Judge Andrew P. Napolitano: A Government by Experts

I often think that Woodrow Wilson was the worst president after Abraham Lincoln. The worst refers to those who are least faithful to the Constitution, and most detrimental of individual liberty.

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

This model meant that only 16 areas of human behavior could be governed, regulated, spent, and legislated by the federal government. The states could choose to govern or make individual decisions in all other areas.

After Wilson’s presidency, Madisonian models were replaced by Wilsonian ones. This model allowed the federal government to legislate, regulate and spend in all areas of human behavior that had a national political will. They could not do so for areas prohibited by the Constitution.

It would be another generation before courts realized this fully. During which time they gradually allowed Congress to write any law, regulate any behavior or tax any event, and interfere with any relationship as long as there was no express constitutional prohibition.

The Constitution itself — which Madison designed both to establish the federal government and to limit it — has been a dismal failure as an instrument of limitation. Madison himself wrote that only an external structure — external to the Constitution — could be relied upon to keep the federal government in its place.

He was referring the power of the States to nullify federal acts the states deem to be beyond its constitutional authority. He also spoke of the natural right individuals and political subdivisions have, known as secession, to leave the government. Madison argued that individuals have the right to reject the government just like the thirteen colonies did with Great Britain. Smaller subdivisions can also leave larger governments, while states can withdraw from the federal government.

In his masterpiece “Democracy: The God That Failed,” Hans-Hermann Hoppe states the truth of the saying that one cannot be free from the government. This applies to both persons and political subdivisions. Totalitarian is the forced retention of individuals under the government’s monopolistic authority.

There is no effective restraint of the feds without the threat or nullification, secession, and the threat.

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, Federal Reserve and his government of experts, now known as the administrative State.

This last insidious structure is neither fish nor fowl — it is not clearly in any branch of constitutional government. It is responsible for creating rules, enforcing them, and interpreting them. For example, the U.S. Tax Code, which was enacted by Congress, is 2,600 pages. It is a confusing monstrosity. But the IRS’s own regulations — written by IRS bureaucrats, not by Congress — run to 9,000 pages. The IRS interprets its own regulations up to 70,000 pages. This Wilson’s government from experts.

Justice Antonin Scalia ruled that this is an unconstitutional transfer of Congress’ legislative powers from the federal government to entities that aren’t accountable to the voters. The Senate confirms the appointments of administrative agency heads. The rules-makers are permanent bureaucrats and will not be affected by any changes, regardless of who is in the White House.

Last week, the United States Court of Appeals of the 5th Circuit in New Orleans reminded the administrative state of the fact that only Congress can create laws.

Here is the backstory.

After the Las Vegas murder of innocents, a madman turned his semiautomatic rifle into an automatic rifle using a bumpstock, politicians and the media argued that bump stocks can transform rifles into machine weapons, something Congress outlawed back in 1934.

Trump Bureau of Alcohol, Tobacco, Firearms, and Explosives issued a rule stating that homemade transfers of semi-automatic rifles into semi-automatic rifles via the use of a bumpstock create a machine gun. Because it allows for quick bursts, the bump stock is essential when dealing with multiple invaders at once.

BATF is run by so-called experts. BATF was reminded by the 5th Circuit that it is not Congress, when it attempted to outlaw modified rifles.

The Chevron Doctrine, a bizarre doctrine that enslaves administrative agencies, is something that courts rarely do in post-World War II times. This rule tells courts that they must show deference to an administrative agency’s interpretations of its own rules, because its employees are — channeling Wilson — experts. The 5th Circuit rejected Chevron, and the Supreme Court is likely to follow suit.

Regulations can interfere with individual liberty. If the government interferes in liberty’s freedom, there should not be any deference. There should also be a presumption of government’s immorality, unconstitutional, and illegal behavior.

Why? Because freedom is the default position. Government is the negation or suppression of liberty. Freedom is everyone’s 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 thugs running an artificial monopoly of power in a geographic area.

Either our rights cannot be denied or they can’t be taken away. Freedom is only possible if they aren’t. If they are inalienable the government must respect our freedoms.

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