Excerpts

Undemocratic 1 AMERICA, STILL EXCEPTIONAL? My family name wasn't originally "Sekulow." That's the Americanized version of Sokolov, or Sokolof--a Russian name that was difficult to translate into English. When my grandfather landed at Ellis Island, the intake officer heard his name and wrote "Sekulow," and we've been Sekulow ever since. My grandfather fled Russia during the time of the Russian persecution of the Jews as the fires of repression and religious intolerance raged. The seeds of the Russian Revolution had been planted, which bloomed into the Soviet Union, a nation that continued the campaign of persecution. Europe has long been hostile to Jews (and, sadly, much of that hostility continues to this day), but Russia ramped up the persecution to an unprecedented level. The story of the Russian Revolution is a story of death and war, with the Red Army cutting a swathe of destruction across Russia, enemies of the Soviet Union slaughtered in great numbers, and the larger world--exhausted by the devastation of World War I and struggling in the face of a horrific flu pandemic that killed -millions--too distracted to prevent disaster. Those who could flee, did. Fortunately, my grandfather's family had fled Russia in 1914, just three years before revolution took place. So my grandfather wound up on Ellis Island, one young -fourteen-year-old boy among millions who saw the Statue of Liberty, with its welcome to those who were "tired, poor," and "yearning to breathe free." And like those millions, he immediately set to work becoming an American, to building a life in the land of the free. He ran a fruit stand in Brooklyn, New York. His life wasn't easy, but he never stopped working, he never stopped striving, and he passed down his values--and his love of his adopted country--to his children and grandchildren. Two generations later, one of those grandchildren of the fruit peddler was arguing cases at the Supreme Court of the United States. I think of my grandfather every time I'm in the high court and I hear the words "Mr. Sekulow, we will now hear from you"--the grandson of Schmulik Sekulow arguing before the most powerful court in the world. You can call it many things, but I call it American exceptionalism. America is an exceptional country, and my family's journey is a symbol of that exceptionalism. My family overcame the odds, moving from fruit peddling to the Supreme Court in just two generations. But we overcame the odds in part because we were in America, a land of unprecedented opportunity and liberty. And of course my family is not alone. Look far down virtually any American family tree and you'll find an immigrant family who came here against long odds and fought to build a better life. And these families succeeded in building a free land that is the most powerful, most prosperous, and most secure in the history of the earth. That is exceptional. Sadly, however, when we speak today of "American exceptionalism," many on the Left will roll their eyes. They'll recount stories of America's past sins, or they'll do what President Barack Obama did and dismiss American exceptionalism by saying that of course we think we're exceptional, but so do the citizens of every country. 1 To these critics American exceptionalism is nothing but misguided parochial affection, no different than the pride sports fans feel in their local team. But this is wrong. American exceptionalism isn't merely a -garden-variety case of national pride. Nor is it a blind love of country. No one thinks America is sinless. After all, the phrase is American "exceptionalism," not American "perfection." If American exceptionalism isn't American perfectionism, then what is it? Was Thomas Paine, the great American patriot, right when he declared, "The cause of America is in a great measure the cause of all mankind"? I believe he was. Think about my grandfather. He was certainly not an American when his family fled Russia, where they faced certain persecution and possible death. But he was not without hope, because of America. In every war or disturbance, there are refugees, and there are nations that take in refugees. But my grandfather was no refugee. He was fleeing, yes, but he was fleeing with his family to a fresh start--a place where he could reinvent himself and in a sense rewrite his family history. The course of my family's destiny for generations was impacted by the decision of my great-grandparents. They came to a place where they had a true hope for a new life. They came to America. I have long believed that America's exceptional nature is a function of the symbiotic relationship between the nation's peoples and the nation's laws. I think of America as a nation with a great people matched with a great system of government. Note well that I did not say "great government." Sometimes we've been led by poor governments, but always the system--our constitutional system--has allowed us to persevere and, ultimately, prosper. It may be apocryphal, but I love the story of Benjamin Franklin's admonition following the end of the Constitutional Convention, in 1787. As the tale goes, Dr. Franklin emerged from Philadelphia's Independence Hall and a woman asked him, "Well, Doctor, what have we got, a republic or a monarchy?" His response? "A republic, madam. If you can keep it." The simple Webster's definition of a republic is "a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law." 2 But our government is not just a republic, but a "constitutional republic." The law that governs our nation is defined and limited by a constitution, and in our case the Constitution is designed primarily to guarantee the liberty of our citizens and limit the power of government over our lives. In other words, Benjamin Franklin's short statement spoke volumes. We formed a government for a free people, for a people committed to liberty. And to keep that government the people had to be dedicated to preserving it. For most of our history, Americans have not only been committed to "keeping" our republic, but to improving it--spreading freedom and liberty to those who weren't permitted to enjoy it fully at our nation's founding. And our republic has since allowed a free people to flourish, and the free people have continually pushed the government to protect their liberty and their primacy in our constitutional system. By preserving in the Bill of Rights our rights to free speech, to religious liberty, and our right to petition the government for the redress of grievances, we put in motion the mechanisms for immense positive change. It's through the exercise of those rights that we were able to move past slavery and Jim Crow, grant women the right to vote, and preserve a host of American liberties through war and peace. The system of checks and balances prevented our president from becoming a monarch, the Supreme Court from becoming an oligarchy of unelected judges, or the Congress from becoming--at worst--something like France's out-of-control National Convention, where mob rule brought ruin to a revolution. It's a system I've dedicated my life to preserving and defending. As I said before, I began that defense as a public servant within the system, working for the Department of the Treasury, Office of Chief Counsel, for the Internal Revenue Service. Yes, I worked for the same agency that is now best known in the conservative movement for launching a targeting campaign that has persecuted thousands of President Obama's political opponents. But when I worked there, it was a very different time. I started in 1979, during the tail end of the Carter presidency, and left early in the Reagan administration. I remember those days well. We did our jobs, we enforced the tax code, and political discussions or considerations were simply not part of our job. Even though the IRS was unpopular (when has a taxing agency ever been popular?), I was proud of the work that we did, honored to work with outstanding lawyers on both sides of the political aisle, and felt that I'd done at least some small part to work honestly and efficiently to support a constitutional structure that had done so much for me and my family. After gaining that valuable experience, I left the IRS and launched out on my own, eventually doing more than I ever imagined I would to defend our Constitution, to defend that system that helps make our nation truly the "hope of the world." In Supreme Court case after Supreme Court case, I defended individual liberty. I was honored, along with key partners, to found a law firm, the American Center for Law and Justice, that has by now filed hundreds of lawsuits and written thousands of briefs to defend our Constitution. Through victories large and small we've even been able to expand liberty in key areas, including in schools, in the workplace, and in our nation's public spaces. But now that system that we've defended so vigorously is under threat. In fact, our very constitutional democracy is at stake. I do not choose my words lightly. The threats emerging now, in 2015, dwarf anything I've seen in my long legal career, and the threats, while multifaceted in their legal character, tend to emanate not from our elected officials but instead from the emergent, vast additional branch of government, the fourth branch--the bureaucracy, a bureaucracy that increasingly circumvents the Founders' established checks and balances and imposes its will on the American people against their expressed wishes. Have we prevented monarchy, oligarchy, and mob rule only to succumb to the dangers of a vast bureaucracy rendered invulnerable by its very complexity and size? How could this possibly happen? How a Bill Becomes a Law, and a Law, and a Law, and a Law . . . When my sons were very young, Saturday morning featured not just normal kids' shows but also a series of extended educational cartoons set to music. Called Schoolhouse Rock, they featured catchy tunes and described the rules of grammar, narrated events in American history, and provided basic civics lessons. My favorite was a short, three-minute episode called, simply enough, "How a Bill Becomes a Law." I can still remember the lyrics: It began: I'm just a bill Yes, I'm only a bill 3 And I can still see the singing "bill" (a rolled-up piece of paper with legs) sitting there on the steps of the Capitol, not far from where our ACLJ offices are today. (The singing bill made a national network comeback last year in a Saturday Night Live parody 4 of President Obama's expansive immigration executive order, a parody that made the same critique I make in this book, that the executive branch is simply making up its own laws.) The original song took kids through all the basic steps. First, the bill is written and presented to a committee in the House of Representatives or the Senate. If it survives in committee (with a majority vote of committee members), then it goes to the full House or Senate. If it passes with majority vote in both houses, it goes to the president for signature. If the president signs the bill, it's a law, and it's headed for the statute books. If the president vetoes the bill, it goes back to the House and Senate, where it can still become law if the House and Senate override the veto with a two-thirds majority in each house. Simple enough--even simpler when you tell the story in rhyme and song. But the cartoon left out an important step, a final step that protects liberty from a Congress or president who disregards the Constitution. Most laws can be easily challenged in court by citizens who believe the law violates their rights. After all, in a constitutional republic, the supreme law of the land isn't represented by acts of Congress but instead by the text of the Constitution. Laws that conflict with the Constitution are (or should be) null and void. So, for many laws, the journey from idea to reality is long and hard, involving committee hearings, votes in Congress, presidential evaluations, and--finally--judicial review. By the time a law is actually enforced--especially a law of true consequence--it's been debated, voted on, and challenged. The process has worked the way it is supposed to work. But if you wish to expand the power of the government--and believe the answer to society's ills is found far more in government action than in the workings of a private market or private charity--a process like that is simply too slow and inefficient to solve all the nation's problems. So, enter the "rulemaking process." It sounds so benign. What could be wrong with making rules? Plenty. The bureaucracy creates thousands upon thousands of new laws--laws never voted on by Congress, rarely reviewed by judges, and enforced often by armed agents of the very agency that wrote the rule. That's not separation of power, it's consolidation--apart from democracy. Here's how the process works. Federal statutes explicitly and sometimes implicitly not only create permanent federal agencies--agencies like the IRS, EPA, DOJ, NLRB, FCC, and many, many others--but also empower them to craft "rules" or "regulations" allegedly designed to help the agency enforce the law. Often, Congress fails to do its job and writes laws with deliberate gaps in meaning, directing or permitting federal agencies to write rules to fill in those gaps and "clarify" the meaning of the statute. Notable recent examples include ObamaCare, where the law was so poorly drafted that it couldn't be understood without the Department of Health and Human Services (HHS), the IRS, and other agencies writing new rules and regulations. (We must be concerned that the IRS is now involved in our health-care decisions. The IRS has enforcement authority--through IRS agents--to mandate compliance. So now the IRS and HHS are supervising up to 20 percent of our nation's economy.) Another example is the so-called Dodd-Frank legislation, written with the intent of tightening banking regulation so that crashes like the one that brought our economy to its knees in late 2008 and early 2009 won't ever happen again. Dodd-Frank was passed and signed into law by President Obama in July 2010. Yet by the summer of 2014, the banking industry still wasn't sure what the law meant. 5 The law was intentionally incomplete, and instead of fully describing its provisions, Congress set 398 "rulemaking" deadlines so that unelected bureaucrats could fill in the gaps. In other words, it empowered federal agencies to make 398 separate regulations with the full force of law. 6 By the summer of 2014, four full years after the law was passed, 208 rules had been finalized, but a whopping total of 96 hadn't even been proposed. 7 "Pass the law to find out what's in it," indeed. By comparison with federal statutes, federal regulations are thoroughly undemocratic. Whereas a bill can become a law only by vote of a popularly elected Congress, signed by the elected president, a proposed rule becomes a regulation through a process that vests virtually all the authority in the rulemaking agency and leaves the public with the ability to provide our opinion only. Once an agency determines a rule is necessary, it publishes the proposed rule in a publication called the Federal Register, an enormously complex publication, thousands of pages that even few lawyers can truly understand or navigate. The proposed rule is then subject to something called a "notice and comment" period, where you--members of the public--have an opportunity to support or critique the proposed rule. You do not vote. Nor do you vote on the people who are drafting or proposing the rule. After receiving public comments, the agency will then once again take to the scintillating pages of the Federal Register to publish the rule, provide the specific date it will take effect, and describe how it responded to public comments. That's it. That's the process. And while the process is simple for bureaucrats, allowing them to write more than 13,000 new rules in the first years of President Obama's terms in office, it can be virtually impossible for the public to grasp. The language alone is almost impossible to follow, with the Federal Register written not in plain English, but in a cryptic government-speak that requires a particular expertise to understand. To get a sense of the bureaucratic language employed in the Register, here's the "summary" of a recent proposed rule called "Avocados Grown in South Florida and Imported Avocados; Clarification of the Avocado Grade Requirements": This proposed rule invites comments on changes to the minimum grade requirements currently prescribed under the Florida avocado marketing order (order) and a technical correction to the avocado import regulation. The order regulates the handling of avocados grown in South Florida, and is administered locally by the Avocado Administrative Committee (Committee). For South Florida-grown avocados, this proposed rule would align the regulations with current industry practice. It would remove language permitting the commingling of avocados with dissimilar characteristics in containers for shipment within the production area. All avocado shipments within the production area would need to meet the provisions of a U.S. No. 2 grade, as provided in the United States Standards for Grades of Florida Avocados. For imported avocados, this rule would also make a technical correction to the avocado import regulation to clarify that the minimum grade requirement for imported avocados remains unchanged at a U.S. No. 2. 8 Clear enough? Got that? Good. Jobs are at stake. As undemocratic as this process is, it's far more democratic than a process often used to regulate the environment, an area where millions of jobs, our national economy, and our public health are at stake. As described in John Fund and Hans von Spakovsky's excellent book, Obama's Enforcer, 9 the environmental section of the Department of Justice has pioneered a process (called "sue and settle") where it will collude with a radical environmentalist organization to circumvent Congress and the Federal Register altogether. This scandal will be described in greater detail later in the book, but here is the basic outline: The environmentalist group will sue, demanding a court order that would essentially act as a new environmental regulation on an industry. Rather than vigorously defend the law, the Department of Justice's own radical lawyers will actively collude with the outside environmentalists by intentionally "losing" the case through an agreed-upon settlement and then pay the environmental group sometimes millions in taxpayer dollars since they were the "prevailing party," meaning they had "won" the lawsuit. This is a win-win for radical environmentalists and their bureaucratic friends. The environmentalists change the law and enrich themselves in the process while the bureaucrats are able to circumvent even the rudimentary democratic safeguards in the formal rulemaking process. The loser, of course, is our republic, which slips steadily from a free people's grasp with each backroom deal. Don't Even Think of Firing a Bureaucrat Undemocratic rulemaking processes and backroom deals could be kept under control if elected officials had the power to fire out-of-control bureaucrats. But thanks to an overreaction to a real historical problem, few Americans have greater job security than employees of the federal government. In fact, in many agencies an employee has a greater chance of dying in office than being fired or seriously disciplined. How did this happen? Going back to the founding of the nation, federal jobs were long considered to be plum prizes for political supporters of the winning party. Political wins often meant a veritable clean sweep of the federal government, as the employees from one party were ushered out in favor of the winners. The phenomenon, this "spoils system," was so well-known and so crass that it was not unusual for political job seekers to stampede into Washington and line up outside offices looking for their place in the government, a process that could distract even the president of the United States. Needless to say, the spoils system was not the best method for hiring an experienced, competent, and neutral civil service. Rather, it created instability and rewarded loyalty over competence. So it was abolished, replaced over time by the "merit system" that governs federal employees today. Most Americans don't realize that when a new president is elected, he has the power to hire and fire only the tiniest percentage of executive branch employees, the most senior leadership only. Beneath that senior leadership are hundreds of thousands of employees who can be fired--or even seriously disciplined--only after the agency works through a complex and exhausting legal process, a process so time-consuming and expensive that many managers simply learn to live with corruption and incompetence rather than even try to terminate an unmanageable employee. How hard is it to fire a federal employee? The numbers are astonishing. In the introduction, I cited a USA Today survey that showed only 0.55 percent of federal employees were fired for cause. Other surveys show even more astounding numbers. As reported in National Review, "a CATO Institute survey showed that in one year, just 1 in 5,000 non-defense civilian federal employees was fired for cause." In the key legal positions, job security was virtually guaranteed, with only 27 of the government's 35,000 lawyers losing their jobs in 2011. 10 The termination process itself requires managers to precisely document their reasons for firing employees and is so onerous that managers are often effectively prohibited from using any criterion that is subjective--like arguing the employee's work product is poor, the employee demonstrates bias, or the employee is difficult to manage. Rather, only the most clearly documented and objectively defined offenses lead to punishment, such as hitting a boss or stealing from your employer. But in virtually every circumstance, the employee (once they're past their initial probationary period) is entitled to an appeal to the Merit Systems Protection Board. Again, here's National Review: Moreover, once an employee is fired, there is no guarantee he will stay fired. Each has the right to appeal to the Merit Systems Protection Board (MSPB), a Carter-era body created as part of an update to the civil-service reforms in the century-old Pendleton Act (a.k.a. the only reason you remember Chester A. Arthur's name). As a board spokesman told Politico, the initial appeal, before a regional -administrative-law judge, takes an average of three months to process. A second appeal, to the D.C. board, could take another nine months or more. In the meantime, the terminated will usually have the full-throated advocacy of a union lawyer to go along with a set of MSPB guidelines that set a high bar for the terminators. 11 What does all this mean? Don't even think about trying to fire a federal employee unless you're ready for a long legal battle where the employee has vigorous, free legal representation. In such circumstances, it's easier to transfer employees, muddle along, or simply shift their work to their overburdened, competent colleagues. To be clear, I do not believe that federal employees should be fired merely at the whim of a manager. Like all working Americans, they should be protected from discrimination on the basis of race, gender, and religion. And they should also be protected from political discrimination. After all, the permanent bureaucracy should be strictly politically neutral. But that protection should work the way it works for ordinary Americans: once the employee is fired, if they have evidence they've been discriminated against, they have the right to sue for damages, with no free lawyer provided at government expense. That's the system that applies to the vast majority of Americans in the private sector, and it generally works. At least it works far better than the so-called merit system. Exactly How Partisan Are Those Busy, Invulnerable Bureaucrats? This is a key question, one that goes to the heart of democracy and fairness. It's bad enough that the bureaucracy can entirely circumvent the established constitutional process for passing new laws. It's bad enough that this bureaucracy is full of employees who--as a practical matter--can't be fired even for grotesque incompetence. But the problem reaches truly critical dimensions when those powerful, unaccountable bureaucrats act as partisans--as extensions of the Democratic Party. Let's look at the National Treasury Employees Union, which represents 150,000 federal workers in thirty-one different federal agencies: The union endorsed Obama in both of his presidential runs and operates a political-action committee (PAC) that has donated $1.63 million to federal candidates and committees since 2008, more than 96 percent of it to help elect Democrats. During that period, IRS employees have contributed more than $67,000 to the PAC. Colleen Kelley, the union's president since 1999, worked as a revenue agent for the IRS for 14 years, and her political leanings are clear. She has given nearly $5,000 to the NTEU PAC since 2007, and she donated $500 to John -Kerry's presidential campaign in 2004. 12 Interestingly, Kelley has been to the White House at least eleven times during the Obama administration, meeting at least once with President Obama. 13 Access to the White House is a rare and precious gift, not given freely to Americans, even politically connected Americans. Kelley's frequent invitations demonstrate that she is no mere union boss, but rather a major player in national politics. The problem is not confined to unions or to lawyers. To take just one agency, the IRS, its employees donated more than twice as much money to Barack Obama than to Mitt Romney in 2012 and an even greater percentage to Barack Obama over John McCain in 2008. 14 And this disparity predates President Obama's two presidential races. Look at the numbers dating back to 1989: Overall, rank-and-file IRS employees donated more than $840,000 to federal candidates and committees from 1989 to 2012, according to [a Center for Responsive Politics] analysis. Democrats and liberal-leaning organizations received about two-thirds of this sum. 15 As for government lawyers--key leaders in any federal -bureaucracy--a more complete review of their giving, including even the Department of Defense, perhaps the most conservative federal agency, shows a staggering disparity. In some departments, such as the National Labor Relations Board and Department of Education, 100 percent of political gifts went to Barack Obama over Mitt Romney. Almost 84 percent of gifts from government lawyers in the Department of Justice went to President Obama. The most balanced department was the Department of Defense, with a disparity of 68 percent to President Obama. 16 According to Gallup, government union members of all stripes--state and federal--preferred Barack Obama to Mitt Romney by a whopping 25 points. 17 By contrast, President Obama won reelection by a less than 4-point margin. 18 These numbers are so far out of line with public preferences that--at best--they create a dangerous perception of bias. And, as the political giving numbers show, the bias becomes more pronounced the more a federal worker engages with politics. No one is disputing federal workers' right to vote. No one is disputing their right to give money to the candidate of their choice. There is an unmistakable problem, however, with an entrenched bureaucracy that is so closely aligned with one side of our great political debates--and no longer accountable to the public. Core executive functions are supposed to be strictly nonpartisan. Tax rates are not different for Democrats and Republicans. Criminal laws are not different for Democrats and Republicans. Environmental laws are not different for Democrats and Republicans. But when agencies are stacked with partisan employees, bias can creep into the process even if employees are well-meaning. And if employees aren't well-meaning but are instead biased and corrupt? Well, then there're fewer checks on their power. The result is plain to see. The toxic combination of growing power, lifetime job security, and political bias is creating a federal bureaucracy that is corrupt, incompetent when it's not corrupt, and sometimes both corrupt and incompetent. Nonpartisan agencies should apply the law in a neutral manner. And there are real consequences when an agency is implanting a political ideology and not fairly enforcing the law. When my grandfather immigrated to the United States, he did not come to a perfect country, by no means. But he arrived at a country where he had a fair chance to succeed, where the government had little impact on his success or failure and helped mainly by staying out of his way. True, the immigration law was complex in 1914 and still is today. The Constitution is clear, however. Congress passes the law, the president executes the law, and the judiciary interprets the law. Notice what is not in the Constitution--government by bureaucracy. In the Russia he left, government was a suffocating everyday reality, where corrupt, ideological bureaucracies targeted political foes and microregulated the vibrancy and energy straight out of the economy. That Russia was beyond brutal, of course, and soon set its sights on starving Ukraine into submission, but a bureaucracy does not have to be brutal to choke out liberty. It does not have to be violent to oppress its citizens. It need only be corrupt. I fear for our American exceptionalism. Liberty cannot flourish when a vast government plays favorites. Already we see signs that America is losing its title as the true land of liberty. In 2012, the Fraser Institute issued a startling report: Canadian provinces were now more free than American states. 19 Yes, our neighbors to the north, with their monarchical tradition and only a recent history of true constitutional jurisprudence, 20 now grant greater protection to a host of individual rights, including property rights, than the "land of the free and home of the brave." When my grandfather left Russia, he was certainly tired. He was certainly poor. He certainly "yearned to breathe free." Is the best destination for such men and women today New York? Or is it Alberta? Or Saskatchewan? Only time will tell. In the meantime it is incumbent upon those of us who still "yearn to breathe free" to battle for our constitutional republic, to fight against a bureaucracy that can often combine corruption and incompetence as it suppresses dissent and discourages virtue. It's now time to take our country back and restore its constitutional framework. Corruption and incompetence? No accountability? Abuse of power? Arrogance? All are hallmarks of our modern bureaucracy, and no bureaucracy embodies those characteristics more thoroughly than the IRS. And that brings us to a truly sordid tale . . . Excerpted from Undemocratic: How Unelected, Unaccountable Bureaucrats Are Stealing Your Liberty and Freedom by Jay Sekulow All rights reserved by the original copyright owners. Excerpts are provided for display purposes only and may not be reproduced, reprinted or distributed without the written permission of the publisher.