The Bureaucracy -- The Unaccountable Fourth Branch Of Government

Founding Father James Madison warned
about letting unaccountable bureaucrats
have too much power, and now we're
paying for not heeding his warning.

by Ken Cuccinelli: In arguing for the states to ratify the Constitution, James Madison wrote in Federalist 47, "The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many … may justly be pronounced the very definition of tyranny." In our time, the regulatory state has become a form of tyranny led by bureaucrats who have wrested power from Congress and even influenced the Supreme Court to bow to their power.

This concentration of power in the regulatory state has led to outrage after outrage as unelected, unaccountable bureaucrats act as tyrannical kings, issuing edicts that harm small businesses, restrict freedom and cost our economy almost $2 trillion per year. This fourth branch of government exists outside of and unrestrained by the constitutional system of checks and balances. It represents one of the greatest threats to the liberties of American citizens.

If our constitutional system is to be preserved, this concentration of tyrannical power must be addressed, and regulators must be stripped of their unconstitutional powers. The first step in redressing this balance must be reinstating the power of citizens to challenge the administrative state in court on a level playing field.

This restoration of due process, a fundamental civil right, requires the elimination of the judicially created doctrine of Chevron deference, derived from a 1984 Supreme Court case. Chevron deference is the idea that courts should defer to the interpretation of the administrative state whenever a statute is "ambiguous." In practice, however, this has meant the courts simply defer to the administrative state in virtually all instances, as a creative bureaucrat can manufacture at least some ambiguity in any statute.

But Chevron deference is not just harmful to our constitutional order, the very concept is contrary to law. The Administrative Procedure Act, which sets out the laws and procedures that are supposed to govern the regulatory process, clearly states that "the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action."

This sentence makes clear that it is the responsibility of the courts to interpret and decide meaning, not to defer to the decisions of bureaucrats.

Allowing the administrative state to unilaterally decide what Congress supposedly intended while simultaneously limiting the people's ability to challenge those decisions in court makes a mockery of our representative democratic system. This leaves the administrative state as a functionally independent entity, operating outside of the democratic system and avoiding restraint from the judicial branch.

But this state of affairs can easily be corrected by discarding or overruling Chevron deference. Once due process is restored when it comes to the administrative state, the process of reining in the unaccountable fourth branch can begin.

The unchecked power currently vested in the administrative state would appall the drafters of our Constitution. Federalist 47 shows that the Founding Fathers clearly saw the threat such a concentration of power posed to the liberties of American citizens and intentionally drafted the Constitution to prevent such a concentration of power.

As Madison also wrote in Federalist 47: "Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system."

With the power that is now concentrated in the administrative state, it is no wonder that the American people overwhelmingly distrust the federal government. As Madison foresaw, the American people are rejecting a system in which unaccountable bureaucrats are able to control our lives. A free people must be able to control their government, else they cease to be free. It is time to start taking power back from the regulators and returning it to the people.
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Ken Cuccinelli is the general counsel to the Freedomworks Regulatory Action Center and a former attorney general of Virginia. Originally Published in Investor's Business Daily.

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