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The Constitution versus the Executive-Branch Departments

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The U.S. federal government contains a myriad of agencies, bureaus, corporations, commissions, administrations, authorities, and boards organized under 15 cabinet-level, executive-branch departments headed by a secretary (or, in the case of the Justice Department, an attorney general). Although Republicans created the latest, most bloated, and most hated department (Homeland Security), they sometimes talk about eliminating or consolidating various other departments.

In his fiscal year 2013 budget proposal introduced earlier this year, Sen. Rand Paul (R-Ky.) calls for the elimination of the departments of Commerce, Education, Housing and Urban Development, and Energy.

The elimination of cabinet-level departments was a theme that surfaced in several of the Republican presidential debates. Most of the candidates expressed a desire to eliminate the Department of Education. Rick Perry said he wanted to eliminate the departments of Commerce, Education, and Energy. The most ambitious plan is that of Congressman and Republican presidential candidate Ron Paul. In his “Plan to Restore America,” Paul calls for the elimination of the departments of Education, Interior, Commerce, Energy, and Housing and Urban Development.

Although he hasn’t recommended the elimination of any of the executive-branch departments, Barack Obama has proposed a reorganization and consolidation of six major operations of the government that focus on business and trade that would affect elements of the departments of Agriculture, Health and Human Services, Interior, Labor, and the Treasury.

The following is a list of the 15 cabinet-level, executive-branch departments, along with the dates of their creation

  • Department of State (1789)
  • Department of the Treasury (1789)
  • Department of the Interior (1849)
  • Department of Agriculture (1862)
  • Department of Justice (1870)
  • Department of Commerce (1913)
  • Department of Labor (1913)
  • Department of Defense (1947)
  • Department of Housing and Urban Development (1965)
  • Department of Transportation (1966)
  • Department of Energy (1977)
  • Department of Health and Human Services (1979)
  • Department of Education (1979)
  • Department of Veterans Affairs (1989)
  • Department of Homeland Security (2002)

The departments of Commerce and Labor were originally the Department of Commerce and Labor (1903). The Department of Defense was originally the Department of War (1789) and the Department of the Navy (1798). The departments of Education, and Health and Human Services were originally the Department of Health, Education, and Welfare (1953). The Department of State was originally called the Department of Foreign Affairs. The Department of Justice was originally just the Office of the Attorney General (1789). The Postal Service existed as the cabinet-level Post Office Department from 1792 to 1971.

Does the Constitution authorize all of these departments? Does the Constitution authorize any of them?

It is apparent from reading Articles I and II of the Constitution that six of the current executive-branch departments have no constitutional justification whatsoever for their existence, four of them are apparently authorized by the Constitution, three of them might possibly be authorized by the Constitution, two of them should be combined with one of the other departments, and one is missing.

The Post Office Department that existed from 1792 until it became just the Postal Service in 1971 is clearly authorized by the Constitution in Article I, Section 8, Paragraph 7, where Congress is given the power “to establish Post Offices and post Roads.” It certainly makes more sense to have a Post Office Department than some of the other cabinet-level departments that are clearly unconstitutional.

The departments of Veterans Affairs and Homeland Security should both be subsumed under the Department of Defense, since that is what they relate to. We had military veterans for 200 years before the Department of Veterans Affairs was created in 1989. There is no reason that legitimate functions of this department could not be handled within the Department of Defense, instead of a bloated federal bureaucracy that is second in size only to the Department of Defense itself.

The same is true of the Department of Homeland Security. In only 10 short years it has grown to become the third-largest federal department. What is the point of having a Homeland Security Department if we already have a Defense Department? Any legitimate functions of the Department of Homeland Security (and they would certainly not include FEMA or the TSA), could and should be part of the Department of Defense.

There are three executive-branch departments whose constitutionality is dubious at best.

The only possible constitutional justification for the Department of Commerce is two mentions in Article I of the Constitution of Congress regulating commerce (Section 8, Paragraph 3 and Section 9, Paragraph 6). But if a cabinet-level department is needed to do that, then what did the government do without a Department of Commerce until 1903? The truth is that the government had no need of a Commerce Department until it started regulating commerce in an unconstitutional way beginning with the establishment of the Interstate Commerce Commission in 1887.

The Department of Transportation can only barely justify its existence by appealing to the previously mentioned phrase in Article I of the Constitution giving Congress the power “to establish Post Offices and post Roads.” But that means that the Department of Transportation should be limited to just “post Roads,” not mass transit and aviation. And of course, establishing “post Roads” could be done under the auspices of a Post Office Department.

The Department of the Interior is mainly concerned with federal lands. It now includes agencies such as the Bureau of Land Management, the National Park Service, the U.S. Fish and Wildlife Service, the U.S. Geological Survey, and the Bureau of Reclamation — the largest wholesaler of water in the country and the second-largest producer of hydroelectric power. But if ever we needed a Department of the Interior it was when the United States acquired the Northwest Territory (present-day Ohio, Indiana, Illinois, Michigan, Wisconsin, and part of Minnesota) after the Revolutionary War and purchased Louisiana from France (all or part of 15 current U.S. states). And since there is no reason for the U.S. government to own more than 25 percent of all the land in the United States (with ownership exceeding 50 percent in some states), and no constitutional authority for the government to have anything to do with fish and wildlife or supplying water and power, it would be more constitutional to have one of the Department of the Interior’s agencies — the Bureau of Indian Affairs — elevated to cabinet-level status and most of the other functions of the department eliminated. But of course, the State Department could handle U.S. relations with the Indian tribes without having a separate bureau or department.

The Department of Defense can be justified by appealing to several paragraphs in Article I, Section 8 of the Constitution. Paragraph 11 gives Congress the power “to declare War.” Paragraph 12 gives Congress the power “to raise and support Armies.” Paragraph 13 gives Congress power “to provide and maintain a Navy.” Paragraph 14 authorizes Congress “to make Rules for the Government and Regulation of the land and naval Forces.” Paragraphs 15 and 16 authorize Congress to call forth, organize, arm, and discipline the Militia. What cannot be justified by the Constitution is a Department of Offense, which is what the Defense Department has become. All nondefense spending (foreign wars, foreign bases, foreign occupations, foreign interventions) should be eliminated and the department shrunk in size.

The Department of Justice seems reasonable, since the federal crimes of counterfeiting, piracy, and treason are mentioned in the Constitution. However, given that Congress didn’t see the need for a Justice Department until 1870, that most federal crimes should just be state crimes, that the abuses of the FBI and federal prosecutors are well known, and that the Justice Department agencies of the DEA and the ATF shouldn’t even exist, the Justice Department should be scaled back considerably.

The Department of State seems to be the most logical department for a government to have. It was the first federal department established under the Constitution. Article 2, Section 2, Paragraph 2 of the Constitution mentions making treaties with, and sending ambassadors to, other countries. The Department of State is one of the smallest executive-branch departments. However, it could be much smaller if U.S. foreign policy was not so interventionist.

The Department of the Treasury can also be justified by appealing to several paragraphs in Article I, Section 8 of the Constitution. Paragraph 1 gives Congress the power “To lay and collect Taxes, Duties, Imposts and Excises.” Paragraph 2 authorizes the Congress “To borrow Money on the credit of the United States.” Paragraph 5 gives Congress the power “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.” And then there is Section 9, Paragraph 7: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” What cannot be justified by the Constitution is Congress’s creating the Federal Reserve System. Any legitimate functions of the Fed should be handled by the Treasury Department. The main problem with the Treasury Department, of course, is that it includes the IRS. Abolish it and the Treasury Department would be much more acceptable.

The departments of Agriculture, Education, Energy, Health and Human Services, Housing and Urban Development, and Labor cannot be justified in any way by the Constitution. Where in the Constitution is the federal government authorized to have anything to do with agriculture, education, energy, health, housing, or labor? Much of the welfare state is maintained by these departments. The Department of Agriculture is responsible for WIC, SNAP (food stamps), and farm subsidies. The Department of Health and Human Services handles Social Security, Medicare, and Medicaid. The Department of Housing and Urban Development facilitates wealth redistribution by providing various kinds of housing assistance.

All of that means that if the Constitution is going to be followed, of the 15 cabinet-level executive-branch departments, only 7 can be justified in some way by the Constitution, and there really need to be only 4, or 5 if the Department of the Post Office is restored.

The problem is a simple one: Few previous congressional candidates or current members of Congress from either party have any desire to follow the Constitution in every respect or even the majority of the time.

Republicans are the worst because they talk about the Constitution the most. They have talked about eliminating the Department of Education since the days of Ronald Reagan, but they have never done anything but raise its budget. They criticize welfare, but won’t touch the biggest welfare programs in the federal budget — Social Security, Medicare, and Medicaid. They condemn Obamacare (the Patient Protection and Affordable Care Act), but accept Bushcare (the Medicare Prescription Drug, Improvement, and Modernization Act).

The U.S. government is a monstrosity. From a libertarian perspective, the Constitution is an imperfect document. However, if the federal government actually followed its own Constitution, it would be a tremendous improvement over the bloated, expensive, intrusive, and authoritative government we have now.

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