United States, Inc: A Mess

Nobody knows how big the government is… not even the government!

Key Points

Is there a way to save America and ensure justice and freedom for all? There is… if you are willing to rethink and rebuild the entire Constitution!

This article is an excerpt from the book NEW & IMPROVED: THE UNITED STATES OF AMERICA. Learn more at https://www.jpprag.com

Shrinkage

According to the Administrative Conference of the United States (ACUS) Sourcebook — Second Edition (December 2018), pages 26 to 28:

[T]he Administrative Procedure Act (APA), which governs most federal agencies, provides one of the broadest and most widely-used definitions for administrative agencies.

Courts have recognized that the APA’s definition of agency is not entirely clear, and there has been a substantial amount of litigation over which government entities fall within the various legal classifications of agency.

[T]here is no authoritative list of government agencies {emphasis added}. Every list of federal agencies in government publications is different. For example, FOIA.gov lists 118 separate executive agencies that comply with the Freedom of Information Act requirements imposed on every federal agency. This appears to be on the conservative end of the range of possible agency definitions. The United States Government Manual lists 305 unique or sub-component units as agencies. An even more inclusive listing comes from usa.gov, which lists over 600 government departments and agencies.

Disentangling which of these entities is an “agency” is difficult, particularly since many are wholly or partly owned and directed by private sector actors.

Incidentally, the ACUS (according to itself) is “an independent federal agency charged with convening expert representatives from the public and private sectors to recommend improvements to administrative process and procedure”. Therefore, it is one of the impossible to catalogue agencies that exists within the nether that is the Federal bureaucracy — what the report itself calls a fourth branch of government that is not held accountable to democracy.

In case this is not abundantly clear, the United States government is a mess. How can one effectively manage and fund such a behemoth when one does not even know what is included and where? Up until this point, the focus of this document has been about changing the Constitution to have the voices of the people be heard and expounded upon. Yet, once the people have proper representation in the Legislative and the Executive Branches, what then?

Even if the United States government is being fundamentally changed in who is in charge, there is still over 230 years of law and bureaucracy that has built up. Yes, the 20-year check in on all law will still happen, but that will take time and, in the meantime, how do you manage it all? What is the organizational chart of the government?

Instead of trying to focus in on “what is” and “how we got here” like the ACUS, we will instead focus on “what should be, given what we have”. This section will focus on merging the various department and agencies that do exist (as much as can be catalogued) into a more cohesive structure that can be used to set the basis for where all other agencies should align to. In other words, the idea is to create a framework and hierarchical structure to the government that can be understood and place all agencies within that.

As part of that process, we will explore the costs of all these various areas with the understanding that there is much replication of process and operations going on that could be eliminated. For instance, the ACUS mentioned several other agencies that also do a research project on the structure of government, so we can assume there is overlap and redundancy that can be eliminated.

This will extend very deep into all parts of the government, including the military and all other related federal law enforcement agencies. Again, the idea is to eliminate redundancy and waste, but there is more to it. If there are not competing priorities, then we are approaching all situations with a single mind and with all of the relevant data. As an example, how much data is locked away at the CIA or NSA that the FBI and U.S. Marshalls do not have and vice versa? If these were singular approaches, how much more could we know and understand?

Beyond this, we will want to re-establish further breaks between the legislative and executive authorities, making sure that some powers cannot be delegated or taken. The Constitution is very specific around certain duties, but it seems like additional enforcement may be necessary. In the same vein, there are executive resources that can be tapped in to in order to take on roles at the Federal level instead of creating new agencies and positions. This is about how we can shrink the Federal Government into something manageable, understandable, and useful.

The Bob’s

As previously discussed, Section 2, Clause 1, Sentence 1b of the Constitution states for the President:

[H]e may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices[.]

And that is it as far as the Constitution is concerned on the structure of the Executive Branch for anything outside of the President and Vice President. What are the “Executive Departments”? How should they be organized? How much oversight by the President is needed? What does he do with that information?

These specific questions were left to Congress and they have answered it in a variety of ways. Sometimes there are leadership positions that require Congressional approval, sometimes there are appointments, sometimes there are career paths, and sometimes there are mechanisms outside of the government such as boards and private organizations. Yet the Constitution gives Congress the ability to do this and more, as stated in Article 1, Section 8, Clause 18:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Because of this, Congress has divested many of their powers directly to the Executive Branch, which in turn has allowed the President to issue many Executive Orders to create, modify, and transfigure a vast amount of the executive positions we know today. Much of what we think of as the heads of government are situated within the President’s Cabinet, but this is not an organization or a position recognized by the Constitution. Despite this, right back to the first President George Washington there was a Cabinet which had five members. Over time, positions have been added, removed, merged, or greatly changed beyond their original intent to where in 2019 there are 15 official Department Heads and 7 other people considered to be part of the President’s Cabinet.

You might think that these positions are more fixed because the 15 official Departments Heads are part of the Presidential line of succession. However, the Constitution and Amendments give Congress the power to determine the line of succession, which is currently following the order set up in 1947 and last updated in 2006. After the Vice President comes the Speaker of the House, the President pro Tempore of the Senate (there is that official position again and not the majority party leader), followed by the official 15 Department Heads who are also confirmed by Congress.

For something so important and so ingrained in the rest of the Constitution and the Law, it would seem to be sorely missing. Therefore, we should make organization of the Executive Branch part of the Constitution officially:

By Amendment to the Constitution of the United States, Article 2, Section 5, Clause 1 shall be added.

The President, Vice President, and heads of the Executive Departments shall form a body known as the Cabinet that shall meet at the discretion of the President.

Please note that there is no Article 2, Section 5, so this would be a new section added to the Executive Branch portion. What we want to do with this section is start the definition of the Federal Hierarchy by establishing that there is an official order that is referenced elsewhere in the Constitution and the law.

This starts by defining what the Cabinet is, which is just a body that consists of the two Executives (President and Vice President) and the heads of the official Executive Departments. Elsewhere in the Constitution, Congress has the power to define what the Executive Departments are and who the heads of those Departments are, though both come at the recommendation of the President. This does not contradict any of that thus far, just codifies what happens afterwards. Also, this body does not have to meet at all and the schedule is totally up to the President, as is also in line with the Constitution as shown above.

Now the question becomes, what are these Executive Departments? Well, in 2019 we have the following:

1. State

2. Treasury

3. Defense

4. Justice

5. Interior

6. Agriculture

7. Commerce

8. Labor

9. Health and Human Services

10. Housing and Urban Development

11. Transportation

12. Energy

13. Education

14. Veterans Affairs

15. Homeland Security

Theoretically, these are the most important things in our country. No offense to Housing and Urban Development (HUD) or Agriculture or Transportation, but how are they equal to Treasury or Defense or Health and Human Services? And how do you even separate on these lines? How can you talk about Transportation without consideration for Energy or Urban Development? Why is Defense separated from Homeland Security? Or the same could be said for Commerce and Labor? And where are other key considerations like the Environment and Science or Arts and Culture (the latter of which is mandated by the Constitution)? The bottom line is: what should be the big buckets we care about?

We will return to this question in a moment, but for now it is important to note that there are several other people in the Cabinet today. They consist of:

1. White House Chief of Staff

2. Trade Representative

3. Director of National Intelligence

4. Director of the Office of Management and Budget

5. Director of the Central Intelligence Agency (CIA)

6. Administrator of the Environmental Protection Agency (EPA)

7. Administrator of the Small Business Administration (SBA)

Now we have compounded our issues because National Intelligence and the CIA would seem to have the same overall mission as Homeland Security and Defense, yet they are separate areas entirely. Trade and the SBA here are separated from Commerce and Labor, and with the SBA particularly, it is again a question of why it has as high a bearing as other official Departments — really the same question we have for HUD. The EPA’s appearance shows some consideration for the Environment, but it is not at the level of a real Department. At the same time, it is far outnumbered by other similarly aligned causes and still excludes all other areas of science.

Well, this requires a more detailed organization, but first we must close in on what it means to be in the Cabinet:

By Amendment to the Constitution of the United States, Article 2, Section 5, Clause 2 shall be added.

The President may ask or appoint other officers or persons to take part in the discussions of the Cabinet, but these persons shall not be members of the Cabinet.

In other words, yes, the President can ask his Chief of Staff to be part of the Cabinet or could ask any or all Agency heads and/or directors to visit for specific meetings. But in order to be part of the Cabinet you must be a Department Head so it creates an official hierarchy. From the President to the Vice President and the Departments Heads directly should be the plan, and the Departments should represent the gross amalgamation of all Agencies underneath them.

By Amendment to the Constitution of the United States, Article 2, Section 5, Clause 3 shall be added.

All other agencies of the Federal Government shall be organized underneath the Executive Departments, or the President or Vice President directly. All other agencies shall be subordinate to the heads of the Executive Departments, or the President or Vice President directly.

What is an Agency? The Constitution does not ever mention the word yet it comes up repeatedly in law and when discussing the scope of the Federal Government. Here, we gain a definition of Agency as an area subordinate (or “inferior” as the Constitution often says) to another federal institution, particularly an Executive Department, the Vice President, or the President himself.

Important to note that today Congress has Agencies that do report directly to it instead of being part of the Executive Branch. This is a removal of that function and puts all executing actions under the Executive Branch one way or another. Most of these areas are rather benign — such as the Library of Congress. However, Congress has given itself a police force separate from the Executive authority as well as quality assurance agencies like the Congressional Budget Office and Government Accountability Office. These would seem to be the very definition of Executive function! Just as we demanded all decision-making move into Congressional hands, we must demand that all action on those decisions be part the President’s responsibility.

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The Library of Congress — as pictured here in December 2019 — is independent and is held accountable to no Executive Department nor even the President himself. Who knows what mischief they are getting into in there without proper oversight?

No, Congress’s job is straightforward: create and fund departments and agencies, not run them. But even deciding where they belong should be out of their purview as that is also an executive decision. In other words, it should not take an act of Congress to re-organize the government into more useful functions.

By Amendment to the Constitution of the United States, Article 2, Section 5, Clause 4 shall be added.

The President shall be responsible for organizing all Agencies within each Federal Department, or Agencies within Federal Departments, or to the President or Vice President directly.

Congress would still have the purse strings no matter where these Agencies end up, though it is a question of how granular Congress wants to be. Perhaps they would be happier in their limited role setting a bucket for each Department and then have the Departments decide how the funds will be distributed? Or perhaps Congress will fund some intermediary level between Department and Agency that does the same function? In any of these situations, it would be Congress’s decision, but the President could align the Agencies as he sees fit. This organization may make Congress note the redundancies in the system. Another option might be to have a bottom’s up approach to budgeting where Agencies ask for certain amounts that are reviewed first by intermediate levels and then by Departments before being shifted to Congress for final approval. Again, this may reveal unnecessary funding and redundancies in the system so that Agencies get merged or depreciated entirely.

No matter what, the President should be able to understand the layout of the Executive Branch and call forth those responsible for certain areas. And if there is a deficiency, the Executive Branch can make it clear and ask specifically for what they need and why it does not fit into an existing structure. This does not happen today, as noted:

Administrative Conference of the United States (ACUS)

Sourcebook — Second Edition (December 2018)

Pages 84 to 85

A political decision to create a new agency begs the question of why Congress does not delegate new federal responsibilities to existing agencies. Generally, Congress creates new agencies to carry out federal responsibilities when it does not believe existing agencies will effectively implement new policies. Existing agencies may not have the expertise to carry out new policies. Alternatively, existing agencies may resist the delegation of authority because the new policy deviates from what the agency perceives as its primary mission.

In other cases, new agencies are the result of the larger struggle over the new policy. Proponents or opponents of new policies demand that new policies will be carried out by agencies with specific structural features in exchange for their support. The structural features they demand shape the ability of political actors to get access to agency decision-making. For example, some structures insulate the agency from the influence of the President or Congress. Others provide privileged access to agency decision-making for some groups and interests. In many cases, there would be no agency created at all unless the new agency included certain features that allow broad representation and regular review by Congress.

In other words, there is no rhyme or reason or methodology; Congress just does whatever it feels like at that moment and creates or destroys agencies. While not mandated by any Amendment, having a logical flow organization of the government may make arguments one way or another more apolitical and reasonable. Questions like establishing new Agencies or not or keeping an agency in an existing (or new) Department can be approached with more logistics planning instead of gut feeling.

TO BE CONTINUED…

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THE UNITED STATES OF AMERICA

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Over 15 years as a consultant, solutions architect, and trusted partner for some of the largest organizations in the world. Learn more at https://www.jpprag.com

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