A History of the Demise of American Constitutional Democracy, Part 2

In Part 1 of this series, I attempted to show how the doctrine of stare decisis is flawed, how the Supreme Court has strayed from interpreting the words of the Constitution, and their ill-fated attempts to correct obvious wrongs by creating new legal doctrines.  Today’s edition takes us to the New Deal and Franklin Roosevelt.

Using an erroneous diagnosis of the causes of the Great Depression- overproduction- the Roosevelt administration used this as an opportunity to seize control of the United States economy by controlling output.  This idea was not surprising realizing, after the fact, that his administration was riddled with Communists at all levels.  For years, the Supreme Court actually had a spine and resisted this temptation but they soon buckled under the heavy pressure of Roosevelt’s Court-packing scheme, a strategy which today’s Left is now encouraging because they do not like certain decisions or Justices.  Ironically, in response, suddenly stare decisis, which many even today consider sacrosanct, was discarded under Roosevelt.  Hence, the Court took yet another wrong turn and this moment in history marks the start of judicial illegitimate “constitution-making.”

Probably the wackiest decision to evolve out of that Court occurred in 1942 with Wickard vs. Filburn.  In that case, a farmer grew grain to feed his livestock.  None of the grain was introduced into interstate let alone intrastate commerce.  Using the Constitution’s Commerce Clause and the ability of Congress to regulate interstate commerce, the Court ruled against the farmer nevertheless basically arguing that because he withheld the grain from commerce, it had an effect on interstate commerce.  Under that reasoning, one supposes everyone’s backyard tomato garden is subject to federal regulation.

Because there is this supposed “nexus” between something grown for one’s own consumption and other goods in interstate commerce, this opened the doors, using the pretext of the Commerce Clause, to enact a whole string of laws and regulations that have been upheld by the courts.

The most recent grievous example occurred in 2005 in the case of Gonzalez vs. Raich.  In that case, California had legalized marijuana for medical purposes.  Two ill Californians grew and used their own pot to control their pain.  The Court ruled regardless that federal authorities had the authority to prosecute these people under the Commerce Clause.  Like the grain on Filburn’s farm, the marijuana was never bought or sold, did not cross state lines, and did not affect any national market whatsoever.  As Justice Clarence Thomas stated in his dissent, “Not only does this case not concern commerce, it does not even concern economic activity.”

Unfortunately, the New Deal was an attack on constitutional democracy.  As bad as the expansion of the Commerce Clause was, an even greater blow occurred with the expansion and creation of regulatory agencies like the SEC and NLRB.  The Court sanctioned and nurtured the growth of the current administrative state.  By doing so, they have concentrated great powers in the hands of unelected bureaucrats and so-called “experts” with minimal accountability.  Theoretically, it has been mentioned that every American likely technically violates some federal regulation daily.  That illustrates how the regulatory administrative state has grown.

John Locke wrote that a legislature can make laws but it cannot make legislators.  However, that is exactly what has happened.  When powers are granted to regulatory agencies, it invests bureaucrats with the power to make rules that bind every citizen.  Likewise, courts cannot delegate judicial power to bureaucrats but that is what the Supreme Court has done.  During World War II, the Supreme Court ruled that courts must defer to an agency’s interpretation of its own rules.  It rationalized this bizarre thought that the agencies had the technical expertise that courts lacked.  That is certainly not saying much for courts.

In 1984, the Court hatched yet another legal doctrine in Chevron vs. Natural Resources Defense Council.  That ruling requires courts to assume that Congress intended any ambiguity it left in any law under which the agency operates should be resolved by the agency itself.  This is the so-called Chevron deference.  Not only this is this turning a constitutional democracy on its head, it is fulfilling a prophecy made by Alexis de Tocqueville in Democracy in America when he warned about the growth of an administrative state and rule by bureaucrats.  In fact, he argued that democracy in America survived and was flourishing because of the lack of an administrative, bureaucratic state.

What makes the Chevron Deference Doctrine more appalling is that bureaucrats now act as a legislature promulgating the rules and regulations.  They interpret their own rules like the judiciary.  The deference adds yet another layer of lawmaking power without any checks and balances.

Recently, a Montana rancher was cited for violating an EPA rule alleging he polluted the navigable waters of the United States.  He created two small ponds on his property fed by a trickle of water.  The nearest “navigable water of the United States” was 40 miles away from his property.  His stated reason was to provide two small reservoirs for firefighters combatting forest fires.  For this, he was fined $130,000 and served 18 months in prison.  Although serving his time, he continued to fight the prosecution but died at the age of 80.  A month later, the Supreme Court vacated the conviction and the Trump Administration has rescinded the rule that landed the rancher in jail.

The list of agencies at the federal level is an alphabet soup of nonsense that controls and regulates virtually every area of modern life.  There are currently fifteen cabinet-level executive departments dealing with agriculture, commerce, housing, labor, urban development, and transportation.  All of these areas, except commerce, were at one time the province of state or local government.  The federal government has no business in the health and vitality of the country’s urban centers.  Nor does it have a role to play in housing or even agriculture one can argue.  Compounding the problem is the myriad of state agencies whose jurisdiction, rules and regulations often overlap those of their federal counterparts.

We can thank the Supreme Court and Franklin Roosevelt, so revered in liberal circles, for this sad state of affairs.  If the Framers saw the behemoth that the federal government has become and the “deference” afforded that government by the Supreme Court, they just might reconsider that which they struggled to craft in 1787.