Americans need not fret over unelected government leaders


By Richard P. McLAUGHLIN

Special to The Vindicator

Reacting to the recent U.S. Supreme Court decision which allows gay marriage, U.S. Congressman Bill Johnson wrote a very tough op-ed article in The Vindicator recently. The headline claims that “unelected judges and bureaucrats trample the will of the people.”

Mr. Johnson is an alarmist and is ill-informed on what he has written. His article needs to be clarified, corrected and brought up to date.

First, let’s look at our “unelected” federal judges. If the congressman had taken the time to read the Constitution, he would have learned that the Supreme Court is working out just the way our Founding Fathers intended. It should be no surprise that not everyone agrees with every decision of the Supreme Court. That has always been the case and probably always will be. Our country has survived and goes on. We have learned to live with decisions we do not like.

James Madison, the most articulate and effective proponent for a national constitution to replace the ineffective Articles of Confederation, insisted upon three essential provisions: a representative legislature, a strong executive, and an independent judiciary. Madison and his colleagues considered these elements to be absolutely necessary for a fair and just government.

PRESIDENTIAL APPOINTMENTS

Today, as always, appointments to the Supreme Court and the federal judiciary are made by the president. Upon confirmation by the Senate, the new justice takes his seat and serves during good behavior. That means service until his death or voluntary retirement. Mr. Johnson, this is the way it has worked since 1787. It assures the independence of the judiciary.

There needs to be a place where the buck stops. That is exactly what our founders wanted. Read a civics book if you don’t believe me. The only way this system can be changed is by an amendment to the Constitution. That is not going to happen anytime soon.

Next, let’s look at the “unelected bureaucrats” and what they do. Mr. Johnson criticizes recent decisions made by the FDA, the FCC and the EPA. It may surprise Mr. Johnson to know that the unelected career bureaucrats who made these decisions and wrote regulations for the federal agencies derive their authority and power to do so from the Congress itself. When Mr. Johnson and the Congress enact something into law, it will be administered by a federal agency having expertise in that particular discipline.

That agency’s career employees are empowered and authorized to make expert and discretionary decisions about how best to administer and enforce the new law. They address issues not specifically covered by the law itself. If Congress does not like that decision or judgment of these career employees, they can enact another law to correct it. Or, if a third party is adversely affected by that agency decision, it can be appealed to the federal court system. That is the legal process in Washington. That is the way administrative law has been practiced in Washington for the last 100 years or so. Nobody is going to significantly change this system in our lifetime.

And last, Mr. Johnson claims these “unelected judges and bureaucrats” are subverting “the will of the people.” We would all like to know how he can determine or establish what is the current “will of the people.” The fact is, he cannot. He knows that and we all know that. Why does he say it? “Will of the people” is not a tangible, measurable or certain concept. It can be a fleeting moment in time, changing from minute-to-minute, from day-to-day, and even from generation-to-generation. No one can say what it is, or was, or will be, much less a politician trying to persuade us what he wants it to be. We will leave it at that.

Hopefully, it has been made clear that these unelected judges and bureaucrats have been properly and lawfully appointed to the office they hold and are certainly acting within their designated authority. Neither Bill Johnson, nor the Republican party, can change any of this within our lifetime. They should stop reading the Republican “talking points” about these issues which they are powerless to change.

Further, it is not the unelected people we should be concerned about; it is the elected people who we should be concerned about. The U.S. Congress has traditionally been on the bottom of the ladder for trust and confidence for years. Just this month, in July, 2015, a national Rasmussen survey of potential U.S. voters concluded that only 13% rated the current Republican controlled Congress as “good or excellent,” 29% rated it as “fair,” and a whopping 56% rated this Congress as “poor.” It also concluded that 59% believed members of this Congress would sell their vote for cash or for a campaign contribution. Is that the “will of the people” being trampled by this Republican Congress?

That is your target, Mr. Johnson. Go after the elected people. The un-elected people are doing just fine.

Background: McLaughlin graduated in 1958 from Youngstown State University and in 1962 from the Georgetown University Law School (Washington, D.C.). He served as General Counsel of a federal agency after practicing law in D.C. for 5 years. Previously, he was employed in the U.S. Department of Labor for 4 years during law school. He returned to Youngstown in 1970 and practiced law until his retirement in 2013.

Atty. Richard McLaughlin is a retired Youngstown lawyer and former Youngstown State University trustee. He graduated in 1958 from Youngstown Unversity and in 1962 from Georgetown University Law School in Washington, D.C. He served as general counsel for a federal agency while practicing law in Washington for five years.

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