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The right to direct the use of police powers-the right to make laws-is an extremely valuable chattel. That fact was not lost on the architects of political democracy in the United States. They displayed remarkable ingenuity in devising a governmental structure calculated to prevent the development of a market in which those who had legislative power could sell the use of the police powers to interested parties.
For example, the Founding Fathers created a bicameral legislature so that statutes had to be approved by two assemblies, and the path to approval was further impeded by having the two assemblies selected by different constituencies.
They lodged legislative veto power in the executive. They fostered interstate competition by limiting the role of the federal government and assigning residual powers to the states.
And they created a constitutional government. Explicit limits on legislatures and the executive were codified in a written document, and a Supreme Court was established to ensure adherence to its provisions. What is most distressing about the performance of our democracy is the ultimate failure of this sophisticated system. Any realistic appraisal of what legislators spend their time doing today can arrive at only one conclusion. Legislatures- Congress is the prime example-are not engaged in the enactment of statutes for the general welfare, that is, which foster an increase in the size of the economic pie. Instead, the predominant focus of their activities is on exercising the police powers to take from some groups and bestow goodies on other groups, generally reducing the size of the pie in the process.
The propensity for governments to move in this direction was recognized early on by Thomas Jefferson, who wrote in a letter to Edward Carrington: "The natural progress of things is for liberty to yield and government to gain ground.... One of the most profound preferences in human nature is for satisfying one's needs and desires with the least possible exertion; for appropriating wealth produced by the labor of others, rather than producing it by one's own labor...
"The stronger and more centralized the government... the weaker the producer, the less consideration need be given him and the more might be taken away from him."
As prescient as Jefferson and his colleagues were, it's unlikely they could have predicted that Congress would eventually carve out for itself the role of a "super-court." But it has. It now functions like a civil court; it dispenses "justice," but it does so without any of the discipline imposed on the judiciary. It is not constrained in its decisions by any commitment to precedent; nor is its purview restricted by procedural canons limiting the rights of parties to bring actions before it. Meanwhile, its verdicts transcend all other law, including the Constitution itself.
The accumulation of power in Congress has not been limited to the legislative domain. Since World War II Congress has systematically and dramatically arrogated to itself an extensive array of executive and administrative powers as well, mostly at the expense of the executive. Nowhere is congressional power more obvious than in the budget process. By slicing larger and larger budgets more and more thinly, Congress controls the activities of executive departments and independent agencies down to minute details.
The power that Congress now has to require that the President spend money that it appropriates is a prime example of congressional imperialism. Congress has used the Vietnam War to adorn itself with new authority in the foreign policy and defense arenas. The President of the United States may be the commander-in-chief of the armed services, but he would be hard pressed to commit US armed forces on any but the most modest scale without the blessings of Congress.
Congress has learned to flex its legislative muscles, especially its budget authority, to control directly actions by the executive departments and independent agencies, such as the Federal Communications Commission. And "control" in this context means not only influencing policy, but getting favors done for individual constituents.
It is only a modest exaggeration today to say that Congress is the government. That is why the congressional staff now numbers in the thousands.
How has all this come to pass? How has Congress managed not only to expropriate the emperor's robes, but also to expand enormously the wardrobe? The answer, I believe, lies in the representative nature of lawmaking. Our representatives are simply capitalizing on the opportunity they have to market the use of the police powers.
Of course, it is illegal for them to peddle those powers for cash to be deposited in their private bank accounts. Not very surprisingly, this legal constraint often alters the form that exchanges take but does not eliminate them. Obliquely selling the use of the police powers in exchange for campaign support, for example, is standard practice.
The market for use of the police powers has grown continuously since the days of the Continental Congress, partly because of spectacular reductions in two classes of associated costs. One of these is the cost of enforcing laws. The decline in enforcement costs means that congressmen can now offer a more valuable product for sale.
When we were a nation of small farms, shops, and stores, big government was simply impractical. Law enforcement costs were so large that extensive taxation, regulation, etc., were not feasible.