The Publisher’s Desk – April 15, 2018

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CONSTITUTIONALLY SPEAKING – PART 3 – The Administrative State

by Joe Tortorici

US Constitution

In the final conversation of this series, it’s worthy to note it will never be enough to jot down a few words and consider anything fully explained regarding the United States Constitution. Tomes have been written on the subject and provide nothing but more fodder for debate. The Supreme Court wrangles over constitutional interpretations daily. This series was intended to dispel some obvious misinterpretations, at least within the current legal context. And so…

There is no such thing as the “deep state.” It is a vaporous term meant to frighten children about the monster under the bed. The term ‘deep state’ was defined in 2014 by Mike Lofgren, a former Republican U.S. congressional aide, as “a hybrid association of elements of government and parts of top-level finance and industry that is effectively able to govern the United States without reference to the consent of the governed as expressed through the formal political process.” In short, a conspiracy theory.

Any conspiracy is near-impossible to execute without discovery. The more persons involved in a grand vision of secrets and manipulation, the greater a risk of discovery. This premise eliminates the notion of a national conspiracy or governmental intelligence conspiracy. Our government is grossly over-populated. Aside from such documented features as a “separation of powers” and “rule of law,” there are too many people involved in government to maintain an effective secret agenda. Subterfuge inevitably reveals itself.

We do, however, function in a gargantuan administrative state. If you have any doubt, look at your local infrastructure. Go to the DMV for a driver’s license. Wait in the seating area at your local Social Security office. See it now? Don’t start screaming, it will do no good. You are at the mercy of an immense bureaucracy. The policies and procedures of any government agency seem to have grown exponentially over the years. To make matter worse, in the course of interacting with the bureaucracy, one will find the extremes of dedicated civil servants to seat-warmers with a red button on the right, green button on the left.

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In reality, few of the rules of public law come from Congress or state legislatures. A vast number come from special-purpose agencies: the Securities Exchange commission, the Federal Trade Commission, the environmental Protection Agency, and so on. These agencies regulate financial markets, the media, workplaces, health insurance, pensions and products from autos to pharmaceuticals, and yes, lawn darts. The Consumer Product Safety Commission banned them.

The Constitution envisioned some bureaucracies. Standing armies need to be maintained; tariffs administered; taxes assessed and collected; patents registered; the mail delivered; and a census taken every ten years. It is a very complex society in which we live; far more complex and certainly more populated than the founding fathers could foresee. What did the world know of mass media or public transportation in the 18th century? How is it possible to avoid mass chaos without an “administrative state?” The framers of our Constitution could only establish the foundation for making decisions.

The administrative state is the de facto “fourth branch” of our government. A headless, autonomous subdivision providing the asymmetrical nervous system of our daily governmental process. It is vital to our survival. We can opt for a smaller government, but the threshold of viability lies close to the surface.

There is no “deep state.” There is a nation grown from thirteen states and approximately four million people, an agrarian back-water, to fifty states and three-hundred million people, leading the world… for now. It is the oldest existing national constitution in the world and a triumph of civilized society.

I encourage you to pick up a copy through Amazon. Good government is made by informed people that show up. Be informed.

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