February 23, 2018

Government of the bureaucrats, by the bureaucrats, and for the bureaucrats

By Timothy R. Snowball Attorney

The American Republic is in the midst of a constitutional crisis.

The size, scope, and power of the modern administrative state has far surpassed even the direst imaginings of the Founding Fathers. One of the primary ways Thomas Jefferson justified the split from Great Britain in the Declaration of Independence was King George III’s empowerment of bureaucrats to “harass our people and eat out their substance.” After the conclusion of the Revolutionary War, the Framers of the Constitution took great pains to prevent just such an abuse by dividing the power of the new federal government into separate but co-equal branches, designed to check and balance each other. Familiarly, Congress is vested with the power to make the laws, the President is vested with the power to sign or not sign the laws, as well as enforce the laws, and the Supreme Court is vested with the power to decide the constitutionality of the laws passed by Congress. According to James Madison, the “Father of the Constitution,” “[t]he 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.”

And for roughly the first 150 years of the American Republic, this carefully crafted system operated as intended.

But for Franklin Delano Roosevelt and the other “New Deal” enthusiasts, the Founders’ view that the purpose of government is to secure natural rights within the framework of constitutionally limited government was hopelessly outdated. Rather than a guarantee of the liberty of each individual, the inefficient checks and balances of the Constitution, designed to require broad public consensus and impede rash lawmaking, were seen as an impediment to “progress.” The Progressives’ solution was to centralize power in a new authority: the administrative state. Run by “experts” not subject to election or democratic oversight and empowered to enact, enforce, and rule upon policies imposed directly on the American people, this “Fourth Branch” of government would not be constrained by either the Constitution or the people. Add in some poorly drafted legislation, and one or two badly decided decisions by the Supreme Court, and you have the modern behemoth that is the administrative state.

Compare the Founders’ system of limited powers with the enforcement functions of a typical modern administrative agency such as the Federal Communications Commission (FCC), where the agency issues “rules” that are laws in all but name, enforces them, and adjudicates alleged violations:

“The Commission promulgates substantive rules of conduct. The Commission then considers whether to authorize investigations into whether the Commission’s rules have been violated. If the Commission authorizes an investigation, the investigation is conducted by the Commission, which reports its findings to the Commission. If the Commission thinks that the Commission’s findings warrant an enforcement action, the Commission issues a complaint. The Commission’s complaint that a Commission rule has been violated is then prosecuted by the Commission and adjudicated by the Commission. This Commission adjudication can either take place before the full Commission or before a semi-autonomous Commission administrative law judge. If the Commission chooses to adjudicate before an administrative law judge rather than before the Commission and the decision is adverse to the Commission, the Commission can appeal to the Commission. If the Commission ultimately finds a violation, then, and only then, the affected private party can appeal to an Article III court. But the agency decision, even before the bona fide Article III tribunal, possesses a very strong presumption of correctness on matters both of fact and of law.”

Besides this patently unconstitutional mix of powers, there is also sheer size of the administrative state to consider. There is now such an abundance of administrative agencies controlling the food we eat, the water we drink, the cars we drive, the products we purchase, and nearly every aspect of American life, we aren’t sure how many agencies even exist!

Given the current behemoth that is the modern administrative state, and the changes it has wrought upon our Republic, some wonder if there is any hope of enacting change.

There is hope. The Pacific Legal Foundation (PLF) is committed to seeing the American constitutional order restored by representing citizens who fight back. We recently launched a direct challenge to the abuses of the modern administrative state. This unprecedented effort, consisting of three simultaneously filed lawsuits in three different federal circuits, is but the first of many such challenges we hope to launch against the abuses of the administrative state in the coming years. In the United States the people and their elected representatives are in charge; not the bureaucrats.

We invite you to join the fight.

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