A Case For the 10th Amendment

The 10th Amendment is being raped Our Constitution is very clear about who makes the laws. Article 1 says: “All legislative powers herein granted shall be vested in a Congress.” Seems pretty clear to me. Yet, by misinterpreting or ignoring that clause, our federal government has become a government that is now run by administrators under the executive branch through dozens of agencies.

Now, our Constitution provides a government of checks and balances to protect citizens against tyranny. The problem is that these agencies are not subject to those checks and balances and they care nothing about our liberty - only their own turf.

They pass their own rules and enforce the rules they make. In the event of challenge, they decide the outcome and issue judgments. While complaints can be heard through the regular court system, that is a very slow process. One outrageous example of this involved a decision that forced a major accounting firm—Arthur Andersen—to close in 2003. By the time the courts got around to deciding that the administrative decision was wrong, the Arthur Andersen personnel had scattered and the offices had closed. There are many other examples.

Our Congress (that has no backbone) has considered legislation to restore Congressional control of the legislative process several times. Such changes never pass. In fact, three of the nine Supreme Court justices have recognized that administrative agencies like the Environmental Protection Agency, the National Labor Relations Board, the Securities and Exchange Commission, and others violate checks and balances, but nothing changes.

Therefore, most law is what the regulating agencies say it is, and it is amazing how many regulations they create each year. In fact, they make many more rules than Congress. Because they have no checks, they can take any law that congress passes and twist it into anything they want by just tweaking a few more regulations. This weakens the rule of law.

“Equal justice under the law” is engraved on the front of the Supreme Court building in Washington. Not any more. Administrative officials grant privileges to special interest groups often at the request of individual members of Congress or other members of the Executive Branch. It seems that with each passing year, we become less a government of principles and more a government of men and women. That is contrary to the rule of law as envisioned by our founders and our constitution.

What is even worse is that in the entire history of mankind, whenever regulatory systems became dominant, government becomes very inefficient. For instance, the long waiting lines at some Veteran Administration facilities are well known. Similar problems affect patients in other parts of the federally administered health system. Regulation and paperwork divert doctors from patient care.

Then there are the huge increases in business regulations that have created massive uncertainty. And if companies cannot anticipate the future, they will not invested new equipment. And with no new investment, productivity growth slows, and incomes do not increase for the middle class.

Then, there are the dozens of poverty programs spending billions of dollars annually, which somehow never reduce the poverty rate. President Clinton lowered the number of people living in poverty by requiring that recipients work, but the Obama administration rewrote the regulations to let young workers drop out of the labor force, live on social benefits, and occasionally work in the underground economy. This will do nothing but ensure that these young workers remain in poverty (dependent on the government, of course). This is because they do not go to school and don’t get the skills or training they need by working , so they never get a good job that will increase their earnings.

The only way to really fix this program is to return most of these Federal programs to the states. The intent of the Constitution was that each state could develop their own laws and then people could move to the state that most closely followed their way of thinking. Our founders addressed this issue with the 10th amendment to the Constitution which says that all powers not explicitly granted to the federal government “are reserved to the states and the people.” I’m sure most states would get rid of many of these programs and regulations. And there will probably be a few states that want to remain in the big government box. That is okay for them, but the rest of us wouldn’t be saddled with the problems big government creates.

Instead of huge federal programs that are wasteful, many states would compete by finding ways to reduce costs and improve services. Not only would that save you tax dollars, but those are the type of locations that companies want to move to and create jobs. This competition already exists between states within the constraints the Federal government puts on everyone. Competition always works to reduce costs and increase quality.

Our founding fathers recognized that the different states would make different policy choices. The disagreements over slavery made that clear. But in Federalist paper #10, James Madison recognized that some programs must be enforced at the federal level. He was referring to a common currency and common defense, but with the passage of time, we have added anti-discrimination laws, telecommunications regulations, and too many other things to that list.

It will not be easy, but it is not hopeless. The voters in this country are, for the most part, pretty smart. Giving them the choice to govern at the local/state level will ensure that eventually the country will be restored to constitutional, not regulatory, rule.

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