Viewpoints: Beware of too much power in executive branch

08/30/2014 12:00 AM

08/28/2014 4:36 PM

Last week marked the 2,000th anniversary of the death of Caesar Augustus, known to most as the first Roman emperor. During a time of financial and military upheaval, he slowly transformed the republic and its several healthy branches of government into one-man rule, with power concentrated in the executive.

Perhaps the most fascinating aspect of the Augustan revolution is that few of his contemporaries understood or chose to notice the extent of this transformation during his lifetime. So subtle were the changes, so gradual and ostensibly precedent-based were his accretions of power, that the great historian Tacitus stated it was only when the powers passed to Augustus’s successor that the fate of the republic became clear.

Could such a transformation happen to our republic?

Perhaps one is already underway, with few noticing. Let’s be clear: Neither President Barack Obama nor Gov. Jerry Brown harbor imperial ambitions. But the executive branches at the state and federal level have grown so vastly in size, power and scope in recent decades that our founding fathers would scarcely recognize them. When George Washington was president, he headed a federal government of just three departments: State, War and Treasury. Now, there are 15.

But the growth of the bureaucracy is not the most startling quality of an augmented executive branch. Instead, it is the advent of unelected “regulatory” agencies being allowed to make law. As any civics student knows, the legislative branch is supposed to pass laws, the executive is supposed to enforce them and the courts are supposed to arbitrate any ambiguities. Of these branches, our founding fathers believed the legislative was the most important and most accountable to the people.

Now it is the executive branch that makes most “laws.” They are called regulations, but they have the effect of law and are just as binding. Yet these bureaucrats were never elected and do not answer to the people. By appointing people to these executive agencies and by telling them what to do, a governor or president can broadly dictate the day-to-day affairs of millions of Americans with almost no outward signs of wielding that power. And if a legislature dares to try to override some regulation, the governor or president can simply veto the bill.

This is a serious imbalance of power.

Nowhere is this change in governmental structure more powerful than in California. We have state agencies that affect how much your gasoline costs, where the next freeway will be built, which community will get a train running through it, which state park will remain open, etc. In many cases, the first interpretation of its own regulations (traditionally a function of the judiciary) is vested in the same agency. Many agencies have enforcement powers through the ability to levy fines.

Recently, we have seen mounting criticism targeted toward one agency, the California Air Resources Board. While some defend the board’s policies, others say that it has enacted complex policies with little legislative oversight, some of which could affect gasoline prices in California, and others that could even impact the price of wheat in Haiti and rice in Bangladesh. Commentators, including those who generally support environmental regulation, are starting to question whether it would be wiser to have straightforward, publicly vetted legislation, passed by elected officials, as opposed to complicated, arcane regulations from unelected appointees likely to resist oversight.

Whether this controversy surrounding the Air Resources Board indicates genuine anger toward the changing system or just reflects the board’s less-than-stellar public relations, one thing is certain: Citizens of all stripes would be wise to pay attention. It doesn’t take someone with the historical perspective of Tacitus to understand how much freedom we will surrender if we continue down the path of executive branch dominance.

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