July 14, 2017

"The most dangerous text published in America in decades"

To speak about administrative law is to introduce automatic yawns in any audience. No one noticed that the administrative agencies evolved into an 'enormous rogue beast'.  Glenn Harlan Reynolds writes, "You didn’t give these clowns power. They just grabbed it."  Unelected bureaucrats are running our lives

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.

Philip Hamburger, a Columbia University law professor, exposes the rogue beast in The Administrative Threat which Joseph Bottum calls "the most dangerous text published in America in decades—the Uncle Tom’s Cabin of our time. A Dangerous Book 

Philip Hamburger has provided the populist right with something that had been missing: a theoretical rationale for the national irritation with the current regime of administrative law. Where before there was only a kind of wordless rage, there exists now an actual articulation: a serious and convincing constitutional explanation of what's wrong with the way the nation is being run......

Through their rule-making powers, the administrative agencies manage and direct both the national economy and national manners with a particularity unrivaled and unexpected. Through their administrative hearings, they exercise judicial functions outside the judiciary: deciding cases, interpreting laws, and imposing penalties. And through their enforcement arms, they can arrest and charge those who violate their rules.

This kind of authority, Hamburger notes, "evades many of the Constitution's procedures, including both its legislative and judicial processes. Administrative power thereby sidesteps most of the Constitution's procedural freedoms. Administrative power is thus all about the evasion of governance through law." We have "a state within a state," a shadow government that is "the dominant reality of American governance." And this administrative state is now the "preeminent threat to civil liberties."

The Tyranny of the Administrative State by John Tierney

Sometimes called the regulatory state or the deep state, it is a government within the government, run by the president and the dozens of federal agencies that assume powers once claimed only by kings. In place of royal decrees, they issue rules and send out “guidance” letters like the one from an Education Department official in 2011 that stripped college students of due process when accused of sexual misconduct.

Unelected bureaucrats not only write their own laws, they also interpret these laws and enforce them in their own courts with their own judges. All this is in blatant violation of the Constitution,

“Essentially, much of the Bill of Rights has been gutted,” Hamburger says, sitting in his office at Columbia Law School. “The government can choose to proceed against you in a trial in court with constitutional processes, or it can use an administrative proceeding where you don’t have the right to be heard by a real judge or a jury and you don’t have the full due process of law. Our fundamental procedural freedoms, which once were guarantees, have become mere options.” ​
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The Supreme Court capitulated further in decisions like Chevron v. Natural Resources Defense Council (1984), which requires judges to defer to any “reasonable interpretation” of an ambiguous statute by a federal agency. “Chevron deference should be called Chevron bias,” Mr. Hamburger says. “It requires judges to abandon due process and independent judgment. The courts have corrupted their processes by saying that when the government is a party in case, they will be systematically biased—they will favor the more powerful party.”

One example: Amish farmer sold herbal health products. He’s going to prison for 6 years
The government said that Girod misbranded his Chickweed Healing Salve, TO-MOR-GONE, R.E.P. products. The jury found that Girod also processed those products in an establishment that the FDA did not have registered and that the product labels did not bear adequate directions for use.

R

Posted by Jill Fallon at July 14, 2017 1:20 PM | Permalink