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Jonathan Emord

Lives and Liberty Lost by Order of the Deep State



Three quarters of all federal law is not enacted by those we elect but by the unelected heads of over 200 government departments, agencies, and bureaus. Under our Constitution, only Congress has the power to make laws (Art. I: “All legislative Powers herein granted shall be vested in a Congress of the United States . . .”), and yet, through a deliberate circumvention of the Constitution, federal agencies have for over one hundred and forty years created, enforced, adjudicated, and punished parties for violating laws Congress never enacted. Indeed, as Professor Philip Hamburger explains, the administrative state is largely indistinguishable from the dreaded Courts of Star Chamber and High Commission that the Founding Fathers condemned for their abuses and constitutionally prohibited.


The Administrative State makes decisions that sacrifice individual liberty and property, but also even human life—all without adherence to constitutional limits on government power. A single example can illustrate the point. For over sixty years, to protect drug companies from competition, the FDA has maintained a blanket ban on information associating nutrients with disease risk reduction, thus giving drug companies a monopoly on therapeutic claims. Under that ban, the FDA prohibited Americans from receiving at the point-of-sale information associating 800 micrograms of folic acid in dietary supplements with a reduction in the risk of neural tube defects (e.g., spina bifida and anencephaly). That ban was held unconstitutional in Pearson v. Shalala in 1999, but for at least two decades before the Court ruled, FDA’s censorship resulted in an estimated 2,500 preventable NTDs each year and countless NTD-related abortions. FDA continues to censor numerous nutrient-disease claims that, if allowed, would save lives.


Consider just a few more examples of the unconstitutional power and abuses visited upon us by the Administrative State. The Founding Fathers were very familiar with general warrants and believed them antithetical to individual liberty; they prohibited them in the Fourth Amendment. Prohibited, general warrants are nevertheless used every day by federal administrative agencies, a flagrant violation of the Fourth Amendment. In Stanford v. Texas, the Supreme Court explained that “[v]ivid in the memory of the newly independent Americans were these general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists.” Justice Potter Stewart wrote for a unanimous Court that Americans were entitled to “’be secure in their persons, houses, papers and effects’ from intrusion and seizure by officers acting under the unbridled authority of a general warrant.” Yet every day, general warrants are issued by federal agencies, like the FTC, the EPA, and the BLM, acting without a federal court order and commanding Americans to produce all manner of the most sensitive financial records and documents entirely on suspicion and without ever having to prove probable cause.


As early as 1895, in Coffin v. United States, the Supreme Court made unequivocal that those accused by the government were entitled to a presumption of innocence. Yet every day the Administrative State presumes those it accuses to be guilty until they prove themselves innocent. Moreover, the Fifth Amendment right against self-incrimination is ignored in the administrative law context, such that routinely individuals accused by agencies are ordered to provide testimony against themselves.


It is a cardinal constitutional principle, articulated well by Madison in Federalist No. 47, that the prosecutor not also be the judge because impartial justice is impossible when the very official seeking conviction of the accused is also the one with legal authority to decide the dispute. Madison wrote: “The accumulation of all powers, legislative, executive, and judiciary, 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.” And yet, when administrative law judges decide a case, their decisions are but recommendations to the agency heads, the very heads who ordered the prosecution in the first place. That leads to biased decision-making. Indeed, former FTC Commissioner Joshua D. Wright explained that in his agency’s history, he could not find a single instance in which the accused was ever found innocent of the wrongdoing charged by the FTC: Every time FTC accuses, it holds the accused guilty!


Under the Sixth and Seventh Amendments, every American is entitled to a jury trial before the government imposes a penalty (a restriction on his or her liberty or a command that he or she pay the government money or forfeit property). And yet, when administrative agencies impose huge fines, discontinue any enterprise, or deny the accused the right to advertise, label a product, or market a good or service, the party affected is denied the right to a trial before an impartial jury of peers.


These are among many violations of constitutional rights that take place across the United States as Administrative Agencies enforce their rules which Congress never passed into law. There are thousands of Americans who have lost their jobs, lost their businesses, lost their livelihoods, and, indeed, lost their liberty and lives because of government agencies depriving Americans of constitutional rights to achieve politically preferred outcomes. The Deep State has swallowed not just political enemies but honest, hard-working Americans in virtually every field of endeavor. Freedom, innovation, progress, opportunity, and choice have all been put on the chopping block by the voracious regulatory state that now dominates and controls America.


Until we limit law-making to Congress, as the Constitution requires, and until we end Administrative Agency rights violations, we will never enjoy that liberty which is our birthright as citizens of our constitutional republic. An updated version of a bill I wrote with Norm Singleton for Ron Paul years ago would help solve the problem. Called the Congressional Responsibility and Accountability Act, it would prohibit any administrative agency proposed rule from taking effect unless passed into law by Congress, and it would sunset every existing regulation within three years unless passed into law by Congress. Add to that a requirement that agencies bring charges before independent federal courts, an elimination of administrative law courts, and a demand for de novo judicial review of all agency actions, and we would be well on our way to restoring the constitutional rights protections taken from us by the Administrative State.

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