The Fiction and Tyranny of "Administrative Law"
..."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 would 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."
Philip Hamburger, "The History and Danger of Administrative Law," A Publicaton of Hilldale College, Impris, September 2014, Volume 23, Number 9, p.1
...
Quote:
You probably assume -- maybe because the Constitution says so -- that Congress enacts all federal laws. Guess again. Our federal administrative agencies actually dwarf Congress when it comes to implementing regulations that control what Americans can and cannot do. In effect, Congress had delegated much of its lawmaking authority to unelected bureaucrats. They, in turn, make thousands of law prescribing rules of conduct that bind private citizens, state governments, and local governments.
Some of the agencies are components of an executive department. For example, the Census Bureau is part of the Department of Commerce. Other agencies are independent -- not wholly accountable to either the president or Congress -- such as the Food and Drug Administration, which determines what drugs are sufficiently safe and effective to be sold in the United States. Most important for our purposes, administrative agencies often exercise legislative, executive, and judical powers. The FDA, for instance, can issue regulations having the same force and effect as a statute, impose penalities for violations, and conduct trial-type proceedings that affect the rights and interests of particular parties.
If the separation-of-powers principle -- a cornerstone of our Constitution for more than two centuries -- means anything, it means that no government entity should be authorized to pass laws, enforce the law that it passes, and then judge whether its own actions and the actions of other parties comply with those same laws. [pp.67-68]
The late conservative columnist Joseph Sobran had a lecture on audio tape called "How Tyranny Came to America." This seems like a shocking and absurd claim. How could anyone believe that "tyranny" exists in America? Sobran must have been some kind of extremist nut.
Well, Sobran was a bit of an extremist, but to evaluate his claim in this case, even apart from his arguments, one thing we might do is look at definitions of tyranny as formulated by the Founders of the Nation. Thus, Thomas Jefferson said, in his Notes on Virginia [1784], warning about a legislature assuming all the powers of government:
Quote:
All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one....As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for..."
This is significant, not only defining "despotic government" as that which combines the three powers into the same hands, but in noting that such a despotic government can exist even if it is democratic and elected. Some people might think that an "elective despotism" would be contradiction in terms -- since if those in office are elected, then "we are the government." No, all it means is that every two years, or four years, or six years those in office simply have to look preferable to the other guy. Otherwise, they are on their own.
