President as King, Governor as Lord


A recent Charles C.W. Cooke essay from the print National Review is definitely worth a full read, but here’s a taste of his point:

In his recent book Is Administrative Law Unlawful? Columbia University professor Philip Hamburger suggests that we are not. The Constitution of the United States, Hamburger contends, represented a conscious attempt to banish from this country’s political structure a host of the insidious tools upon which monarchs and emperors had historically relied: among them prerogative lawmaking, legislative enabling acts, suspending and dispensing powers, and the investment of legislative, judicial, and executive functions into one body. Alarmingly, Hamburger concludes, these features have gradually found their way back into the system — not because the Constitution has been overthrown or because Washington, D.C., has been occupied by an invading force, but because over time we have constructed an unwarranted “fourth branch” in addition to the original three, and we have allowed the executive branch to take advantage of it.

By “fourth branch,” Hamburger is referring to the vast caste of unelected government employees who staff the array of administrative agencies that have sprung up around the country since the start of the 20th century and, slowly but surely, enjoyed ever-increasing power over our lives. Far from reflecting a benign, novel, and necessary change in the detail of our self-government, Hamburger submits, these entities are returning us to the bad old days of rule by fiat. Unlike the Prussians and the French, he argues, Anglo-American societies have historically insisted that the liberties of free men be restricted only by the legislature and the courts, not by executive decree. By permitting a vast and unaccountable bureaucracy to grow in their midst, Americans have reimported into their system a virus against which their Constitution was supposed to protect them. Worst of all: They have done so without a care in the world.

We see this at the state level, too, with state agencies that set their regulations, adjudicate controversies about them, and impose resolutions.  Often the most destructive form this practice takes doesn’t target individuals or private organizations, but government.  Relatively early in my involvement in Tiverton, the problem became clear.

Locals concerned that their town government was not following the process for raising taxes above the state cap, as described in statute but really fleshed out in regulation, found conspicuously that the dubious interpretations made by local politicians, supported by a paid solicitor, were ratified by the relevant state agency.  (As with Ethics Commission rulings, it’s not always obvious why one question is answered one way while a similar question elsewhere might be answered another.)  Similarly, in battling over the specific import of budget appropriations at the towns’ financial meeting, we found the Dept. of Education, having made the rules, judged them and imposed the ruling, conspicuously tiptoeing around politically sensitive conclusions.

With the “fourth branch,” the government always wins, from the most local level to the national or even global level.  That’s not liberty.

  • Rhett Hardwick

    There can be little doubt the Constitution, or at least, Constitutional Law, permits legislatures to invest their agencies with “rule making” power. This is intended to free the legislature of pettifogging details. Of course, the legislature determines what is pettifogging detail, and what is not. As the agencies have grown to enormous size, more and more rules are required. The legislatures have shunned attending to these matters. They prefer not to vote on them so that they can attempt to avoid blame. In his “Contract with America” Gingrich proposed that the Congress dedicate 2 days per month rooting out obnoxious rules made by these agencies. I believe these were to be called “Reconciliation Days”, but my memory is foggy. I thought it a great idea at the time.