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Regulations and the Executive Branch

December 21st, 2008 by Chuck · 4 Comments · Politics

For people today it is hard to imagine what our government used to be like, before FDR changed everything.  We are awash in regulations.  In Garet Garrett’s fascinating collection of essays, called The People’s Pottage, he discusses (among other things) the advent of a slew of government agencies under Franklin Roosevelt, among them the NLRB, FDIC, and the SEC.  These agencies were Roosevelt’s method of adding to his executive powers the power of legislation, a power not given to the President in the Constitution.  Laws are to be enacted by the Legislative Branch of government alone: 

All legislative Powers herein granted shall be vested in a Congress of the United States . . . [Article 1, Section 1, US Constitution] 

The President’s role is merely to execute that legislation.  In Garret’s words:

[Congress] did not write the New Deal laws.  It received them from the White House, went through the motions of passing them, engrossed them, and sent them back to the President.  That was called the rubber stamp congress . . .

In that special session the Congress had surrendered to the President its one absolute power, namely, control of the public purse; also in creating for the New Deal those new instruments of power demanded by the President it delegated to him a vast amount of law-making power—so much in fact that from then on the President and the agencies that were responsible to him made more law than the Congress.  The law they made was called administrative law.  Each new agency had the authority to issue rules and regulations having the force of law.  [“The Revolution Was,” p. 60-61, in The People’s Pottage.]

So Roosevelt arrogated to the Executive Branch powers denied it by the Constitution.  On top of that,  the laws his agencies promulgated were all of the regulatory nature that Mike N. correctly identified as initiating force against American citizens. 

It is often argued that the modern world is too complex for Congress to understand in all its minutia, let alone legislate for.  Therefore, the argument goes, agencies are necessary.  Even if one were to grant this premise – which I do not – it still does not justify any law-making agencies being created by or answerable to the Executive Branch.  If they exist at all, they should be created by and answerable to the Legislative Branch alone.    

But this argument is a red herring, in any case.  The principles of law and government are not one iota more complex today than they were in 1787.  It is only when a government becomes engaged in micromanaging the economy that it runs into this complexity.  The solution is not to create a multitude of regulatory agencies, but to remove the government from the economy altogether.

4 Comments so far ↓

  • Burgess Laughlin

    In their recorded lectures, “Cultural Movements: Creating Change,” Yaron Brook and Onkar Ghate pointed out that to turn our culture around toward a more rational society advocates of reason will need to offer solutions to problems, as well as philosophical principles and immediate criticisms.

    Are you aware of any written general plan for phasing out any of the regulatory “agencies” such as the SEC? It would be very interesting to see such a plan and be able to present it as a way of changing the terms of debate–to how to liberate the economy rather than whether to liberate it.

  • Chuck

    George Reisman sketched out such a plan to phase out the various alphabet agencies years ago in one of his lectures, focusing mainly on Social Security, if I remember correctly. It may be included in his treatise on capitalism, which I do not have a copy of.

    But I agree, changing the terms of the debate is a necessary method of winning the battle of ideas.

  • Bill Brown

    Chapter 20 of Capitalism is available online for free. I have a book from Cato that goes into more specific detail, but it’s upstairs and everyone’s sleeping so it’ll have to wait a few hours.

  • Joseph Kellard

    Chuck, yes, Reisman has a taped lecture that sketches how a statist government would transition to a capitalist one. I have the tape but have not listened to it in several years and have forgotten the details.