Liz Wheeler on How to Drain the Swamp
A site member posted a link to a video on Saturday. It's on the Deep State, the swamp, and administrative law.
It is presented by Liz Wheeler. I had never heard of Liz Wheeler. My mistake. She has 225,000 followers on YouTube.
This is the most perceptive brief analysis I have ever heard on administrative law. She correctly identifies this as the reason why no President can drain the swamp.
She correctly identifies the constitutional issue: the separation of powers. This principle has been violated for a century. First, Congress has acquiesced to the President and the executive branch in exercising legal sovereignty that belongs only to Congress. Second, the Supreme Court has gone along with this.
She goes into the background. She has it 90% correct. She blames the Progressives. Specifically, she blames Woodrow Wilson. Then she blames Franklin Roosevelt and Lyndon Johnson.
She does not trace this transfer of sovereignty to its origins. This weakens her presentation. She makes the solution sound easier than it really is . . . and she does not make it sound easy.
THE TRANSFER OF SOVEREIGNTY
1. The First Bank of the United States: 1791
The first major transfer of sovereignty by Congress was the creation of the First Bank of the United States in 1791. This was a government agency, yet it was owned by private investors. They collected monopolistic profits from this government agency. They controlled the banking system.
The Bank was Alexander Hamilton's brainchild, modeled after the Bank of England. Wikipedia reports:
The establishment of the bank also raised early questions of constitutionality in the new government. Hamilton, then Secretary of the Treasury, argued that the bank was an effective means to utilize the authorized powers of the government implied under the law of the Constitution. Secretary of State Thomas Jefferson argued that the bank violated traditional property laws and that its relevance to constitutionally authorized powers was weak. Another argument came from James Madison, who believed Congress had not received the power to incorporate a bank or any other governmental agency. His argument rested primarily on the Tenth Amendment: that all powers not endowed to Congress are retained by the States (or the people). Additionally, his belief was that if the Constitution's writers had wanted Congress to have such power, they would have made it explicit.
Hamilton was a Federalist/statist. President Washington supported Hamilton, and Congress passed the law.
The Bank lapsed after two decades. The Senate refused to renew its charter -- by one vote. The Vice President voted against it. Madison agreed with him. The assets of the now private bank were bought by Stephen Girard, America's richest man.
Five years later, Madison switched sides. He supported the creation of the Second Bank. Girard owned it.
2. Judicial Review: 1803
The second major transfer of sovereignty by Congress was a far more fundamental transfer: from Congress to the Supreme Court. Chief Justice John Marshall, a Federalist, speaking for the Court -- as he did about 500 times from 1803 to his death in 1836 -- overturned a presidential appointment. This was the crucial case, Marbury v. Madison (1803). This case is generally regarded as the Court's most important decision. It claimed for itself the right of judicial review, its key power, and one which is not specified in the Constitution.
In his final days as President, Federalist/statist John Adams made an appointment to the judiciary. A few of the appointees had not received their papers. President Jefferson told Secretary of State James Madison not to deliver them. Marbury sued the government to get his position. Wikipedia summarizes what happened next.
In an opinion written by Chief Justice John Marshall, the Court held firstly that Madison's refusal to deliver Marbury's commission was illegal, and secondly that it was normally proper for a court in such situations to order the government official in question to deliver the commission. However, in Marbury's case, the Court did not order Madison to comply. Examining the section of the law Congress had passed that gave the Supreme Court jurisdiction over types of cases like Marbury's, Marshall found that it had expanded the definition of the Supreme Court's jurisdiction beyond what was originally set down in the U.S. Constitution. Marshall then struck down that section of the law, announcing that American courts have the power to invalidate laws that they find to violate the Constitution. Because this meant the Court had no jurisdiction over the case, it could not issue the writ that Marbury had requested.
Because President Jefferson, an anti-Federalist, got what he wanted -- his appointment -- he did not complain. His silence validated the legitimacy of the Court's declaration of sovereignty. This was the biggest power grab in post-1788 American history. (The biggest power grab was in 1787-88, as I explain in my book, Conspiracy in Philadelphia, and which Murray Rothbard explains in Parts III-VI of Volume 5 of Conceived in Liberty.)
3. The Second Bank of the United States: 1816
The next major transfer of Congressional sovereignty came in 1816: the creation of the Second Bank of the United States. Congress transferred federal sovereignty to another privately owned, profit-seeking bank. It henceforth established monetary policy for the U.S. government, just as the First Bank had. Madison signed this bill into law in the final year of his presidency.
The state of Maryland attempted to tax a branch of the Bank under its jurisdiction. The branch refused to pay, as ordered by the head of the Bank in Philadelphia. A bank officer, McCullough, refused to pay. The state attempted to collect the money, so McCullough sued the state. The case was McCullough v. Maryland (1819). In this case, Marshall and the Court decided in favor of the bank. The state had no authority to tax it. In his decision, he wrote his most widely quoted statement: "The power to tax is the power to destroy." But the Court never addressed the crucial point of law raised by the state of Maryland: Congress has no authority to transfer its sovereignty to a private entity. That set a precedent by silence. Congress can lawfully transfer its sovereignty.
President Jackson fought the rechartering of the Bank in the election of 1832. He vetoed the bill. He was re-elected. The Bank ceased to be a government agency in 1836, when its charter expired. It went bankrupt in 1841.
CIVIL SERVICE LAWS AND IMMUNE BUREAUCRATS
Civil Service laws protect executive appointees from being fired. These are laws that restrict democracy. This debate goes back to Thomas Jefferson. Wikipedia reports:
In 1801 President Thomas Jefferson, alarmed that Federalists dominated the civil service and the army, identified the party affiliation of office holders and systematically appointed Democratic-Republicans. Andrew Jackson in 1829 began the systematic rotation of officeholders after four years, replacing them with his partisans in a controversial move. By the 1830s the "spoils system" meant the systematic replacement of officeholders every time the government changed party hands.
In 1883, Congress passed the Civil Service Reform Act, known as the Pendleton Act. This law created immunity for a limited number of executive office employees. They could no longer be fired by an incoming President after an election. This was the first successful legislative assault on the spoils system, which was a pejorative phrase. The phrase "spoils system" meant "democracy." Civil Service laws create continuity of government. They do this at the expense of the democratic system. Civil Service laws were early an aspect of the Progressive movement.
Today, only about 4,000 bureaucrats may be fired by an incoming President.
The Civil Service-protected system is the Deep State. It is incorrect and highly misleading to identify the Deep State as the CIA, NSA, FBI, and other intelligence agencies that nobody can remember. The entire system is the Deep State.
PROGRESSIVES INCLUDED REPUBLICANS
Progressivism's first President was not Woodrow Wilson. It was Teddy Roosevelt. His hand-picked successor in 1908, William Howard Taft, was also a Progressive. Wilson was the third candidate in 1912. That election guaranteed the election of a Progressive.
INTERNATIONAL
The rise of the administrative law system is international. Harold Berman, who taught the history of law at Harvard University a generation ago, wrote Law and Revolution. Harvard University Press published it in 1983. The Introduction details the rise of administrative law. Administrative law is an assault on the separation of powers. Executive agencies have the power to try people and companies in their own courts. Then they hand down decisions, which usually favor the agencies' interpretation of the law. Then the executive branch enforces the law.
Berman concluded that this system is the greatest threat to the Western legal tradition since its creation in 1076. Most of his Introduction is posted here.
Here is the problem, as I wrote on January 13:
Politics is also peripheral to the actual administrative system that runs the country. Politics has almost no impact on the actual operations of American government. Then what does? The massive federal bureaucracy that runs the country. This has been true since the end of World War II. This doesn't change. Again, I keep harping on this, but it doesn't sink into the consciousness of some members of this site. Politics is peripheral to it because politics barely affects the administrative system at the top. Even when there are political changes at the top, they are implemented by the bureaucracy, which continues to grow. It is administrative law, not the laws as interpreted by the nation's independent system of state and federal courts, which controls the direction of the United States and every other Western society. That was Harold Berman's point in Law and Revolution (1983). He was correct.
CONCLUSION
She has offered a fine overview of the immediate problem. It has four main weaknesses. First, she does not point out that the problem has been bipartisan ever since 1909: Taft's presidency. Second, she does not trace back the destruction of the separation of powers to the mastermind who created it in constitutional law: Chief Justice John Marshall. Third, she does not make the case that the Civil Service system is almost 140 years old and is basic to American government. Fourth, she does not reveal that it is an international development that stretches back across the West for over a century.
The Deep State has paralleled the rise of the bipartisan Progressive movement, which included the creation of the Federal Reserve System in 1913. It has always been based on this premise: independent from politics.
There is only one way to drain the swamp: de-fund it. The voters are unwilling to do this. They want "free money" from the national governments. This money must be administered. This is the bottom line of the Deep State. The voters love the money delivered from deep inside the swamp.