The Accidental Libertarian

The Accidental Libertarian

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Not Looking a Gift Horse’s Ass in the Mouth

©2017  Ross Williams

As a libertarian, I rate politicians and political policy on one criterion: What is the politician doing, what does the policy do, to reverse past power abuses and bring them back into line with strict Constitutional limitations of government power?  I don’t care which party creates the policy.  I don’t care whether the politician is bombastic, a buffoon or a boor.  Those are completely irrelevant.  This is politics; I’m not screening guests for a dinner party.

Needless to say, for the last several presidential administrations I have been extremely disappointed. …in both the presidents we’ve collected and their concurrent Congresses.  Congress has passed a bazillion laws which grasp political power not defined to belong to the government, and the president has [mostly] faithfully enforced those laws.  Oh, sure, the party out of power would raise tear-stained, and sometimes panty-wetting, objections to those laws, but one administration later the critics of those laws would take the White House and wield the new law like a cudgel.

Example? Sure:
Republicans abhorred Obamacare − the thoroughly misnamed “affordable” “care” act, which gives neither.  And when they had a majority in Congress from 2011 to 2016 while its namesake was in the leather chair, they voted to repeal it and the horse it rode in on multiple times.  Barry Hussein slapped a veto on it with the speed of a lightning bolt.  But when a president gets elected who would not veto a repeal, republicans are suddenly pondering the political uses an all-controlling mandatory health statute might have, with the nearly infinite regulatory power it gives them.

Need another? Fine:
Democrats detested the imperial powers given to the executive branch in the immediate aftermath of 9-11, despite them being complicit in it.  They woke up a few months after their swoon of unitary patriotism to discover they’d created a RealID Act to be administered by the Orwellian Department of Homeland Security.  The Dubya administration used the eVerify portion of it to ensure that only Americans or foreigners with properly forged paperwork could work for defense contractors.  Barry Hussein got elected by 50 million people who complained about RealID, and suddenly eVerify was a universal requirement.  Die dokumenten, Mein Herr!

Need a third? Great:
Democrats staged multiple public hissy fits over Dubya’s perceived and actual [but mostly perceived] laxity in obtaining FISA warrants to gain intel through domestic espionage on a relatively small portion of Americans who made phone calls to terrorists.  Then Barry Hussein gets elected and orders his NSA to spy on, literally, millions of Americans, mostly those who were “the enemy” of other political parties, and sidestepping FISA courts altogether.  …which explains why Edward Snowden is in exile while Bradley Manning gets an effective do-over.

These are just a handful of the major examples.  Knowing the rest of the libertarian crowd, there will be another thousand examples of political hypocrisy, more or less worthy, added to the list within five minutes.  It’s what we do.

Needless to say, there hasn’t been a president since Reagan who acted in any material way to correct prior abuses of power by the government.  Until now.

Donnie Combover, our cheeto president, despite advocating power abuses of his own, has done more to restrict prior abuses of government power than all presidents since the Alzheimer Kid left office.  Combined … zero plus zero plus zero plus zero equals zero.  Period.  That answer isn’t going to change, and libertarians simply need to get over themselves about it.

Specifically, he has single-handedly cut around $100 billion dollars from the pocketbooks of regulatory agencies.  So what, you ask?  Good question … and thank you for paying attention.

A regulation is a rule invented by an executive branch hireling sitting under the healthful glow of fluorescent lights in a six-by-six cubicle in the basement of a government office building in the DC Beltway.  A regulation is a rule “with the weight of law”, according to federal courts.  None of these courts, to include the US Supreme Court, give any indication that they’ve ever read the US Constitution.  If they had, they’d immediately recognize that only Congress has the power to make laws; the executive branch may merely enforce them.

“Oh! But!” the quibbledicks will chime in, “Congress did make the law.  They made the law that gave the power to invent regulations to a specific cabinet-level department of the executive branch.  And by inventing regulations, that agency is enforcing the law!”  Ah, yes, falling back on the old Abdication of Legislative Authority Clause found in Article I Section 8 of the US Constitution.  Or … wait … there is no such clause, and Congress doesn’t have the legitimate power to punt.  Even if the courts say they do.

So the hireling, glowing pale green from his fluorescent tan, writes a rule “with the weight of law”, and kicks it upstairs to the suits in his agency to enforce.  The suits then march around the nation and enforce the regulation.  And those accused of violating the regulation will have their day in court, where the evidence of their non-compliance will be aired, they’ll get to defend themselves, and a jury picks the winner … right?

Wrong.

Regulatory enforcement is not law enforcement.  Under law enforcement, an accused is “innocent until proven guilty”, according to the bumper stickers.  The evidence of his guilt is brought out, he gets to rebut that evidence, and a jury decides.  Under law enforcement, the government has the burden of proof.

Under regulatory enforcement, the accused is guilty until he proves himself innocent.  The actual law behind the regulation was written for the regulatory agency; that agency is complying with the law, and they’ve decided that you have interfered with their compliance.  Under regulatory enforcement, the citizen has the burden of proof.  And because a jury is the privilege of the defendant − in this case, the regulatory agency accused of improperly complying with the law giving them regulatory power − the government would be stupid to request a jury. They are perfectly happy with the Administrative Law judge, one of their own, making the ruling himself.

While you are tilting this windmill, please keep in mind that the regulatory agency has at its disposal several hundred billion dollars with which to employ a fleet of on-staff loyyers all extremely knowledgeable of the regulation in question and the zillion legal maneuvers invented to cause delay and rack up Billable Hours of your loyyer. …the loyyer you hired to take on the federal regulatory agency which has seized your home because you have a pond frequented by a migrating mosquito, or because you gave a pail of your cow’s fresh milk to a neighbor while you were all snowed in for three days.  You are simply going to run out of money first and the government will win by default.  Government almost never loses a challenge to their regulatory enforcement.

I don’t think I need to remind anyone that this “guilty until proven innocent” paradigm is the historical standard by which all governments operate, and against which we revolted in the first place.  “He has erected a multitude of new offices and sent hither swarms of officers to harass our people and eat out their substance”.  Anyone?  Bueller?

This is tyranny, the old-fashioned word that has been effectively replaced by “fascism”.  All-powerful central government doing what it wants, when it wants, because it wants.  This method of governance is arguably the most anti-libertarian you can get, and should be the primary target of libertarian ire, even over gun rights.  A government that doesn’t abuse its power doesn’t need to be defended against.  Under regulatory enforcement, there is no Due Process to get in the way.  All the process that is considered due has already been served by the government itself.  Convenient, no?

President Cheeto has provided a hundred billion dollar dent in this machine.  This is not inconsiderable.  Depending on how the departments wish to divvy up their dwindling funds, either creation of new rules is hindered, or the enforcement of old rules will be curtailed.  Or both.  There is a reason the Deep State swamp of Beltway Bureaucracy loathes Donnie Combover.  He stated an intention of impeding their ability to exercise power with virtually impunity, and he’s actually taking actions toward that end.  The first time in over a generation.

Not enough action?  Perhaps.  Is he only impeding those regulatory agencies that run afoul of his political priorities?  Duh.  Both just like Reagan, for what it’s worth.

Look, the guy isn’t Calvin Coolidge.  Libertarians must take what they can get when they can get it.  We’ve been handed a gift from an unlikely source, a gift we all need.  Pretend you have manners; say thank you.