"Philip Hamburger—a Columbia law professor and author of the 2015 book “Is Administrative Law Unlawful?”—defines the administrative state as the substitution of regulatory edicts for laws passed by the people’s elected representatives. In the American iteration, at least, this often means the same federal agency that writes the rules also enforces and adjudicates them—a confluence of powers Madison once called the “very definition of tyranny.
Mr. Hamburger maintains that the threat of the administrative state is nothing new, notwithstanding the assumption of some conservatives who would date it to the progressive theories of Woodrow Wilson or the rise of the New Deal. By contrast, Mr. Hamburger says the Founders well understood this threat, familiar as they were with English constitutional history and the centuries-long struggle to limit the extralegal prerogatives of kings (Star Chambers anyone?).
Here are a few instances from recent years:
• In the run-up to the 2012 presidential election, the IRS targets groups regarded as enemies of the president—pro-Israel, pro-life, pro-tea-party, etc. When this became public, its officials, including the new IRS commissioner, John Koskinen
, make clear their contempt for congressional panels trying to investigate.• In a frontal assault on religious liberty, the Department of Health and Human Services issues a mandate that would force the Little Sisters of the Poor, Catholic nuns who run homes for the elderly poor, to offer their employees contraceptives the sisters regard as a violation of their faith. They are threatened with fines of $100 per employee per day if they refuse, which adds up to $70 million a year—equal to about a third of their operating budget.
• Andy Johnson builds a pond on his Wyoming property to provide water for his horses and cattle after securing all the required local and state permits. The Environmental Protection Agency steps in and accuses him of violating the Clean Water Act (even though he in fact has created a wetlands) and orders him to undo what he’d done—or face fines of $37,500 per day. As Mr. Johnson fights, he has racked up accumulated fines of $20 million."
The question becomes, is this an area in which we should evaluate our candidates for public office? Especially our Presidential candidates? The article explores this at length:
http://www.wsj.com/articles/hillarys-soft-despotism-1457998195
Noting that this article is published on the Ides of March, the day associated with purported end of Roman democracy through the assassination of Julius Caesar, the comment section for this article shows the strength of conviction and partisanship around this issue.
