M.A.P.A. -- A Moldy Oldie

Someone asked about administrative rules earlier today, and that reminded me of something that has bothered me for years. So I dug out an old essay that I originally wrote in 1998. In a shortened version, this was printed in the Tribune some time ago. (I especially like the part about "Don Quixote tilting at windmills." Sound familiar?) Anyway, here's my take on administrative law:

The root of all evil is MAPA. I have met the enemy, and the enemy is MAPA.

What, you ask, is MAPA, and why is it so bad? MAPA is the Montana Administrative Procedures Act, and it is a seemingly harmless little law of convenience that has managed to consolidate all three kinds of governmental power into the hands of the least accountable.

You see, our founding fathers had an intense fear of government power. (What follows specifically relates to Montana, but is equally applicable to the United States Federal Government as well.) They thought it wise to separate the various powers of government in order to protect the individual freedoms of the citizenry.

James Madison, who has been called the father of our constitution, wrote in The Federalist Papers, No. 47, 1788:

“No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that [of separation of powers.] The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

The framers of the Montana Constitution in 1972 also recognized this doctrine including in Article III, Section 1, the following language: “The power of the government of this state is divided into three distinct branches—legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.”

A quick refresher course in civics: The legislature creates law. The executive branch executes or enforces law. The judiciary decides disputes about the law. If no one branch exercises all the powers, no one branch can gain power sufficient to oppress the citizenry. That is why our system of government is at once simple and
beautiful.

And this is where MAPA comes in. MAPA provides the machinery whereby the executive branch (bureaucracy) of government exercises the powers of the other two branches. In the typical language of government, MAPA puts the word “quasi-“ in front of the types of power as if this somehow avoids the inherent breach of the constitution’s mandate: “quasi-legislative power” “quasi-judicial power”

The problem, of course, is that the simple addition of the word “quasi” in reality means nothing. For example, the law defines “quasi-judicial” power as an adjudicatory power involving the exercise of judgment and discretion in making determinations in controversies. That, to me, sounds like what courts do. Similarly, “quasi-legislative” is defined as having the power to make rules or set rates. That, to me, sounds like what legislatures do. Personally, I believe in the ‘duck theory.’ If it walks like a duck, swims like a duck, waddles like a duck, and quacks, then it’s a duck. And all the court decisions in the world stretching from the Magna Carta to the present can’t convince me that putting the word “quasi-“ in front of it makes it right to give these powers to the executive branch of government. Yet that is what has happened. Virtually every government bureaucracy has quasi-legislative power and quasi-judicial power.

“So what?” you ask, “ What does this mean, and why should I care?” It means that those bureaucrats, the government employees who are not elected, don’t just enforce laws. They also write them and decide disputes about them.

For example, your dad has a stroke. Despite his previously valiant efforts at independence, he needs to go into a nursing home. So you apply for Medicare. You fill out the forms, page after page after page. You dutifully hand them across the desk. And you wait. Finally, you get the letter: “We regret to inform you…benefits
denied.”

What do you do? Consider two alternative scenarios:

Scenario One: You are required to “exhaust your administrative remedies.” You file an appeal. Your case is assigned to a “hearing examiner,” typically an employee of the agency that denied your benefits. You are opposed by an attorney, also an employee of the agency that denied your benefits. (Her office is probably right down the hall from the hearing examiner’s.) The rules that will be used to decide your appeal were written by the agency that denied your benefits, probably with the help of the opposing attorney. (God forbid you have to have cases before more than one agency; they all have their own rules!)

Some months later, when you get the decision, if you want to appeal it, you then appeal it to the director of the agency that denied your benefits. Then, and only then, perhaps a year later, if you still are not happy you can go to district court. But when you get there you don’t get a jury. And the District Court Judge has only a very narrow review; there is no “new trial.” If the hearing examiner followed the law as written by the agency that denied your benefits, you’re generally stuck with the result.

Scenario Two: You go down the street to your local courthouse, in front of the District Court Judge you helped to elect, and you sue. You demand a jury trial. And you take your case to twelve of your peers, and you argue the law that the elected legislature passed.

Unfortunately, citizens, scenario one is the real one. And it is becoming so pervasive I would suggest nearly everyone will have the experience at least once in their life. Any of the following could require you to “exhaust your administrative remedies.” You owe child support. You want to sue your boss for discrimination. You get sued
for discrimination. Your unemployment claim is denied. Your Medicaid claim is denied. Your outfitter, plumber, or real estate license is denied. Your boss doesn’t pay you what you are owed.

And this doesn’t even scratch the surface. Un-elected executive branch employees are constantly grabbing power over every aspect of your life, not just executive power, but legislative and judicial power too.

As a lawyer, I probably spend more time dealing with the bureaucrats than average citizens. And every day I talk to lawyers complaining about arrogance, inconsistent decisions, illogical attachment to ridiculous procedures, and the daily telephone run around, to name a few. Before you dismiss this as a bunch of whining attorneys, remember that the clients, people like you, are the ones being hurt.

There are many ways to solve the problem. But they all come down to one thing: separate the powers of government. Completely and permanently. Take all the money that is currently spent paying hearing examiners, their secretaries, rent on their offices, buying them desks and computers and paper and pens and paperclips and everything else….and give it to the Courts. And they will have the resources to decide all of the cases. Then take all of the money we spend for agency employees to think up new rules, their desks and their file cabinets, their pens and telephones and all the paper, Paper, PAPER….and give it to the legislature. And they will have the resources to write the laws we need to be written.

Then, take the total number of executive agencies, and divide it by five. And for the next five legislative sessions, require the legislature to repeal one-fifth of the agencies’ rules, and either adopt them into law or get rid of them.

Let the agencies that still want to handle some matters write rules of PROCEDURE governing us if we have to go before them. But if we get in a dispute with them, make it optional whether we have our case heard by the agency or by a court. Then the agencies have an incentive to make their procedures citizen friendly, not
bureaucrat friendly.

I believe strongly in this, and I mean it in all seriousness. My friends and especially my dad accuse me of wasting my time like Don Quixote tilting at windmills. Maybe I am. Maybe no one cares. But if we’re going to ignore the advice of the father of our Constitution and let our government slip into “tyranny,” let’s at least do it honestly.

Amend the constitution, and eliminate the separation of powers. And call up Helena, and Washington, and tell them to come pick up the keys. Because it’s all over.

But maybe, just maybe, some of you will care. Maybe there are still some people out there paying attention; maybe you’ve been stepped on. Maybe, if we work on it,
it can be fixed. Drop me a line.

Bureaucrats are not bad people; bureaucracies are bad institutions.