By Attorney Jonathan Emord
April 25, 2011
For the past seventy-five years Congress has transferred to the federal regulatory agencies the power to govern (to legislative, to prosecute, and to adjudicate). The Constitution vests the power to make law in Congress, the power to execute the laws in the Executive, and the power to adjudicate alleged violations of the law in the Judiciary. By this massive transfer of governing power from the elected to some 220 unelected agencies of the federal government, the United States has replaced its constitutional republic with a bureaucratic oligarchy.
The Founding Fathers revered the French Enlightenment philosopher Montesquieu. In particular, they adopted the view expressed in his Spirit of the Laws (1748) that whenever government combines legislative, executive, and judicial powers in single hands, that produces tyranny in service of the selfish ambitions of men. In his Thoughts on Government (1776), John Adams explained that “a single assembly possessed of all the powers of government would make arbitrary laws for their own interest, execute all laws arbitrarily for their own interest, and adjudge all controversies in their own favor.” James Madison concurred: “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.”
It should come as no surprise to us, then, that the rule of law is so readily ignored by the unelected heads of the federal agencies when it interferes with their political objectives. When Congress enacts new law to alter the chosen course of an agency, often the agency blithely ignores the statute and proceeds with its own regulatory agenda. That lawlessness frequently encounters little resistance. Even when challenged, the action is ordinarily upheld unless the federal court makes a rare finding that the statute is unambiguous in every material particular and that the agency interpretation is patently unreasonable. In most instances, the federal court finds the statute ambiguous in some material respect and then defers to the agency’s interpretation of it so long as there is some conceivable way to hold the rule in question intelligible.