Business owners must bear in mind the stark reality that the agencies that regulate them will not go away and will continue to exercise jurisdiction, perform inspections, and wield discretionary power to accuse and adjudicate in perpetuity. The regulatory sword, like that of Damocles, is forever over the head of every business person in America. Consequently, most try to find a way just to avoid regulators, all too often slovenly conceding to their every demand, no matter how unreasonable.
That normative state of concession involves a profound loss of liberty which translates into less innovation, less consumer choice, higher prices, and massive waste of business time, money, and opportunity. For the past 142 years, the American Administrative State has been a tremendous bane on freedom and progress, the burden of which is exacerbated as the economy enters a recession.
When President Trump called for draining the swamp, he sent a clear message to corrupt actors within the government who sought to overturn the 2016 election that their days were numbered, and he also sent a clear message to every American in business that a day of reckoning might soon come for the Administrative State in America.
After the Civil War, American academics from major universities flocked to Germany to study collectivism in the historical schools. In Bonn, Belin, Halle, and Heidelberg, among others, American academics studied the works of Georg Wilhelm Friedrich Hegel (Karl Marx’s teacher). They were taught that Lockean concepts of God-given unalienable rights and of individual sovereignty were anachronistic, tied to a bygone agrarian era and counterproductive in the industrial age. They were taught that rights properly understood emanated not from God but from the state, that the state was the embodiment of a thing called collective rights, and that individual rights to liberty and property were impediments to social and economic progress. The state was characterized as a living and supreme being comprised of the body of the people who must strive in one direction to ensure achievement of a common good, which good was said to be progress. The highest calling was not to achieve individual success in the market but to serve the collective ends of the state. It was the state, not the individual, who would best direct society to a higher level of advancement under the control of experts, bureaucrats, who were said to be better able to discern the common good due to the complexities of modern society. The individual was to sublimate his own “selfish” desires to those of the state as expressed by state experts, willingly sacrificing for the “common good.”
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That claptrap against individual liberty and sovereignty swept American academia. American universities rejected classical liberalism and eschewed curricula that praised the Constitution as the zenith in the global quest to secure individual rights. Service in government was heralded as the highest personal achievement. Universities were turned into breeding grounds for newly indoctrinated Hegelian socialists to enter government service as planners. This together with the aid of Hegelian politicians, like Woodrow Wilson, led to the creation of the Administrative State—which grew from modest sapling commissions, agencies, departments and bureaus in the Progressive Era into mighty and more numerous regulatory Sequoias in the first and second New Deals, continuing thereafter through the Great Society until today to form dense regulatory forests. The laws created by those we elect, published in the United States Code, is but a minor subset of all federal law, the vast majority of which are regulations promulgated by the unelected heads of federal agencies. We have become a bureaucratic oligarchy little resembling the limited federal republic established in the Constitution.
From the late 1880s forward, the Administrative State came to be without resort to an amendment under Article V, as the Constitution requires. Rather, Congress and Presidents simply enacted the Administrative State, ceding to it combined legislative, executive, and judicial powers. They did so precisely because those ruling elites enthralled with Hegelian socialism harbored disdain for the strictures of the Constitution and so felt no need to seek popular amendment before ushering in the most significant redistribution of government powers in American history. Indeed, it was their very aim to circumvent the Constitution’s vesting clauses and defeat the non-delegation and separation of powers doctrines so power could be wielded by unrepresentative individuals with efficiency and force.
They believed industrial America required rapid government action to direct free enterprise in ways experts thought beneficent. They sought “efficient government,” and thus disempowerment of the deliberative and competing constitutional branches of government which they regarded as stultified.
That creation of hundreds of federal commissions, bureaus, and agencies entailed a major violation of the Constitution and creation of a de facto and de jure government outside the constitutional government—a new, all-powerful bureaucratic state never intended by the Founders and forbidden by the Constitution itself. The Constitution creates three branches of government into which legislative, executive, and judicial powers are vested. There is no provision for re-delegation of vested powers, nor could there be under the Non-Delegation Doctrine accepted by the Founders. The Founders understood, as the second paragraph of the Declaration of Independence makes clear, that governments derive their just powers from the consent of the governed.
Consequently, the allocation of powers specified in the Constitution is legitimate only because it is based on popular consent: ratification of the Constitution. Any re-delegation of powers outside the constitutional repositories necessarily requires an Article V amendment; otherwise it is an illegitimate and unconstitutional usurpation of the people’s power, devoid of their consent.
By creating the Administrative State without constitutional amendment, Congress birthed an illegitimate, unconstitutional and extra-constitutional government. In this way, the Non-Delegation and Separation of Powers doctrines were rent, begetting the very tyrannical government the Founders warned against.
James Madison wrote in Federalist Number 47: “The accumulation of all powers, legislative, executive, and judicial, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” That view was shared by Washington, Jefferson, and Hamilton, and reflects the commonly accepted nostrums against centralized powers Montesquieu condemned in Spirit of the Laws, which the Founders read and revered.
In Federalist Number 39, Madison explained that a republican form of government would devolve into tyranny if powers vested in the three branches by the consent of the governed were re-delegated to “a favored class” unaccountable to the people, which would make them “tyrannical nobles” who could oppress the people. Madison wrote prophetically because, indeed, that is precisely what the Administrative State is today, a series of bodies led by tyrannical nobles.
Locke in his Second Treatise on Government wrote that “[t]he legislative cannot transfer the power of making laws to any other hands. For it being but a delegated power from the people, they, who have it, cannot pass it over to others.” That is because “[t]he people alone can appoint the form of the commonwealth . . . And when the people have said, we will submit to rules and be governed by laws made by such men . . . nobody else can say other men shall make laws for them; nor can the people be bound by any laws, but such as are enacted by those, whom they have chosen.” This principle of non-delegation was among the Founders’ bedrocks of belief.
Draining the swamp requires more than removal of corrupt government agents; the Administrative State must also be eliminated.
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