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]

The number of recipients began to exceed the number of contributors by so much that, with farmers' resources exhausted by the enormous size of the requisitions, fields became deserted and cultivated land was turned into forest. To ensure that terror was universal, provinces too were cut into fragments; many governors and even more officials were imposed on individual regions, almost on individual cities, and to these were added numerous accountants, controllers and prefects' deputies. The activities of all these people were very rarely civil...

Lucius Caecilius Firmianus Lactantius (c.250 AD-c.325 AD) [J.J. Wilkes, Diocletian's Palace, Split:  Residence of a Retired Roman Emperor, Oxbow Books, Oxford, 1986, 1993, p.5]

Administrative law is commonly defended as a new sort of power, a product of the 19th and the 20th centuries that developed to deal with the problems of modern society in all its complexity. From this perspective, the Framers of the Constitution could not have anticipated it and the Constitution would not have barred it. What I will suggest, in contrast, is that administrative power is actually very old. It revives what used to be called prerogative or absolute power, and it is thus something that the Constitution centrally prohibited.

Philip Hamburger, "The History and Danger of Administrative Law," A Publicaton of Hilldale College, Impris, September 2014, Volume 23, Number 9, p.1

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 Founding Fathers 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.

Τηλεπατητικός (Telepateticus)

Joel Shapiro faced an uphill battle when he fought the Securities and Exchange Commission in an Atlanta court last year.

The investment-firm chief executive came before an SEC administrative law judge who has never fully cleared a defendant. In August, the judge found Mr. Shapiro had violated securities law, showing "reckless disregard" for his duty to investors.

The odds are once more against Mr. Shapiro as he challenges this ruling. His appeal will be decided by the SECís five commissioners, the same body that decided the case against him should go forward in the first place.

Mr. Shapiro, who denies any wrongdoing, called the process "the most unfair, the worst thing Iíve ever gone through." The SEC declined to comment on his case.

An analysis by The Wall Street Journal of hundreds of decisions shows how much of a home-court advantage the SEC enjoys when it sends cases to its own judges rather than federal courts. That is a practice the agency increasingly follows, the Journal has found.

The SEC won against 90% of defendants before its own judges in contested cases from October 2010 through March of this year, according to the Journal analysis. That was markedly higher than the 69% success the agency obtained against defendants in federal court over the same period, based on SEC data.

"In-House Judges Help SEC Rack Up Wins," Jean Eaglesham, The Wall Street Journal, May 7, 2015, A1, color added

Speaking of due process, what about MetLife's argument that the [Financial Stability Oversight] council's "unprecedented structure -- which lodges investigative, prosecutorial and adjudicative functions in the same individuals -- is incompatible" with the Constitution's separation of powers?

No worries, mate. "The alleged 'blending' of executive, legislative, and judicial funcitions of which MetLife complains is typical of administrative agencies," says the government.

"Bow Down Before Your Regulator," The Wall Street Journal, September 4, 2015, A1, color added

The [Federal Trade Commission] administrative law judge's decision -- which noted the lack of proof of a single victim in the case -- vindicates [cancer-screening company] LabMD, though [extortionist partner of the Federal Trade Commission] Tiversa isn't admitting anything. "We have acted appropriately and legally in every way with respect to LabMD," the company said in a statement after last weeks' ruling.

But the case illustrates the injustice of the federal system that allows agencies to cow companies into submission rather than seek a day in court. During its three years of pre-suit investigation against LabMD, the FTC demanded thousands of documents, confidential employee depositions and several meetings with management. LabMD -- which at its apex employed 30 people -- spent hundreds of thousands of dollars meeting demands. No federal court would ever allow such abusive tactics. But this isnít federal court -- itís a federal agency.

Furthermore, the FTC is likely to simply disregard the 92-page decision -- which weighed witness credibility and the law -- and side with commission staff. Thatís the still greater injustice:  The FTC is not bound by administrative-law judge rulings. In fact, the agency has disregarded every adverse ruling over the past two decades, according to a February analysis by former FTC Commissioner Joshua Wright. Defendants' only recourse is appealing in federal court, a fresh burden in legal fees.

Thatís what happens when a federal agency serves as its own detective, prosecutor, judge, jury and executioner. As Mr. Wright observed, the FTCís record is "a strong sign of an unhealthy and biased institutional process."

"Hounded Out of Business by Regulators," Dan Epstein, The Wall Street Journal, November 20, 2015, A17, color and boldface added

An unjust law is no law at all... To put it in the terms of Saint Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law.

Martin Luther King, Jr., "Letter from a Birmingham Jail," 1963.

Editorial Note, 2020

This page has been on-line since 1997, and readers have attempted to bring it to the notice of political commentators. They have ignored it, and ignored its issue, namely what is now called the "administrative state." Only poor Siobhan Reynolds was alerted to the value of this treatment. However, the "administrative state" has increasingly become a public issue, as I consider next in the case of the book The Dirty Dozen. The Democratic Party now often openly advocates the propriety of bureaucrats ignoring elected officials, positive law, and adverse court decisions in order to effect their own agendas, often fringe political agendas with no public support. These bad actors are being called the "Deep State," where they are protected by Civil Service laws from accountability and by a pliant media from public exposure. Their names and faces, like many of their actions, remain anonymous; and the rent-a-mobs that frequently harrass conservative politicians or commentators never show up, with the press in tow, on the lawns of bureaucrats.

On February 22, 2020, The Wall Street Journal took notice of one case of abuse by an administrative agency. In an editorial, "Axon Takes on the Feds," the Journal begins:

How has the Federal Trade Commission won 100% of the cases it has tried over the last 25 years? It's easy when you are prosecutor, judge and jury.

What the Journal means is that the Federal Trade Commission makes its own rules, judges them with its own Administrative Law judges, who can then be overruled by the Commission, and then enforces its judgments with fines and other sanctions. These are the abuses examined in this essay, where the combination of executive, legislative, and judicial functions fulfills the definitions of Jefferson, Madison, and Washington for tyrannical and despotic government.

We get some further details on the nature of an abusive institution like the Federal Trade Commission.

Commissioners, who are appointed by the President to seven-year terms, can only be removed for malfeasance. Administrative judges who are appointed by commissioners can only be discharged in accordance with statutory procedures for "good cause."

However, by these terms the Federal Trade Commission is an extra-Constitutional construction. Under the Constitution, all Executive power is vested in the President of the United States. But here the Commissioners of the FTC are effectively independent of that, and thus in fact independent all of accountability -- certainly not to the voters.

In Humphrey's Executor (1935), the Surpreme Court upheld legal limitations on the President's authority to remove FTC commissioners by mistakenly concluding that the agency serves quasi-judicial and legislative functions.

In one of the typical sophistries of the New Deal Court, whose goal was to destroy the Constitution, the justification of the ruling is in fact the reason why the ruling is wrong. The Federal Trade Commission is not part of either the Legislative or Judicial branches of government. Strictly speaking, as we see below, no administrative agency has the power to write laws, only to interpret and apply them with regulations that are necessary and sufficient to the purposes of the laws. That this restriction is commonly violated, and agencies have assumed powers of legislation by fiat, does not mean that the principle is therefore legally void.

The "quasi-judicial" functions of the FTC are, of course, entirely fraudulent. There are no Constitutional protections for defendants, and in the Axon case the FTC has divulged none of the grounds for its actions. It is a secret agency acting in secrecy. The Journal notes, in relation to the FTC prohibiting the acquistion by Axon of the bankrupt company Vievu for $7 million, that this "was strange since the agency's threshold for reporting acquisitions was $84 million." And, "The FTC wouldn't disclose what prompted its investigation."

Any sensible person would smell a rat here. Something corrupt is going on, but the Federal Trade Commission is protected by its status and by the collusion of the media in protecting irresponsible government. This is all unconstitutional, unjust, malicious, and tyrannical. The only question is whether things have now gone too far ever to be unwound and remedied. A Soviet-style rule by bureaucratic elites may be inevitable, as it is indeed consistently promoted by the Ruling Class and its minions, including the Democratic Party, which is now openly and unapologetically the party of government, and of those dependent on government -- and a government of absolute, unlimited, and unaccountable power, at that.

The academics, commentators, and other public intellectuals who go whoring after power always seem to think that the power will result to them, when it never does. When they debase themselves before dictators like Fidel Castro, it does not occur to them that such men are not like them. People like Castro, Lenin, Stlain, Mao, etc. chew up and spit out intellectuals, who often can hope for no more than a quick death, rather than months of torture. We've just seen Bernie Sanders (February 2020) offer kind words about the accomplishments of Castro in Cuba -- while it is a favorite conceit of the Left that Donald Trump, in excercising quite ordinary Presidential powers, is acting like a "king" and needed to be impeached before he was even inaugurated. But Barack Obama was never a "king" when he chose what laws to enforce, or revised laws to his taste, or had "a phone and a pen" to issue Executive Orders for things Congress had declined to do. Oh no, that was not monarchy or dictatorship. In fact, Cuba has been the ideal of government on the Left for a long time. No, the Left hates Trump mainly because they hate America. And they have no real objection to dictatorship. It is precisely what they want.

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 bankrupted her organization. Bankrupting defendants to coerce confessions or settlements is now standard procedure for prosecutors.

Although Grand Jury proceedings are secret in order to protect suspects or defendants, Reynolds' desire to make all records public was improperly denied, apparently in order to protect, not her innocence, but the guilt of the prosecutors -- that has been happening with some frequency lately, as biased judges help prosecutors abuse the rights of defendants. Even amcius briefs by organizations like the Cato Institute, Reason Foundation, and Institute for Justice, were 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 deserved.

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 was 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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