Any discussion today of constitutional protections for liberty typically focuses on the Bill of Rights. That makes sense, because affirmative protections for our rights play an essential role in keeping us free. But the Bill of Rights is not the only part of the Constitution that helps protect liberty. In fact, to the Framers, the Bill of Rights was the least important bulwark against tyranny. Far more important, to them, was something that permeates the entire document and is the very structure of our government: the separation of powers.
The Constitution vests the legislative power in Congress, the executive power in the president, and the judicial power in the courts. Simply put, Congress makes the law, the president executes the law, and the courts interpret and apply the law.
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.
And that’s exactly what has been happening in America over the last century or so. No, we are not a dictatorship. But the structural parallels to authoritarian regimes are hard to ignore. Just last year, President Biden tried to ram through a half-trillion-dollar student loan forgiveness program that Congress never authorized. Lest you think only those on the left violate the separation of powers, recall that it was President Trump who ordered the Centers for Disease Control and Prevention (CDC) to ban evictions in the nation during the pandemic. Executive overreach is one of the few truly bipartisan policies in American government today.
Actions such as these reflect a massive accumulation of power in executive agencies at the expense of liberty and the rule of law. That concentration of power has happened because the separation of powers has been systematically undermined for decades.
But it wasn’t just the work of the executive branch. Congress and the courts are also culpable. Article I of the Constitution states clearly that “all legislative powers herein granted” belong to Congress. Despite this, Congress for many decades has passed broad and vague statutes that empower executive agencies to make law in the form of a seemingly endless stream of regulations. Unfortunately, the Supreme Court hasn’t enforced Article I’s mandate — known as the “non-delegation doctrine” — since 1935.
A close cousin to broad delegations of legislative power is a doctrine known as “judicial deference.” This court-created doctrine allows bureaucrats to claim even more power by demanding that courts defer to an agency’s interpretation of the very laws they are enforcing. Imagine if courts in criminal matters allowed the prosecutor to decide the meaning of the laws they were enforcing, and you can see the problem.
Judicial deference can result in judges abdicating their constitutional duty to interpret the law and removing them as a check on executive overreach. An independent judiciary is essential to the rule of law. Deference compromises the integrity of the courts.
To make matters worse, many agencies can prosecute people for violations of the rules they pass in their own court system. Agency tribunals often have the appearance of a real court, but the resemblance is only skin deep.
Administrative law judges are employed by the agency that wrote the rules and is prosecuting the violation. The rules of evidence and procedure are lax and subject to change. And when the “judge” issues a ruling, it must be appealed in the first instance to the commissioners who voted to bring the case in the first place. So much for having your day in court.
Many proponents of the administrative state still argue that it is consistent with constitutional norms because the agencies are answerable to the president, who is, in turn, accountable to the people. But even this minimal check has been eroded, as a great deal of agency action is taken by officials who were not properly appointed under the Constitution, and Congress has passed, and the Supreme Court largely has upheld, restrictions on the president’s right to remove agency heads.
The result of all this is an administrative state that operates almost entirely outside of constitutional limits. Many refer to the administrative state as a “fourth branch” of government. But given its vast power — agencies make the law, they enforce that law in their own courts, and when they do have to appear in an actual court, judges are often required to defer to their interpretation of the law — it is more accurate to think of the administrative state as a kind of cancer, growing and metastasizing within our government. In a worst-case scenario, if we continue to ignore the separation of powers, one day, the government we thought we had will have died and it will be replaced with something that is no longer conducive to a free society.
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.
This op-ed was originally published at The Messenger on June 25, 2023.