Supreme Decisions Ahead: While the Tea Party "Probably Is Our Best Hope, [Its Adherents] Will Have to Learn ... That the Task Today Is Not to Weaken the Power of Government-It Is to Confine the Government to the Exercise of Its Delegated Powers and to Restore to Its Full Vigor the Partly National, Partly Federal Form of Government That Was the Legacy of the Founders."
Erler, Edward J., USA TODAY
TWO CASES THAT are making their way to the Supreme Court may well in the short term decide the constitutional issue of the reach and extent of the Federal government. At stake, in other words, is the future of limited government. Together, these cases present an exceedingly odd situation. In the case of the Arizona illegal alien law, the Federal government is suing a state for constitutional violations, and in the case of the Patient Protection and Affordable Cam Act--that is, ObamaCare--more than half of the states am suing the Federal government, contesting the Act's constitutionality. It is indeed a litigious season. Yet, the Supreme Court's decisions may not be the last word, because both cases present eminently political issues that ultimately will have to be decided by the American people.
The administrative state, of course, always seeks to extend its reach and magnify its power. This is an intrinsic feature of a system where administration and regulation replace politics as the ordinary means of making policy. If there am to be limits to the reach of the burgeoning administrative state, they will be political limits imposed by the people in the ordinary course of partisan politics.
The advent of the administrative state poses the greatest challenge to limited government because it elevates the welfare of the community--whether real or imagined--over the rights and liberties of individuals. The task today is to confine the Federal government to its delegated powers. The minions of the administrative state seek to destroy constitutional boundaries in their desire to replace politics with administration. This is tantamount to denying that legitimate government derives from the consent of the governed, or that limited government rests on the sovereignty of the people.
One of the proofs offered in the Declaration of Independence that King George was attempting to establish an "absolute Tyranny" over the American colonies was the fact that "He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance."
ObamaCare certainly fits the description of the activities denounced in the Declaration. The number of regulations and the horde of administrators necessary to execute the scheme are staggering. We only have to think here of the Independent Payment Advisory Board. It is a commission of 15 members appointed by the president, charged with the task of reducing Medicare spending. This commission has role-making power that carries the force of law. The Senate, it is true, will have the power to override its decisions--but only with a three-fifths majority. There am no procedures that allow citizens or doctors to appeal the Board's decisions. The administrative state, ere in the guise of providing health cam for all--surely will reduce the people under a kind of tyranny that will insinuate itself into all aspects of American life, destroying liberty by stages until liberty itself becomes only a distant memory.
The advent and extraordinary success of the Tea Party movement, with its emphasis on restoring limited government, has made this a propitious time to rethink what the Framers meant by limited government and how they understood the relationship between limited government and the protection of rights and liberties. It is rare to see a people acting spontaneously in a political cause. The Tea Party movement must be regarded as a testament to the independent spirit--the freedom-loving spirit--of the American people.
How did the Framers understand limited government? In the first place, limited government was not, for the Framers, identical with small government, as the Tea Party sometimes tends to believe. The identification of limited government with small government was the position of the Anti-Federalists who opposed the ratification of the Constitution. Limited government, for the Anti-Federalists, meant government that was too weak to threaten the rights and liberties of the people. …