We’re just a few weeks away from a new season of Husker football. In living here for almost 24 years, I’ve become a fan. I think it’s almost impossible not to. As the Cornhuskers have struggled over the years, I’ve heard a general piece of coaching advice over and over again. Invariably people will say that the team needs to return to the basics. They need to get back to the fundamentals. For some that means being more disciplined at tackling, holding onto the ball and avoiding penalties. For others it means running the option more and passing less.
I think the same can be said for our federal government. We have a number of serious problems in our government and many of them could be fixed or at least improved if we just got the fundamentals right. One of those fundamentals we’ve strayed from is the separation of powers and we’ve paid a big price for it. The separation of powers takes different roles of government and assigns them to different branches of government to reduce corruption and spread the power out so it reduces abuse of that power. As time has gone by that separation has been blurred or ignored completely. I’ll give two examples of what I mean, focusing on the executive branch.
First, the legislative branch was created to write laws. We elect our representatives to do this. Two things have been done to move the responsibility of writing law from the legislative branch to the executive branch. Often when the legislature passes legislation, it just writes a framework for an agency to write its own regulations. The legislation itself doesn’t specify the details. The legislature hands over its responsibility to write law over to the executive branch. The second is similar in that the agencies of the executive branch can all write rules submitted to the Federal Register that become law in 60 days. The legislature can review and reject these rules, but this has only happened one time since 1996.
The second way we’ve left the fundamental separation of powers is that the executive branch has also taken on judicial authority. Many, if not all federal agencies have administrative adjudication offices that function as courts within the agency.
We’ve seen the effects in recent years. For example, COVID-19 related federal mandates were published in the Federal Register, ignored by the legislature, and became law. In fact, many of the regulations we face every day were written by unelected officials in the executive branch. Think about the rules from the EPA, OSHA, etc. The vast majority were written by those agencies. I could fill the page with specific examples.
What is the solution? I think we need to move the duties back to the appropriate branches of government. Let’s move the adjudication offices back to the judicial branch. Let’s change the law so that agency rules do not automatically become law unless congress votes to pass these rules. Let’s hold our legislators accountable to actually write the laws and not hand the responsibility off to the executive branch.
Alan Sparrow is co-owner of the Polk County News. Find his column, Alan’s Anecdotes, each week in the newspaper and online at www.polkcountynews.net.
