The Administrative State's Threat to the American Constitution
We should be appalled of the inroads that the Administrative State has made into American governance and the peril the Administrative State poses to our Constitution. Our founding fathers were dedicated to an avowal of government based on fundamental principles; popular sovereignty, limited government, checks and balances, separation of powers, judicial review, and federalism.
The just powers of the government were to be derived from the consent of the governed. This affirmation of popular sovereignty and limited government can be examined quite simply. Should the people control government, or should government control the people? The founders opted for government of the people.
A major concern of the drafters of the new Constitution was the danger of tyranny and the avoidance of paths to inadvertently slide into tyranny. They feared tyrants such as King George III, but also worried about the “tyranny of the majority,” the downfall of democratic initiatives over the ages.
In Federalist #47, James Madison wrote:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.
The founders thus strived to separate the three functions of government, legislative, executive, and judicial, one from another; the principle of the separation of powers and the principle of checks and balances so intricately woven into the finished document. They recognized the frailties of human nature and used checks and balances, often setting ambition against ambition, as forces to constrain self-interest and restrain tyranny.
The founders did not consider the three branches of government to be equal. They anticipated that the legislative branch would be the most powerful (by virtue of the authority to make law) and that the judicial branch would be the least powerful of the three. Their concern with the power of the legislative branch was such that, as another of their checks and balances, they divided it into two chambers; a House of Representatives, elected directly by the people, and a Senate, appointed by the state legislatures. In this manner, each chamber would check the other, reducing the chances of a tyranny by the legislative branch.
Each piece of the mosaic was debated in depth during the four exceedingly hot months of the summer of 1787. All but three of the pieces were achieved by consensus; the three others addressed compromises on slavery, the rights of small states, and the electoral college.
John Steele Gordon, in a February 2019 article in Commentary Magazine, said:
To put it simply, the creation of the United States Constitution was the most successful act of statecraft in human history. (snip)
Within a century of its founding, the United States had grown from an undeveloped country dependent on the export of raw materials to the largest and most dynamic economy in the world. This was an exceptional, not to say astonishing, achievement.
The people of the United States under this exceptional Constitution have prospered and flourished. Various nations of the world have emulated aspects of the American experiment and they too have thrived. The Constitution is almost 250 years old with few amendments that have not altered, with the notable exceptions of the 16th and 17th, the principles and checks and balances of the original document.
But our Constitution is under attack from within.
The Constitution came out of the Civil War essentially intact with amendments to incorporate the end of slavery and a commitment to equal rights for all. The federal government came out of the war much enlarged.
A new school of thought became influential in our political dialogue. They called themselves Progressives and included powerful and soon to become famous men, including Theodore Roosevelt and Woodrow Wilson. An acceptable starting point to illustrate the Progressive viewpoint is an 1887 paper by Wilson, The Study of Administration. He introduces the study with the following question:
The question was always: Who shall make law, and what shall that law be? The other question, how law should be administered with enlightenment, with equity, with speed, and without friction was put aside as " practical detail " which clerks could arrange after doctors had agreed upon principles.
Wilson and others put forth the concept that government of the United States had become too complicated and too demanding of specialized knowledge to be trusted to elected representatives of uncertain provenance. An Administrative State was necessary to support (and eventually supplant?) the traditional Constitutional government. The danger of the Progressive’s approach was and is that in such an iteration of the government of the United States, the power of the state would trump the power of the people.
The Progressive movement made considerable inroads into our politics. Theodore Roosevelt became President in 1901 and Woodrow Wilson was elected in 1913, a watershed year for the Progressives. The Constitution’s checks and balances took two significant hits, Income Tax (16th Amendment) and the direct election of Senators (17th Amendment). 1913 gave us the prototype Administrative State agency, the Federal Reserve System, with the Federal Trade Commission following in 1914.
The Administrative State presently has upwards of 445 agencies by count in the Federal Register.
Congress can legislate an agency when they feel the need. Each agency is defined by a unique Act of Congress in full compliance with the Constitution. The legislation typically gives the agency the legislative right to make rules and regulations with the effect of law, the executive ability to enforce their rules and regulations, and the judicial clout to severely punish transgressors. The Constitutional checks and balances are not included, making the agencies anti-Constitutional. The Article III Constitutional courts have bent the definitions of non-delegation and deference to permit the agencies great latitude, see for example Mistretta v United States (1989) and the Chevron Deference(1984).
Professor Gary Lawson gives us this perceptively phrased synopsis of the typical Administrative State agency:
The [Agency] promulgates substantive rules of conduct. The [Agency] then considers whether to authorize investigations into whether the [Agency]’s rules have been violated. If the [Agency] authorizes an investigation, the investigation is conducted by the [Agency], which reports its findings to the [Agency]. If the [Agency] thinks that the [Agency]‘s findings warrant an enforcement action, the [Agency] issues a complaint. The [Agency]’s complaint that a [Agency] rule has been violated is then prosecuted by the [Agency] and adjudicated by the [Agency].
The agency is under the Executive branch and has the power to issue rules or regulations with the force of law. Given an alleged violation, the same people act as investigators, prosecutors, and judges (there is no jury). This is the very definition of tyranny that Madison warned of in Federalist #47 and it is now fully sanctioned under the Administrative State.
The present-day overt face of the Administrative State is a phalanx of agencies with Star Chamber-like powers (see Hamburger) poised to ensure that government of, by, and for the people perishes from the United States. What can be done?
Can anything be done?
Starting with Franklin Roosevelt’s New Deal and until quite recently, the political will of the country favored the proliferation of the Administrative State and thus the decline of the influence of the American Constitution. The outlook was bleak.
The past few years have seen an in-depth examination and denunciation of the Administrative State by several prominent scholars, among them Philip Hamburger, Gary Lawson, John Marini, Joseph Postell, Michael Rappaport, and Peter Wallison.
The Supreme Court’s current swing to the right may prompt the Court to revisit previous non-delegation and deference decisions as discussed above. Justice Clarence Thomas is an outspoken critic of the Administrative State. The feckless Congress must accept the duty to act in accordance with the American Constitution. Senator Mike Lee of Utah is actively pursuing restrictions on the Administrative State.
The unrestrained growth of the anti-Constitutional Administrative State could be easily halted by the imposition of a few specific checks and balances: Congress to approve all major rules and regulations, the courts to reverse previous non-delegation and deference decisions, and Congress to add a pool of qualified Administrative Law Judges within Article III.
Full correction of the damage done by the anti-Constitutional Administrative State requires an educated and involved electorate. We owe our children and grandchildren the same rights, the same liberties, and the same opportunities enshrined in our exceptional Constitution. Grass-roots activists must rally, lobby, and demonstrate for the reform of the Administrative State to ensure that government of, by, and for the people does not perish from the earth.
Mike Johnson is a retired rocket scientist and the author of the forthcoming book Malicious Ethics and Biased Prosecution: the Larry Yacubian Story. E-mail email@example.com