America’s entire way of government—with laws passed by legislators elected by the citizenry—has become increasingly jeopardized as the administrative state has grown to nearly uncontrollable levels.
Joseph Postell, writing for Libertylawsite, notes that “Multiple scandals involving myriad federal agencies have placed the administrative state front-and-center in many Americans’ minds. Though the scandals involve overreach by specific agencies, they raise broader and more profound questions that extend to the entire federal bureaucracy because the institutional problems are systemic…Astonishingly, we still don’t fully understand how responsible the President is for the actions of administrative agencies (such as the IRS…) Simply put, if the administrative state is really accountable, legally and practically, to the President, then it is not a “fourth branch” of government but merely part of the executive branch, accountable to the public… Today’s administrative state, therefore, makes a mess of the constitutional separation of powers and its careful adjustment of incentives, checks and balances. In such a system, what role can and should the courts play in reviewing agency decision-making? Here is where a deeper understanding of the courts’ historical role in administration is most needed.”
Roger Pilon, writing in CATO, asks “…Is there anything today that is not fit for government’s attention? Large sodas and restaurant menus have lately garnered notice. Retirement, health care, day care, wages, rents, prices, charity, even public radio and television—all that and so much more is the regular business of modern American government …late 19th and early 20th century Progressives. … believed they knew better than the rest of us what our true interests were. …Progressive social engineering took many forms, but its efforts to change the world focused mainly on the political branches. Its aim was to replace judge-made common law, which established the legal framework within which individuals and organizations pursued their interests, with statutory law, enacted by legislatures and, in time, by the administrative agencies in the executive branch…Thus the shift from law grounded in principle to law as policy, from reason to will, and to the politicization of law—precisely what the Constitution sought to avoid. When all is politics, nothing is law.”
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In many cases, agencies’ budgets are also self-determined…The courts have… diminished their own authority to check the executive agencies by making it difficult for citizens to challenge agency actions in court…We need to stop kidding ourselves. Despite what is taught in our schools, we are not governed under the political structure envisioned by our founders. We are ruled by an imperious bureaucracy that creates vague rules, funds itself with fees that is sets at will, and controls the adjudication of disputes when citizens complain about its actions.”
Philip Hamburger, in the Hillsdale College publication Imprimis, warns: “[The] danger is absolutism: extra-legal, supra-legal, and consolidated power…we should demand rule through law and rule under law. Even more fundamentally, we need to reclaim the vocabulary of law: Rather than speak of administrative law, we should speak of administrative power—indeed, of absolute power…then we can at least begin to recognize the danger.”