The argument of this report is that the administrative state has caused a constitutional crisis that must be confronted. Today’s agencies violate the separation of powers by combining legislative, executive, and judicial functions in the same hands, and they violate republicanism by vesting those powers in unelected and unaccountable bureaucracies. However, we can develop a constitutional strategy to rein in the administrative state and subject it to the constitutional protections devised by our Founders. We have an opportunity to achieve something great: the restoration of our constitutional principles and preservation of what makes our country so great.
The constitutional crisis provoked by the administrative state demands a thoughtful, principled, but also practical response. The ideal solution is for Congress to make the laws itself rather than delegating that power to agencies and departments. But there are other options for improving the situation. Enhancing presidential control of the administrative state and expanding the scope of judicial review of at least some administrative decisions while eliminating waivers and transferring the power of adjudication to independent courts would begin to rein in the administrative state so that the constitutional rights of the public are protected.
Current precedents and court decisions appear to have reached a compromise in he matter of invocations before government bodies. The consensus is that such invocations do not constitute private speech, which is fully protected. They seem to agree that it is acceptable to mention "" in generic prayers recited during invocations. But it is not permissible to mention a specific God or religion by name. So one can appeal for the protection of "" in the generic sense. But one is not permitted to mention the name of Yahweh, , Krishna, Diana, or any of the who have been worshiped by followers of different religions. This would seem to violate the third principle listed above: the promotion of religion above secularism. But it appears that the courts and legislative bodies do not consider this to have a significantly serious impact to warrant being declared unconstitutional. Perhaps in the future, when the percentage of American adults who do not believe in the existence of a supreme deity increases, this point will become more critical.
No person should be afforded a free ride to a lifetime appointment on the Supreme Court without some assurances that they will protect and uphold basic Constitutional principles such as the separation of church and state.
In light of President Bush’s recent nominations of John Roberts and Samuel Alito to the Supreme Court, I believe it is prudent to have a thorough discussion of the Constitutional principle of separation of church and state, because how the Supreme Court rules on issues related to this principle in the future will have a profound impact on how we define ourselves as a country.
Finally, the administrative state violates the principle of the separation of powers by breaking down the divisions between the constitutional branches of government. Power is transferred from Congress to agencies and departments, which are then influenced by all three branches of government but not directly accountable to any, and the effect of checks and balances is reversed. All of the branches work together to control the unwieldy administrative apparatus that often combines all three powers of government—legislative, executive, and judicial.
Central to the idea of American constitutionalism are the concepts of representation, the rule of law, and the separation of powers. The administrative state does damage to all of these principles. A few examples demonstrate how these principles are violated by the administrative state.
The NLRB, in short, makes rules governing employer–labor relations, investigates violations of the rules that it issues, decides particular cases involving employers and employees, and enforces the decisions that it orders. This combination of legislative, executive, and judicial power inevitably causes objectionable bureaucratic decisions. When we create institutions that violate our basic constitutional principles, we lay the groundwork for tyrannical decisions. The problem, in other words, is not necessarily the specific people running the NLRB. The agency was set up to act in a dysfunctional manner.
In order to begin the restoration of constitutional government, we must first understand what the administrative state is and why it is profoundly at odds with the principles of the Constitution. However, understanding the problem of the administrative state is not sufficient. We must also devise an effective strategy, one that is feasible and acceptable to the American people, to begin this process of restoration.
The first wave of the creation of the administrative state established new and unprecedented principles about how government should work. These agencies had broad delegations of authority that gave them the power to make law, not simply execute it. The Federal Communications Act of 1934, for example, created the Federal Communications Commission and directed it to grant broadcast licenses to applicants“if public convenience, interest, or necessity will be served thereby.” Additionally, the heads of these agencies would not be accountable to the President, which meant that they existed as a“fourth branch” of government, not directly accountable to any of the three constitutional branches.
One of the greatest long-term challenges facing the United States is the restoration of limited constitutional government. Central to that objective, and an essential aspect of changing America’s course, is the dismantling of the administrative state that so threatens our self-governing republic.
The administrative state has been established for over a century, and its powers have been gradually expanded in new waves of reform. Today, as a result of the vision of those first Progressives in the early 20th century, most of the laws are made and carried out not by Congress and the President, but by federal agencies and departments. These institutions of the administrative state have been steadily removed from the oversight and accountability of the public at major cost to our constitutional principles.
We have seen how the administrative state was established a century ago and gradually expanded into the leviathan that rules us today. The first step in reclaiming our constitutional principles and putting citizens back in control of their government is to survey the constitutional damage.