Commentary: The Rise of Administrative Law Over Legislative Law

by William Haupt III


“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.”
– Abraham Lincoln

Administrative law is the procedure of creating laws by bureaucratic bodies in our municipal, state and federal governments. It is “mandated law,” made by appointed officials who have been given authority to make decisions for us without our consent. It is illegitimate law being forced upon us with no regard for constitutional protocol. This capricious practice dilutes the fundamental concept of U.S. republicanism. James Madison, a supporter of a powerful federal government, reminded us, “Federal power left unchecked would silently abridge our freedom more than violent usurpations.”

Our Constitution clearly defines who is responsible for making laws. “All laws are to be written and passed by representatives approved by the people in federal and local government.” It is difficult to fathom Congress freely delegates powers to administrative agencies that grant them adroitness to rule our lives. How can our Constitution delegate us with an autocratic right, yet allow men we elect and agencies the government invents claim authority over us under the penalty of law? How have the principles of our founding been forsaken? How did our servants become our masters? And how did administrative law replace the legal legislative process? We the people allowed this to happen.

Abuse of power through administrative law is historic. During the Feudal Age, English kings had absolute power. But when King John overruled his barons in 1215, they rebelled and demanded he adopt the Magna Carta. For once, royal authority was subject to the law, instead of ruling above it. But again in 1539, Henry VIII bypassed Parliament and ruled by proclamation. And this lasted until 1686 when James II appended the laws to disenfranchise all those who worshiped differently than him. This resulted in the Glorious Revolution of 1688 and elevated William and Mary to the throne. They restored Parliamentary protocol and the rights of all Englishmen were reinstated to this day.

English common law is considered the benchmark of democratic law. It was used as the basis for our Constitution along with other historic works. But the division of powers and the promises they made in good faith during the Federalist debates slowly eroded shortly after ratification as the first Congress convened. Government entities created to remain separate and equal controlled by the people soon became united and powerful, and controlled them. They invented new “bureaucracies within the bureaucracy” to protect and grow government. By 1887 within the Interstate Commerce Commission, the genesis of administrative law usurped government’s defined and limited powers.

“Government needs to control everything we cannot properly control ourselves.”
– Bernie Sanders

Each progressive era doubles down on the practice of administrative law. People sell their souls for promises of fortune that never materialize. Temporary programs turn into modus operandi to satisfy class envy for under classes. Administrative laws empower government to bypass legislatures and exert authority over the masses. Our producers are forced to foot the bill while our over-regulated free markets are conscripted into submission at their expense. Administrative law is not legal law, therefore it is difficult to challenge or find legitimate ways for businesses and the working classes to accommodate the negative results of these mandates forced upon them by unprecedented fiat.

The first large-scale attempt to curtail the abuse of administrative law came when Congress got fed up when President Franklin D. Roosevelt abused the power of his office to rule by administrative law. Although FDR was shut down by Congress and the courts many times, he found ways to do end runs around them and get his mandates enacted though the back door. By the end of WWII, a humble, shamed Congress decided it was time to stop this. They were hellbent on not allowing this again. To prevent another executive reign of terror and regain lost power, they divided up responsibilities among key selected groups within the legislature with the passage of the Legislative Reorganization Act of 1946. Yes it sounded great at first, but:

“Congress never loses its capacity to disappoint you.”
– John Oliver

Although the Act reduced some committees, it aided Congress in passing more administrative laws. It gave Congress greater influence over them and enabled Congress to staff them with hand-picked affiliates to only approve bills they wanted passed. A deluge of unregulated subcommittees sprang up overnight. This enabled them to exploit loopholes in the act to avoid compliance. Only Congress benefited from this “act of Congress.” It increased the federal abuse of power and paved the path for the myriad of unconstitutional committees, agencies and departments we must live with today.

As many state legislative sessions close for the year, it’s apparent federalism is contagious. If we look at what’s been done and what “hasn’t been done,” administrative intrusion into the legislative process is obvious. Governors work behind committees “red flagging” bills they want passed and others they want sent to the shredder. With committees, agencies, and commissions passing laws by fiat and directive with legislative and executive approval, the voices of constituents have been silenced. People appointed by elected officials are mandating laws for us with no legal authority to do so. And the executive branch is condoning this. Their mandates are now considered laws.

We’ve all heard, “All government is local”. And county and municipal governments enact law by fiat more often than Congress does. Since few show up for elections and even fewer for commission or counsel meetings, they do what they want to do with little regard for legal protocol. They “yea-and-nay” new laws without recorded votes, knowing few will question who did what and why. Although they are the government that has the greatest effect on our lives and the one we must control most, we complain more about Congress than what they do to our liberty.

“Bosses are no more inevitable in state and local governments than dictators are in national governments.”
– Charles Edison

George Mason warned us, “It may happen that some day we will have an oligarchy and destroy the republic.” For years the executive branches of our federal, state and local governments have veiled abuse of their powers in the shadows of appointed committees, commissions and agencies to undermine the authority of the people’s government. They hand-pick members of these personal gangs to carry out their orders under the façade of democratic assemblage. Although nonmembers and interested parties are invited to attend, their decisions are etched in stone before the gavel is dropped.

“Meetings are indispensable when you don’t want to do anything.”
– John K. Galbraith

Government touches everything today and many laws do more harm than good. Our federal, state and local governments combined spend almost 50 percent of what we earn. And most of that is approved by appointed committees, commissions, and agencies; not those we elected. We have allowed them to pass unconstitutional laws, administrative mandates, and executive orders and penalize us if we don’t follow them.

Our system of checks and balances has become totally unbalanced. The fate of a democracy depends on the sovereignty of the people. Therefore it’s our problem to fix.

“It is not the function of the government to stop the citizen from falling into error; it is the function of the citizen to keep the government from falling into error.”
– Justice Robert Jackson, Nuremberg trials

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William Haupt III is a retired professional journalist, author, and citizen legislator in California for over 40 years. He got his start working to approve California Proposition 13, and is a contributor to The Center Square.





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