Bill of Rights explained 4: The rise of the administrative state


(upbeat rock music) (spooky music) (high-pitched screaming) – Welcome, liberty lovers,
friends of individual rights, and fans of limited government. Pacific Legal Foundation attorney and member of the real Justice
League, Tim Snowball here with another great video
on an important subject that any supporter of the Constitution is gonna be interested in. I am talking about the
greatest single threat to individual liberty:
Franklin Delano Roosevelt. (snake tail rattling) Just kidding, but he was terrible. So what is the greatest threat to liberty? This video is about the
administrative state. (high-pitched screaming) Now, one of the primary
ways that Thomas Jefferson justified the split from Great Britain in the Declaration of Independence was King George III’s
empowerment of bureaucrats to “harass all people and
eat to their substance.” If Jefferson were still
alive, he would probably be working with us at
Pacific Legal Foundation. Now you probably remember this from seventh grade social sciences class. Congress is vested with
the power to make the laws, the President is vested with
the power to enforce the laws, and the Supreme Court
is vested with the power to decide the
Constitutionality of the laws. This essential principle is known as the separation of powers, and for many of the founding fathers it was one of the most
important protections built into the Constitution. And for roughly the first 150 years of the American republic,
this carefully crafted system operated mostly as intended. But for FDR and the other New Dealers, the founders views on
the purpose of government was hopelessly outdated. Rather than a guarantee of the
liberty of each individual, the Constitution’s
carefully crafted system of checks and balances,
designed to require broad consensus and
impeded rash lawmaking, were seen as an impediment to progress. And instead of the
Constitution being binding law based upon fixed and
unchanging principles, the Progressives’ goal was
to transform the Constitution into a flexible living
document that could be adapted to their own political preferences. Because the most accomplished learned political philosophers of the 18th century didn’t really know that
much about politics. For the Progressives, the
natural rights theories of the founders were
incompatible impediments to the government-driven progress they wished to achieve at any cost. And I mean any cost. (cash register chiming) According the the Progressive
historian Carl Becker, “To ask whether the
natural rights philosophy “of the Declaration of
Independence is true or false “is essentially a meaningless question.” In 1920, Charles Merriam,
he of dictionary fame, wrote that the idea that men possess inherent and inalienable rights of a political or
quasi-political character which are independent of the state has generally been given up. Finally, John Dewey,
the Progressive father of modern educational theory,
once wrote that liberalism is committed to the idea
of historic relativity; it knows that the
content of the individual and freedom change with time. Thus the natural rights-based
political science of the founders, in
which government exists to secure the natural
rights of the people, was traded for rights as the gift of arbitrary and unlimited government. Our founding documents became nothing more than aged parchment
comprising mere suggestions, nothing more than historical curiosities. The way legal theorist
Randy Barnett puts it, we went from rights come
first, government comes second, to government comes first, and then rights come from the government. Because the country
was founded on the idea that people in positions
of power know best and are always to be trusted, right? And how did the Progressives propose to fix the Constitution? By centralizing power in a new authority, what has become known as
the administrative state. This unelected fourth branch of government would not be constrained by either the Constitution or the people. The idea was to avoid getting bogged down in all these outdated notions of democracy and the rule of law, whatever that is. Nevermind that slowing things down and gaining consensus
was the entire point. Progressives fought to bypass this carefully crafted
and hard won framework, instead empowering unelected experts, ’cause experts have
never led anyone astray. Bureaucrats are empowered to enact, enforce, and rule on policies imposed directly on the American people. After FDR added some
poorly drafted legislation and one or two badly decided
decisions by the Supreme Court and you have the behemoth that is the modern administrative state. Maybe an example of how a typical administrative agency functions based on the work of
Constitutional scholar Gary Lawson will be useful. Here’s how the separation of powers works in the modern administrative state. The commission promulgates
substantive rules of conduct. The commission that 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 the 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 the full 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 a bonafide
Article III court. But the agency decision,
even before an actual court, possesses a very strong
presumption of correctness on both matters of fact and of law. Now besides this
blatantly unconstitutional mix of powers, there’s also the sheer size of the administrative state to consider. There are now so many
administrative agencies controlling the food we
eat, the water we drink, the cars we drive, the
products we purchase, and nearly every aspect of American life, we aren’t even sure how many
agencies actually exist. The original purpose of many
federal regulatory agencies was probably well-intentioned,
such as ensuring safe food, drugs, or working conditions. I say probably because I’m
reminded of Thomas Sowell saying that the welfare
state is not really about the welfare of the masses; it’s about the egos of the elites. Evidently Kanye likes this quote too. I’m reminded of a quote
by a great American named Tim Snowball: the road to hell is paved with government interventions. (drum rimshot) But regardless of the
need for such regulations or the merit of any particular program, they still must be developed, implemented, and enforced in a constitutional manner. The size, scope, and power of the modern administrative state has far surpassed even the worst imaginings
of the founding fathers: an explosion of government
power unprecedented in modern history, resulting
in individual rights violations and the rule of law replaced
by the rule of bureaucrats. Now, given everything that’s happened, some of you may be wondering
whether there’s any hope of enacting meaningful change. Well, I’m here to tell you there is. Since 1973, Pacific Legal Foundation has become one of the
most active and successful public interest legal
organizations in the United States. Every day we stand opposed
to every government attempt to violate the separation of powers contained in the Constitution and protections guaranteed
in the Bill of Rights. In total, Pacific Legal
Foundation has argued 11 cases before the United States Supreme Court, four in the last 10 years alone. Now that’s an impressive number for any legal organization,
but it’s even more impressive given that we have achieved victories on behalf of our clients
and the rest of the country in nine out of those 11 cases. And this number does not even
begin to scratch the surface of the many, many victories
we have achieved at all levels of state and federal
courts across the country. This year we also launched our center for the separation of
powers, which will lead in the development and
promotion of solutions to end the administrative state. This year we also did
something unprecedented, not just for ourselves but also for the wider legal community. We filed two multi-state initiatives specifically aimed squarely at reigning in the power of the administrative state. And we are just getting started. Hey, liberty lovers. I’m here outside the real
Justice League headquarters. I wanted to thank you so
much for watching the video. I really appreciate it. If you liked it, if you hated it, if there’s anything you’d
like to see in the future, please leave us a comments below. For now, keep fighting.

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