Coston's Complaint: Democrats Scheme to Advance Administrative State

Sunday, November 24, 2013

Democrats Scheme to Advance Administrative State

Senate Democrats pulled the nuclear option earlier this week. They are fully aware that the American people have caught onto their shenanigans. Barack Obama is officially a lame duck and the Republicans have a chance to win the Senate. The Democrats need a failsafe plan that will further their socialist ideology without having to go through the legislative process. They need the D.C. Circuit Court of Appeals to rubber stamp Obama’s administrative state.

The progressives for over a hundred years schemed to circumvent the U.S. Constitution. They needed a way to bypass Congress. They needed federal bureaucracies that can act independent of the legislative process. They need an administrative state. President Woodrow Wilson gave them a vision even he admitted is alien to the American people:

But where has this science grown up? Surely not on this side of the sea….American writers have hitherto taken no very important part in the advancement of this science. It has found its doctors in Europe. It is not of our making; it is a foreign science, speaking very little of the language of English or American principles….It has been developed by French and German professors.

Many are asking what law allowed the executive branch to accumulate all this power while abrogating Congress’s constitutional responsibilities. It is called the Administrative Procedures Act of 1946.

This law gave federal agencies a free hand in writing, implementing and enforcing rules and regulations. They can do this with little input from the general public or our representatives.

In 1947, the department of justice issued the Attorney General's Manual on the Administrative Procedure Act. This document provides insight regarding the application of the act and remains valuable as a research tool to this day. Some of the information contained in this manual provides analysis that the courts have not yet considered.

The purpose of the APA is to provide minimum procedural standards that federal administrative agencies must follow. It distinguishes between two major forms of administrative functions: agency rulemaking and agency adjudication. Administrative rulemaking is analogous to the legislative acts, while an administrative adjudication is analogous to a judicial decision. This distinction contained in the APA has long been the subject of scholarly debate. Some argue that such a dichotomy is unnecessarily rigid and that it might not always allow for the most appropriate procedures for a particular agency. Supporters of the distinction between rulemaking and adjudication contained in the APA note that this distinction best represents the basic functions of administrative agencies.

The rulemaking provisions of the APA are more detailed than those governing adjudications. Most agencies engage in notice-and-comment rulemaking, which is required as the minimum rulemaking procedure under the APA. Under notice-and-comment rulemaking, agencies are required to give the public advance notice of the contents of proposed rule and to offer the public an opportunity to express their views of the proposed rule before the agency. Some agencies are required by the statutes that created them to follow more stringent standards, whereby all of the agency's actions during rulemaking are conducted "on the record." This latter type of rulemaking is known as formal rulemaking.

The APA defines and governs only those types of adjudications that are required by statute to be conducted "on the record after opportunity for an agency hearing." If an agency is required to conduct such a formal adjudication under the APA, it must engage in a proceeding resembling a trial. However, if the agency is not required to conduct such a hearing, the APA remains silent. Accordingly, an agency may adopt its own procedure for an informal adjudication, so long as the agency otherwise does not violate the U.S. Constitution or other law.

I contend that the Administrative Procedures Act is unconstitutional. It violates Article One, Section One, and our constitutional concept of separation of powers. But as we’ve seen, the progressives only need a compliant judge to implement their vision of the United States even if it’s against the will of the people.