Opinion: Columnists

Whatever happened to a 'government of laws, not of men'?

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Mark Tapscott,Columnists,Campaign 2012

Irascible old John Adams enshrined the concept of "a government of laws, not of men," in the 1780 Massachusetts state constitution, but his words expressed a firm conviction held throughout the 13 colonies in the years leading to the American Revolution.

It was a powerful idea because it conveyed a fundamental truth: Government should be based on clearly written laws, consented to by those to be governed by them, and not on the unpredictable will of one man or even a few men.

So why do we allow Washington politicians not only to get away with ignoring the law but with continually replacing it with the will of one man called "Mr. President" or a few men called "bureaucrats"?

President Obama isn't unique among recent chief executives in ignoring laws, but he has been the most blatant. To cite just one example, the law requires executive branch agencies to make public their proposed regulatory agendas every six months.

As of Wednesday this week, the EPA was thumbing its regulatory nose at the law for the third time in two years. The delay helps Obama avoid giving voters more reasons to boot him out of the Oval Office next Tuesday, since the EPA's expected agenda would likely destroy millions of jobs and pile immense new costs on businesses and consumers.

Sen. Jim Inhofe, the Oklahoma Republican who has dogged Obama on this issue for months, correctly points out that "it's bad enough that he's hiding his second-term agenda -- it's even worse that he's violating the law to do it."

Obama has not shrunk from putting bureaucrats in charge in other areas, either. Last week,  The Weekly Standard featured a devastating critique of one such move -- the Dodd-Frank financial regulation bill of 2010.

The cover story -- "The Biggest Kiss" - was written by former White House Counsel C. Boyden Gray and Virginia attorney Adam J. White. They point to the law's creation of the Consumer Financial Protection Bureau, whose head is appointed by the president without Senate confirmation and whose funding comes from the Federal Reserve Board, not Congress.

Gray and White are much too diplomatic in describing the CFPB as "an agency with unprecedented independence and an open-ended mandate to regulate against 'unfair,' 'deceptive, and 'abusive' lending practices."

Diplomacy aside, the CFPB is a bureaucratic monster that Congress likely won't be able to restrain. The result will be a steady stream of financial policy decisions made behind closed doors by officials who are answerable only to one man, the president.

We can all agree, ideology aside, that the rule of law with the consent of the governed is intrinsically superior to the rule of one (tyranny) or a few (oligarchy).

One might think that liberals would be the first to oppose proposals that gut the rule of law. Conservatives don't have to agree with liberals to acknowledge their logic, that the federal government needs more muscle to remedy abuses inflicted upon the innocent by powerful private interests, especially in the economic realm.

But the greater the power invested in government, the more vital becomes transparency and accountability, two root characteristics of the rule of law. The historic pattern, however, is for individuals and institutions to become less transparent and less accountable as their power increases over time.

Ben Franklin is reputed to have said after the Constitutional Convention in 1787 that the new government would be "a republic, if you can keep it." Come Tuesday night, we will have a clearer idea of whether or not we can.

Mark Tapscott is executive editor of The Washington Examiner.

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