Newsletter - December 2023

 The United States of America was founded by people committed to freedom and most importantly the right of the people to govern themselves.  This is a concept that has not been seen often throughout history.  America was unique. 

The Founders knew their history, especially the history of tyranny in England.  They were very concerned about the rise of tyranny in America. 

So, where are we in 2023?  Well, things have changed in our country. It has been a little step here, another step there and amazingly we have a new government.  What is it?  Welcome to the Administrative State.

The term Administrative State is the term that describes the phenomenon of administrative agencies within the executive branch exercising the power to create, adjudicate and enforce their own rules. 

The nature and scope of administrative agency action consists of five areas.

Nondelegation: Lawmakers delegate rulemaking authority to administrative agencies – allowing agencies to promulgate rules with the force and effect of law.

Judicial Deference: A court accepts an agency’s interpretation of a statute or regulation even if the court would have arrived at a different interpretation.

Executive Control of Agencies: The executive has certain authority over the appointment and removal of agency heads, reorganization of the executive brand and regulatory review activities.

Procedural Rights: Agency rulemaking and enforcement proceedings have implications for individual procedural rights, such as due process and standing.

Agency Dynamics: Agencies exercise authority to promulgate rules, enforce regulatory compliance and adjudicate disputes. 

How did the Administrative State begin and why are we where we are today?

Let’s go back to the 18th Century and the Age of Enlightenment.  Philosophers and thinkers of the period embraced rational thought as the best instrument to improve humanity.  It was during this period that people began to regard reason as intellectually superior to faith, including faith in religion.  Intellectual leaders believed that reason could remake society.  The belief that reason can improve and reshape society is the thread that exists in leaders of the Progressive Era and the modern administrative state.

In the 19th Century the administrative state grew because of government regulation.  This is when the Progressive Era began.  Reformers in this era believed they could remedy various perceived social ills by setting up an administrative apparatus run by those who were regarded as experts.  It was believed that these experts would not have any political ambitions and therefore would be freed from fixed constitutional constraints. 

During the latter part of the 19th Century workers in various industries called for government regulation.  The Interstate Commerce Commission was created in 1887 to regulate railroads and carriers across state lines.  In the late 19th century workers compensation laws were adopted by a number of states.  Congress passed the Federal Meat Inspection Act in 1906 to regulate the meat packing industry and safeguard against unsanitary slaughterhouse operations.

Woodrow Wilson became President in 1913.  Wilson believed that politics and administration could operate separately.  He believed that neutral experts with no political influence would manage the administration of government.  To implement his vision, Wilson supported the concept of a Darwinian Constitution which is the idea that the Constitution is a living document that can change with society over time.  The Federal Reserve Act of 1913 implemented federal regulation of the banking industry.  The Federal Trade Commission (FTC) was established in 1914 and the Clayton Antitrust Act of 1914 strengthened the FTC’s anti-trust enforcement measures. 

President Franklin Roosevelt was elected in 1933 and introduced the New Deal.  The New Deal brought in a renewal of progressive ideology and the idea that science and government experts could improve society.  James Landis was an advisor to FDR.  Multiple administrative agencies were established.  In 1938, Landis wrote that “the administrative” has replaced “the judiciary” as the principal form of social control of business. 

The modern administrative state began in 1964 with the election of Lyndon Johnson and continues to the present day.  Both Johnson and Richard Nixon created new federal agencies. Prior independent commissions were described as “mini- legislatures.”  The federal agencies established after 1964 were hierarchies led by a single individual appointed by the president.

The Federal Register which is the daily journal of the federal government reached an all-time high of 95,894 pages under the Obama administration in 2016.  The exact number of current agencies is unknown.  The estimate is 78 to 137 independent federal agencies and between 174 and 268 executive agencies. 

Supporters of the administrative state argue that federal agencies perform valuable government functions.  Opponents of the administrative state are concerned with what is considered the constitutional violations of administrative agencies.  The argument is that the combination of executive, legislative and judicial functions within administrative agencies violates the separation of powers principle and the congressional delegation of authority to agencies to develop regulations violate the nondelegation doctrine.  Opponents also claim that judges regularly subvert their judicial responsibility to interpret the law by deferring to agency interpretations of statutes and regulations.

An argument against the administrative state is that voter responsibility and rights are gone when agencies are the last word on an issue.  What does your vote matter when agency rules override voter decisions?  Of course, this same agency growth is going on at the state level.  Let’s be clear.  Many of the agencies and bureaus created had good intentions and were meant to protect the public.  However, the method used to create these entities was not in line with the constitution.  Ultimately, the government bureaucracy subverts the constitution and the rights of the individual citizen.

The constitution was created with a separation of powers and checks and balances to safeguard the rights of every individual.  The administrative state overrides the rights of the individual in favor of a faceless bureaucracy.  Persons in power with no oversight can adjust regulations so that a group or even one person can benefit or on the opposite side a person or group can be charged with not following all the rules.  Ultimatley, this is tyranny.  This is not America.