The most confusing thing to me is that sometimes the courts happily give their authority away and sometimes they are the ones inventing new powers for themselves. Despite all the doctrines and precedents that are invoked, the law is no more sensical than is the talk of toddlers.
The Constitution only means what a majority of supreme court justices say it means, actual text notwithstanding.
When I started working at FAA, I, along with all of the other new employees that day, took an oath to (among other things) defend the Constitution of the United States. A few years later, I had a rude awakening. Federal “agencies” created by the Administrative Procedure Act are unconstitutional on their face, meaning that my employment violated my oath of employment.
Federal agencies are part of the Executive branch, but have the power to issue regulations which have the force of law. They also have the power to adjudicate violations of those regulations, and impose penalties on violators. They thus have the powers of all three branches of the federal government, violating the basic idea of separation of powers that made America exceptional.
Though one might argue that Congress could delegate its legislative authority (one would be wrong, since the Constitution does not enumerate such a power), it certainly had no constitutional power to delegate the legislative branch’s authority – it can’t delegate authority that isn’t its to delegate.
The promulgation of what amounts to an entire body of federal law (the Code of Federal Regulations), along with the power to enforce such laws, in the hands of an entirely unelected and completely unaccountable bunch of people is nowhere allowed in the Constitution. And in case anyone has forgotten, the government of the United States is forbidden from any action not specifically allowed it by the Constitution.
The administrative state is unconstitutional and un-American. It needs to be dismantled. And I’m ashamed of my having been a part of it.
This is a fascinating argument. Can you expound? Surely you recognize the need for some degree of standardization of regulation. As a simple case in point, what if the rules of the road on US highways were totally up to each individual state (as they largely are) but to make it a glaring case in point what if each state regulated which side of the road is forward in a two lane non-divided road? Thus some state require driving on the right side of the road others on the left. I realize this is a ridiculously contrived example but the absurdity of it points out a reason for regulation at the federal level. How would you alter it? Should Congress get into writing ALL the regulations and leave only enforcement up to the Executive? Wouldn’t that lead to sub-sub-sub-sub-sub committees writing regulations? Why not leave it as is in the executive with Congressional oversight and review? Would you approve of an amendment to the Constitution to make the current process lawful?
Thanks, Larry J. That is actually the book that shook me into reality, though my education should have made me realize it earlier. When I was in high school, back in 1972, we had to pass a test on the US Constitution in order to graduate. It was Missouri state law. And our education on the Constitution was quite good. It was my appreciation of “enumerated powers” that was somewhat lacking.
Thanks Larry J, I’ll look into getting that….
To answer your last question, David, I would absolutely not advocate a Constitutional amendment to legalize the administrative state, because such an amendment would nullify the Constitution.
No one in the federal government knows how many regulations even exist, let alone what they mean. That was true of the relatively simple set of regulations surrounding commercial space launch. I was Chief Engineer at FAA/AST. We spent an ungodly amount of time trying to figure out how and if our regulations applied in any given situation.
It was all to no positive end. A launch license is given for one purpose only: ensure that no third party casualties or property damage occurs (with a certain probability). If AST’s rules had been applied to the Apollo program, Apollo 11 couldn’t have been launched – the tens of thousands of people at the VIP viewing stands would have precluded it.
Such regulations, applied to any other transportation industry, would destroy progress in that industry. Automobiles would never have become viable, for example.
The regulatory state exists largely (entirely?) at the behest of established companies, for the purpose of erecting barriers to entry to competitors. It has nothing to do with the rights or safety of the general population. I’ve been there, and seen it. One of the reasons I went there was to prevent big aerospace from regulating startups out of existence. (The reason I “retired” will be revealed at some point.)
The affairs of people are regulated by the people who engage in them. There is no reason or requirement for governmental regulation of most human affairs. It is only the desire by some people to use governmental force to shut down competition that fuels the administrative state.
The most confusing thing to me is that sometimes the courts happily give their authority away and sometimes they are the ones inventing new powers for themselves. Despite all the doctrines and precedents that are invoked, the law is no more sensical than is the talk of toddlers.
The Constitution only means what a majority of supreme court justices say it means, actual text notwithstanding.
When I started working at FAA, I, along with all of the other new employees that day, took an oath to (among other things) defend the Constitution of the United States. A few years later, I had a rude awakening. Federal “agencies” created by the Administrative Procedure Act are unconstitutional on their face, meaning that my employment violated my oath of employment.
Federal agencies are part of the Executive branch, but have the power to issue regulations which have the force of law. They also have the power to adjudicate violations of those regulations, and impose penalties on violators. They thus have the powers of all three branches of the federal government, violating the basic idea of separation of powers that made America exceptional.
Though one might argue that Congress could delegate its legislative authority (one would be wrong, since the Constitution does not enumerate such a power), it certainly had no constitutional power to delegate the legislative branch’s authority – it can’t delegate authority that isn’t its to delegate.
The promulgation of what amounts to an entire body of federal law (the Code of Federal Regulations), along with the power to enforce such laws, in the hands of an entirely unelected and completely unaccountable bunch of people is nowhere allowed in the Constitution. And in case anyone has forgotten, the government of the United States is forbidden from any action not specifically allowed it by the Constitution.
The administrative state is unconstitutional and un-American. It needs to be dismantled. And I’m ashamed of my having been a part of it.
This is a fascinating argument. Can you expound? Surely you recognize the need for some degree of standardization of regulation. As a simple case in point, what if the rules of the road on US highways were totally up to each individual state (as they largely are) but to make it a glaring case in point what if each state regulated which side of the road is forward in a two lane non-divided road? Thus some state require driving on the right side of the road others on the left. I realize this is a ridiculously contrived example but the absurdity of it points out a reason for regulation at the federal level. How would you alter it? Should Congress get into writing ALL the regulations and leave only enforcement up to the Executive? Wouldn’t that lead to sub-sub-sub-sub-sub committees writing regulations? Why not leave it as is in the executive with Congressional oversight and review? Would you approve of an amendment to the Constitution to make the current process lawful?
Here’s a book on the topic. It takes the position that administrative law is unconstitutional.
https://www.amazon.com/Administrative-Law-Unlawful-Philip-Hamburger/dp/022632463X
Thanks, Larry J. That is actually the book that shook me into reality, though my education should have made me realize it earlier. When I was in high school, back in 1972, we had to pass a test on the US Constitution in order to graduate. It was Missouri state law. And our education on the Constitution was quite good. It was my appreciation of “enumerated powers” that was somewhat lacking.
Thanks Larry J, I’ll look into getting that….
To answer your last question, David, I would absolutely not advocate a Constitutional amendment to legalize the administrative state, because such an amendment would nullify the Constitution.
No one in the federal government knows how many regulations even exist, let alone what they mean. That was true of the relatively simple set of regulations surrounding commercial space launch. I was Chief Engineer at FAA/AST. We spent an ungodly amount of time trying to figure out how and if our regulations applied in any given situation.
It was all to no positive end. A launch license is given for one purpose only: ensure that no third party casualties or property damage occurs (with a certain probability). If AST’s rules had been applied to the Apollo program, Apollo 11 couldn’t have been launched – the tens of thousands of people at the VIP viewing stands would have precluded it.
Such regulations, applied to any other transportation industry, would destroy progress in that industry. Automobiles would never have become viable, for example.
The regulatory state exists largely (entirely?) at the behest of established companies, for the purpose of erecting barriers to entry to competitors. It has nothing to do with the rights or safety of the general population. I’ve been there, and seen it. One of the reasons I went there was to prevent big aerospace from regulating startups out of existence. (The reason I “retired” will be revealed at some point.)
The affairs of people are regulated by the people who engage in them. There is no reason or requirement for governmental regulation of most human affairs. It is only the desire by some people to use governmental force to shut down competition that fuels the administrative state.