In high school we learned that there were three branches of government.
- The legislative: whose job was to make the law.
- The judicial: whose job was to apply and sometimes interpret the law.
- The executive: whose job was to enforce the law.
It was a good system, the laws that the people would have to live under were made either directly by the people through ballot initiative, or by the Legislature – the branch of government closest to the people. Now we increasingly see that laws in effect are being made by the judicial and executive branches and the result is a direct loss by the people of the ability to govern themselves.
It didn’t happen overnight, the process was slow. At times, almost imperceptible. But it happened and now we find ourselves strangled by bureaucratic regulations and court decisions that routinely over turn the will of the vast majority of the people.
Case in point: the federal clean water act- a great idea. Who could be against clean water? But in the hands of a zealous environmental protection agency, it’s interpreted to give almost dictatorial control of private property by controlling seasonal puddles that the agency defines as wetlands. In this case, Congress passes a law that is 100 pages and a bureaucratic agency through rule making authority will expand the original law into a regulatory behemoth containing hundreds of thousands of individual regulations, each caring the weight of law.
As a citizenry we know that we are losing our freedoms, but we can’t quite put our finger on how it’s happening. It’s not just happening at the federal level, right here in Montana we have two current cases were a law was passed and government bureaucrats either vastly expanded the scope of the law or changed the original intent. The first is called the Dark Money Campaign Finance Reform Bill better known as the “Incumbent Protection Act” because it makes citizen involvement in the election process much more difficult. In this case, a bare bones bill was passed, but within the bill was an incredible amount of rulemaking authority. A mechanism that in effect gives legislative power to agency bureaucrats and as we all know, the devil is always in the details. And the details in this bill were left to Jonathan Motl, the Montana Commissioner of Political Practices. It’s kind of like Nancy Pelosi saying we had to pass Obama Care first to see what was in it. In the case of the Dark Money Bill, the rules that were added to it expanded the bill so much that even democrat legislators who voted for the original bill, baulked at the scope of the administrative rules.
The second bill was Senate Bill 410, a bill to allow tax-credit scholarships for students who want to switch from a public school to a private school. When the Department of Revenue got a hold of the bill, they changed the scope by saying that it did not apply to private faith based schools, which incidentally make up the vast majority of private schools in Montana. Similar shenanigans were tried on a similar bill by the state of Arizona and the case went all the way to the U.S. Supreme Court where the state ultimately lost. We look forward to the same outcome, right here in Montana.
The bottom line is that regulations and administrative rules that carry the weight of law are in effect laws and laws should be made by the legislative branch.
