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Tyranny of the Administrative State? – Another View

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By John Pearson
September 12, 2017

Is the U.S. administrative state becoming a tyranny comparable to that of King James of 17th century England?  John Tierney makes this case in a Wall Street Journal article of June 9, 2017. He quotes from professor Philip Hamburger, who has written extensively on the topic.

Professor Hamburger believes the greatest threat to liberty in America is the administrative state, which he regards as a rogue beast.

Sometimes called the regulatory state or the deep state, it is a government within the government, run by the president and the dozens of federal agencies that assume powers once claimed only by kings. In place of royal decrees, they issue rules and send out “guidance” letters like the one from an Education Department official in 2011 that stripped college students of due process when accused of sexual misconduct.

Unelected bureaucrats not only write their own laws, they also interpret these laws and enforce them in their own courts with their own judges. All this is in blatant violation of the Constitution, says Mr. Hamburger, 60, a constitutional scholar and winner of the Manhattan Institute’s Hayek Prize last year for his scholarly 2014 book, “Is Administrative Law Unlawful?

(Spoiler alert: Yes.)

“In volume and complexity, the edicts from federal agencies exceed the laws passed by Congress by orders of magnitude… The administrative state has become the government’s predominant mode of contact with citizens,” Mr. Hamburger says.

James, who reigned in England from 1603 through 1625, claimed that divinely granted “absolute power” authorized him to suspend laws enacted by Parliament or dispense with them for any favored person.

James also made his own laws, bypassing Parliament and the courts by issuing proclamations and using his “royal prerogative” to establish commissions and tribunals.

Tierney and Hamburger don’t seem to understand why there are so many policies and directives compared to statutory language. I can tell you why from my experience: The statutory language raises many issues that eventually need to be addressed. This explains why IRS directives are so voluminous compared to the underlying statutes.

Think about the eight-page constitution and the numerous court decisions which have arisen over the years based on this small amount of text. Statutory text results in similar issues of interpretation. Even if Congress wrote ever more detailed legislation, they would not be able to anticipate all of the issues. There would still be a need for additional policy guidance from government agencies.

Tierney and Hamburger don’t understand why agencies sometimes perform a judicial function. The reason is there are simply too many disputes for the courts to deal with. Congress has delegated rulemaking and judicial decisions to administrative trannyagencies. Congress could abolish the social security appeals process, the VA appeals process, the IRS appeals process, and other administrative reviews and send millions of cases into the regular court system, but Congress has chosen not to do that. Once a person exhausts the administrative appeals system, they have access to the courts all the way up to the Supreme Court. Executive branch decisions are still fully reviewable by the courts.

It is not true agencies write their own laws. Tierney and Hamburger are ignoring that every regulation or “guidance” document issued by the Executive branch in the U.S. must tie back to a specific statute passed by Congress and be allowed under that statute. If not, it is likely to be successfully challenged in court.

Governmental regulations and other directives in the U.S. are not at all absolute and final like the decrees of King James. Administrative rulings can be and are overturned by the courts, by the Congress, and by direction of successor presidents and their appointees. We have numerous recent examples.

A Federalist article dated July 6, 2016, estimates the Obama administration’s “win” rate before the U. S. Supreme Court was only 45 percent (including 44 unanimous loses), the lowest win record of modern presidents. This means the court overruled the Obama administration (the executive branch’s position) in 55 percent of the cases heard. This record of reversals indicates that judicial review of Executive branch decisions is very much alive and well.

The Congressional Review Act allows Congress a certain period to disapprove new regulations. In the initial months of the Trump administration, Congress has approved and President Trump has signed 15 laws that repeal specific Obama-era regulations. (You can view these laws at congress.gov). Congress can also undo administrative actions if it so chooses by rescinding the underlying legislation, such as Obamacare.

The Washington Post has a continuing list of Obama policies that Trump has “undone”. As of this writing, there are 53 such policies. In addition, the article says there are hundreds of minor regulatory actions which have been cancelled or halted. Beyond these minor regulatory actions, we know that Trump appointees are busy working on repealing or modifying regulations (major and minor) they disagree with.

Whether the U.S. government is tyrannical is a personal judgment each individual is free to make. But the evidence shows the U.S. is following the Constitutional model with its checks and balances, not the King James model of absolute power.

Author: John Pearson recently retired from a lengthy career in the federal government where he was a program analyst. He has an MPA and a bachelor’s degree in economics. He now writes columns reflecting on his experience in government. His email is [email protected].

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