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Issues & Insights
Nick Youngson CC BY-SA 3.0 Alpha Stock Images
Nick Youngson CC BY-SA 3.0 Alpha Stock Images

Deep State Exposed: Investigation Finds Thousands of Regulations Issued By Career Bureaucrats In Violation of the Constitution

By Clint Brown

Is the U.S. government under the control of a shadowy group of insiders, unseen by the public and unaccountable to voters? A newly published report suggests the answer is “yes.”

But lay aside the elaborate conspiracy theories about Russian infiltration. This insidious threat is far more mundane, stemming from bureaucrats who have hijacked the regulatory process to evade accountability for their actions. It’s time for Congress and President Trump to push back against federal agency rule-makers who are overstepping their authority.

Who Is Really In Charge?

Over the past year, a team of lawyers and researchers investigated the inner workings of one federal department to find out who is really in charge. Our final report does not read like a spy novel. In fact, it’s about as exciting as a law journal. However, it proves what many Americans have long intuitively known: unaccountable bureaucrats make the rules in this country.

Here’s the background: During litigation over a controversial Food and Drug Administration’s (FDA) regulation in 2018, attorneys at Pacific Legal Foundation found that a career bureaucrat had signed off on the rule.

That’s a problem because that bureaucrat did not have the Constitutional authority to issue regulations. 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. Such officials are subject to political accountability, which allows them to wield political power such as issuing binding rules.

That description does not apply to career bureaucrats, who are government employees hired through the merit system, which is intended to be free from political influence in hiring and firing practices.

71% of Rules Unconstitutional

Recognizing that career bureaucrats signing off on rules is constitutionally problematic, PLF investigated the rule-making process at the Department of Health and Human Services (HHS). 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. The worst offender within HHS is FDA, where 98 percent of rules are unconstitutional.

Many of these are highly technical rules that govern scientific drug and food development; others are significant regulations that carry huge costs and have a substantive impact felt by businesses and consumers. But in virtually all cases, these rules were enacted by government employees who lacked the proper constitutional authority to do so.

What this practice represents is an erosion of government accountability, which paves the way to an erosion of liberty and, ultimately, government abuse. While those who are supposed to be in charge, according to the Constitution, abdicate responsibility, the people really running this country — the faceless and unaccountable bureaucrats who never have to answer to the voters or the political process — are crafting and implementing the regulations that will rule our lives.

It’s nearly impossible for a cabinet secretary or the president to fire career bureaucrats because they have layers of protection through the merit system. Unlike elected or appointed officials, these bureaucrats have little incentive to respond to the wishes of the American people. They’re not trying to win your vote. Why should they care about your opinion of the rules that they assume only bureaucrats and a few lawyers will understand, anyway?

Real Collusion

Meanwhile, political appointees collude with career bureaucrats to avoid accountability. If the president or Congress dislikes a rule, the agency head or cabinet secretary can point to the career bureaucrat when called in for questioning. In turn, the career bureaucrat can rightly claim they’re not in charge. They’re playing hot potato with the rules that govern your medicine, your food and countless other aspects of your life.

Keep in mind that this year-long study examined only a single department. We don’t know how widespread this practice is in other government agencies (after all, no one really even knows how many government agencies exist, and many are not even authorized). Congress should investigate whether career bureaucrats or politically accountable presidential appointees are writing the rules in each agency.

Perhaps more importantly, President Trump should act. He should remind these elite bureaucrats that the American people put him in charge and that the American people have the final sign-off on the rules that govern their lives. Going forward, the president should require that only Senate-confirmed officials sign-off on his administration’s rules.

With a pen-stroke, President Trump could take power from deep-state bureaucrats and give it back to the American people.

Clint V. Brown is legal policy director for the Pacific Legal Foundation.


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Guest Contributor

5 comments

  • If this is true, which I have no doubt it is, then Trump should have his cabinet review each of their areas of responsibilities and highlight the “rules and regulations ” that have been bureaucratically issued for review of whether or not they should be legitimized or tossed out. That ought to keep them busy.

    • Not only is it true, it has been true for decades. Many of the laws that congress writes are often vague and subject to interpretation. That vagueness is how and where the bureaucracy inserts it’s interpretation of the law.

      Personally, I think what congress does is intentional and the ways and means in which it “grows” the government.

      Moreover, congress has no intentions of reviewing excessive regulations because that would mean work and time away from the campaign trail and raising money.

      Priorities first and doing what they were “hired” to do is not at the top of their lists of priorities.

  • Great article. Very informative. One can only imagine how bad the problem really is. Unconstitutional laws are becoming the new normal.

    How would you go about trying to change things? Lawyers go along with the unconstitutional laws. The ACLU is politically driven and motivated. I mean all these lefty groups will fight for the right of a man to pee in a womens bathroom. Will fight for you to be silenced because they cannot refute your point of view. Then the MSM purports falsely that Trump supporters are racist vile human beings. So is there anything that can be done peacefully about this? I have made phone calls but that goes absolutely no where. I have showed up at my local swamp creature office, again, does nothing. Signed petitions, been a keyboard warrior.

    I love the information received in the article and I say this at every good article. Now what? We have great information let’s not waste let’s do something. People can become informed but if that’s the end game to inform people then we already lost.

    • Jam, I love the information too but a large part of what’s wrong in America today is that most of the news is “infotainment” that’s not meant to inform but to entertain.

      I call much of what suffices today as news, lowbrow cotton candy. It’s light and fluffy and totally forgettable. Moreover, it doesn’t help that most Americans have the attention span of a 5 year old. Even worse, most Gen Xers and millennials have the attitude that the world didn’t begin until the day their were born.

      And you know what? It’s all intentional. The result of a “progressive” education which in truth, isn’t an education but indoctrination. Kids are literally being taught to not think and leave the thinking to their intellectual betters in the government

  • Child support system was deemed Unconstitutional by the Supreme Court back in 1974, but, democrats & lawyers slipped it thru to get passed. RINO Bush Jr., allowed lawyers to write in amendments that protect child support agents from lawsuits & prosucution, thus violating the “rule of law”. Today, the Child Support system, family court judges & lawyers, are nothing more than a crime syndicate, violating equal rights & protection, assisting child support fraud, and commiting federal funding fraud at every opportunity. The laws & Constitution are not observed in family courts.
    It’s not the frivolous lawsuits they were concerned about, it’s legitimate ones.

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