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The Rise of the Fourth Branch of Government
Washington Post ^ | May 24th, 2013 | Jonathan Turley

Posted on 05/26/2013 3:12:36 AM PDT by Jacquerie

There were times this past week when it seemed like the 19th-century Know-Nothing Party had returned to Washington. President Obama insisted he knew nothing about major decisions in the State Department, or the Justice Department, or the Internal Revenue Service. The heads of those agencies, in turn, insisted they knew nothing about major decisions by their subordinates. It was as if the government functioned by some hidden hand.

The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.

The rise of the fourth branch has been at the expense of Congress’s lawmaking authority. In fact, the vast majority of “laws” governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

The autonomy was magnified when the Supreme Court ruled in 1984 that agencies are entitled to heavy deference in their interpretations of laws. The court went even further this past week, ruling that agencies should get the same heavy deference in determining their own jurisdictions — a power that was previously believed to rest with Congress. In his dissent in Arlington v. FCC, Chief Justice John Roberts warned: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”

(Excerpt) Read more at washingtonpost.com ...


TOPICS: Constitution/Conservatism; Government; News/Current Events
KEYWORDS: 17th; constitution; epaoutofcontrol; fedadministration; federaldepts; fedgovtoutofcontrol; fourthbranch; irs; regulations; statesrights; turley
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"In the new regulatory age, presidents and Congress can still change the government’s priorities, but the agencies effectively run the show based on their interpretations and discretion. The rise of this fourth branch represents perhaps the single greatest change in our system of government since the founding. We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government."
1 posted on 05/26/2013 3:12:36 AM PDT by Jacquerie
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To: Jacquerie
" Chief Justice John Roberts warned: “It would be a bit much to describe the result as ‘the very definition of tyranny,’"

No. In fact it wouldn't be "a bit much" at all."
2 posted on 05/26/2013 3:17:26 AM PDT by shibumi (Cover it with gas and set it on fire.)
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To: All
Question: Why didn't this extreme power shift to unaccountable bureaucrats begin in the 18th century? Why did Congress wait until the 20th century to assign much of its law making duties to executive agencies?
3 posted on 05/26/2013 3:18:52 AM PDT by Jacquerie (To restore the 10th Amendment, repeal the 17th.)
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To: Jacquerie

“The autonomy was magnified when the Supreme Court ruled in 1984 that agencies are entitled to heavy deference in their interpretations of laws. The court went even further this past week, ruling that agencies should get the same heavy deference in determining their own jurisdictions — a power that was previously believed to rest with Congress. In his dissent in Arlington v. FCC, Chief Justice John Roberts warned: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.””

I have run into the tiny tin-pot bureaucrat who has no power in their personal life, but the power of saying “no” in their professional life. When a child turns two and discovers the power of “no” you hear it thousands of times a day. That’s the only power they have so the exercise it extensively.

People who can make illogical and stupid rules do so because they have the power to do it. (Clinton’s excuse for the blow jobs was, “because I could.”) Congress needs to either defund these out of control agencies (IRS, EPA, et. al.) or re-write the laws so the agencies are specifically told what they can do, and more importantly, what they can’t do.

Every agency you can think of has been infiltrated and is now controlled by the agenda-laden left.


4 posted on 05/26/2013 3:23:59 AM PDT by Gen.Blather
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To: Jacquerie

Hogwash! This is nothing more than the Washington compost trying to make excuses. People who run these agencies are political appointees put in charged by the President. They kowtow to the wishes of the President and implement his direction. Do you think for a moment that if liberal groups were targeted this President wouldn’t be throwing people in jail?

What you have here with the DOJ/FoxNews scandal, the IRS, Benganzi, etc is nothing more than an orchestrated agenda set by this President. The MSM, which has tried so desperately to hide all of this now finds itself in a position to cover their rears.


5 posted on 05/26/2013 3:25:05 AM PDT by HarleyD
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To: Jacquerie

The autonomy was magnified when the Supreme Court ruled in 1984 that agencies are entitled to heavy deference in their interpretations of laws.>>>>>>>>>>>>>>>>>>>

The People need to Change that ruling and Congress needs to pass the necessary law that no regulation can usurp or expand the plain meaning of any statutory provision.

If Congress bans the federal regulation of Coffee, then that also means Cappuccino. We are being ruled by socialista bureaucrats.They are ruining the country.

Why should such madness even be funded by taxes and a criminal IRS?


6 posted on 05/26/2013 3:25:37 AM PDT by Candor7 (Obama fascism article:(http://www.americanthinker.com/2009/05/barack_obama_the_quintessentia_1.html))
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To: Jacquerie
"Why did Congress wait until the 20th century to assign much of its law making duties to executive agencies? "

They were waiting on the chosen one ZERO

7 posted on 05/26/2013 3:25:55 AM PDT by DeaconRed (If you cheat and win (Like ZERO) you haven't won. . . . You cheated.. .)
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To: Jacquerie

BTTT


8 posted on 05/26/2013 3:36:01 AM PDT by Fzob (In matters of style, swim with the current; in matters of principle, stand like a rock. Jefferson)
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To: Gen.Blather
...........re-write the laws so the agencies are specifically told what they can do, and more importantly, what they can’t do.

Something akin to the enumerated powers the Constitution spells out for the Federal government and which they abide by with 100% exactitude, right?...........right?..........right?

9 posted on 05/26/2013 3:40:56 AM PDT by varon (USA Nationalist)
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To: Jacquerie

I have been saying for years that it isn’t the laws that we have to fear so much as regulations.

One lone Bureaucrat sitting in an office making up their own rules.

You can fight the law, but regulations are pretty much cast in stone.

A good example is the regulation authority of Sebelius in the Health Care Bill and the authority of Napolitano at immigration.Al;so Holder ate Justice.

They are running rogue agencies with far too much power.

Why do they get away with it? Congress is too friggin lazy to buck them.


10 posted on 05/26/2013 3:48:01 AM PDT by Venturer
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To: Jacquerie

11 posted on 05/26/2013 3:53:58 AM PDT by Travis McGee (www.EnemiesForeignAndDomestic.com)
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To: Jacquerie
I find this liberal discussion of a government too big to govern amusing. In their liberal lexicon, big government has always had all the answers. Now that their Messiah’s incompetence, laziness, inability to lead, and to work is self-evident, their excuse is it is not his fault, no one can properly manage the big government. They would sooner attack their main socialist pillar of big government than place blame on Zero. Just more liberal media propaganda and deception.
12 posted on 05/26/2013 3:58:16 AM PDT by iontheball
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To: Venturer
>>>Why do they get away with it?

Because adult supervision of the government was removed with the 17th Amendment, when a Senate of the States was replaced with the equivalent of three term Congressmen. We have government by administration for no other reason than because Congress likes it. It relieves them of responsibility to the problems they cause.

13 posted on 05/26/2013 4:07:40 AM PDT by Jacquerie (To restore the 10th Amendment, repeal the 17th.)
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To: Jacquerie

They have managed to bypass congress and to some of our congressman and women this is fine. Remember sen. conyers(dope) who made this comment, “ I dont have time to read this bill it’s 2500 pages”


14 posted on 05/26/2013 4:08:17 AM PDT by ronnie raygun (Yesterdays conspiracies are todays truths)
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To: varon

“Something akin to the enumerated powers the Constitution spells out for the Federal government and which they abide by with 100% exactitude, right?...........right?..........right?”

Everything is a constant fight against overreach. I’m trying to make suggestions that could be carried out if a “conservative” came to power. The quotes are because so many progressives hide behind the label. (Juan McCain, Mitt Romney...)


15 posted on 05/26/2013 4:09:02 AM PDT by Gen.Blather
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To: Gen.Blather

I think that what spawned these bureaucracies in the first place was the expansion of the areas in which the Federal government was directly involved. Those were pretty limited in the 18th and for much of the 19th century. The 20th century, especially from FDR onwards, saw a huge expansion of government intervention and thus the creation of agencies to carry it out.


16 posted on 05/26/2013 4:13:13 AM PDT by livius
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To: Jacquerie

“...Why didn’t this extreme power shift to unaccountable bureaucrats begin in the 18th century?...”
-
I think we both know why.


17 posted on 05/26/2013 4:14:57 AM PDT by Repeal The 17th (We have met the enemy and he is us.)
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To: HarleyD

The “hidden hand”? Not so hidden.

There has been a remake of the entire landscape of America since the rise of “Progressives”, which dominated much of US politics from the time of Teddy Roosevelt forward. Superficially, TR was a “Republican”, but that term is meaningless in relation to what he initiated, and which was carried forward with Woodrow Wilson. The “progressive” amendments, i.e., the Sixteenth, Seventeenth and Eighteenth, were all “Cram-down” acts, passed in the passion of the moment. The Eighteenth was the only one ever repealed (by the Twenty-First), having to do with the growth of lawlessness in the decade and a half between 1918 and 1933, when it became illegal but highly fashionable to consume alcohol in practically any form.

Lawlessness did not stop with the passage of the Twenty-First, but at least the masses could be suitably anesthetized so they did not particularly notice the vast erosion of other liberties at the time, all in the name of “fairness”, which was determined by the “Brain Trust” that was gathered to create and implement the New Deal.

Actually, the so-called New Deal was a rebranding of the same Social Democracy doctrines that had been introduced in 1871 to the newly formed German Confederacy that had been created under the Chancellorship of Otto von Bismarck and Kaiser Wilhelm I, German Emperor. This “safety net” had been around in the various European states in some form or another since the Middle Ages, and was an outgrowth of feudalism and “Noblesse Oblige” doctrine, which demanded generosity from the ruling class.

These old doctrines were exactly what the colonists who flocked to the North American continent were seeking to flee, and when attempts were made to re-impose the “divine right” of a king upon these rebellious souls, finally resulted in the “American Experiment”, codified in the Declaration of Independence and the US Constitution.

By all standards, the “American Experiment” was a wildly successful application of the concept of a representative republic, displacing both hereditary rulers and raw democracy, which each lead to the same result, extensive control by a small oligarchy. By encouraging the productivity of each individual to be suitably rewarded, the growth of this new nation was phenomenal, outstripping and surpassing even that of the British Empire by the early part of the Twentieth Century, and creating the American Century.

But alas, some few individuals, unable to participate in all this new-found prosperity, agitated for and obtained concessions from the new wealth created by this boom, and restored some form of the Noblesse Oblige. The mistake came when it became a doctrine of elected government, and charity was taken out of the hands of individual donors and institutionalized as a government “right”, nowhere to be found in any draft of the Declaration of Independence and the US Constitution.

Sure, some of the provisions as written in the Eighteenth Century were flawed, and subject to re-interpretation and amendment, but it was a pretty darned good approximation of moving toward a greater degree of personal freedom than had ever been known on such a large scale in all of human history.

And yet, there are those who would retreat altogether from this experiment in the elevation of the sanctity of the individual, and revert to the old forms of oligarchy. No matter how this reversion is dressed up, human beings are not members of some huge ant hill, and subjecting entire populations to an imposed conformity is no way to run a railroad.


18 posted on 05/26/2013 4:17:24 AM PDT by alloysteel (If you want to see the true measure of a man, watch how he treats his inferiors, not his equals.)
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To: Repeal The 17th

Yep.


19 posted on 05/26/2013 4:29:06 AM PDT by Jacquerie (To restore the 10th Amendment, repeal the 17th.)
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To: Jacquerie
Why did Congress wait until the 20th century to assign much of its law making duties to executive agencies? 

Oohh... Oohh... Pick me! Pick me!

-PJ

20 posted on 05/26/2013 4:39:37 AM PDT by Political Junkie Too (If you are the Posterity of We the People, then you are a Natural Born Citizen.)
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To: shibumi

...and you are an enabler, Brother John.


21 posted on 05/26/2013 4:44:48 AM PDT by Shady (The Truth will set us free....WE KNOW THE TRUTH!)
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To: alloysteel; Repeal The 17th; livius
>>By all standards, the “American Experiment” was a wildly successful application of the concept of a representative republic, displacing both hereditary rulers and raw democracy, . . .<<

To support your statement, I say that the structure of our government was the reason for our prosperity. The Articles of Confederation, drafted in 1777, ratified in 1781 were soon recognized as “imbecilic” and quickly replaced in 1789.

The same American people, good and bad, virtuous and devious alike, who watched assaults on their property and were only months from dissolution, took a deep breath and created our wonderful constitution. The same people who suffered under the Articles were liberated under the Constitution. It was the structure of the Constitution that saved the rapidly failing United States.

The 17th Amendment fundamentally altered the structure of our government. It removed the vertical separation of powers that James Madison said was essential to keep the national government from consolidating all authority. Men are no different today than they were 200 or 2,000 years ago. They tend to accumulate power if they can; it is our/their nature. The division of power between the federal and State governments was the first line of defense of our freedoms.

We have zero hope of restoring our freedoms as long as Senators represent, like their House brethren, the mob and not the States.

22 posted on 05/26/2013 4:47:13 AM PDT by Jacquerie (To restore the 10th Amendment, repeal the 17th.)
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To: Political Junkie Too

Okay, tag!


23 posted on 05/26/2013 4:47:51 AM PDT by Jacquerie (To restore the 10th Amendment, repeal the 17th.)
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To: iontheball
They would sooner attack their main socialist pillar of big government than place blame on Zero. Just more liberal media propaganda and deception.

From the Washington Post? Yes, this is crap. They just can't attack the big O. Now it is the government's fault. So let us cut government and regulation and see how the Washington Post and Mr. Turley howl.

24 posted on 05/26/2013 4:47:51 AM PDT by VRW Conspirator (Cyprus - the beginning (and I reserve the right to re-post))
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To: Jacquerie

It is TIME to DownSize DC!

CLOSE, ELIMINATE entire Rogue Departments, many of which are clearly Unconstitutional.

Move any worthwhile functions back to the states where they can be more properly administered.

Department of Energy (except the military functions which should be included in the military complex)

Department of Education (which is more accurately the Department of brainwashing), including their SWAT Teams

Environmental Protection Department

and on an on.

It is TIME to move the center-of-gravity of the Federal Government back to the States where it belongs.


25 posted on 05/26/2013 4:48:57 AM PDT by Texas Fossil
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To: Texas Fossil

>>It is TIME to move the center-of-gravity of the Federal Government back to the States where it belongs.<<

I made a quick case for that in post #22.


26 posted on 05/26/2013 4:51:55 AM PDT by Jacquerie (To restore the 10th Amendment, repeal the 17th.)
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To: livius

“The 20th century, especially from FDR onwards, saw a huge expansion of government intervention and thus the creation of agencies to carry it out.”

I can’t recall the guy’s name, but before FDR’s social programs somebody was calling on the government to give everybody (I think) $400. The plan was hugely popular and had been adopted in one form or another by FDR’s rivals who were garnering a disproportionate number of votes, thus threatening FDR’s base. FDR did them one better by creating a host of social programs that, on the surface, were designed to combat a depression where people were starving. (In reality, the results were the opposite of what was “intended.”) Politically, the give-sh*t-away-free political move was popular and got FDR reelected. Since there is always more to give away if FDR had been immortal he could still be president today.


27 posted on 05/26/2013 4:53:52 AM PDT by Gen.Blather
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To: Jacquerie

The other problem is the 16th. Amendment. Once the Federal government had an independant source of revenue, it could ignore the states.


28 posted on 05/26/2013 5:00:06 AM PDT by reg45 (Barack 0bama: Implementing class warfare by having no class.)
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To: Gen.Blather

You may be thinking of Huey Long, governor of Louisiana. He promoted an explicit “Share Our Wealth” program. Most folks at the time thought Long was a fascist and a pretty fine fellow. But then he got shot by someone who felt differently.


29 posted on 05/26/2013 5:01:02 AM PDT by ClearCase_guy
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To: Jacquerie

4th branch — Valarie Jarrett


30 posted on 05/26/2013 5:01:51 AM PDT by bigbob
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To: Jacquerie
Because we no longer have a Senate that is beholden to states' interests that oversees the confirmation of federal department heads?

Because we now have a Senate that is more interested in protecting party interests, therefore they look the other way when their party is in control?

Because the 17th amendment drives Senators to toe the party line or else lose campaign funds that weren't necessary before the 17th, when state legislatures appointed their Senators without the need for elections?

-PJ

31 posted on 05/26/2013 5:02:05 AM PDT by Political Junkie Too (If you are the Posterity of We the People, then you are a Natural Born Citizen.)
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To: Jacquerie

The Know Nothing Party — that is a perfect name for the party that knows nothing about the Bill of Rights except for the 5th Amendment and probably can’t even cite that properly.


32 posted on 05/26/2013 5:02:34 AM PDT by Uncle Chip
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To: Jacquerie

With the failing revenue model of the Fed Gov, the clearly rogue actions of the Treasury Department it is an ideal time to push for elimination of the Income Tax and the 16th Amendment. And all agencies involved in collecting that tax.

This would as consequence force addressing the issue of Social Security. That is the monster no one wants to touch.


33 posted on 05/26/2013 5:04:49 AM PDT by Texas Fossil
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To: Political Junkie Too

Yes.

Yes.

And yes.


34 posted on 05/26/2013 5:05:31 AM PDT by Jacquerie (To restore the 10th Amendment, repeal the 17th.)
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To: Texas Fossil
I agree with that. I would also add that Voter ID is an idea whose time has come. The knock against that is the Republicans were "suppressing the vote" by demanding proof of a voter's identification. Well, after the IRS scandal, we know which party really wants to suppress votes. And, really, why is identification such a "controversial" topic?? Just do it. Now is the time.

I would argue that less fraud-prone elections would make those other good goals a lot easier to achieve.

35 posted on 05/26/2013 5:08:32 AM PDT by ClearCase_guy
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To: Jacquerie

Sure is interesting to see Turley say stuff like this...one who has seemed to consistently back the oppressive policies of Demon Rats.


36 posted on 05/26/2013 5:10:02 AM PDT by SoFloFreeper
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To: Political Junkie Too
One of my faults is watching the morning C-Span show.

Ninety nine percent of the rat callers think the purpose of Congress is to rubber-stamp whatever ‘Bam wants.

The 17th was supposedly designed to make Senators accountable to the people. It did the opposite. As you pointed out, they are beholden to their parties, and rats face certain defeat if they buck the diktats of El Presidente.

37 posted on 05/26/2013 5:10:27 AM PDT by Jacquerie (To restore the 10th Amendment, repeal the 17th.)
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To: Jacquerie

I have been saying this for a while.

This is not the first time but in 2009 here is a post where I said it was Time to DownSize DC.

http://www.freerepublic.com/focus/f-bloggers/2416398/posts

IT IS TIME to DownSize DC! Let the chips fall where they may, but it is not time to cut and run.

2 posted on Mon 28 Dec 2009 12:36:02 PM CST by Texas Fossil (Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.)

I first proposed this to a POL in OK (when I lived there) prior to 1995. A major element of what I suggested to him was that it was time to force Congress to Telecommute most of the year. Away from DC and under the thumb or the electorate, away from the lobbyists.


38 posted on 05/26/2013 5:14:26 AM PDT by Texas Fossil
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To: Texas Fossil; reg45
>>the clearly rogue actions of the Treasury Department it is an ideal time to push for elimination of the Income Tax and the 16th Amendment.<<

With repeal of the 17th, reform is possible, including repeal of the evil 16th.

We have government by administration because elected Senators like it. Until State interests are restored, Congress will do a Mark Levin “fan dance” and accomplish nothing.

39 posted on 05/26/2013 5:15:10 AM PDT by Jacquerie (To restore the 10th Amendment, repeal the 17th.)
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To: ClearCase_guy

Totally agree.


40 posted on 05/26/2013 5:15:38 AM PDT by Texas Fossil
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To: Jacquerie

Correct.


41 posted on 05/26/2013 5:16:26 AM PDT by Texas Fossil
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To: Jacquerie
as if the government functioned by some hidden hand FIST!

This is why I have always opposed term limits. The Forth Branch barely listen as it is, what happens when they make the bosses temporary?

42 posted on 05/26/2013 5:16:34 AM PDT by Aevery_Freeman (We say "low-information" but we mean "low-intelligence")
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To: SoFloFreeper

Yeah, I was also surprised to see Turley write this.


43 posted on 05/26/2013 5:16:51 AM PDT by Jacquerie (To restore the 10th Amendment, repeal the 17th.)
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To: Gen.Blather

I think you are referring to the ‘Townsend Plan’. Dr. Townsend was all over the USA plugging his ‘plan’ in the late 1930s and he was getting large crowds. The catch for older folks was they had to spend the money to invigorate the economy or they were not eligible for the next months dole. These were the days of the ‘great depression’ and all kinds of proposals including FDR’s many programs. It seems to me that the plan was to give all older folks $250 each month with the condition to spend it. WWII came along and interest in the idea went down the drain.


44 posted on 05/26/2013 5:16:59 AM PDT by noinfringers2
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To: Uncle Chip

The fish rots from the head.


45 posted on 05/26/2013 5:18:26 AM PDT by pieceofthepuzzle
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To: Jacquerie

The permanent bureaucracy in DC is liberal and votes Obama. Its hiring policies slant gay/minority/black/female. Those are your administrative rulers in DC. AKA — The managerial class. The nomenclatura

Every freeper should read this article 10 times


46 posted on 05/26/2013 5:20:31 AM PDT by dennisw (too much of a good thing is a bad thing - Joe Pine)
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To: Jacquerie
It used to be that Senators faced certain defeat if they bucked the diktats of their states.

Everything is backwards now. The states are bystanders in government now, instead of drivers of government.

Democrats tried using states like Colorado and New York to pass silly gun control laws just to boost Obama's political position, not because it was a necessity and desire of the people of those states.

-PJ

47 posted on 05/26/2013 5:28:16 AM PDT by Political Junkie Too (If you are the Posterity of We the People, then you are a Natural Born Citizen.)
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To: ClearCase_guy

“But then he got shot by someone who felt differently.”

Evidence supports the theory that Huey was killed accidently by his body guards and the doctor who was trying to talk to him took the fall for it.


48 posted on 05/26/2013 5:28:55 AM PDT by Gen.Blather
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To: Jacquerie

That elected officials hand over their sworn obligations to bureaucratic civil service people is also rampant at the state and local government levels. These politicians are onto the catch that their election depends upon these ‘civil servants’ who have embedded themselves and friends into the government. That civil servants can collectively by personal choice shut government down by unionization is a demonstrated fact of life.


49 posted on 05/26/2013 5:29:50 AM PDT by noinfringers2
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To: Jacquerie

The natural ‘enemy’ of a bloated bureaucracy is the people who resent paying for it... that’s us. This just keeps getting more and more charming...


50 posted on 05/26/2013 5:33:30 AM PDT by GOPJ (It's Gotten So Bad for Obama Fox News Changed Its Slogan to "See. I Told You So!"- Leno)
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