The Problem of the Administrative State, in One Paragraph

Scott’s mention below of the teachings of Publius in The Federalist about how our modern administrative state tramples all over the separation of powers has seldom been explained better in recent times than in this classic paragraph below from Boston University law professor Gary Lawson, in his 1994 Harvard Law Review article “The Rise and Rise of the Administrative State.”  Savor this with a nice snifter of whiskey:

The [Federal Trade] Commission promulgates substantive rules of conduct. The Commission then considers whether to authorize investigations into whether the Commission’s rules have been violated. If the Commission authorizes an investigation, the investigation is conducted by the Commission, which reports its findings to the Commission. If the Commission thinks that the Commission’s findings warrant an enforcement action, the Commission issues a complaint. The Commission’s complaint that a Commission rule has been violated is then prosecuted by the Commission and adjudicated by the Commission. This Commission adjudication can either take place before the full Commission or before a semi-autonomous Commission administrative law judge. If the Commission chooses to adjudicate before an administrative law judge rather than before the Commission and the decision is adverse to the Commission, the Commission can appeal to the Commission. If the Commission ultimately finds a violation, then, and only then, the affected private party can appeal to an Article III court. But the agency decision, even before the bona fide Article III tribunal, possesses a very strong presumption of correctness on matters both of fact and of law.

As Coolidge put it: “This is not the government which was put into form by Washington and Hamilton, and popularized by Jefferson.  Some of the stabilizing safeguards which they had provided have been weakened. . .”

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