Government by Fiat

In this blog, fiat means an authoritative or arbitrary order, not fix it again Tony.  Government by fiat would be government by orders issued by prince or a king, not by laws passed by a democratically elected legislature such as Congress.  Government by decree is same thing, although you might think decrees were more likely to be issued by a dictator.

Latin was the language of the Roman Empire.  Fiat comes from a Latin word meaning “to be done.”  Decree comes from a Latin word meaning “to decide.”  Since they’re about the same and both Latin, we’ll call them both decrees.  On the other hand, the word law comes from an Old Norse word, “log,” meaning a binding custom or practice of a community.

No wonder people like laws better than decrees.  Here in the United States, we also flatter ourselves that we are governed by laws rather than by men, the men alternative obviously standing for guys issuing decrees.  Are we really that lucky?  I don’t think so, at least not anymore.

For 80 years or so we’ve had something called administrative law.  It was one of my courses in law school.  Here’s the idea.  When Congress passes a law that’s complicated, it delegates the application of the law to administrators, also known as bureaucrats.  The delegation is right there in the law.  Sometimes it’s called “rule making authority.”

Then the bureaucrats make up specific rules based on the law.  The rules are called regulations.  How far afield the bureaucrats can go in doing this, and what processes they have to use to write and adopt the regulations, is the subject of administrative law.

As far as I can tell, Congress seldom, if ever, reviews regulations to make sure they’re what Congress intended them to be when it passed the laws.  Instead, people file lawsuits claiming that the bureaucrats exceeded their rule making authority.  Whether they did or they didn’t is decided by judges.

Wow!  Regulations seem to look more like decrees than laws, with the custom and practice of the community lost along the way in the mists of the Potomac River and the fog of Foggy Bottom. Now let’s look at something else that might make you feel less lucky.

Along with administrative law we have something called an executive order.  The President issues these orders as the chief executive of the federal government.  As background, remember that the President’s oath of office requires him to uphold the laws of the United States.

During World War II, President Roosevelt uprooted Japanese Americans from their homes and sent them to internment camps by executive order.  That’s still a hot potato.  For years nobody thought federal employees could unionize legally.  Then along came President Kennedy and issued an executive order that they could.  Surprise!

A few days ago President Obama issued an executive order halting deportation of a certain group of illegal aliens, suspending the enforcement of a law passed by Congress requiring their deportation.  Oops, executive orders also look suspiciously like decrees, and some seem to trump laws.

Federal regulations are assembled in the Code of Federal Regulations. In print the Code now takes up yards of library shelves.  More yards are on the way for ObamaCare.  In the meantime, the number and scope of executive orders have also increased considerably.

Myself, I’m not feeling too lucky.  Are we governed by laws rather than guys issuing decrees?  Would you rather be a Viking in your village banging your shield yea or nay, or a Roman in the Colessium hailing the Emporer? Think about it, do some of your own research, and form your own conclusions.

Stan Prowse

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