Civil servants run the country

You’re probably familiar with the process by which a bill is introduced into Congress and then bill becomes a law – the legislative process outlined in the Constitution.

If you believe that this process still creates laws in any meaningful sense, you’re understanding of how laws are made is out-of-date by 70+ years. FDR did many things when he overthrew the old government. One of those was replacing the old legislative process with what we now know as the notice and comment “rulemaking” process.

Modern laws are called “regulations” or “rules” to maintain a veneer of Constitutionality. The Constitution requires laws to be made by Congress, so to get around that requirement, we’ve renamed laws. If you break a regulation or a rule, you’re still subject to punishment.

Wikipedia actually summarizes the process nicely, in the way that only Wikipedia can: “In administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.”

Note that the elected legislature has been shoved into the background. Someone decides that a new rule (not law, please) needs to be implemented. This “someone” can easily be – and generally is – the same agency that will implement the regulations. Often this someone actually writes the draft legislative language and gives it to Congressmen – hence the Congressmen can sponsor a law that he has never read. This legislation is vague and unclear enough to allow an agency to actually decide what the regulations should say. The legislative process is messy and subject to transparency requirements, so the details are best left to the bureaucracy and the rulemaking process.

The internet allows us to see a glimpse of how this process really works. Earlier this year, Congress decided to pass a law “protecting” airline passengers. What did Congress actually do? They asked the Department of Transportation to protect passengers. The Department of Transportation is now implementing that law. One of the DOT’s proposed rules to implement the legislation is here.

One way to get a glimpse of who’s really is charge is to go here and read the letter in pdf. First, notice that the letter is written to DOT by the very same Senators that passed the law. The Senators “believe consumers are entitled to full and honest disclosure of all fees and charges associated with air travel before they purchase a ticket, whether directly from an airline or from a third-party intermediary.”

If the Senators believed this, why didn’t they put it in the law? Isn’t that how democratic government is supposed to work?

That’s not how government works anymore. Now, if Senators want the law to do something, they need to beg civil servants to make it happen. Who is in charge here? I think it’s pretty clear.