If the passage of time were a reliable guarantor of increasing human freedom, we would expect history to look a little different than it does. In school, we would have learned that the Englishmen of Charles I’s reign were better off than their Elizabethan grandparents; that the colonists implicated by the Declaratory Act had fairer prospects than those who had been governed with what Burke called “salutary neglect”; that the Germans of 1935 possessed an advantage over those of the Bismarcksche Reichsverfassung. That we did not learn any of this should tell us something. As Thomas Jefferson had it, “the natural progress of things is for liberty to yield, and government to gain ground.” There are no new fights in politics.
Do we know this? In the United States, as in the rest of the Anglo-sphere, we seem to believe that we are the children of legislatures, not of kings; the beneficiaries of careful reasoning, not of iron will; the heirs to a safe political settlement immune to disintegration. That we are proud of our institutions is understandable. But our unshakable confidence in their permanence is not. There is nothing written in the stars that secures in perpetuity our free system of laws. There are no stone tablets upon which legislative supremacy and judicial integrity are guaranteed against usurpation. Men’s hearts are no less ambitious this week than they were in the era of the pyramids.
As I write, the president of the United States is openly promising to finish off his second term with a flurry of extra-constitutional activity. By the power invested in his “pen and phone,” Barack Obama intends to wield his “executive authority” in order to institute a set of environmental rules that the people’s representatives have declined to grant him; to close the prison camp at Guantanamo Bay in direct defiance of Congress’s will; and to further circumvent a series of immigration laws that have been on the books for decades.
These are no idle threats. In his second term alone, this president has rewritten by fiat some of the central portions of his signature legislation, Obamacare; granted a series of unauthorized waivers from the 1996 Welfare Reform Act; and instructed agencies such as the IRS and the EPA to push forward with the enforcement of a series of administrative rules that simply cannot be justified by the texts of their enabling statutes. Most alarmingly of all, he has repeatedly made it clear that these actions are not the natural outworking of legal ambiguity, but a deliberate response to congressional inaction. Once upon a time, Obama insisted that he was “not a king” or an “emperor” or a “dictator,” and confirmed that his “job as the head of the executive branch ultimately is to carry out the law.” Now he justifies his behavior with talk of necessity and vows that if “Congress won’t act,” he will.
John Adams characterized the office that Obama holds as enjoying “the whole executive power, after divesting it of those badges of domination called prerogatives.” In this assessment he was reflecting what might be regarded as the Founders’ central conceit: that when the laws that govern men’s fortunes are subject to the whims of the powerful rather than to the consent of the governed, there can be no liberty. Are we at liberty?
In his recent book Is Administrative Law Unlawful? Columbia University professor Philip Hamburger suggests that we are not. The Constitution of the United States, Hamburger contends, represented a conscious attempt to banish from this country’s political structure a host of the insidious tools upon which monarchs and emperors had historically relied: among them prerogative lawmaking, legislative enabling acts, suspending and dispensing powers, and the investment of legislative, judicial, and executive functions into one body. Alarmingly, Hamburger concludes, these features have gradually found their way back into the system — not because the Constitution has been overthrown or because Washington, D.C., has been occupied by an invading force, but because over time we have constructed an unwarranted “fourth branch” in addition to the original three, and we have allowed the executive branch to take advantage of it.
By “fourth branch,” Hamburger is referring to the vast caste of unelected government employees who staff the array of administrative agencies that have sprung up around the country since the start of the 20th century and, slowly but surely, enjoyed ever-increasing power over our lives. Far from reflecting a benign, novel, and necessary change in the detail of our self-government, Hamburger submits, these entities are returning us to the bad old days of rule by fiat. Unlike the Prussians and the French, he argues, Anglo-American societies have historically insisted that the liberties of free men be restricted only by the legislature and the courts, not by executive decree. By permitting a vast and unaccountable bureaucracy to grow in their midst, Americans have reimported into their system a virus against which their Constitution was supposed to protect them. Worst of all: They have done so without a care in the world.
Hamburger’s provocative thesis should, at the least, force us to consider an important question: Why do we tolerate behavior from our bureaucracy that we would never allow in other circumstances? Imagine, if you will, that an American citizen were arrested on suspicion of stabbing somebody and subsequently charged. Ceteris paribus, we would require a number of conditions to be met in order for his conviction to be acceptable. First, we would expect the law that he was accused of having broken to be present in a specific statute that had made its way through the established legislative process. Second, we would expect the authorities tasked with his prosecution to be under the jurisdiction of the executive branch and bound by rules that had been contrived by the legislature and interpreted by the courts. And third, we would expect him to be given an independent trial overseen by a judge and decided by a jury of his peers. Anything less would be unacceptable.
If a state legislature attempted to “consolidate” this process on the grounds of its “complexity,” we would steadfastly object. But now suppose that instead of being subject to laws that had been passed by the legislature, enforced by prosecutors from the executive branch, and overseen by an independent judiciary, our hypothetical suspect were left at the mercy of an unelected “violence agency” that had been empowered to make binding determinations as to (a) what constituted “stabbing,” (b) who were guilty of it, and (c) what their punishments should be. Would we not riot? Not only would the opportunity for abuse be deemed flatly unacceptable, but we would wonder how exactly it was that a legislature saw fit to sub delegate to the executive both its own enumerated powers and a set of judicial functions to which it had no rightful claim.
Why, then, is this not the case elsewhere? Why do we shrug our shoulders when Congress bestows upon the executive branch extensive powers to promulgate, enforce, and adjudicate binding rules? Why do we not revolt when the IRS is given the task of writing its own laws in-house (we used to call this “prerogative”) and enforcing them outside the courts (we used to call this “consolidation of power”)? Why is there no great uproar when HHS and USCIS willfully delay enforcement of unpopular provisions of the law to aid the president’s reelection bid (we used to call this “suspending”) or hand out waivers of onerous requirements to favored groups (we used to call this “dispensing”)?
Most important of all, why are we not up in arms when the president openly abuses his position as thhead of the bureaucracy in order to circumvent Congress’s explicit will? When even left-wingers such as Georgetown Law School’s Jonathan Turley are warning that Barack Obama has now become “the very danger the Constitution was designed to avoid,” should our ears not perk up? Our Founders’ ancestors in Britain spent centuries trying to rid their constitutional structures of opportunities for abuse. Why are we so indifferent to their return?