The Fiction and Tyranny
of "Administrative Law"

"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass -- a idiot."

Charles Dickens, Oliver Twist

On top of that came the suffering caused by trivial regulations and augmented by mutual surveillance, hedging men's activities with hidden dangers. Lift a hand and catch it in a net; move a foot and spring a trap. That is why the people of Cao's own provinces, Yanzhou and Yuzhou, have lost all spirit, and why the groans of wronged men fill the capital. Search through the annals for renegade ministers who surpass Cao Cao [Ts'ao Ts'ao] for blatant avarice and cruel malice!

The Romance of the Three Kingdoms [, Three Kingdoms, attributed to Luo Guanzhong, Foreign Language Press, Beijing, 1995, 2007, Volume I, pp.372-373]

Still, youíll hear voices that incessantly warn of government as nothing more than some separate, sinister entity thatís the root of all our problems, even as they do their best to gum up the works; or that tyranny always lurks just around the corner. You should reject these voices.

Barack Obama, Obamaís Ohio State commencement speech, 5 May 2013

Tyranny is not lurking just around the corner. Tyranny came to America long ago; and the Founders of this country would regard the present federal government as nothing less than an active system of tyranny. The present ruling class of politicians, bureaucrats, judges, lawyers, journalists, and academics indeed constitutes a "separate, sinister entity," whose demagoguery keeps them in power but whose goal is the destruction of the liberty, sovereignty, and prosperity of the American people.

Enklinobarangus ()

Editorial Note, 2011

Many of the issues discussed below are brilliantly analyzed in the chapter "Lawmaking by Administrative Agencies" in The Dirty Dozen, How Twelve Surpreme Court Cases Radically Expanded Government and Eroded Freedom, by Robert A. Levy and William Mellor [Cato Institute, 2009, pp.67-85]. The chapter begins:

You probably assume -- maybe because the Constitution says so -- that Congress enacts all federal laws. Guess again. Our federal administrative agencies actually dwarf Congress when it comes to implementing regulations that control what Americans can and cannot do. In effect, Congress had delegated much of its lawmaking authority to unelected bureaucrats. They, in turn, make thousands of law prescribing rules of conduct that bind private citizens, state governments, and local governments.

Some of the agencies are components of an executive department. For example, the Census Bureau is part of the Department of Commerce. Other agencies are independent -- not wholly accountable to either the president or Congress -- such as the Food and Drug Administration, which determines what drugs are sufficiently safe and effective to be sold in the United States. Most important for our purposes, administrative agencies often exercise legislative, executive, and judical powers. The FDA, for instance, can issue regulations having the same force and effect as a statute, impose penalities for violations, and conduct trial-type proceedings that affect the rights and interests of particular parties.

If the separation-of-powers principle -- a cornerstone of our Constitution for more than two centuries -- means anything, it means that no government entity should be authorized to pass laws, enforce the law that it passes, and then judge whether its own actions and the actions of other parties comply with those same laws. [pp.67-68]

The problems that arise from this are presently on display in the behavior of many federal agencies, but particularly with the Environmental Protection Agency (EPA). The failure of Congress to pass environmental "Cap and Trade" legislation between 2009 and 2011, despite control of both houses of Congress and the Presidency by Democrats supposedly enthusiastic and committed to the legislation, has led to the EPA attempting to reproduce such legislation through its own regulations -- initially by declaring carbon dioxide, which is essential for all life on earth, a "pollutant." The lack of foundation for such a ruling, and the extraordinary presumption of creating ex nihilo legislation that Congress was unable to lawfully pass, now have resulted in lawsuits against the EPA. But the Democrats, unwilling to commit themselves to the legislation, nevertheless are willing to protect the novel and extra-Constitutional power of the EPA to dictatorially rule by decree. The Courts, of course, cannot now be trusted to enforce the Constitution, and "Liberal" judges are ideologically committed to the Democrat agenda of creating a government of absolute and irresponsible power. So I will not hold my breath for the EPA to be reined in by the Courts.

Other kinds of misconduct have emerged in the case of Siobhan Reynolds, founder of the Pain Relief Network. The Network was an advocate for adequate pain medication for patients and against the regulatons and behavior of agencies like the FDA and DEA, which tend to deny sufficient pain medication and that often prosecute doctors who are willing to provide it for their patients. Ms. Reynolds has favorably commented on this webpage, whose recommendations would undercut the ability of such agencies to violate the medical rights of American citizens. However, Assistant U.S. Attorney Tanya Treadway attempted to silence Reynolds with a gag order in the case of Dr. Stephen Schneider, who was indicted for "illegal drug trafficking" in December 2007. The gag order was very properly denied, but the U.S. Attorney's Office responded with an inquisitorial and malicious Grand Jury proceeding against Reynolds, which has bankrupted her organization. Although Grand Jury proceedings are secret in order to protect defendants, Reynolds' desire to make all records public has been improperly denied, apparently in order to protect, not her innocence, but the guilt of the prosecutors. Even amcius briefs by organizations like the Cato Institute, Reason Foundation, and Institute for Justice, have been sealed, an act of judical misconduct apparently with the sole purpose of limiting publicity about the case and preventing its exposure to the public infamy that it deserves.

While the misconduct of federal prosecutors and judges is not, of course, a direct function of administrative agencies, it does reveal the lengths to which vicious functionaries of government are willing to go in the enforcement of tyrannical administrative rules, let alone in the general project of destroying the principle of a government of limited, enumerated, separated, and accountable powers, or trampling on simple and obvious rights like freedom of speech.

Tragically, Siobhan Reynolds has been killed in a plane crash on 24 December 2011. In a different age, she might soon be recognized as a candidate for sainthood, morally if not literally a martyr of tyranny. Yet the evil against which she fought, despite occasionally being brought to public notice (even on 60 Minutes), remains of little public concern. In so far as it is characteristic of so much government corruption and misconduct, however, it is really a window into the destruction of the Constitutional Republic.

The Fiction and Tyranny of " Administrative Law"

The late conservative columnist Joseph Sobran had 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 have been some kind of extremist nut.

Well, Sobran was 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:

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. [boldface added]

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:

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 constituted 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.

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