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The power of the Administrative State in America is growing with each passing year, with each election cycle and especially with the election of more Progressive representatives to government positions. Americans seem all too willing to accept this entity as necessary and inevitable even though the American Constitution was put in place to counter this idea. The idea that a country as big as ours cannot possibly function without many administrative rules and large bureaucracies managing every aspect of our lives seems so perfectly acceptable to Americans that any who challenge this idea are deemed just crazy.
I was reminded of this unsettling fact of 21st century America upon a recent trip to a very popular national park. Thousands upon thousands of acres of wilderness were set aside allegedly for the enjoyment of future generations of Americans. It would take a person with a very healthy physique a very long time, probably months to roam the entire length and breath of this wonderful park. However, there is very little roaming going on unless you agree to the park officials terms.
Upon arriving we are charged an admission price just to enter the place and told where to drive, where not to drive, where to park and where not to park, what objects we are permitted to bring into the park and what we are not to bring (don’t even think about trying to hunt here without getting special permission), and where our pets can and cannot go. We are told where and when to camp and when not to, where to hike and where not to, and upon reaching one of the summits, of one of the few accessible mountains with a paved road we are only permitted to walk on a two meter across paved trail about one hundred meters long. We are told with little signs everywhere to keep off ( literally hundreds of acres) the tundra surrounding the summit. It’s so the grasses on the frozen tundra are not damaged I heard one mother tell her small child.
I look at all of this with wonder not just at the raw beauty of nature has to offer but also the willingness of so many to exchange or surrender if you will, their personal freedom and individual rights to roam nature wherever and whenever they want, for the “order” allegedly provided by administrative rules.
Maybe it makes sense to not allow the crowds to trample on the grass on top of the summit even though there are thousands of acres of tundra surrounding the summit. Its apparently okay for Park Rangers to walk along the edges of the vast canyons and plateaus and interior of the park and the few brave and really fit hikers but for most of us Americans we will never see the interior of the park because it is administratively not possible to allow us. When I look at the millions upon millions of acres of land that the Federal government has stolen from “We the People” in this country for “preservation” or various purposes allegedly for our own benefit and at our tax expense; I wonder just how many actually see or experience that benefit. I am reminded of a quote attributed to Ayn Rand that is food for thought in this era of nanny government and administrative bureaucracies.
“Since there is no such thing as the “public” since the public is merely a number of individuals; the idea that “the public interest” supersedes private interests and rights can only have one meaning; that the rights and interests of some individuals take precedence over the rights and interests of others.” Ayn Rand
Call me crazy I guess but I found the below article from Hillsdale College’s free publication Imprimis to hit the nail on the head regarding this topic of administrative absolutism. If you have not already checked out Imprimis you should. Subscriptions are free and the articles, usually excerpts of speeches, are very informative and quoted by very qualified subject matter experts discussing current event issues we patriotic Americans face every day. I have copied their September 2014 issue below with their permission for your edification and enjoyment.
From Hillsdale College’s Imprimis
The following is adapted from a speech delivered on May 6, 2014, at Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., as part of the AWC Family Foundation Lecture Series.
The History and Danger of Administrative Law by
Columbia Law School
PHILIP HAMBURGER is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. He received his B.A. from Princeton University and his J.D. from Yale Law School. He has also taught at the University of Chicago Law School, the George Washington University Law School, the University of Virginia Law School, and Northwestern Law School. A contributor to National Review Online, he has written for several law reviews and journals, including the American Journal of Legal History, the Supreme Court Review, the Notre Dame Law Review, and the Journal of Law and Politics. He is the author of Separation of Church and State, Law and Judicial Duty, and, most recently, Is Administrative Law Unlawful?
There are many complaints about administrative law—including that it is arbitrary, that it is a burden on the economy, and that it is an intrusion on freedom. The question I will address here is whether administrative law is unlawful, and I will focus on constitutional history. Those who forget history, it is often said, are doomed to repeat it. And this is what has happened in the United States with the rise of administrative law—or, more accurately, administrative power.
Administrative law is commonly defended as a new sort of power, a product of the 19th and the 20th centuries that developed to deal with the problems of modern society in all its complexity. From this perspective, the Framers of the Constitution could not have anticipated it and the Constitution could not have barred it. What I will suggest, in contrast, is that administrative power is actually very old. It revives what used to be called prerogative or absolute power, and it is thus something that the Constitution centrally prohibited.
But first, what exactly do I mean by administrative law or administrative power? Put simply, administrative acts are binding or constraining edicts that come, not through law, but through other mechanisms or pathways. For example, when an executive agency issues a rule constraining Americans—barring an activity that results in pollution, for instance, or restricting how citizens can use their land—it is an attempt to exercise binding legislative power not through an act of Congress, but through an administrative edict. Similarly, when an executive agency adjudicates a violation of one of these edicts—in order to impose a fine or some other penalty—it is an attempt to exercise binding judicial power not through a judicial act, but again through an administrative act.Embed from Getty Images
In a way we can think of administrative law as a form of off-road driving. The Constitution offers two avenues of binding power—acts of Congress and acts of the courts. Administrative acts by executive agencies are a way of driving off-road, exercising power through other pathways. For those in the driver’s seat, this can be quite exhilarating. For the rest of us, it’s a little unnerving.
The Constitution authorizes three types of power, as we all learned in school—the legislative power is located in Congress, executive power is located in the president and his subordinates, and the judicial power is located in the courts. How does administrative power fit into that arrangement?
The conventional answer to this question is based on the claim of the modernity of administrative law. Administrative law, this argument usually goes, began in 1887 when Congress created the Interstate Commerce Commission, and it expanded decade by decade as Congress created more such agencies. A variant of this account suggests that administrative law is actually a little bit older—that it began to develop in the early practices of the federal government of the United States. But whether it began in the 1790s or in the 1880s, administrative law according to this account is a post-1789 development and—this is the key point—it arose as a pragmatic and necessary response to new and complex practical problems in American life. The pragmatic and necessitous character of this development is almost a mantra—and of course if looked at that way, opposition to administrative law is anti-modern and quixotic.
But there are problems with this conventional history of administrative law. Rather than being a modern, post-constitutional American development, I argue that the rise of administrative law is essentially a re-emergence of the absolute power practiced by pre-modern kings. Rather than a modern necessity, it is a latter-day version of a recurring threat—a threat inherent in human nature and in the temptations of power.Embed from Getty Images
The Prerogative Power of Kings
The constitutional history of the past thousand years in common law countries records the repeated ebb and flow of absolutism on the one side and law on the other. English kings were widely expected to rule through law. They had Parliament for making law and courts of law for adjudicating cases, and they were expected to govern through the acts of these bodies. But kings were discontent with governing through the law and often acted on their own. The personal power that kings exercised when evading the law was called prerogative power.
Whereas ordinarily kings bound their subjects through statutes passed by Parliament, when exercising prerogative power they bound subjects through proclamations or decrees—or what we today call rules or regulations. Whereas ordinarily kings would repeal old statutes by obtaining new statutes, when exercising prerogative power they issued dispensations and suspensions—or what we today call waivers. Whereas ordinarily kings enforced the law through the courts of law, when exercising prerogative power they enforced their commands through their prerogative courts—courts such as the King’s Council, the Star Chamber, and the High Commission—or what we today call administrative courts. Ordinarily, English judges resolved legal disputes in accordance with their independent judgment regarding the law. But when kings exercised prerogative power, they expected deference from judges, both to their own decrees and to the holdings and interpretations of their extra-legal prerogative courts.
Although England did not have a full separation of powers of the sort written into the American Constitution, it did have a basic division of powers. Parliament had the power to make laws, the law courts had the power to adjudicate, and the king had the power to exercise force. But when kings acted through prerogative power, they or their prerogative courts exercised all government powers, overriding these divisions. For example, the Star Chamber could make regulations, as well as prosecute and adjudicate infractions. And defenders of this sort of prerogative power were not squeamish about describing it as absolute power. Absolutism was their justification.
Conceptually, there were three central elements of this absolutism: extra-legal power, supra-legal power, and the consolidation of power. It was extra-legal or outside the law in the sense that it bound the public not through laws or statutes, but through other means. It was supra-legal or above the law in the sense that kings expected judges to defer to it—notwithstanding their duty to exercise their own independent judgment. And it was consolidated in the sense that it united all government powers—legislative, executive, and judicial—in the king or in his prerogative courts. And underlying these three central elements was the usual conceptual justification for absolute power: necessity. Necessity, it was said, was not bound by law.
These claims on behalf of absolutism, of course, did not go unchallenged. When King John called Englishmen to account extra legally in his Council, England’s barons demanded in Magna Carta in 1215 that no freeman shall be taken or imprisoned or even summoned except through the mechanisms of law. When 14th century English kings questioned men in the king’s Council, Parliament in 1354 and 1368 enacted due process statutes. When King James I attempted to make law through proclamations, judges responded in 1610 with an opinion that royal proclamations were unlawful and void. When James subsequently demanded judicial deference to prerogative interpretations of statutes, the judges refused. Indeed, in 1641 Parliament abolished the Star Chamber and the High Commission, the bodies then engaging in extra-legal lawmaking and adjudication. And most profoundly, English constitutional law began to develop—and it made clear that there could be no extra-legal, supra-legal, or consolidated power.
The Rise of Absolutism in America
The United States Constitution echoes this. Early Americans were very familiar with absolute power. They feared this extra-legal, supra-legal, and consolidated power because they knew from English history that such power could evade the law and override all legal rights. It is no surprise, then, that the United States Constitution was framed to bar this sort of power. To be precise, Americans established the Constitution to be the source of all government power and to bar any absolute power. Nonetheless, absolute power has come back to life in common law nations, including America.
After absolute power was defeated in England and America, it circled back from the continent through Germany, and especially through Prussia. There, what once had been the personal prerogative power of kings became the bureaucratic administrative power of the states. The Prussians were the leaders of this development in the 17th and 18th centuries. In the 19th century they became the primary theorists of administrative power, and many of them celebrated its evasion of constitutional law and constitutional rights.
This German theory would become the intellectual source of American administrative law. Thousands upon thousands of Americans studied administrative power in Germany, and what they learned there about administrative power became standard fare in American universities. At the same time, in the political sphere, American Progressives were becoming increasingly discontent with elected legislatures, and they increasingly embraced German theories of administration and defended the imposition of administrative law in America in terms of pragmatism and necessity.
The Progressives, moreover, understood what they were doing. For example, in 1927, a leading Progressive theorist openly said that the question of whether an American administrative officer could issue regulations was similar to the question of whether pre-modern English kings could issue binding proclamations. By the 1920s, however, Progressives increasingly were silent about the continuity between absolute power and modern administrative power, as this undermined their claims about its modernity and lawfulness.
In this way, over the past 120 years, Americans have reestablished the very sort of power that the Constitution most centrally forbade. Administrative law is extra-legal in that it binds Americans not through law but through other mechanisms—not through statutes but through regulations—and not through the decisions of courts but through other adjudications. It is supra-legal in that it requires judges to put aside their independent judgment and defer to administrative power as if it were above the law—which our judges do far more systematically than even the worst of 17th century English judges. And it is consolidated in that it combines the three powers of government—legislative, executive, and judicial—in administrative agencies.
Let me close by addressing just two of many constitutional problems illuminated by the re-emergence of absolutism in the form of administrative power: delegation and procedural rights.
One standard defense of administrative power is that Congress uses statutes to delegate its lawmaking power to administrative agencies. But this is a poor defense. The delegation of lawmaking has long been a familiar feature of absolute power. When kings exercised extra-legal power, they usually had at least some delegated authority from Parliament. Henry VIII, for example, issued binding proclamations under an authorizing statute called the Act of Proclamations. His binding proclamations were nonetheless understood to be exercises of absolute power. And in the 18th century the Act of Proclamations was condemned as unconstitutional.
Against this background, the United States Constitution expressly bars the delegation of legislative power. This may sound odd, given that the opposite is so commonly asserted by scholars and so routinely accepted by the courts. But read the Constitution. The Constitution’s very first substantive words are, “All legislative Powers herein granted shall be vested in a Congress of the United States.” The word “all” was not placed there by accident. The Framers understood that delegation had been a problem in English constitutional history, and the word “all” was placed there precisely to bar it.
As for procedural rights, the history is even more illuminating. Administrative adjudication evades almost all of the procedural rights guaranteed under the Constitution. It subjects Americans to adjudication without real judges, without juries, without grand juries, without full protection against self-incrimination, and so forth. Like the old prerogative courts, administrative courts substitute inquisitorial process for the due process of law—and that’s not just an abstract accusation; much early administrative procedure appears to have been modeled on civilian-derived inquisitorial process. Administrative adjudication thus becomes an open avenue for evasion of the Bill of Rights.Embed from Getty Images
The standard justification for the administrative evasion of procedural rights is that they apply centrally to the regular courts, but not entirely to administrative adjudication. But the history shows that procedural rights developed primarily to bar prerogative or administrative proceedings, not to regulate what the government does in regular courts of law. As I already mentioned, the principle of due process developed as early as the 14th century, when Parliament used it to prevent the exercise of extra-legal power by the King’s Council. It then became a constitutional principle in the 17th century in opposition to the prerogative courts. Similarly, jury rights developed partly in opposition to administrative proceedings, and thus some of the earliest constitutional cases in America held administrative proceedings unconstitutional for depriving defendants of a jury trial.
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In sum, the conventional understanding of administrative law is utterly mistaken. It is wrong on the history and oblivious to the danger. That danger is absolutism: extra-legal, supra-legal, and consolidated power. And the danger matters because administrative power revives this absolutism. The Constitution carefully barred this threat, but constitutional doctrine has since legitimized this dangerous sort of power. It therefore is necessary to go back to basics. Among other things, we should no longer settle for some vague notion of “rule of law,” understood as something that allows the delegation of legislative and judicial powers to administrative agencies. We should demand rule through law and rule under law. Even more fundamentally, we need to reclaim the vocabulary of law: Rather than speak of administrative law, we should speak of administrative power—indeed, of absolute power or more concretely of extra-legal, supra-legal, and consolidated power. Then we at least can begin to recognize the danger.
Copyright © 2014 Hillsdale College. The opinions expressed in Imprimis are not necessarily the views of Hillsdale College. Permission to reprint in whole or in part is hereby granted, provided the following credit line is used: “Reprinted by permission from Imprimis, a publication of Hillsdale College.” SUBSCRIPTION FREE UPON REQUEST. ISSN 0277-8432. Imprimis trademark registered in U.S. Patent and Trade Office #1563325.
“Today, when a concerted effort is made to obliterate this point, it cannot be repeated too often that the Constitution is a limitation on the government, not on private individuals; that it does not prescribe the conduct of private individuals, only the conduct of the government; that it is not a charter for government power, but a charter of the citizen’s protection against the government.”
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Is the global war on terror also an assault on personal liberty and the U.S. Constitution?
Keen observers of history will note that our leaders in government have with great success at various times of crisis convinced the American people that in order to stay “safe” and have a certain level of security and piece of mind, their individual rights must be sacrificed. In those cases the Constitution is completely ignored or trampled upon. Some poignant examples come to mind, Lincoln’s suspension of habeas corpus during the Civil War and FDR’s internment of Japanese Americans during the Second World War.
The pattern is the same. A flagrant disregard for the rights of the individual citizen and usurpation of power or authority usually proceeded by some great tragedy or perceived threat. In the 21st century we are told the war on terror provides justification for these violations and require us to re-think the law for our own good to “protect” us from the grave dangers we face.
- NSA warrantless intercepted electronic and telephone communications….direct violation of the 4th Amendment
- Targeted assassinations of US citizens identified as “Terrorists” overseas…direct violation of the 5th & 6th Amendments
- Drones obtrusively observing citizens from above our cities…..direct violation of the 4th Amendment
- Indefinite detentions without trial…. direct violation of the 5th Amendment
- Illegal searches of homes and property for entire city blocks as in the case of the Boston bombing….direct violation of the 4th Amendment.
The danger lies in this. We have placed our trust in representative government to do its job and put people by election in positions of power and authority that will not subvert the process for their own personal gain. We have placed our faith in that they know what they are doing and have respect for the Constitution and will when the crisis has been averted resume the role of guardians of the system and restore the rights of American citizens. In today’s modern bureaucrat’s mind however, he believes he knows what is best for the country and its citizens and will not give up any new found powers granted to him. Once power or authority is co-opted or willingly surrendered to the State it is rarely relinquished without a fight. A fight that usually ends up very bloody.
Article 1. Section 1. All legislative Powers, herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.
Simply translated it means all law making Powers are granted to the Congress. Note that nowhere in the Constitution does it say an Executive is granted powers of law making. It is conspicuously absent. It is important to note that an executive who can arbitrarily make and break laws has put himself by default above the law to the position of monarch or dictator. King George comes to mind. Josef Stalin comes to mind. Kim Jong-Un of North Korea comes to mind. We don’t allow that in this country, or do we?
The President’s actions in ordering changes and delays in implementation for the largely unpopular Affordable Care Act (Obamacare) are good illustrations of how the power of executive orders is being abused for political purposes. Some observers have suggested that the timing of these delays coincidentally fall after the mid-term elections of 2014. The President has side-stepped the only real chance the citizens have of voicing their discontent. When people start getting their insurance cancellation notices, employment terminations, and start experiencing the real negative effects of Obamacare kicking in, their chance to hold their elected representatives responsible will have come and gone. Convenient huh?
Since February 7, 2013 the President has altered, changed or delayed the implementation of the Affordable Care Act by executive fiat thirteen times according to the New York Times. The White House points to the Internal Revenue Code as its justification for the Obamacare delays. They argue that the Internal Revenue Service has the authority to “prescribe all needful rules and regulations” for enforcing the tax code. In July, before the Ways and Means House Subcommittee on Health, J. Mark Iwry, the deputy assistant Treasury secretary for health policy, said this administrative authority has been used to provide transition relief for taxpayers seeking to comply with new legislation, and to provide a wide range of other guidance. In particular, on a number of prior occasions across Administrations, this authority has been used to postpone the application of new legislation when immediate application would have subjected taxpayers to unreasonable administrative burdens or costs.”
Legal experts however state this power to delay is not unlimited. Nicolas Bagley a University of Michigan law professor who studies administrative and health law stated in a recent interview “The administration’s position is an aggressive one, and the legal basis for the delay isn’t altogether secure,” said Mr. Bagley. The same argument the White House is making could be used by future administrations to justify putting off just about any change in the tax code that Congress makes, he said, calling it a potential concern. “
This president has set records for the number of executive orders issued since he occupied the White House. The count is well over 13,000 and growing and is more than any other US president in history. This President has clearly demonstrated a blatant disregard for the US Constitution and the separation of powers, its underlying framework. In his most recent State of the Union address President Obama promised to act if Congress will not. There it was for all to see, his contempt for the process. He will legislate from the White House if Congress will not. He is willing to ignore the Constitution and unilaterally taken it upon himself to legislate by executive order and even more disgusting he received rousing applause in support from his Democrat cohorts for this very un-American idea.
If you haven’t already noticed this country is in trouble. We have a sitting President willing to circumvent the Constitution. We have a sizable percent of the Congress going along with that idea. We have a sycophant press corps and media apparatus willing to go along. Perhaps most disturbing is we have a big percentage of the US population more than willing to surrender their hard fought independence to self-proclaimed government experts in all matters of their life to include healthcare. Does America want a King again? Are we not capable of making decisions for ourselves and so must have a strong leader to look out for us? It sure looks like it doesn’t it?