The Rise and the Rise of the Administrative State (Great Read)

New England School of Law/Harvard Law Review ^ | 1994 | Gary Lawson

[mojito]

The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution....

[....]

The constitutional separation of powers is a means to safeguard the liberty of the people. In Madison’s famous words, “the 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.” The destruction of this principle of separation of powers is perhaps the crowning jewel of the modern administrative revolution. Administrative agencies routinely combine all three governmental functions in the same body, and even in the same people within that body.

Consider the typical enforcement activities of a typical federal agency…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....

[mojito]

A longish, scholarly article.

But do yourself a favor and read the whole thing.

[Former Proud Canadian]

mark

[Former Proud Canadian]

mark

[mc5cents]

A great article looks like written in 1994. And the government like Audrey II in The Little Shop of Horrors just keeps saying "Feed me Seymour!!" and grows ever larger and threatens to devour us all. Thomas Jefferson used the administrative state as one of the reasons for declaring independence from the British Crown. "He has created a multitude of new offices, and sent hither swarms of officers to harrass our people, and eat our their substance."

So what to do? Electing constitutional conservatives to national office would be a start but if recent history is any gauge, I wouldn't hold my breath.

[mojito]

So what to do?

Admitting that the system can't be fixed and calling a tyranny a tyranny is a good first step. That's a message that FReepers have embraced, but outside of a few enclaves like FR, it's not a message that you hear. The Democratic Party is in fact premised on the support and augmentation of a unconstitutional, tyrannical state, and the Republicans are not much better. It's time to start demanding our liberty back. As Confucius observed, calling things by their proper names is the first step toward changing a corrupt government.

[DNME]

Many of us call for a return to the Constitution but as this excellent article observes, that will not be an easy task.

The administrative state, as the article notes, is deeply entrenched and now widely accepted. If we tried to abolish the EPA for example, or any other “alphabet” agency you choose, the howls of outrage would be deafening. (”What, do you WANT dirty water and polluted air?!?”)

We allowed the camel’s nose into the tent willingly, each time to make something “better” or solve some specific problem. To become truly compliant with the Constitution again, are you ready to give up hundreds of government functions and services that you now take for granted, from food inspections to hurricane tracking to stock market fraud prevention?

Another enlightening article about a Constitutional blind spot may be found at outpost-of-freedom.com with the title “Are Cops Constitutional?” They are not, but can we live without them today?

[Jacquerie]

Administrative state tyranny will not be solved as long as both houses of congress are popularly derived.

If renewal of freedom is to happen, the Senate must be returned to the states.

[AllAmericanGirl44]

bkmk