When society perceives a problem that seeks a solution, it’s
a knee jerk reaction to expect government to provide the answer. But, the same conditions necessary for
government agencies to be proactive in solving problems, also insulates them
from actually fulfilling their duties and worst of all allows them to set and then
carry out their own agendas.
Government requires a burgeoning superstructure of agencies
populated with officials to function; these officials on all levels of
government demand a great deal of discretion to carry out their duties. Bureaucratic discretion has expanded
exponentially as a consequence of the growing complexity of the duties government
is being asked to perform.
Prior to 1935 the courts held to a non-delegation theory when
it came to government agencies creating policy.
This theory was based on Article I of the Constitution which provides
"all legislative Powers herein granted shall be vested
in a Congress of the United States;" therefore, allowing agencies the
power to create policy was seen as a delegation of the power to legislate. After the New Deal, the courts relaxed their
restrictions on legislators, allowing them to delegate powers to make national
policy to non-elected bodies such as administrative agencies. This has opened the floodgates to an
escalation of discretion, which has percolated down to the states and local
jurisdictions. Government officials, federal, state and local have in essence
become ad hoc legislators as they create the regulations that allow them to
wield their ever expanding discretion.
Under these conditions of burgeoning discretion, public
officials are inclined to use their discretion as a prerogative in resolving
competing political claims, often at the expense of applying the best solution
to the problem. A political system which
gives power and immunity to a handful of the people is corruptible and I
believe already corrupted. Public officials
are not hesitant to exercise broad discretionary power, because the reviewing
courts tend to routinely defer to agencies expertise. This highlights the
problem faced by the individual public official who may be pulled politically
in more than one direction, personal political loyalties often sway government
officials, influencing and sometimes dictating their decisions.
…in the course of a long life my opinion
of government has steadily worsened:
the more intelligently they try to act
(as distinguished from simply following an
established rule), the more harm they
seem to do – because once they are known
to aim at particular goals (rather than
merely maintaining a self-correcting order)
the less they can avoid serving
sectional interest.” - F.A. Hayek
The government’s discretion continues to expand as
legislators persist in passing loosely or vaguely stated laws couched in
complicated language, leaving government agencies the power to fill in the
details; fundamentally giving the administrative agencies the opportunity
define their own level of discretion.
This discretion has become so broad that in many cases the government can
virtually operate by fiat; they can treat two people in similar circumstances
in completely opposite ways. Even if we
could make laws that were clear and unambiguous, we cannot make individuals who
exercise them without bias. The way one
interprets law is always affected by one's self determined moral and political
beliefs. Besides their broad discretion,
these bureaucratic rulers-of-the-laws enjoy a remnant of sovereign immunity that protects “public” officials
from legal tort action when operating within their area of discretion; this
immunity is maintained “whether or
not the discretion involved is abused.”
Many government officials increasingly see this discretion
as a prerogative or a right. A startling example of this abuse of discretion by
a government official occurred on the national stage when Katherine Harris, the
Secretary of State in Florida, called an end to the vote count. It is my contention that the secretary of
state abused her discretion by calling off the vote; the result of this
decision ultimately handed George W. Bush the keys to the White House.
The Secretary of State claimed the discretion entrusted to
her made it her “prerogative” to end the vote count, by this she meant it was
her right to make any decision she wished.
But in fact, it was the Secretary of States duty to ensure that the
voting process was fair and impartial, therefore, her duty as the Secretary of
State required Katherine Harris use her discretion to extend the
deadline and to make a reasonable attempt to get a fair count. It would be difficult to argue Katherine
Harris, as a Bush appointee and operative, was not motivated by a political
agenda when she called off the vote; as such this was an abuse of discretion, a
transgression against democracy and the American people.
This growth of discretion, together with its abuse, is the
greatest threat to our personal freedom and welfare. The American Revolution was conducted to put
an end to the monarchs arbitrary edicts and fiats, to create a “government of
laws”, but we have arrived at a situation were an entrenched bureaucracy with
its expanding discretion now has the power to dictate the political agenda and
by extension the public agenda.
The claim that “we are governed by the rule of law” masks
the fact that laws are administered by individuals that come to the table with
their own agendas. With their broad
operation of discretion, government officials are increasingly able to use their
positions of power to determine the winners and the losers. In short, the laws are continually being
skewed in actual application towards meeting the agenda of those entrusted to
administer it, rather than to the will of the people.
"A government big enough to give you everything you
want, is strong enough to take everything you have."
— Thomas Jefferson
— Thomas Jefferson
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