Attached below is a link to a National Review article by Columbia University Law Professor, Phillip Hamburger, which briefly articulates the constitutional problems with the modern administrative state in the U.S. Professor Hamburger is the author of Is Administrative Law Unlawful? (University of Chicago Press, 2014) and founder of the New Civil Liberties Alliance, a nonprofit civil rights law firm that represents clients against the government, in other words, the administrative state.
Anyone who took a junior high social studies class (before, say, 1990) knows the essential framework prescribed in the United States Constitution: three discrete and co-equal branches of government – the legislative branch (Article I: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”); the executive branch (Article II: “The executive Power shall be vested in a President of the United States.”); and the judicial branch (Article III: “The judicial Power of the United States, shall be vested in
The manifest intent of the framers was to distribute the whole of defined federal power among separate entities, mitigating any concentration of power in one executive or sovereign to prevent tyranny. The framers drew on the writings of Montesquieu who explained this three part division in his work, The Spirit of Laws:
“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
“Again, there is no liberty, if the judiciary power is not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
“There would be an end to everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, executing the public resolutions, and trying the causes of individuals.”
The administrative state turns the separation of powers model upside down, establishing executive branch agencies that simultaneously execute the law, legislate new law and adjudicate violations of the law. The evolution of the modern administrative state began modestly in the late 19th century, with Congress establishing certain expert administrative bodies with limited jurisdiction, like the Interstate Commerce Commission, which was established to regulate railroad rates and conditions of service. Gradually, over time, Congress passed legislation that added to the list of administrative agencies, creating the Federal Communications Commission and the Securities Exchange Commission. During the presidency of Franklin Roosevelt, Congress created dozens of such agencies, and that pattern has continued ever since. Most alarming, in the past few decades, federal agencies have abandoned any pretense of modesty, radically expanding the scope of their own authority with self-serving interpretations of their governing statutes. For reasons that once may have been good and sufficient, federal courts acquiesced, bowing to administrative interpretative “expertise” under the so-called Chevron doctrine.
The growth of the administrative state has become a malignant tumor on the national economy and society in general. In the 1960s, when antiquated regulatory policies precipitated a wave of railroad bankruptcies, Congress quickly acted to avoid a repeat. Today, a broad range of agencies boast of their concerted efforts to kill the oil and gas industry. The current president recently kicked off his reelection campaign forgiving billions of dollars of student loans without any action by Congress. Immigration bureaucrats exercise their “discretion” to accept rote recitations of dubious asylum claims, flooding the country with unvetted immigrants with no plan for assimilation. During the recent pandemic, one of our most prominent public health officials defended the wholesale closing down of our entire society declaring that he himself was “science” and immune from public criticism. Most disturbing, federal law enforcement and intelligence agencies engage in the most intrusive surveillance of American citizens, soliciting media companies to control content and curb individual free speech, with the express intent of interfering with a presidential election. Once seen as a bug, the tyranny of the administrative state is now celebrated as a feature.
The corrosive effects of the administrative state are not hard to see. The center of gravity in our nation's commerce no longer resides in our major cities like New York City or Chicago, Houston or Cleveland, but in Washington, D.C. Much of our news comes, not from reporters across the nation, but from journalists embedded in Washington, D.C., who promiscuously commingle their own “expert” opinions with information gained from sources that have a vested interest in the actions of federal agencies. To most people, the idea that their government is run by their so-called “betters” – an elite cadre of Ivy league educated lawyers and public policy professionals – is a hard pill to swallow. Many U.S. citizens therefore find it easier to believe the most outrageous conspiracy theories, finding such theories more plausible than the uncomfortable truth. Most galling, the coddled beneficiaries of this system dismiss criticism of the administrative state as “undemocratic,” at the same time, claiming that the “public interest” necessitates taking policy matters out of the hands of voters, who they disparage as “deplorables,” MAGA extremists, and dangerous populists with a fascist agenda.
Professor Hamburger is spearheading a creditable effort to refine the arguments against the administrative state, to present those arguments in the courts, and to prune back the excesses of the administrative state. You’ll be hearing a lot more about Professor Hamburger from those who favor big government, and none of it will be good. His plane is right over the target.
https://www.nationalreview.com/magazine/2024/04/how-to-defeat-the-administrative-state/
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