The Real Constitutional Crisis: Unaccountable Bureaucracy

Bureaucrats not only threaten our Constitution but actively trample it all the time

For the last few weeks, the lemming-like Democrat/Media Complex has been promoting the highly coordinated message that America is in the midst of a “constitutional crisis.” They’re right on the mark, but due to their reflexive hatred of Donald Trump, they’ve picked the wrong target. It isn’t the president who threatens the Constitution. It’s a cadre of unelected, unaccountable, insulated bureaucrats who not only threaten it but have actively trampled it — for years.

An investigation conducted by the Pacific Legal Foundation (PLF), a nonprofit legal organization “that defends Americans’ liberties when threatened by government overreach and abuse,” reveals the enormous implications of unaccountable power-mongering. In the midst of pursuing litigation against the Food and Drug Administration’s (FDA) labeling of vaping devices and e-cigarettes as tobacco products, and thus subjecting them to regulations that will damage the industry and perhaps adversely impact public health — all of which is antithetical to the FDA’s mission — they discovered a career bureaucrat had signed off on the rule.

The problem? The bureaucrat had no authority whatsoever to do so. “The Constitution’s Appointments Clause requires that rules binding Americans must be issued by ‘officers of the United States’ — i.e., government officials appointed by the president and confirmed by the U.S. Senate, or hired by cabinet secretaries under congressional authorization,” PLF’s legal policy director Clint V. Brown explains. “Such officials are subject to political accountability, which allows them to wield political power such as issuing binding rules.”

By contrast, career bureaucrats are government employees hired through a merit system that is supposed to be immune to political influence in both hiring and firing procedures.

Because of this ruling, PLF decided to look more extensively at the Department of Health and Human Services (HHS), which oversees the FDA. What they discovered should infuriate every American who supports the Rule of Law and the Constitution: “Looking at all rules issued by HHS from 2001 to 2017, we found that 71 percent of the 2,952 rules we reviewed were unconstitutional,” Brown reveals. “The worst offender within HHS is FDA, where 98 percent of rules are unconstitutional.”

Note first that a single government agency averaged implementing just under 174 rules every year for nearly two decades. Note further that even at the lower rate of 71%, 123 of those rules were unconstitutional. And while Brown notes that many of them are “highly technical’ and aimed at "scientific drug and food development,” others “are significant regulations that carry huge costs and have a substantive impact felt by businesses and consumers.”

Why has this occurred? Because we have a Ruling Class that is more than willing to abdicate responsibility and allow “faceless and unaccountable bureaucrats who never have to answer to the voters or the political process” to run the country. And because of the aforementioned merit system, firing many of these people is virtually impossible, no matter how badly they perform.

Is there any doubt that such a dynamic breeds arrogance?

Brown offers a partial solution to the problem, explaining that Trump could require that “only Senate-confirmed officials sign-off on his administration’s rules.” Yet that presumes those officials will be in charge of promulgating regulations and be beholden to the president should they fail to do his bidding.

Are they? In an effort to bash the president, the Miami Herald asserted that Trump was on the verge of “dumping” (more linguistic coordination) as many as 1,000 illegals per month on the state of Florida. Yet according to the president himself, he had no knowledge of the plan and subsequently killed it. White House and DHS officials characterized it as a “misunderstanding,” while both the Herald and Politico insisted Trump’s “chaotic” immigration policies were to blame.

Were they? Or was this incident indicative of unilateral action undertaken by officials interested in pursuing their own agenda, hoping Trump won’t notice or won’t care?

But Trump does care about immigration policy, and when he did take on the bureaucracy by removing DHS Secretary Kirstjen Nielsen and U.S. Secret Service Director Randolph D. “Tex” Alles because they weren’t in alignment with his agenda, The Washington Post characterized it as a “purge” while The New York Times portrayed it as “political bloodletting.”

That would be the same Washington Post and New York Times that both insisted there was no crisis at the border until there was a “new reality” (Post) and we had reached a “breaking point” (Times).

America’s real breaking point? Bureaucratic arrogance — and the lawlessness it engenders — is metastasizing, driven by a 2016 election that didn’t produce the properly “enlightened” results favored by those bureaucrats. “Real coups against democracies rarely are pulled off by jack-booted thugs in sunglasses or fanatical mobs storming the presidential palace,” Victor Davis Hanson writes. “More often, they are the insidious work of supercilious bureaucrats, bought intellectuals, toady journalists, and political activists who falsely project that their target might at some future date do precisely what they are currently planning and doing — and that they are noble patriots, risking their lives, careers, and reputations for all of us, and thus must strike first.”

This evolution of bureaucracy to the point where we have a de facto government-within-a-government was not unforeseen. “The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations,” wrote president Franklin Delano Roosevelt in 1937.

That’s because, as Roosevelt so astutely noted, “the employer is the whole people, who speak by means of laws enacted by their representatives in Congress.”

The Pacific Legal Foundation has blown up that long-cultivated fairy tale in no uncertain terms. And even more ominously, it’s not hard to conclude that unconstitutional rules perpetrated by the likes of bureaucrats at HHS might be among the most benign efforts to undermine the will of the American people. Far more brazen abuses of power has already been documented at agencies like the EPA, NSA, and the IRS.

In a better nation, the PLF’s revelations would engender a top-to-bottom review of every government agency, and every rule or regulation promulgated and enforced by unelected bureaucrats. In this one, Americans remain beholden to bureaucrats empowered by impotent, self-interested politicians, equally invested in avoiding accountability.

Or even worse. House Democrats called Housing and Urban Development (HUD) Secretary Ben Carson “cruel,” “mean-spirited” and “despicable” for not breaking the law that prohibits him from providing housing assistance to illegal aliens.

“Bureaucracy is the form of government in which everybody is deprived of political freedom, of the power to act; for the rule by Nobody is not no-rule, and where all are equally powerless we have a tyranny without a tyrant.” ―Hannah Arendt

That’s America’s real constitutional crisis.

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Does the Constitution Mandate Universal Birthright Citizenship? Here’s the Answer

Amy Swearer

Who is a United States citizen by birth? This question has increasingly received national attention, in large part because of President Donald Trump’s promise to “end birthright citizenship.”

As I explain, however, in my recent Heritage Foundation legal memo titled “The Citizenship Clause’s Original Meaning and What It Means Today,” Congress definitively settled that question in 1866 when it passed the 14th Amendment. The problem is that Congress’ answer was far different from what Americans today often assume.

Even though the U.S. government has long abided by a policy of universal birthright citizenship—that is, of treating all persons born in the United States as citizens, regardless of the immigration status of their parents—the reality is that the Constitution doesn’t mandate this policy.

In fact, while the Citizenship Clause eliminated race-based barriers to birthright citizenship, Congress expressly intended to limit birthright citizenship based on the strength of a person’s relationship to the United States.

More importantly, the government today needn’t amend the Constitution in order to restrict citizenship for the U.S.-born children of illegal or non-immigrant aliens. It could simply stop abiding by a broad policy never required by the Constitution in the first place.

Context and Legislative History:

In the 1857 case of Dred Scott v. Sandford, the Supreme Court held that the U.S.-born descendants of African slaves were not and could never become citizens. In short, black people were simply Africans, not African-Americans, and relegated to the status of perpetual aliens in the nation where they were forced to live and die.

This holding created a previously nonexistent permanent barrier to citizenship based on a person’s race or national origin. It also left the freed slaves essentially stateless—they logically owed allegiance to no sovereign except the United States government, but were nonetheless permanent aliens.

After the Civil War, Congress passed the Civil Rights Act of 1866 as a direct attempt to override the Dred Scott decision and statutorily expand citizenship to the freed slaves.

That act defined the parameters of birthright citizenship for the first time in U.S. history—“[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

Congress drafted and passed the 14th Amendment primarily to strengthen the protections of the Civil Rights Act by writing them into the Constitution itself. Under the 14th Amendment, citizenship belongs to “all persons born … in the United States, and subject to the jurisdiction thereof.”

Some advocates of universal birthright citizenship argue that because the 14th Amendment’s definition of citizenship differs from that of the Civil Rights Act, Congress meant to override the Civil Rights Act and adopt the English common law’s jus soli—that is, the principle of citizenship by virtue of birth within a country’s geographical boundaries alone.

The legislative history strongly undercuts this argument. The 14th Amendment did not override or counteract the Civil Rights Act. On the contrary, the two definitions existed side by side for the next 70 years, and both courts and legal scholars roundly understood them as complementary.

The change in language was exclusively the result of disagreements over how best to exclude tribally-affiliated Native Americans from birthright citizenship, and in no way reflected a desire by Congress to fundamentally change the principles of citizenship initially laid out in the Civil Rights Act.

This is important because it means that the two definitions of birthright citizenship logically work together and inform each other. In other words, a person who is “subject to a foreign power” is also not “subject to the jurisdiction of the United States,” and vice versa.

The legislative history of both the Civil Rights Act and the 14th Amendment shows quite clearly that, while Congress sought to expand birthright citizenship to include the freed slaves, it also sought to exclude broad categories of individuals who maintained only a qualified or limited allegiance to the nation.

As several congressmen put it, birthright citizenship was reserved for those who, like the freed slaves, were subject to “the complete jurisdiction of the United States.”

To be “subject to the complete jurisdiction of the United States” simultaneously meant that a person was not meaningfully subject to a foreign power such that his or her allegiance to the United States was divided or qualified.

Notably, even modern advocates of universal birthright citizenship agree that at least some individuals were excluded from citizenship because they owed only a qualified allegiance, despite having been born “in the United States.”

For example, few people seriously argue that the Citizenship Clause applied to Native Americans who were born subject to their tribal governments. Even though they were born “in the United States,” their allegiance was divided between the United States and their tribal governments, which were considered “quasi-foreign nations.”

The same legislative history that so clearly excludes tribal Indians from birthright citizenship also makes clear that the Citizenship Clause does not cover the U.S.-born children of other individuals who owe only a minimal, qualified, or temporary allegiance to the United States.

This explicitly meant the exclusion of “temporary sojourners,” who owe the United States a “sort of allegiance,” but who remain meaningfully subject to a foreign power.

While the concept of “illegal immigration” did not exist at the time of the 14th Amendment’s passage, the same principles would disqualify individuals who are illegally present in the United States.

What About Wong Kim Ark?

Despite claims by advocates of universal birthright citizenship that the Supreme Court has already held universal birthright citizenship to be “the law of the land,” the reality is far different.

It is true that, in 1898, the Supreme Court held in United States v. Wong Kim Ark that the U.S.-born child of lawfully present and permanently domiciled Chinese immigrants was a U.S. citizen under the 14th Amendment.

At its core, Wong Kim Ark was about the government’s attempt to circumvent the 14th Amendment and keep Chinese immigrants and their children from ever becoming citizens, by any means, just because they were Chinese.

At the time, federal law barred Chinese immigrants from becoming naturalized citizens, and they were, according to treaty obligations with China, perpetual Chinese subjects.

Much like the freed slaves, Chinese immigrants were prohibited from subjecting themselves to the complete jurisdiction of the United States because of their race, and were relegated to permanent alienage in a country where they would live and die.

This type of race-based discrimination in citizenship was precisely what the 14th Amendment was intended to prohibit, and the Supreme Court rightly recognized the system for the unconstitutional travesty it truly was.

While the opinion can also be read as affirmatively adopting jus soli as the “law of the land,” it can just as easily be read as adopting only a flexible, “Americanized” jus soli limited to the factors of lawful presence and permanent domicile.

This second interpretation renders the holding consistent with the original meaning of the 14th Amendment. It is also precisely what many legal commentators at the time thought the Supreme Court meant, too.

In short, Wong Kim Ark only deviates from the original meaning of the 14th Amendment if one chooses to read it acting under the assumption that the Supreme Court intended to upend decades of precedent and judicially supersede the clear intent of Congress. That assumption is unnecessary, illogical, and dangerous.

What This Means Today

What this means in practice is that the original meaning of the 14th Amendment’s Citizenship Clause has not necessarily been rendered moot by the Supreme Court. The United States government may today treat all U.S.-born children as citizens, but not because the Constitution requires it—or even because the Supreme Court judicially mandated it.

Ultimately, the government may cease to treat the U.S.-born children of illegal and non-immigrant aliens as citizens without first amending the Constitution.

They are not subject to the complete jurisdiction of the United States because they do not meet the requirements of lawful permanent residency envisioned by Congress or laid out by the Supreme Court in Wong Kim Ark. Moreover, their failure to meet these requirements is not the result of race-based prohibitions.

The U.S.-born children of immigrant aliens (also known as lawful permanent residents) are, however, citizens by birth, and rightfully so—their parents are subject to many of the same rights and duties as American citizens, and have taken meaningful preliminary steps toward U.S. citizenship.

These are precisely the “lawfully present and permanently domiciled” individuals whose citizenship has never been questioned under the 14th Amendment.

Embracing the original meaning of the Citizenship Clause is not about racial prejudice or disdain for immigrants in general.

On the contrary, such a move recognizes that American citizenship is reserved for all those who, regardless of race or former allegiances, have taken meaningful steps toward solidifying permanent bonds with the American people, and have taken up the duties and responsibilities inherent to those bonds.

This is something both citizens and would-be citizens alike should celebrate.

SOURCE 

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For more blog postings from me, see  TONGUE-TIED, EDUCATION WATCH INTERNATIONAL, GREENIE WATCH,  POLITICAL CORRECTNESS WATCH, AUSTRALIAN POLITICS, and Paralipomena (Occasionally updated), A Coral reef compendium and an IQ compendium. (Both updated as news items come in).  GUN WATCH is now mainly put together by Dean Weingarten. I also put up occasional updates on my Personal blog and each day I gather together my most substantial current writings on THE PSYCHOLOGIST.

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