The executive branch is out of control

August 09, 2023 | By BRITTANY HUNTER
Separation of powers abstract

To safeguard the American people against tyranny, the Framers of our Constitution created a political system with three distinct branches of government—executive, legislative, and judicial—each tasked with its own unique and specific powers.

To ensure that no one branch could usurp the role of another, a system of checks and balances was instituted to, as Thomas Jefferson put it, bind them down “from mischief by the chains of the Constitution.”

But the separation of powers is currently under attack.

The executive branch has swallowed up power that rightly belongs to the other branches, growing the administrative state into an unchecked bureaucratic machine.

In a special series for The Messenger, Pacific Legal Foundation attorneys have identified current threats to the separation of powers and the best tools for fighting executive overreach.


A threat: Chevron Deference

Chevron Deference has been “like jet fuel for the administrative state,” empowering executive agencies to highjack the role of Congress. As Pacific Legal Foundation’s Alison Somin writes:

Chevron has enabled Congress’s abandonment of its core responsibility: to make the law. Meanwhile, executive agencies have stepped into the void, but without the direct accountability to voters that Congress has under the Constitution…

Justice Neil Gorsuch has lamented that Chevron has led judges to abdicate their judicial duties. ‘Rather than provide individuals with the best understanding of their rights and duties under law a neutral magistrate can muster, we outsource our interpretive responsibilities,’ he wrote. ‘.. Rather than say what the law is, we tell those who come before us to go ask a bureaucrat.’

The Supreme Court will have an opportunity to overturn Chevron this term when it hears Loper Bright Enterprises v. Raimondo, Alison explains.

William Yeatman spoke to EpochTV about Chevron as a “legal loophole.”


A tool: The Appointments Clause

Also writing for The Messenger, PLF attorney Michael Poon explains how the Appointments Clause is an important tool to protect the separation of powers.

He writes, “We’ve seen unelected bureaucrats make decisions and implement policies that undermine the choices of elected representatives, and the problem has gotten worse with time.”

But there is a constitutional weapon we can use to fight back.

“The Appointments Clause generally requires unelected federal officials with significant power to be nominated by the president and confirmed by the Senate, and the president must be able to fire these officials at will. Only these ‘Officers of the United States,’ not just any government employee, can make important decisions that affect the public. And because officers are both hired and fired by elected representatives, the people can hold officers accountable by holding their elected representatives accountable for officers’ actions.”


A threat: In-House Tribunals

A major threat to the separation of powers comes in the form of in-house tribunals. In-house tribunals use a process called “agency adjudication,” wherein agencies punish individuals who break their laws—which were made without Congress—and try them in their own courts that operate outside of the judicial branch.

Pacific Legal Foundation attorney Adi Dynar explains the danger of in-house tribals:

“…unlike real courts, these in-house tribunals don’t have to follow any set rules of procedure or evidence. The agency establishes its own rules, which generally favor the agency over the accused. But even these rules aren’t fixed, because the hearing officer often has free rein to change them at will. The rules of our justice system aren’t just procedural niceties; they’re essential protections for the rights of the accused that have been built up over centuries.”

He continues:

“What’s more, in-house tribunals are missing one of the most important parts of our judicial process: the jury. For centuries, juries have kept judges and prosecutors accountable to the people. This much is neither in dispute nor a partisan issue. Sen. Sheldon Whitehouse (D-R.I.) provides extensive support for the unremarkable proposition that the civil jury serves as a check exercised by the people over the judicial branch.”


A tool: The Major Questions Doctrine

PLF attorneys Luke Wake and Josh Robbins write:

In 2022, the Supreme Court reinvigorated a legal tool for ensuring that federal agencies are exercising their authority within congressionally prescribed limits: the Major Questions Doctrine. This doctrine is simply the commonsense proposition that Congress does not intend to authorize regulation of a question of economic or political significance if it has not done so in clear terms. And it is a critical tool in the ongoing dispute over the scope of agency rule-making power, which has reached a fever pitch in recent years.

Take, for example, the Department of Education’s recently rebuked attempt to erase more than half-a-trillion dollars in student loan debt based on a laughably pretextual reading of the 2003 HEROES Act. There was never a plausible argument that Congress gave the president the power to cancel student debt in a statute intended ‘to repay Americans who endured personal hardship in service to their country with protection against the distractions of administrative obligations arising from student loans.’ And in Biden v. Nebraska, the Supreme Court—relying on the Major Questions Doctrine—reached the same conclusion.


Why does any of this matter? Because the Separation of Powers is the Foundation of American Liberty

Pacific Legal Foundation attorneys Jessica Thompson and Steve Simpson explain:

“Separating these powers is essential for keeping the government in check and preventing the concentration of too much power in any one branch. As James Madison famously said, ‘The accumulation of all powers, legislative, executive and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.’ Look at any authoritarian regime through history, and you will see that Madison was right. They always concentrate power in a small group of unaccountable officials, who then dictate the rules to everyone else.”

While the executive branch is currently out of control, the Constitution provides us the tools we need to rein it in.

Steve and Jessica remind us:

“Fortunately, it is not too late to reinvigorate the separation of powers and stem the growth of the administrative state. Will we heed Madison’s warning? To paraphrase another wise member of the founding generation: It’s a republic, if we can keep it.”

For further insight into PLF’s fight to uphold the separation of powers, watch Jessica Thompson’s appearance on CNN after the Supreme Court blocked executive overreach on student loan forgiveness.