Haunting this year’s presidential contest is the sense that the U.S. government no longer belongs to the people and no longer represents them. And this uneasy feeling is not misplaced. It reflects the real state of affairs.
We have lost the government we learned about in civics class, with its democratic election of representatives to do the voters’ will in framing laws, which the president vows to execute faithfully, unless the Supreme Court rules them unconstitutional. That small government of limited powers that the Founders designed, hedged with checks and balances, hasn’t operated for a century. All its parts still have their old names and appear to be carrying out their old functions. But in fact, a new kind of government has grown up inside the old structure, like those parasites hatched in another organism that grow by eating up their host from within, until the adult creature bursts out of the host’s carcass. This transformation is not an evolution but a usurpation.
What has now largely displaced the Founders’ government is what’s called the Administrative State—a transformation premeditated by its main architect, Woodrow Wilson. The thin-skinned, self-righteous college-professor president, who thought himself enlightened far beyond the citizenry, dismissed the Declaration of Independence’s inalienable rights as so much outmoded “nonsense,” and he rejected the Founders’ clunky constitutional machinery as obsolete. (See “It’s Not Your Founding Fathers’ Republic Any More,” Summer 2014.) What a modern country needed, he said, was a “living constitution” that would keep pace with the fast-changing times by continual, Darwinian adaptation, as he called it, effected by federal courts acting as a permanent constitutional convention.
Modernity, Wilson thought, demanded efficient government by independent, nonpartisan, benevolent, hyper-educated experts, applying the latest scientific, economic, and sociological knowledge to industrial capitalism’s unprecedented problems, too complex for self-governing free citizens to solve. Accordingly, he got Congress to create executive-branch administrative agencies, such as the Federal Trade Commission, to do the job. During the Great Depression, President Franklin Roosevelt proliferated such agencies, from the National Labor Relations Board and the Federal Housing Administration to the Federal Communications Commission and the Securities and Exchange Commission, to put the New Deal into effect. Before they could do so, though, FDR had to scare the Supreme Court into stretching the Constitution’s Commerce Clause beyond recognition, putting the federal government in charge of all economic activity, not just interstate transactions. He also had to pressure the justices to allow Congress to delegate legislative power—which is, in effect, what the lawmakers did by setting up agencies with the power to make binding rules. The Constitution, of course, vests all legislative power in Congress, empowering it to make laws, not to make legislators.
But the Administrative State’s constitutional transgressions cut deeper still. If Congress can’t delegate its legislative powers, it certainly can’t delegate judicial powers, which the Constitution gives exclusively to the judiciary.
Nevertheless, after these administrative agencies make rules like a legislature, they then exercise judicial authority like a court by prosecuting violations of their edicts and inflicting real criminal penalties, such as fines and cease-and-desist orders. As they perform all these functions, they also violate the principle of the separation of powers, which lies at the heart of our constitutional theory (senselessly curbing efficiency, Wilson thought), as well as the due process of law, for they trample the citizen’s Fifth Amendment right not to lose his property unless indicted by a grand jury and tried by a jury of his peers, and they search a citizen or a company’s private papers or premises, without bothering to get judge-issued subpoenas or search warrants based on probable cause, flouting the Fourth Amendment. They can issue waivers to their rules, so that the law is not the same for all citizens and companies but is instead an instrument of arbitrary power. FDR himself ruefully remarked that he had expanded a fourth branch of government that lacked constitutional legitimacy. Not only does it reincarnate the arbitrary power of the Stuarts’ tyrannical Star Chamber, but also it doesn’t even meet the minimal conditions of liberty that Magna Carta set forth 801 years ago.