The foundational promise of America was that the government would be accountable to the people. “Here, the people rule,” said President Gerald Ford. But that promise was broken one hundred years ago when the Progressive Era gave birth to the Administrative State. Since then, most of our laws have been enacted not by elected representatives accountable to the people, but by unaccountable bureaucrats. Law professor Glenn Reynolds summarizes the sorry state of affairs in today’s USA Today.
[Philip] Hamburger explains that the prerogative powers once exercised by English kings, until they were circumscribed after a resulting civil war, have now been reinvented and lodged in administrative agencies, even though the United States Constitution was drafted specifically to prevent just such abuses. But today, the laws that actually affect people and businesses are seldom written by Congress; instead they are created by administrative agencies through a process of “informal rulemaking,” a process whose chief virtue is that it’s easy for the rulers to engage in, and hard for the ruled to observe or influence. Non-judicial administrative courts decide cases, and impose penalties, without a jury or an actual judge. And the protections in the Constitution and Bill of Rights (like the requirement for a judge-issued search warrant before a search) are often inapplicable.
How did a system designed to provide government of, by, and for the people devolve into a system in which bureaucrats unaccountable to voters (though exquisitely accountable to political players and special interests) produce masses of law that was never voted on by an elected official? Simple: on purpose.
In the early days of the Republic, the franchise was limited. But as the mass of voters became larger, more diverse, and less elite, those who considered themselves the best and brightest looked to transform government into something run not by those deplorable unwashed voters but by a more congenial group. As Hamburger says, “They have gradually moved legislative power out of Congress and into administrative agencies — to be exercised, in more genteel ways, by persons like … themselves.”
It has been, in essence, a power grab by what Hamburger calls the “knowledge class,” or what others have called the New Class: A group of managers and intellectuals who, although they may not actually be especially knowledgeable or elite in practice, regard themselves as a knowledge elite.
The Administrative State stands as an affront to democratic values and violates both the spirit and letter of the Constitution on a daily basis. It’s really the biggest unknown scandal in America today. Unknown because hardly anybody ever mentions it.
Schoolchildren are taught, if anything, that laws are made by Congress with no mention of ‘informal rulemaking’ by bureaucrats. And the ongoing depredations of the bureaucrats are hardly ever reported by the news media. Turn on ‘conservative’ Fox News and they’re reporting on Washington’s latest pointless diversions like the ‘scandal’ of Donald Trump’s son-in-law maybe having spoken with some Russians, or the self-serving reminiscences of former bureaucratic operative James Comey. Sorry, but I can’t make myself care about any of that political theater while Americans are forced to live under the rule of unelected clowns in the bureaucracy. Priorities, you know?
Let me keep this simple for those playing at home. If Congress didn’t vote on it, and the president didn’t sign it, then it’s not a valid law, and Americans have no obligation to abide by it.