The concept is simple: as the saying goes, simple but not easy.
It is not the fault of parents or teachers that inadequate education about the Constitution is often now given. Curriculum writers (textbook writers) and professors of education at the colleges and universities have planned and carried out the deliberate withholding of information. Instead of teaching the Constitution, a handful of slogans are instilled in the students, with the intent of persuading parents and students that something has been taught and learned.
Given this failure of the academic system, mainly at the primary and secondary levels, the general public is less able to identify when the government fails to abide by the Constitution’s rule, less able to know what to do to correct these failures, and less able to understand the harm wrought by the violation of the Constitutional system.
One specific violation of the system is that laws are being made by branches of the government other than the Congress. If the task of the legislative branch is to legislate, then it is a violation not only of reason and justice, but also of the Constitution, when some other, or any other, office legislates. An effort is made to camouflage this violation inasmuch as the laws so made are not called ‘laws’ but rather ‘regulations, rules, procedures, rulings’ etc., and the unconstitutional process of making them is not called ‘legislation’ but rather ‘oversight, regulation, court orders’ etc.
Some scholars have sought to justify this violation of the Constitution by arguing that Congress has delegated its law-making activity when, e.g., it funds an agency or an executive department which then issues regulations, rulings, procedures, etc.
As historian Philip Hamburger points out, the Constitution expressly forbids Congress from delegating the power of legislation:
The United States Constitution expressly bars the delegation of legislative power. This may sound odd, given that the opposite is so commonly asserted by scholars and so routinely accepted by the courts. But read the Constitution. The Constitution’s very first substantive words are, “All legislative Powers herein granted shall be vested in a Congress of the United States.” The word “all” was not placed there by accident. The Framers understood that delegation had been a problem in English constitutional history, and the word “all” was placed there precisely to bar it.
The Constitution was directly and specifically responding to historical situations in which the legislative branch had delegated its power to legislate; the result was another step on the road to tyranny. The crime of the legislative branch delegating its power is distinct from the crime of some other branch of government taking that power. In either situation, however, injustice and human suffering are the necessary results.
Constitutionally, the legislative branch cannot delegate this power; when it does, it ceases to be a constitutional legislature, as historian John Marini notes:
It is true that constitutional assemblies cannot be bureaucratized, because deliberation and general lawmaking remain their fundamental political purpose.
The first generations of constitutional scholars assumed that if Congress delegated its power to legislate, it would lose all its power. “What” earlier historians “did not foresee is that Congress could surrender its lawmaking power, delegating that power to the bureaucracy, and still maintain its authority over the bureaucracy.” Congress, having in fact illegitimately delegated, retains significant power, i.e., the political power over the agencies which legislate. But Congress has given away its direct power over, and its responsibility for, the content of legislation.
One name given to laws made not by the legislative branch is ‘administrative’ law, i.e., illegitimate law, which hides behind any word except ‘law’ — i.e., ‘regulation, requirement, directive, procedure, guideline’ etc.
Congress still has power, but not its legitimate power. It holds a form of illegitimate power, as John Marini writes:
It is in this way — by reorganizing itself to be not a legislative, but an administrative oversight body — that Congress established itself as a major player in the politics of the administrative state.
Many harms arise from the delegation of Congress’s peculiar constitutional role. As a natural consequence to laws made in violation of the Constitution, the enforcement of those laws, and the judging of them, is also in violation of the Constitution. Thus ‘administrative law’ begets an ‘administrative court’ system, and even what are essentially ‘administrative’ police. Again, these will be hidden behind other names, to disguise the violation of constitutional principles.
Those who face trial in an administrative ‘hearing’ do not receive due process and their rights are not respected — the rights which they would have were they to be tried in a court which is part of the judicial branch. Philip Hamburger explains:
Administrative adjudication evades almost all of the procedural rights guaranteed under the Constitution. It subjects Americans to adjudication without real judges, without juries, without grand juries, without full protection against self-incrimination, and so forth.
It is not accidental that ‘administrative courts’ ignore the rights which a citizen normally has in a constitutional trial and violate due process, because it was with that intent that the administrative courts were created. The formation of ‘courts’ and ‘hearings’ within departments of the executive branch and within congressional agencies was a successful effort to evade proper judicial procedure, by evading the judicial branch itself.
Phrases like “an ICC ruling” or “an ICC finding” describe the result of an essentially judicial process, but one not carried out by the judicial branch. For example, the New York Times wrote about “an Interstate Commerce Commission finding of last April that a merger of the Great Northern, the Northern Pacific and the Chicago, Burlington Quincy Railroads is in the public interest” (November 21, 1968). What is that but a verdict? Yet nobody but the judicial branch is constitutionally authorized to issue a verdict.
Philip Hamburger reports:
Administrative courts substitute inquisitorial process for the due process of law — and that’s not just an abstract accusation; much early administrative procedure appears to have been modelled on civilian-derived inquisitorial process. Administrative adjudication thus becomes an open avenue for evasion of the Bill of Rights.
Congress has delegated its legislative power, and thus abandoned its legitimate constitutional role. Why would a body surrender its proper power? Perhaps to obtain an improper power. Congress is now less concerned with passing laws, and more concerned with conducting ‘investigations’ and having ‘trials’ and ‘hearings’ of various kinds.
Congress has not only violated the Constitution, it has inverted it, as John Marini explains:
Congress has become a major player in the administrative state precisely by surrendering its constitutional purpose and ceasing to defend limited government. As a result, the administrative state has grown dramatically since 1965, and it only continues to defend and expand its turf. Political opposition occasionally arises in the White House or in Congress, but thus far with little effect.
In violating the separation of powers between the three branches of government and hindering the proper ‘check and balance’ system, Congress has not only violated the Constitution and reason, but also thwarted the nation’s desire for justice, freedom, peace, and prosperity.
