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Whatever happened to the Constitution? cont’d

The Progressive assault on the Constitution of limited government and divided powers succeeded in the creation of the apparatus of the administrative state. In the administrative state, executive branch agencies exercise judicial and legislative powers. The assumption of royal or dictatorial powers by the president has grown up along with the administrative state. President Obama has accelerated the process and aggravated the phenomenon. We have previously quoted Professor Jean Yarbrough:

We need an updated online primer in American government and political thought. We all learn about the separation of powers and federalism, but don’t understand that these restraints do not operate in the administrative universe. Indeed, the administrative state was designed to overcome these obstacles. Our mission should be to educate Americans on the real effects of this turn toward administrative regulations and rules.

In the age of Obama Professor Yarbrough sees the arrival “not [of] soft despotism, but hidden and rather hard despotism for those who fall into the maw of the administrative state.”

In his column today George Will touches on these issues. Citing a forthcoming law review article by Professor Zachary Price, Will elaborates on Obama’s assumption of royal powers to suspend statutes or make them inapplicable to certain individuals or groups. He argues that Obama’s assumption of these powers is inconsistent with his constitutional obligation to take care that the laws be faithfully executed:

It is, says Price, part of America’s “deeply rooted constitutional tradition” that “presidents, unlike English kings, lack authority to suspend statutes” or make them inapplicable to certain individuals or groups. Indeed, the take care clause may have been intended to codify the Framers’ repudiation of royal suspending prerogatives. Hence the absence of an anti-suspension provision in the Bill of Rights.

In his conclusion Will alludes to the constitutional anomalies implicit in the administrative state:

The sprawl of the modern administrative state requires vast delegations of powers, often indistinguishable from legislative powers, to an executive branch whose scale defies even adequate congressional oversight. Fortunately, in the Newtonian physics of our constitutional system, wherein rivalries among the three branches are supposed to trend toward equilibrium, actions often produce equal and opposite reactions. Obama’s aggressive assertions of executive discretion are provoking countervailing attention to constitutional proprieties. His departures from the norms proper to the take care clause may yet cause Congress to take better care of its prerogatives.

Ascribing the source of the problem the “sprawl” of the administrative state is confused and confusing. Though Will’s column raises important issues that bear on the current controversies over Obamacare, we nevertheless remain in need of the updated primer on American government for which Professor Yarbrough calls.

UPDATE: Professor Price has posted related thoughts here.

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