We have noted here several times the way in which executive agencies in the administrative state obliterate the separation of powers by the convenience of having their own “administrative law judges” to adjudicate disputes over an agency rule or action. Turns out Tocqueville was also on to this problem in 1840, where he saw the trends in Europe and cautioned that they might follow eventually in the United States:
The government centralizes its action at the same time that it increases its prerogatives: a double cause of force. . .
If one now examines what is taking place in the democratic nations of Europe that are called feee, as well as in the others, one sees on all sides that alongside these courts, others, more dependent, are being created, the particular object of which is to decide exceptionally the contentious questions that can arise between the public administration and citizens. Independence is left to the former judicial power, but its jurisdiction is narrowed and it tends more and more to be made only an arbiter between particular interests.
[Note: This is a perfect description of the Chevron doctrine.]
The number of these special courts constantly increases, and their prerogatives grow. The government is therefore escaping more each day from the obligation to have its will and its rights sanctioned by another power. Unable to do without judges, it wishes at least to choose its judges itself and to keep them always in hand; that is to say between it and particular persons its puts the image of justice rather than justice itself.
Thus it is not enough for the state to attract all business to itself; it also comes more and more to decide everything for itself without control and without recourse.
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