The Court’s other major regulatory case this year, SEC v. Jarkesy, can be understood in similar terms. Many agencies have long enjoyed discretion to choose the initial forum for litigating cases: They can either file a lawsuit in a federal trial court or undertake the initial “adjudication” before an in-house agency tribunal.Agency adjudications, and agency officials who decide them (who are often assigned the contestable title of “administrative law judges,” though they are not appointed by the president with Senate confirmation, and they do not have judicial life tenure), have raised constitutional concerns among many of the same judges and legal scholars who criticized Chevron deference.
In 2022, the U.S. Court of Appeals for the Fifth Circuit issued a stunning decision in the case of SEC v. Jarkesy, declaring the Securities and Exchange Commission’s in-house adjudication framework triply unconstitutional. It said first that the agency’s adjudicators were unconstitutionally appointed. Second, it found that Congress’s grant of discretion to the SEC to direct cases either to courts or to the SEC’s own tribunal was an unconstitutional “delegation” of legislative power. Finally, it said the agency’s failure to use juries in the in-house tribunal violated the Constitution’s right to trial by jury.
A day before deciding Loper Bright, the Court decided Jarkesy. In an opinion written once again by Chief Justice Roberts, the Court agreed with the Fifth Circuit on the trial-by-jury point. “When a matter ‘from its nature, is the subject of a suit at the common law,’ Congress may not ‘withdraw [it] from judicial cognizance,’” Roberts wrote. “A defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator.” The agency cannot simply turn off the constitutional right to trial by jury, like a light switch. To allow otherwise, he emphasized, “would permit Congress to concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch. That is the very opposite of the separation of powers that the Constitution demands.”
"The Supreme Court vs. the Administrative State," by Adam J. White, Commentary, September 2024, Vol. 158: No.2, p.37
"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, you’ll hear voices that incessantly warn of government as nothing more than some separate, sinister entity that’s 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, Obama’s 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 SEC’s 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 I’ve 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 isn’t federal court -- it’s 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. That’s 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.
That’s what happens when a federal agency serves as its own detective, prosecutor, judge, jury and executioner. As Mr. Wright observed, the FTC’s 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.
"Chevron deference" meant that the courts should defer to the regulations formulated by administrative agencies in the course of implementing the laws they are applying. The phrase "Chevron deference" derives from the Chevron v. Natural Resources Defense Council of 1984. This decision was overturned by the Court in Loper Bright v. Raimondo in 2024.
Since Chevron had allowed the growth of a dictatorial government of irresponsible and unaccountable bureaucrats, striking it down was a heavy blow in the cause of Constitutional Government. Even more, the criticism of the "Article II" adminstrative laws courts, that their fake "judges," their assumption of legislative powers, and their lack of juries are all unconstitutional, was an even further step in the cause.
The following essay and updates go back to 1997, and there has been no reason for lawyers or judicial authorities to pay any attention to what the Proceedings of the Friesian School might have said about this. But the key criticism here, that "Administrative Law" allows improperly concentrating "the roles of prosecutor, judge, and jury in the hands of the Executive Branch" has now been accepted by the Supreme Court. I told you so.
We must be alert to the enemies of this decision. They want a dictatorial government, by which elected representatives are simply spectators on the laws, enforcement, and punishments handed out by appointed, often self-appointed, bureaucrats. This is the kind of government long desired by "Progressives" like Woodrow Wilson, whose obvious racism seems to have long been winked at because Lefist academics themselves have wanted a government of irresponsible bureaucrats -- like, say, themselves. But, as Thomas Jefferson said, "This is not the government we fought for." Unfortunately, many Americans are confused about what their government is supposed to be, or they just want free stuff, as many politicians promise.
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:
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.
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 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.
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:
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 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 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:
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:
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:
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 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.
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]:
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.
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. They are called "Article II Courts," since their powers supposedly derive from Article II of the Constitution, which is about "the executive Power," rather than Article III, which is about "the judicial Power of the United States." The precedent for them is the system of Military Justice, which always fell under Article II, and 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, or the Securities and Exchange Commission, the SEC) are creatures of their executive agencies. They know who pays the piper.
Recently, we hear:
"She questioned my loyalty to the SEC," Ms. McEwen said in an interview, adding that she retired as a result of the criticism.
Ms. McEwen said the SEC in-house judges were expected to work on the assumption that "the burden was on the people who were accused to show that they didn’t do what the agency said they did." ["In-House Judges Help SEC Rack Up Wins," Jean Eaglesham, The Wall Street Journal, May 7, 2015, A12] Thus, we learn that judges are expected to have "loyalty" to their agency, which apparently means judical bias in its favor. This is so outrageous, Brenda Murray obviously does not belong in a position of public trust and should be fired. Of course, nothing will be done about her since her attitude is probably what all administrative agencies expect and rely on. It is what the whole system is for, namely irresponsible government power, with deniabilty for the politicians that have created and sustain it. Anyone who would countenance, let alone defend, such a system is clearly an enemy, not just of the American people, but of any sense of decency or justice.
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:
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:
....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:
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.
Editorial Note, 2024
Editorial Note, 2020
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.
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."
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.
Editorial Note, 2011
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.
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.
The Fiction and Tyranny of "Administrative Law"
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..."
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]
Executive Powers:
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 issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to searched, and the persons or things to be seized.
Legislative Powers:
§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.
Judicial Powers:
One former SEC judge said she thought the system was slanted against defendants at times. Lillian McEwen, who was an SEC judge from 1995 to 2007, said she came under fire from [chief administrative law judge] Ms. [Brenda] Murray for finding too often in favor of defendants.
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..."
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?
Copyright (c) 1997, 2000, 2002, 2004, 2006, 2007, 2008, 2011, 2012, 2013, 2014, 2015, 2020, 2024 Kelley L. Ross, Ph.D. All Rights Reserved
