John Tierney: The Tyranny of the Administrative State 

Illustration: Ken Fallin

Illustration: Ken Fallin

Government by unelected experts isn’t all that different from the ‘royal prerogative’ of 17th-century England, argues constitutional scholar Philip Hamburger.

Like the blind men in the fable who try to describe an elephant by feeling different parts of its body, they’re not perceiving the whole problem: the enormous rogue beast known as the administrative state.

Sometimes called the regulatory state or the deep state, it is a government within the government, run by the president and the dozens of federal agencies that assume powers once claimed only by kings. In place of royal decrees, they issue rules and send out “guidance” letters like the one from an Education Department official in 2011 that stripped college students of due process when accused of sexual misconduct.

Unelected bureaucrats not only write their own laws, they also interpret these laws and enforce them in their own courts with their own judges. All this is in blatant violation of the Constitution, says Mr. Hamburger, 60, a constitutional scholar and winner of the Manhattan Institute’s Hayek Prize last year for his scholarly 2014 book, “Is Administrative Law Unlawful?” (Spoiler alert: Yes.)

“Essentially, much of the Bill of Rights has been gutted,” he says, sitting in his office at Columbia Law School. “The government can choose to proceed against you in a trial in court with constitutional processes, or it can use an administrative proceeding where you don’t have the right to be heard by a real judge or a jury and you don’t have the full due process of law. Our fundamental procedural freedoms, which once were guarantees, have become mere options.” ​

In volume and complexity, the edicts from federal agencies exceed the laws passed by Congress by orders of magnitude. “The administrative state has become the government’s predominant mode of contact with citizens,” Mr. Hamburger says. “Ultimately this is not about the politics of left or right. Unlawful government power should worry everybody.”

[Read the full story here, at WSJ]

Defenders of agencies like the Securities and Exchange Commission or the Environmental Protection Agency often describe them as the only practical way to regulate today’s complex world. The Founding Fathers, they argue, could not have imagined the challenges that face a large and technologically advanced society, so Congress and the judiciary have wisely delegated their duties by giving new powers to experts in executive-branch agencies.

Mr. Hamburger doesn’t buy it. In his view, not only is such delegation unconstitutional, it’s nothing new. The founders, far from being naive about the need for expert guidance, limited executive powers precisely because of the abuses of 17th-century kings like James I.

James, who reigned in England from 1603 through 1625, claimed that divinely granted “absolute power” authorized him to suspend laws enacted by Parliament or dispense with them for any favored person. Mr. Hamburger likens this royal “dispensing” power to modern agency “waivers,” like the ones from the Obama administration exempting McDonald’s and other corporations from complying with provisions of the Affordable Care Act.

James also made his own laws, bypassing Parliament and the courts by issuing proclamations and using his “royal prerogative” to establish commissions and tribunals. He exploited the infamous Star Chamber, a court that got its name from the gilded stars on its ceiling.

“The Hollywood version of the Star Chamber is a torture chamber where the walls were speckled with blood,” Mr. Hamburger says … (read more)

Source: WSJ

2 Comments on “John Tierney: The Tyranny of the Administrative State ”

  1. grtgrndmamoe says:

    #1 I can’t read the rest of an article you come up as being in possession of without “paying” hundreds of dollars to become a client of the originator for example WSJ subscriber? Hundreds of similar sites suck us in intimating the article we are seeking resides at their locations, which they don’t, thereby exposing us to advertising that benefits only you financially? False advertising? Bait & switch?
    #2 All you websites/newspapers/etc. locations that come up when trying to find an article on the internet appear to be like sub-contractors? You appear to be some kind of mutually benefit shared referral service that should fall under some kind of advertising referral service tax code?

    If I can’t read the article without paying the originator for access your site should state this or that your using my search to benefit your site financially, etc.?

    Frustrated researcher

    • Pundit Planet says:

      I understand your frustration. Up to a point.

      First, the article was viewable, without a WSJ paywall, when this item was first posted, it was plainly accessible, with no barrier. Otherwise, I couldn’t have seen it myself, and selected a segment of it to include here. On a subsequent visit, it wasn’t accessible. Why you should choose to imagine this benefits this site is unnecessary speculation. I have no benefit, or penalty, either way. The logic behind WSJ’s access is beyond me. Occasionally, my site will link to an article that’s no longer accessible for free. This is true of virtually all blogger’s sites, that link to outside content. The advertising isn’t connected to any of these outcomes.

      Now, I can also make a positive case for charging consumers for news. A remarkable, historically-unprecidented amount of journalism is freely available, at no charge. More journalism accessible to more people, for free, than ever before. We take it for granted that we aren’t charged for it. As a result, most writers and editors work, essentially, for free. If a site like WSJ preserves some of their content for paid subscribers only, good for them. If you choose to subscribe, or not to subscribe, good for you. But there’s not much sense seeking to assign blame, or create fictional scenarios about profit-sharing schemes among intermediaries, or write an embarrassing complaint, singling out a news aggregator, because you got frustrated by WSJ’s access policies, due to a momentary inability to conveniently, effortlessly get more free content. My sympathy for this is not very deep.

      Your irresponsible speculation about my motives, as a news aggregator, is unwarranted. The comments about imagined financial benefits I get, in some imaginary scheme involving mutually-beneficial networked advertising revenue distribution (tax code?) is nonsense. All of it.

      I’m a blogger who reads news like anyone else. I have no influence on WSJ’s subscriber policies. I’m in the same position as any other news consumer. And I have, as a consumer, occasionally gotten subscriptions to news sources I like and depend on. But I don’t intentionally link to it, here.

      As a reader, just like anyone else, I’ve been able to access to WJS (and other news sites) content on one device (a mobile device) but not on another (a laptop) and I’ve seen an item of WSJ content freely accessible one day, then behind wall on a different day. The logic isn’t exactly clear. It’s their policy, and their content, not mine. Take it up with them. Or, consider subscribing, if you want full access.

      Generally, a WSJ subscriber-only article is either A. available for a limited amount of time, or only to a certain class of browsing devices, or, B. is behind a paywall initially, when it’s current, relevant, and valuable, but then gets released, and is accessible a week or two later. Peggy Noonan’s column is like that. Often, I can’t see it the week it goes up. But then a week later, I can.

      So, be patient, it’s likely to be in circulation somewhere, once the original source releases it.

      Your concerns regarding this site are misplaced. Again, this is a news aggregation site. The content we feature segments of, and provide outside links to, unless otherwise noted, are the responsibility of the original owners and creators.

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