Do Unelected Officials Have Too Much Power?

President-elect Donald Trump didn’t waste any time making picks for top-level positions.

This week is now "go" time, as it’s filled with the first set of confirmation hearings for his Cabinet appointees. That includes Sen. Jeff Sessions (R-Ala.) for Attorney General and Rex Tillerson for Secretary of State.

And at his first press conference since July, yesterday Trump revealed his plan to nominate David Shulkin as Secretary of Veterans Affairs.

You can bet Trump will have a battle on his hands with many, if not most, of his picks. Congress may not approve of his unorthodox team.

As of this writing, his other selections include:

  Scott Pruitt — Administrator of the Environmental Protection Agency

  Betsy DeVos — Secretary of Education

  Gov. Rick Perry — Secretary of Energy

  General James Mattis — Secretary of Defense

  General John Kelly — Secretary of Homeland Security

  General Michael Flynn — National Security Adviser

  Steven Mnuchin — Secretary of the Treasury

  Andy Puzder — Secretary of Labor

  Gary Cohn — Top Economic Adviser

  Rep. Ryan Zinke (R-Mont.) — Secretary of Interior

  Ben Carson — Secretary of Housing and Urban Development

  Rep. Mick Mulvaney (R-S.C.) — Director of Office of Management and Budget

Sen. Bernie Sanders (D-Vt.) isn’t cutting Trump any slack. The former presidential candidate recently went on a scathing Twitter rant using the hashtag #RiggedCabinet.

Americans aren’t overly excited either with how the incoming president is handling his transition. In fact, Gallup found that 48% approve and 48% disapprove.

By contrast, 65% or more approved of the way the past three presidents-elect were handling their transitions at similar points in time. (Including 75% for Barack Obama in December 2008.)

We’ve only seen two days’ worth of confirmation hearings so far. As the fireworks ramp-up in earnest in Washington and Trump continues to build his administration, you might ask yourself:

Do these unelected men and women who oversee federal agencies have too much power?

A federal appeals court thinks so …

Circuit Judge Brett Kavanaugh wrote in a recent ruling about Richard Cordray’s position as director of the Consumer Financial Protection Bureau. (You might recall the CFPB’s record fine against Wells Fargo):

"The independent agencies collectively constitute, in effect, a headless fourth branch of the U.S. Government. They exercise enormous power over the economic and social life of the United States.

Because of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances."

Justice Antonin Scalia once voiced a similar concern,

"Too many important decisions of the Federal Government are made nowadays by unelected agency officials … rather than by the people’s representatives in Congress."

And Justice Breyer summed up the situation with,

"The public now relies more heavily on courts to ensure the fairness and rationality of agency decisions."

This has given rise to the fourth branch of government. According to The Washington Post, there were times when President Obama insisted he knew nothing about major decisions in the State Department, the Justice Department or the Internal Revenue Service.

How is that possible? It may not be. But there is certainly a lawmaking boondoggle that law-abiding citizens should be aware of

Congress complains that they’re overworked. So, they let federal agencies draft regulations. And we end up with thousands of regulations written by bureaucrats who ultimately report to an unelected top dog.

This rulemaking authority comes with little accountability. It’s often impossible to know, unless there’s a major scandal, who to blame for rules that are abusive or ridiculous.

And to make it even worse, Congress created administrative courts tied to individual agencies. The result is that you are 10 times more likely to be tried by the agency that wrote the regulation you are accused of violating than by an actual court. 

Some in Congress are pushing to limit the power of unelected officials with the …

The 2016 Separation of Powers Restoration Act

The Act is meant to undo a decades-old court precedent that gives agencies leeway in carrying out points of laws Congress didn’t want to deal with. 

Rep. John Ratcliffe (R-Texas), who introduced the measure in the House, said,

"The constituents I represent aren’t just frustrated with the enormous quantity of regulations being rolled out by unelected federal bureaucrats. They’re fed up with the lack of accountability administrative agencies have when they make all these rules out of thin air."

H.R. 4768 passed the House on July 12 (240 – 171). Now it’s with the Senate as S.2724.

So if you agree that our lazy Congress needs to stop passing the buck for the job we’ve elected them to do, let your Senators know here.

A final thought on Trump’s upcoming picks …

President Obama appointed Daniel Ashe to run the U.S. Fish & Wildlife Service (FWS) in 2011. Whether Trump will keep him onboard is unknown.

"Too many important decisions of the Federal Government are made nowadays by unelected agency officials … rather than by the people’s representatives in Congress." — Justice Antonin Scalia

But one example of the power an unelected high-level official like Ashe has can’t be overlooked. And that is his mission to save the Key Largo woodrat (Neotoma floridana smalli).

His first step was to declare war on cats.

The cuddly targets of Ashe’s taxpayer-financed trapping operation were allegedly trespassing on federal land and doing what cats do best: hunt and kill rats.

Instead of focusing only on capturing the large swaths of feral cats that pose the primary threat to the rats’ survival on the island, the overzealous Ashe and his FWS posse concocted a sting operation.

According to loyal cat owners who live adjacent to the federal park, agents set baited traps adjacent to private property to lure the furry critters.

Armed officers, authorized to arrest and use deadly force on anyone who interferes, man the front line.

Who will carry on the battle against cats, Ashe or a replacement?

In either case, he or she should pay attention to what one cat lover wrote in her recent blog: Those who hate cats, come back as rats.

The Sound Dollar Campaign