Destroying the Fourth Branch of Government
By: Nick Short
“How does it become a man to behave toward this American government today? I answer, that he cannot without disgrace be associated with it. I cannot for an instant recognize that political organization as my government”, wrote Henry David Thoreau in his essay on Civil Disobedience.
Our government solely endeavors to transmit itself unimpaired to posterity, while at the same time it looses some of its integrity with every breach of the public’s trust. What has become truly perplexing to those like myself is how, to this day and under so many scandals, Americans could still hold faith in a government that no longer adheres to the accountability of the governed?
As Thoreau elaborated, “this government never of itself furthered any enterprise, but by the alacrity with which it got out of its way. It does not keep the country free. It does not settle the West. It does not educate. The character inherent in the American people has done all that has been accomplished; and it would have done somewhat more, if the government had not sometimes got in its way.” This sentiment remains true today as I ask, just as Thoreau did, “for not at once no government, but at once a better government.” In order for us to regain control and create a better government, we must first understand that the actual structure and operation of the government today has virtually nothing to do with the Constitution itself.
The reason that our government is no longer recognizable is because of the creation of the fourth branch of government, the administrative law system. Charles Murray in his book By the People: Rebuilding Liberty Without Permission, writes that “the administrative law system, with its own separate courts, prosecutors, judges, and appeals process is [the] governing structure for the regulatory state, which in turn is a largely independent fourth branch of government, only loosely answerable to the executive, legislative, or judicial branches.” It holds in contempt the very idea of a limited national government subject to a formal, tripartite separation of powers. This fourth branch of government takes the form of administrative agencies which routinely combine all three government functions in the same body, and even in the same people within that body in order to enforce regulations created solely by the agency itself.
Explaining what administrative law looks like is best explained in the following example by Boston University law professor Gary Lawson, in his 1994 Harvard Law Review article “The Rise and Rise of the Administrative State.” Lawson uses the Federal Communications Commission (FCC) as the example:
The [Federal Trade] Commission promulgates substantive rules of conduct. The Commission then 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 a 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 before the 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 an Article III court. But the agency decision, even before the bona fide Article III tribunal, possesses a very strong presumption of correctness on matters both of fact and of law.
This is the Orwellian rule of law in the regulatory state and as Lawson notes, “one cannot have allegiance both to the administrative state and to the Constitution. If one chooses the administrative state over the Constitution, one must also acknowledge that all constitutional discourse is thereby rendered useless.”
Sadly, this is the state of our government today as constitutional discourse has given way to an administrative state that completely disregards the very sort of power that the Constitution most centrally forbade. It’s seemingly irrelevant and pointless to agonize over the correct application, for example, of the Appointments Clause, the Exceptions Clause, and even the First Amendment, when principles as basic to the Constitution as enumerated powers are no longer considered part of the interpretive order. Lawson concludes, “what is left of the constitution after excision of its structural provisions simply is not the Constitution.”
The administrative state that we have today is extra-legal in that it binds Americans not through laws or statutes created by the legislative branch, but through other mechanisms such as regulations, executive orders, and presidential decrees. “It is supra-legal in that it requires judges to put aside their independent judgment and defer to administrative power as if it were above the law…and it is consolidated in that it combines the three powers of government, legislative, executive, and judicial in administrative agencies”, explains Philip Hamburger of Columbia Law School.
When provisions are made for far-reaching action by commissions, agencies, and bureaucrats, it all means the imposing of large additional obligations upon the people without our say. This fourth branch of government is in actuality what our government has become today. It has usurped all three branches and invested in itself the power to dictate, regulate, control, and ultimately destroy our lives without consent.
If we are to ever regain again the power to control our own government and thus our own lives, we must rise above partisan politics and do what’s best for our country. This will require a new way of thinking that puts reality in the forefront and ideology in the background by taking a new perspective on handling issues that both parties are equally culpable in creating.
For instance, when politicians talk about “immigration reform”, what they really mean is amnesty, cheap labor, and open borders. Republicans want cheap labor for big business and Democrats want amnesty in order to swell their voter roles. This puts American workers last by keeping unemployment high and labor force participation rates so low that it is currently at 62.6% of the overall population, the lowest the labor force participation rate has been since 1977. Furthermore, U.S. taxpayers have been forced to pay billions in healthcare costs, housing costs, education costs and welfare costs for individuals that are here illegally while they take our jobs and commit heinous crimes against the American people. Republicans want them here for business and Democrats want them here for the votes. The American people at large are thrown to the way side while both parties literally play politics with our lives.
While much controversy has swirled around presidential candidate Donald Trump, his release on Sunday of the steps he would take under his immigration plan is precisely what the American people need to help put the needs of the American working class first. The following are the three core principles Trump outlines in his immigration plan:
1. A nation without borders is not a nation. There must be a wall across the southern border.
2. A nation without laws is not a nation. Laws passed in accordance with our Constitutional system of government must be enforced.
3. A nation that does not serve its own citizens is not a nation. Any immigration plan must improve jobs, wages and security for all Americans.
Furthermore, Trump outlines what those like myself have been saying for years, our immigration system isn’t broken, the law simply needs to be enforced and the Constitution upheld. A few key points in Trump’s plan is that it would triple the number of Immigration and Customs Enforcement Officers (ICE), create a nationwide e-verify system, make mandatory the return of all criminal aliens, defund sanctuary cities, enhance penalties for overstaying a visa, and end birthright citizenship while ending welfare abuse. This would drastically help put American workers first while at the same time protecting American citizens as ICE would be made to enforce the law as it is, not as President Obama has made it under his numerous executive orders that hinder their ability to enforce our immigration laws.
While the issues facing us are enormous in their scope and at times daunting in their reach, to see plans such as Trump’s in dealing with immigration by enforcing the law and cutting the knees out from underneath this aspect of the fourth branch of government established under Obama’s executive fiat, is how we the people fight back in a republic. For, as Calvin Coolidge once famously proclaimed, “in a republic the law reflects rather than makes the standard of conduct and the state of public opinion… the law, changed and changeable on slight provocation, loses its sanctity and authority. A continuation of this condition opens the road to chaos.”
It is time for the ever winding road of the administrative state to be closed and rerouted towards the path that once again leads us back to our Constitution.