Neither Democrats nor Republicans realize what the true threat to our liberty is. As a result, both parties spend all their time and resources attacking the wrong things. For example, conservatives complained loudly when President Obama agreed to the Iran nuclear deal and cut the defense budget, citing these actions as proof of his contempt for American exceptionalism. While today, liberals assert that President Trump’s proposed immigration restrictions and his distrust of the national press corps amount to an assault on the Constitution.
However, both sides are ignoring the very large elephant in the room. The biggest danger Americans face is actually the administrative state—a sprawling, executive-branch bureaucracy made up of hundreds of federal agencies, sub-agencies, and departments. Often referred to as the “deep state” or the “regulatory state,” this bipartisan behemoth exercises powers once held only by royalty. These include the authority to create, adjudicate, and enforce laws that affect almost every aspect of our lives.
Americans should fear an overly powerful administrative state for a variety of reasons. First, it is nearly impossible to hold these bureaucrats accountable for their actions. These officials are unelected and thus don’t have to please their constituents to keep their jobs. Adding to the unaccountability of the administrative state is its status as a nebulous entity.
Nobody can even say for sure how many agencies actually exist, because there is no definitive list. The spring 2015 edition of the Unified Agenda of Federal Deregulatory and Regulatory Actions publication, for example, lists 60 federal agencies. However, the Administrative Conference of the United States claims the number is 115. Meanwhile, The United States Government Manual states that there are 316 federal agencies.
If we can’t even figure out how many agencies there are, how can we tell who is making all the rules we must follow, or for that matter, how many rules even exist? To make matters worse, these agencies constantly produce a multitude of what amount to undocumented regulations, otherwise known as “regulatory dark matter,” through their bulletins, memos, and guidance documents. A US House of Representatives Committee on Oversight and Government Reform voiced its alarm over these “non-legislative” rules in 2012, stating
“Guidance documents, while not legally binding or technically enforceable, are supposed to be issued only to clarify regulations already on the books. However . . . they are increasingly used to effect policy changes, and they often are as effective as regulations in changing behavior due to the weight agencies and the courts give them.”
Another reason to fear the administrative state is that it has assumed the powers that were once the exclusive domain of Congress and the courts. The National Labor Relations Board (NLRB), for example, not only creates laws that govern employer-employee relations, it also investigates rule violations, decides the fate of the rule-breakers, and enforces the consequences of its decisions. However, according to Article I, Section I of the Constitution, all legislative powers are supposed to reside with Congress. In fact, the Founding Fathers thought it was extremely important to separate the judicial, legislative, and executive powers into different branches of government. James Madison explicitly states in Federalist No. 47 that
“the accumulation of all powers legislative, executive, and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny.”
In his 2014 book Is Administrative Law Unlawful?, constitutional scholar Philip Hamburger claims that today’s administrative state has essentially “gutted” the Constitution. One supporting example is the use of administrative courts, which deny citizens the right to a fair trial. These proceedings, which judges on the agencies’ payroll oversee, often lack a jury and fail to follow full due-process procedures.
According to Hamburger, the framers of our Constitution would be appalled by the abuses we see perpetuated by today’s administrative state. In fact, they drafted the Constitution specifically to avoid the possibility of a corrupt head of state, like King James I, ever governing America. James Madison even went as far as to say that the Constitution was a means to guard against “the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate.”
King James I believed that his divine right of “absolute power” allowed him to dismiss laws or make them not apply to certain people without having to obtain approval from Parliament. James also made his own laws, bypassing Parliament and the court system. He issued proclamations and established tribunals, which, like modern administrative agencies, commissioned expert reports and issued and enforced decrees.
The federal agencies of today are essentially doing the same thing. The federal Department of Health and Human Services (HHS), for instance, exempted a number of politically important companies, like McDonald’s, from certain Obamacare provisions. However, in place of royal decrees, the administrative state issues rules and sends out “guidance” letters. One particularly infamous letter is the one from an Education Department official in 2011 that stripped college students of due process rights when someone accuses them of sexual misconduct.
So, how do we reign in the administrative state and the overreach of the executive branch? According to Hamburger, there are several practical things we can do. One is to hold agency officials financially accountable for exceeding their constitutional authority. Until the 19th century, the American people could sue these individuals for damages. Today, thanks to a “qualified immunity” doctrine, government officials are safe from repercussions of their actions.
Other ways to restrain the power of the administrative state involve requiring Congress to approve any new laws and to review all existing regulations to decide which ones should become laws. Additionally, the president could make certain agencies try cases in regular courts rather than relying on administrative judges.