilsonian one. Under this model, the feds could legislate, regulate, spend and govern in any area of human behavior for which there was a national political will, except for those areas expressly prohibited to them by the Constitution.

It would take another generation before the courts fully understood this. During this time, they gradually permitted Congress to write any law, regulate any behavior, spend any money, tax any event and intrude upon any relationship so long as it did not confront an express constitutional prohibition.

The Constitution, which Madison designed to establish and limit the federal government, has been a dismal failure as an instrument of limitation. Madison wrote that only a structure external to the Constitution could keep the federal government in place.

He was referring to the power of the states to nullify acts of the federal government that the states determined were outside its constitutional authority. He also referred to secession, the natural right of individuals and political sovereignties and subdivisions to leave the government. Just as the 13 Colonies seceded from Britain, Madison argued that individuals could reject the government, smaller subdivisions could leave larger ones and states could leave the feds.

In his masterpiece, “Democracy: The God That Failed,” Hans-Hermann Hoppe articulates the truism that one is not truly free if one cannot leave the government. This applies to people as well as political subdivisions. The forced retention of individuals and groups under the government’s monopolistic jurisdiction is totalitarian.

Without the threat of nullification and secession, there is no effective restraint on the feds.

Now, back to Wilson. His governmental sins were many: World War I, the Espionage Act, the federal income tax, the popular election of U.S. senators, the Federal Reserve and his government by experts, known today as the administrative state.

This last insidious structure is neither fish nor fowl; it is not clearly in any branch of constitutional government. It writes rules, enforces them and interprets them. For example, the U.S. Tax Code, enacted by Congress, is 2,600 pages long. It is an indecipherable monstrosity. However, the IRS’s regulations — written by IRS experts, not by Congress — are 9,000 pages long. The IRS’s experts’ interpretations of IRS regulations are 70,000 pages.

This is Wilson’s government by experts.

Supreme Court Justice Antonin Scalia said giving away regulatory power to experts is an unconstitutional delegation of Congress’ legislative powers to entities that are not answerable to the voters. Administrative agency heads are appointed by the president and confirmed by the Senate. However, the folks who write the rules are permanent bureaucrats who do not change, no matter who is in the White House.

Until now.

Last week, President Trump began systematically dismantling government by experts. He rightfully complained that the administrative agencies answer to no one. They make rules, enforce them, prosecute those who allegedly ignored them and even judge their own prosecutions. In administrative law courts, the judges are not independent. They work for the same boss as the prosecutor: the administrative agency.

He would be on sounder constitutional ground if he did the dismantling by legislation, not fiat.

He is fed up with these agencies. In recent times, these unanswerable and unaccountable agencies have declared mud puddles navigable waters, told all Americans without scientific basis to stand 6 feet apart in public but not in private, and forced federal agents onto ships in the high seas to count the number of fish caught and then billed the fishermen for the salary of their unwanted federal guests.

The courts have rarely interfered with administrative agencies because of a monstrosity called the Chevron Doctrine. This rule told courts that they must show deference to an administrative agency’s interpretations of its own rules because its employees are — channeling Wilson — experts.

Last year, as if a precursor to Mr. Trump’s second term in office, the Supreme Court finally rejected Chevron.

Hereafter, when a person challenges an administrative agency in court or is challenged by it, the litigants stand as equals and the government must prove its case. There is no longer a presumption that the experts are correct.

All regulations interfere with personal liberty. When the government interferes with liberty, there should be no deference and a presumption that the government’s behavior is immoral, unconstitutional and unlawful.

Why? Because freedom is the default position. Government is the negation of freedom. Freedom is everyone’s personal natural birthright. The sovereignty of the person, made in the image and likeness of the Creator, can never be equal morally and legally to a gaggle of politicians running an artificial monopoly of power in a geographic area.

Our rights are either inalienable or they’re not. If they’re not, freedom is an illusion. If they are inalienable, the government must leave our freedoms alone.

• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.