Preserving this constitutional system amounts to preserving the human rights, civil rights, and civil liberties which it was instituted to protect. The task of preserving this system often takes the form of asking whether each of the three branches is performing its tasks and avoiding the tasks assigned to the other branches.
A branch of government is negligent if it fails to perform its assigned tasks; it is usurpative if it performs tasks assigned to other branches.
It is therefore necessary, not only to limit the power of government as a whole, but rather also to limit within the government power of each part.
Opposing this constitutional system are those who embrace the idea of an administrative state. These two views compete: on the one hand, a central bureaucracy which makes laws and collects taxes apart from a freely-elected representative legislature; on the other hand, a decentralized system, in which federal and local governments each have separate assigned powers, which avoids permanent bureaucracy and standardized administration.
The administrative state comes into conflict with constitutional rights when the agencies of the executive branch make laws and collect taxes, usurping the role of the legislative branch. This leaves the citizens at the mercy of unelected agencies who do not represent the voters, but rather impose on the voters.
The need for limited government arises from the same source as the need for separation of powers: from human nature. The goal in the creation of such systems is to prevent situations in which individuals or groups have positions of great power, because sooner or later they will fall to the temptation to use that power in ways which do not represent the desires and thoughts of the voters, as John Marini writes:
James Madison wrote in The Federalist Papers that factionalism is “sown in the nature of man”; thus there will always be political conflict — which at its starkest is a conflict between justice, the highest human aspiration concerning politics, and its opposite, tyranny. This conflict between justice and tyranny occurs in every political order, the Founders believed, because it occurs in every human soul. It is human nature itself, therefore, that makes it necessary to place limits on the power of government.
President Woodrow Wilson wanted to take some of the budgetary powers assigned to the legislative branch. To this end, he proposed legislation which would reassign those powers to the executive branch. He vetoed the first version of this in 1920, because he thought that it did not give enough power to the president. A revised version, giving that power to the president, was passed by Congress in 1921 under the title “The General Accounting Act of 1921” and signed into law by President Warren Harding.
The passage of this bill was part of the progressive political agenda — Wilson was a leader in the progressive movement — and did damage to the constitutional system. Ironically, the anti-progressive Harding was the one who signed it into law. It will be left as an exercise for the reader to discover why Harding signed it.
The progressive vision was that government should control, rather than be controlled, as John Marini explains:
Progressive leaders were openly hostile to the Constitution not only because it placed limits on government, but because it provided almost no role for the federal government in the area of administration. The separation of powers of government into three branches — the executive, the legislative, and the judicial — inhibited the creation of a unified will and made it impossible to establish a technical administrative apparatus to carry out that will. Determined to overcome this separation, one of the chief reforms promoted by early Progressives was an executive budget system — a budget that would allow Progressive presidents to pursue the will of a national majority and establish a non-partisan bureaucracy to carry it out. Congress was initially reluctant to give presidents the authority to formulate budgets, partly because it infringed on Congress’s constitutional prerogative — but also because it was still understood at the time that the separation of powers stood as a barrier to tyranny and as a protection of individual freedom. Eventually, however, Congress’s resistance weakened.
When laws are made by the executive branch instead of by the legislative branch, they are unconstitutional and therefore illegitimate. In an attempt to hide this fact, many such laws, made by unelected officials in federal agencies, are labeled as “rules” or “regulations” instead of laws. When agencies impose penalties on those who violate such regulations, the agencies are usurping the role of the judicial branch, and such trials and their verdicts and sentences are therefore also unconstitutional and illegitimate. When these agencies collect taxes, which are labeled as “user fees” or other similar misleading phrases, they are usurping Congress’s exclusive right to levy taxes. Despite the attempt to label them as something other than taxes, they are in fact taxes, and are illegitimate and unconstitutional because again the executive branch has stolen the role of the legislative branch.
To defend this violation of the principle of the separation of powers, substantial mental gymnastics are required, as Philip Hamburger notes:
The Constitution authorizes three types of power, as we all learned in school — the legislative power is located in Congress, executive power is located in the president and his subordinates, and the judicial power is located in the courts. How does administrative power fit into that arrangement?
The answer is that laws, even when they are called ‘regulations’ and ‘rules’ or other technical words, are to be produced by the legislative branch, not the executive branch. ‘User fees’ are taxes and are therefore to be levied only by the legislative branch. ‘Hearnings’ which are trials are to be conducted only by the judicial branch, and ‘fines’ which are rulings are to be declared only by the judicial branch.
Administrative power as a standalone concept is neither constitutional nor legitimate.
Pinpointing the precise moment at which ‘administrative law’ began is difficult, but in any case, it is at least more than a century old. The concept of administrative law is entrenched and ossified, even though plainly corrupt and usurpatory.
Most often, the alleged need for administrative law is introduced as a practical necessity. It is practical and necessary only if one wishes to increase the power of government — and when government power increases, individual freedom decreases. The principle of limited government is intended to prevent the government from becoming an efficient manager or a practical regulator.
Citizens don’t want to be managed or regulated. Citizens elect representatives, not rulers. Those in government are to represent the ideas and desires of the citizens.
One of the several benefits of the separation of powers, and of checks and balances, is gridlock. Gridlock is a benefit and an asset. It prevents the government from becoming too adept at imposing control on citizens. One of the goals of the constitutional system is to maximize personal freedom and individual political liberty.
The progressive movement casts itself as modern, and therefore its opponents as reactionary and retrograde. This is, however, merely a verbal flourish, as Philip Hamburger writes:
The conventional answer to this question is based on the claim of the modernity of administrative law. Administrative law, this argument usually goes, began in 1887 when Congress created the Interstate Commerce Commission, and it expanded decade by decade as Congress created more such agencies. A variant of this account suggests that administrative law is actually a little bit older — that it began to develop in the early practices of the federal government of the United States. But whether it began in the 1790s or in the 1880s, administrative law according to this account is a post-1789 development and — this is the key point — it arose as a pragmatic and necessary response to new and complex practical problems in American life. The pragmatic and necessitous character of this development is almost a mantra — and of course if looked at that way, opposition to administrative law is anti-modern and quixotic.
Although the progressives presented the idea of an administrative state, or a managerial state, as something modern, it was in fact a step backward in time, to the governments of kings like Frederick the Great, who were called ‘enlightened despots’ and ‘enlightened absolutists’ because they considered themselves to be wise and therefore entitled to enforce upon their subjects whichever regulations occurred to them.
What is truly modern is a limited government, which regards freedom as the property of each human being. This replaces the monarchist view which regards the right to rule as the inherited family property of one ruler.
Although reason and justice are violated when one branch of the government seizes the powers assigned to another branch, reason and justice are equally violated when one branch of government is negligent and fails to carry out its assigned role. It is an illegitimate government when the executive takes on the legislative task; it is equally illegitimate when the legislative branch fails to legislate, as Christopher DeMuth writes:
Part of the shift has resulted from presidents, executive agencies, and courts seizing congressional prerogatives.
If it is a crime when a president steals Congress’s authority, then it is equally a crime when Congress fails to embrace its own authority; Christopher DeMuth continues:
But the most important part of the story has an opposite plot: Congress itself, despite its complaints about executive and judicial poaching, has been giving up its constitutional powers voluntarily and proactively.
It is a crime when the legislative branch fails to legislate; it is equally a crime when the Congress fails to organize taxation and outlays:
Congress has even handed off its constitutional crown jewels — its exclusive powers, assigned in Article I, Sections 8 and 9, to determine federal taxing and spending.
The details of the Constitution were crafted to keep the government bogged down in its own sluggishness — checks and balances countering each other, negotiating agreements between the branches of government — so that the government could not be efficient or effective in its regulation of human beings. If one of the purposes of government — indeed, the main purpose of government — is to protect individual freedom, then government should not be curtailing freedom.
