Free Republic

Two recent U.S. Supreme Court decisions are victories for anyone dealing with government administrative agencies, say lawyers interested in the cases. One constitutional scholar warns that the decisions are only the first steps in the fight to maintain our form of democracy. “Administrative power is the greatest threat to our constitutional rights,” Phillip Hamburger, a Columbia University School of Law law professor and CEO of the New Civil Liberties Alliance (NCLA), told The Epoch Times. Mr. Hamburger is the author of “Is Administrative Law Unlawful?” a treatise on the dangers of administrative law. Lawyers interviewed by The Epoch Times believe...

The Supreme Court has scarcely filled its docket for the 2023-24 term, but it is already shaping up to a major term for administrative law. Among the cases accepted for next term with potentially significant implications for administrative law are the following: Consumer Financial Protection Bureau v. Community Financial Services Association of America—Whether the court of appeals erred in holding that the statute providing funding to the CFPB violates the appropriations clause in Article I, Section 9 of the Constitution, and in vacating a regulation promulgated at a time when the Bureau was receiving such funding. (I wrote about the...

You may have seen that the Federalist Society has been holding its annual convention in Washington. I was there on Thursday and Friday. They have recorded all the presentations. If you want to watch some, go to this link and see what interests you. There was not a lot of moaning about the election results. Rather, the focus was on high-minded issues, mostly of constitutional and administrative law. I have selected a highlight that you may find interesting. One of the lunchtime panels on Thursday was titled “Render Law Unto Congress and Execution Unto the Executive: The Supreme Court Rebalances...

The great mission of the early twentieth century Progressives was to transform our constitutional order without ever amending the Constitution itself. The intellectual leader of the movement was Woodrow Wilson. The fundamental idea was to replace the messy and contentious system of separated powers and slow bi-cameral lawmaking with a cadre of supposedly apolitical administrative “experts” who could run the country smoothly and efficiently. The idea sounded rather benign to most people at the time, and probably still sounds benign to most people today. Who could be against having “experts” to run significant government agencies? But a hundred-plus years into...

I mean those types of things should be decided as a public health issue by the public health organizations, in this case the CDC. This is a public health matter, not a judicial matter."

Perhaps the biggest roadblock to Trump’s MAGA agenda has been radical, liberal judges. These men and women, appointed by previous presidents and other powers, have interfered with President Trump’s lawful authority. But that’s all about to change. Judges are supposed to be impartial. They have a solemn duty to uphold our laws. Decisions made by judges can decide the fate of not just one person, but millions. Judges that preside over federal issues can very well affect the lives of every last American. We’ve seen how radical judges can harm our country. Obama-appointed judges have overstepped their bounds by attacking...

Congress now needs to use the “power of the purse” in the upcoming omnibus appropriations bill to continue its efforts to rein in agencies and reassert its lawmaking power. . . snip By developing an overbroad definition of “waters of the United States,” the agencies have been seeking to regulate almost every water imaginable and trample on property rights. The WOTUS Rule takes this federal overreach to a new level. For example, it would regulate certain man-made ditches and even regulate what most people would consider dry land. Congress should expressly prohibit funding for implementation and enforcement of the WOTUS...

An injunction issued against the Securities and Exchange Commission (SEC) by federal judge Leigh Martin May could spell the beginning of the end for Administrative Law Courts and with them, 80 years of unconstitutional abuse of power by the Executive branch. Administrative Law “…allows for the creation of public regulatory agencies and contains all of the statutes, judicial decisions, and regulations that govern them.” These regulatory bodies include the EPA and the SEC. Many came into being during the reign of Franklin Roosevelt, the one president more arrogant and power hungry than Barack Obama. The law itself “…is created by...

Everything you really need to know about the Constitution (and that’s barely an exaggeration) -- why it is structured the way it is, what led to it, its purposes -- is found in pages 2 – 12 of the March 9 concurring opinion by Justice Thomas in the Dept of Transportation v Assn of American Railroads case. Although it received little media attention, Justice Thomas has provided us a masterpiece of constitutional thinking, explaining why “administrative law” -- the practice of delegating to bureaucrats the making and enforcement of rules with the force of law – is so profoundly unconstitutional....

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.

The decision may upset some big plans the FCC has for us. On April 6, 2010, a three judge panel of the Federal Court of Appeals for the District of Columbia Circuit held unanimously in Comcast Corporation v. FCC that the Federal Communications Commission (FCC) had over-stepped its statutory authority by attempting to regulate aspects of cable internet service not contemplated by statute.