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By J. P. Tangen
Special to Mining News 

Is America a Republic or a Democracy?

Over the past 50 years, the Administrative State has taken on a life of its own, blocking Alaska resource development projects North of 60 Mining News – August 5, 2022


Last updated 8/4/2022 at 2:35pm

Justice Neil Gorsuch and the U.S. Supreme Court building.

Associate U.S. Supreme Court Justice Neil Gorsuch.

With the recent rash of opinions handed down by the U.S. Supreme Court this spring, there has been a great deal of conversation about whether the 'democracy' is at risk. Whether we are a republic or a democracy, of course, depends on how one defines the terms. Some would say that a democracy is when two wolves and a sheep vote on what to have for dinner.

Our national Constitution guarantees a "republican form of government," and presumably, our forefathers meant that the people give power to leaders they elect to represent them and serve their interests.

Obviously, we are both a republic and a democracy.

Our forefathers, in the same breath, devised a system of "checks and balances" to ensure that the chief executive was not a monarch, issues with the election of the President to the contrary notwithstanding.

Integral to the system of checks and balances is the popular election of legislators, one half of which are selected based loosely on the popular vote of the national electorate, and the other half based on the popular vote within each state.

Finally, there is the Supreme Court, which gets to match the actions of the Congress and the President against the language of the Constitution and reject laws and actions that fail the test.

Unspoken, but clearly implicit in the package, is the free press, which is charged with monitoring the actions of our leaders and disclosing deficiencies. The good news about the free press is that no matter what bias they bring to the table, there is always someone standing in the wings ready to shout them down.

If the free press is America's fourth estate, the fifth estate is the administrative bureaucracy used, and abused, by the President to make the government work.

The administrative state is not new. However, it has taken on a new look over the past 50 years.

Where the monarchial desires of our Presidents have failed over the decades, the administrative state has flourished.

The administrative state is the epitome of everything that the founding fathers sought to avoid. Bureaucrats are not elected and are not responsive to the electorate, Congress or the Supreme Court.

It is isolated, it is pernicious, it is arrogant, and it needs to be seriously redacted.

One of the most significant cases handed down by the Supreme Court this past session, is West Virginia v. EPA, which held that no matter the motive of the Environmental Protection Agency, it did not have the clear statutory authority to force fossil-powered power plants out of existence.

That decision by itself was monumental because the Court relied on the so-called "major questions doctrine," finding that "a clear statement is necessary for a court to conclude that Congress intended to delegate authority of this breadth to regulate a fundamental sector of the economy."

As is often the case with the Supreme Court, in addition to the majority opinion, there was a concurring opinion offered by members of the court. In this case, Associate Justice Neil Gorsuch highlighted the major problems associated with the administrative state.

Justice Gorsuch said the major questions doctrine addresses "a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted."

He went on to note that "our cases supply a good deal of guidance about when an agency action involves a major question for which clear congressional authority is required" and that "when an agency claims the power to regulate vast swaths of American life, it not only risks intruding on Congress' power, it also risks intruding on powers reserved to the States."

"While we all agree that administrative agencies have important roles to play in a modern nation, surely none of us wishes to abandon our Republic's promise that the people and their representatives should have a meaningful say in the laws that govern them. ... republican liberty demands not only that all power should be derived from the people; but that those entrusted with it should be kept in dependence on the people."

According to Gorsuch, today Congress issues "roughly two hundred to four hundred laws" every year, while "federal administrative agencies adopt something on the order of three thousand to five thousand final rules." Beyond that, agencies regularly "produce thousands, if not millions," of guidance documents which, as a practical matter, bind affected parties too.

Anyone attempting to deal with the regulatory agencies, especially resource development companies in Alaska, is confronted with this wall of bureaucracy.

While the West Virginia case was dealing with a mega-specific issue wherein a single agency stepped way over the line, it is the common experience, whether in the Tongass or Bristol Bay, that the unelected, biased, bloated national bureaucracy is a major problem for America, and Alaska, today.


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