The Fiction and Tyranny
of "Administrative Law"

The conservative columnist Joseph Sobran has a lecture on audio tape called "How Tyranny Came to America." This seems like a shocking and absurd claim. How could anyone believe that "tyranny" exists in America? Sobran must be some kind of extremist nut.

Well, Sobran is a bit of an extremist, but to evaluate his claim in this case, even apart from his arguments, one thing we might do is look at definitions of tyranny as formulated by the Founders of the Nation. Thus, Thomas Jefferson said, in his Notes on Virginia [1784], warning about a legislature assuming all the powers of government:

All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one....As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for..."

This is significant, not only defining "despotic government" as that which combines the three powers into the same hands, but in noting that such a despotic government can exist even if it is democratic and elected. Some people might think that an "elective despotism" would be contradiction in terms -- since if those in office are elected, then "we are the government." No, all it means is that every two years, or four years, or six years those in office simply have to look preferable to the other guy. Otherwise, they are on their own.

Similar to Jefferson's views are those of James Madison, who quotes Jefferson's own words above and continues to say, in the Federalist No. 47:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

Jefferson and Madison thus agree that combining the three powers of government is the last thing that we would want to see happen, even in elected hands. It will always produce despotism and tyranny. We might think, however, that Jefferson and Madison might represent no more than some party sentiment. They brought to an end Federalist rule, so perhaps the true spirit of the country was lost after Washington and Adams. This would be a mistake. In his own Farewell Address in 1796, George Washington said [my emphasis]:

It is important, likewise, that the habits of thinking in a free Country should inspire caution in those entrusted with its administration, to confine themselves within their respective Constitutional spheres; avoiding in the exercise of the Powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create whatever the form of government, a real despotism. A just estimate of the love of power, and proneness to abuse it, which predominates in the human heart is sufficient to satisfy us of the truth of this proposition.

Despite all the cautions of the Founders, this consolidation is precisely what has happened, and not even in elected hands. It is now quite common, embodied especially in the form of administrative agencies, particularly those of the federal government, like the IRS, the FCC, the FDA, OSHA, the USDA, the EEOC, the EPA, the Federal Trade Commission (FTC), and countless others.

The consolidation of powers in these agencies, and their breach of Constitutional protections, may be examined in turn in relation to each power:

• Executive Powers:

  These agencies have executive powers, because they are part of the Executive Branch of government. Often now they not only have their own armed agents but even para-military SWAT teams. This is disturbing enough, since it is not clear why the Postal Service, the Forest Service, etc. all need to have their own SWAT teams. More important, however, are the extra-constitutional executive powers that have been given to administrative agencies. The Supreme Court has ruled (United States v. Morton Salt, 1950) that such agencies have what it actually calls "Powers of Inquisition," which means that the agencies can "investigate merely on suspicion that a law is being violated, or even just because they want assurance that it is not." Consequently, they may initiate investigations and demand records for no reason at all. This violates the Fourth Amendment in the most painfully obvious way:

  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issues, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to searched, and the persons or things to be seized.

  The current grotesque breaches of this protection are possible through the sophistry that administrative agencies are not engaged in criminal investigations, but in "administrative actions." Of course, the Fourth Amendment does not specify that this protection only applies to criminal actions, so that avenue is really not available to honest argument. Otherwise, the thought seems to be, whether stated openly in the law or not, that no one has a right to engage in certain actions, mainly business activities, without government, especially federal, licensing permission, and that this permission may then be granted under whatever conditions the government decides to grant it. If business licenses are granted under the condition that searches may be conducted in any way and at any time, then that's that. Again, such dishonest arguments obviously void the Fourth Amendment altogether and are only made in order to circumvent the protections embodied in that Amendment and in the rest of the Constitution and the Bill of Rights. Only tyrants, of course, would want to accomplish that task and assume such "Powers of Inquisition."

  I am now informed that the investigative powers of administrative agencies are justified on the theory that they have the same powers as "common law grand juries," with the additional feature of Court decisions that the Fourth Amendment does not apply to subpoenas of Grand Juries. This is a very remarkable theory. The purpose of a Grand Jury, consisting of private citizens, is to impose a check and a balance on the ability of prosecutors to conduct baseless or malicious prosecutions. The idea that the powers of such a body could simply be given to an administrative agency is then the essence of the violation of the separation of powers and the system of checks and balances. Furthermore, even if it is proper that the subpoena power of Grand Juries is not limited by the Fourth Amendment, there are large practical limitations on that power that disappear when it is transfered to an executive agency. Thus, a Grand Jury is usually dependent for what it knows and for what it is expected to do on the prosecutors who present it with evidence. Police and prosecutors investigate crime under the limitations of the Fourth Amendment and of probable cause. Thus, any preliminary evidence presented to a Grand Jury already has passed a certain theshold of probable cause, upon the basis of which subpoenas are then issued. Grand Juries usually do not have their own independent resources of investigation, and prosecutors typically don't like Grand Juries to exercise their powers independently. I personally know of Grand Juries that have been dismissed and of individual jurors who have been threatened when they began to investigate matters (e.g. official misbehavior) that prosecutors did not want investigated. It is thus always the practice of prosecutors to use Grand Juries for their own purposes and to try and restrict the Constitutional role of Grand Juries with practical restrictions on what they know and what they think they can do. Grand Juries thus will be lied to just like ordinary (petty) juries. The powers of a Grand Jury in the hands of an executive or administrative authority will have none of these practical (indeed, adversarial) limitations and can then be exercised without the slightest practical or legal limitation of probable cause.

  I am also informed that according to the Supreme Court the Fourth Amendment does apply to inspections, searches, and seizures by administrative agencies, but with not as much protection as to private homes, on the theory of the "greater expectation of privacy in one's home." First of all, this is typical of jurisprudence that erodes the protections of private property when applied to businesses rather than residences. This in itself is specious, and allows for voiding the Fourth Amendment, the Fifth Amendment "takings" clause, and other Constitutional protections. Such a holding is also disingenuous. A drug company, for instance, is not allowed to manufacture even an approved drug until the FDA inspects the factory. Since there aren't enough inspectors, and there is consequently a large backlog of facilities to be inspected, producive capital sits idle for long and expensive periods, increasing the cost of manufacture and driving up drug prices. Such companies thus in effect give up their Fourth Amendment rights when they agree to the procedures by which the FDA approves the sale of drugs (those powers justified under the power of the Federal Government to "regulate interstate commerce"). One effect of this kind of thing even turned up on the television series Seinfeld, when Elaine discovered that contraceptive sponges were no longer being manufactured. As it happened, the company making the sponges needed to move its factory. The FDA ruled, not only that the new factory would have to be inspected, but that the device itself would have to be recertified for safety and effectiveness. Since this could only be done at vast expense, for a period that no income could be earned from it, the drug company simply discontinued its product. Such authority renders moot even the pretext of exercising the powers of Grand Juries, let alone any Fourth Amendment restrictions whatsoever.

• Legislative Powers:

  The same agencies also have legislative power because they have been given the function of writing regulations that have the force of law. These regulations need only be published in the Federal Register to become effective (after some "procedural requirements" that, among other things, invite public comment -- which usually ends up largely meaning testimony from interest groups that stand to benefit from the regulation). Thus, the entire Constitutional process of passing laws -- the consent of both houses of Congress and the President (unless his veto is overridden) -- is bypassed. Instead, a bureaucrat writes a regulation, publishes it, and that's that. The next thing, the agency SWAT team is breaking in on some citizen or business.

  Although allowed by the Supreme Court in United States v. Grimand (1911) -- another disastrous misstep from the so-called "Progressive Era" -- this delegation of legislative power is unconstitutional. Congress is given no power in the Constitution to delegate its functions; and the Constitution explicitly says, Article I, Section 1, "All legislative Power herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representative" -- not, "a Senate and a House of Representatives and whoever else they want to pass the buck to." The illegitimacy of this kind of device was already recognized by John Locke in his great Second Treatise of Civil Government [1690]:

  §141: Fourthly, The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they who have it, cannot pass it over to others. The People alone can appoint the Form of the Commonwealth, which is by Constituting the Legislative, and appointing in whose hands that shall be. And when the People have said, We will submit to rules, and be govern'd by Laws made by such Men, and in such Forms, no Body can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands.

  The benefit for legislators of passing these powers on to others is that they can avoid the blame for the oppressive acts of the "regulators" and earn favor by individually rescuing constituents who appeal to them for help. The constituents then do not blame the legislators for having given the regulators improper powers in the first place.

  Another benefit for some political factions is that they can capture ideological control of an administrative agency even when they have no hope of pursuing their program through legislation. A recent case in point was when President Clinton agreed with the Food and Drug Administration to classify the nicotine in tobacco as a drug, which gave the agency the power to regulate it in any way it sees fit. This essentially dictatorial act is nevertheless not likely to be reversed by Congress, since the Democratic Party opposition can claim that any attempt to do so, despite its despotic and extra-constitutional character, would only work in the interest of the tobacco companies to addict and kill Americans. It has also been noted that if tobacco actually is to be treated as a drug, the FDA's actual legislative mandate is to only allow drugs that have been proven "safe and effective." Pursuing the logic of that mandate means that the FDA will have to ban tobacco. This is certainly the actual goal of the ideological group (paternalistic statists, socialists, and old fashioned moralistic Prohibitionists) that has captured the FDA and whose aims have been adopted by the Democratic Party for political purposes. Once the goal is accomplished, then alcohol and caffeine, which are also "drugs" in pretty much the same sense as nicotine, will become, pursuing the same paternalistic logic that made alcohol Prohibition one of the major projects of the "Progressive" Era, the next targets.

• Judicial Powers:

  These grotesque abuses of representative government pale beside the next one: The very same administrative agencies that write and enforce their own regulations have also often been given the power of judging them in their own courts and through their own "administrative law" judges. There is a spectrum of misrule in this case, since some adminstrative law judges are employed by their own agencies, while others belong to relatively independent organizations. Thus the "Occupational Safety and Health Review Commission" is not part of the Occupational Safety and Health Administration (OSHA), nor is the United States Tax Court part of the IRS or the Department of Justice. However, these "quasi-judicial" organizations are not part of the Independent Judiciary and do not contain many of the Constitutional protections, like trial by jury, that belong to the proper Court system. The precedent for them, indeed, is the system of Military Justice, which, unlike the modern administrative courts, actually existed when the Constitutional was written. The harsh truth, then, is that the precedent for even the relatively independent "quasi-judicial" organizations is the Court-Martial. That this development should have been allowed means that elements of martial law are now part of the ordinary operations of the United States Government. At the same time, a judicial function like imposing fines is usually retained by the executive agencies themselves, which then assess such punishments in summary fashion, without even the pretext of a judicial procedure. The principal function of the "quasi-judicial" organizations is appellate.

  The existence of these monstrous vehicles essentially spells the end of the rule of law and democratic government. "Administrative law" judges, of whatever stripe, do not belong to the independent judiciary, and frequently (as at the Federal Trade Commission, the FTC) are creatures of their executive agencies. They know who pays the piper. Agencies can simply ignore the findings of their own administrative law courts. Thus, in 1988 administrative law judge Francis Young ruled that, "Marijuana has been accepted as capable of relieving distress of great numbers of very ill people," and recommended "the Administrator transfer marijuana from Schedule I to Schedule II to make it available as a legal medicine." However, DEA Administrator John Lawn rejected Young's ruling, and in 1994 the Court of Appeals (a real court) allowed his decision to stand. To the real courts, consequently, administrative law judges can simply be overruled by their own executive agencies. This affirms that such administrative law courts are not part of any independent judiciary.

  Besides these transparent formulae for corruption and injustice, the fiction of "administrative law" also conveniently bypasses all of the protections of the Bill of Rights. Defendants before an administrative law judge are not protected by due process, the presumption of innocence, trial by jury, or any other barrier built around criminal or civil law; for "administrative law," betwixt and between the judiciary and the executive, is in effect neither criminal nor civil law. Unmentioned in the Constitution, "administrative law" is without essential Constitutional limitations or protections. When in doubt about whether one is in an administrative law court, there is one key stigma:  There will be no jury box.

  Such "administrative" procedures, to be sure, cannot imprison any American, but the agencies are free to levy fines, without evidence, trial, or defense, seize property, and then bring criminal charges against citizens for failure to obey their often unknown, obscure, and self-contradictory regulations. If the agencies are content just to harass and impoverish a citizen, we have been told by the Supreme Court that the citizen cannot have recourse to a real court, in the real judiciary, to appeal the tyranny of the agency until all "administrative remedies" have been exhausted. Since the agency itself defines what the "administrative remedies" are, it can take decades before such "remedies" are exhausted. Citizens are thus essentially at the mercy of the agencies, unless a Congressman or the President personally intervenes.

  Thus the "shock jock" radio personality, Howard Stern, who did his best to offend people without actually using the "seven bad words," which had hitherto been the explicit criterion of obscenity on radio and television, began to be summarily fined, hundreds of thousands of dollars an offense, for "indecency," which was a new category invented out of whole cloth by the Federal Communications Commission specifically so that they could penalize Stern and his imitators. The new, unconstitutionally vague, category of "indecency" then became a political football between Congress and the courts. Meanwhile, all Stern said he ever asked for was his "day in court." It never happened. The FCC didn't need to go to court to levy its fines, and when it began to harass stations over their broadcast licenses, the company that syndicated Stern's show decided just to pay up. The federal government thus passes over into the devices of an extortion racket.

And so, at least in one very precise sense, tyranny came to America. Locke, Washington, Jefferson, and Madison would be appalled -- and that not so much at the "insolence of office" and the grasping arrogance of those given power, but at the thoughtlessness, passivity, and acquiescence of Americans in allowing this to come to pass. Instead, Americans usually don't even notice how vicious it is in both principle and practice: They are seduced by the idea that power is good when it is used for what they like, but then it is too late when that power is turned against them for things they don't like.

Since the IRS is the most powerful, oppressive, irresponsible, feared, and hated of federal agencies, but nevertheless tolerated and excused by the "need" for tax money to pay all the "benefits" to which citizens think they are entitled (see Rent-Seeking, Public Choice, and The Prisoner's Dilemma), it is worth noting the prophecy of Richard E. Byrd, Speaker of the Virginia House of Delegates, arguing against the ratification of the 16th Amendment (which allowed the Federal Government to Tax incomes) on March 3, 1910:

A hand from Washington will be stretched out and placed upon every man's business; the eye of the Federal inspector will be in every man's counting house. The law will of necessity have inquisitorial features, it will provide penalties. It will create a complicated machinery. Under it businessmen will be hauled into courts distant from their homes. Heavy fines imposed by distant and unfamiliar tribunals will constantly menace the taxpayer. An army of Federal inspectors, spies and detectives will descend upon the state. They will compel men of business to show their books and disclose the secrets of their affairs. They will dictate forms of bookkeeping. They will require statements and affidavits..."

All this even though Byrd did not also anticipate either that private citizens would feel these same effects or that the fiction of "administrative law" and "administrative law courts" would be concocted; for a great reason why the IRS is feared and hated is not just its "Powers of Inquisition," but the vast size and incomprehensibility of the Tax Code. James Madison described the effects of that quite well in the Federalist No. 62:

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

....Every new regulation concerning commerce or revenue, or in any manner effecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens....

....What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government?...

....No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable without possessing a certain portion of order and stability.

Again, Madison did not anticipate that the "voluminous" and "incoherent" regulations would be written, not even by elected officials, but by unaccountable bureaucrats -- bureaucrats who cannot avoid frequently giving incorrect or contradictory answers to taxpayers calling the IRS with questions. The result, indeed, is that the federal government, faithless and treacherous to its Constitutional charge, is no longer "truly respectable." Not just "order and stability" have been lost: Tyranny has come to America.

In light of this, the following legal principles should be adopted:

1. No actions by government agents or agencies are free of the restrictions imposed by the Fourth Amendment or other articles of the Constitution and the Bill of Rights.

2. There are no legal actions apart from the criminal and the civil, with the full Constitutional protections established for each.

3. There can be no courts or judicial proceedings apart from duly consituted components of the Independent Judiciary, wherein the protections of Trial by Jury cannot be suspended or restricted.

4. Legislative bodies cannot delegate the power of making laws, or confer upon anyone the power of making any rule or regulation that has the force of law.

5. The only Constitutional exceptions to these rules concern the military, military discipline, military justice, and (in times of war, invasion, or rebellion) martial law.

These principles will not prevent any further bad laws or tyrannical practices, but they will defuse the structural tyranny that has been created through "administrative law," its "inquisitors," its regulatory extra-constitutional legislators, and its fraudulent "courts." Further restrictions would concern the use of civil law for government actions, treated elsewhere.

Political Economy

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Copyright (c) 1997, 2000, 2002, 2004, 2006, 2007, 2008 Kelley L. Ross, Ph.D. All Rights Reserved