Posted on 10/13/2014 4:10:38 PM PDT by PapaNew
[T]he rise of administrative law is essentially a re-emergence of the absolute power practiced by pre-modern kings. The constitutional history of the past thousand years in common law countries records the repeated ebb and flow of absolutism...
[O]rdinarily kings bound their subjects through proclamations or decrees—or what we today call rules or regulations...dispensations and suspensions—or what we today call waivers...their prerogative courts—courts such as the King’s Council, the Star Chamber, and the High Commission—or what we today call administrative courts.
[D]efenders of this sort of prerogative power were not squeamish about describing it as absolute power. Absolutism was their justification.
These claims on behalf of absolutism, of course, did not go unchallenged...Magna Carta in 1215...Parliament in 1354 and 1368 enacted due process statutes...in 1641 Parliament abolished the Star Chamber and the High Commission...English constitutional law.
Americans established the Constitution to be the source of all government power and to bar any absolute power. [T]wo of many constitutional problems illuminated by the re-emergence of absolutism in the form of administrative power [are] delegation and procedural rights.
[T]he United States Constitution expressly bars the delegation of legislative power. 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.
Administrative adjudication evades almost all of the procedural rights guaranteed under the Constitution.
The Constitution carefully barred this threat...[i]t therefore is necessary to go back to basics. Among other things, we should no longer settle for some vague notion of “rule of law,”...[w]e should demand rule through law and rule under law.
(Excerpt) Read more at imprimis.hillsdale.edu ...
IMO, the greatest problem in America is recognizing the danger of the size, magnitude, and threat of this unconstitutional $4,000,000,000,000 federal government. The $4 trillion federal government IS THE #1 issue and threat to our free way of life in America.
Americans must change their mindset that government is their friend and once again recognize that freedom from government is their friend.
The first thing on the political agenda for all right thinking Americans is CUTTING THE FEDERAL GOVERNMENT BY 80%. That would leave it a $800 billion, still too large, but it is a start.
Either we, the American People, destroy unconstitutional government excess, or the unconstitutional government will enslave and destroy the lives and freedoms of the American People.
Bingo!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Lots of legislative chatter about it here in Michigan lately. My state rep is pushing legislation that would bar the state from enforcing administrative law in many cases.
He speaks about guys who build a garage only to find that the spot he chose was designated a wetland and ends up facing thousands of dollars in fines, jail time and potential orders to remove the building and restore the damp ground.
He’s also introduced legislation to eliminate unenforceable local ordinances. Liberals are responding that all laws are enforceable if you just hire enough people to enforce them.
The argument is that the agencies specialize in a certain area and are the experts. However, it does need to be tightened up.
That is not the argument. The source link is a good read.
Good for your state rep.
Other than the attempt by the Citizens for Self-Governance in the Article V Convention of States to reverse things, I think our best shot is state nullification of unconstitutional federal action.
For your rep or any state to successfully nullify fed action, the people and officials of that state will need to accept the very real possibility of doing without federal funds. IMO, a state would do better without federal funds if they adopted the free market with lower state government and taxes. That state would have a good chance of becoming much more financially healthy than the bankrupt federal government.
I know, but that fallacious argument doesn't trump the Constitution.
I completely agree. Admin law is the 800 pound monster in the legal arena.
I took Administrative Law in law school. What a mass of confusion. I came out saying that Admin Law was a study in trying to do the wrong thing the right way.
Amen.
Just another one of those separation-of-power thingies so carefully crafted by the Founders and consequently ignored by the federal government.
Even the non-delegation doctrine is effectively dead. SCOTUS has no objection to administrative law. It's been upholding it. Plus, Congress very much like to avert accountability. Heck, much of the legislation it enacts originates with the executive or an administrative branch.
Unelected bureaucrats writing law is one of the primary traits of both fascist and communist dictatorships.
Largely because of that, I give myself a 50/50 chance of participating in the midterm election. At this moment, I view my vote as condoning tyranny. Venezuela and Cuber have elections too.
Ah yes, but it's tyranny by the people, seeing as how they have the "right to vote."
I'm in a similar state of mind as you, suffrage is cover for government over-reach. But there are a few good (local and state) people on the ballot, and always some spending measures to vote down.
Amen.
If the Article V Convention of States sponsored by the Citizens for Self Governance doesn't fix it, then it's on to STATE NULLIFICATION with the necessary accompaniment of weaning off of federal funds which, if the state embraces the free market with less government and taxes, will leave it wealthier than the bankrupt feds.
Mr. Hamburger knocked it out of the park with this analysis. Well worth reading the whole article.
” Administrative law is the law of the government.”
No, Administrative Law is “an attempt to exercise binding legislative power not through an act of Congress, but through and administrative edict.” Adjudicating such an edict is “an attempt to exercise binding judicial power not through a judicial act, but again through and administrative act.
In short, it attempts to get around the specific powers given to Congress and to the Judiciary by the founders.
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