Unlike the frequent violations of the
Constitution through legislation or executive orders that may be reversed by
future Congresses or presidents, the Administrative State has become an
institutionalized violation of the constitutional structure itself.
Instead of the representative branch of
government making laws, a separate executive branch enforcing laws, and a
neutral judiciary adjudicating disputes -- and enforcing the rule of law on
government itself -- the republican structure of government has been displaced
by the Administrative State. No longer are the powers of government
separate.
Congress has delegated lawmaking functions
to bureaucrats; bureaucrats have usurped the power to adjudicate disputes; and
courts now defer to bureaucrats in interpreting the law. This is exactly
contrary to the purposes of the Constitution, and has been a “fundamental
transformation” of American government starting decades before Barack Obama
ever uttered the words.
Citing Federalist Papers such as James Madison’s No. 51,
Cooper explains how the separation of powers was designed to create conflict
among the branches of government, which was “admitted on all hands to be
essential to the preservation of liberty.” Instead of “ambition . . . [being]
made to counteract ambition,” the Administrative State grew under a ‘you
scratch my back, I’ll scratch yours’ approach among the three branches of government.
The
principal villains in the destruction of the republic are not the electorate or
those whom they elected, although elected officials clearly share the blame. It
has been the courts, which time after time since the 1930s refused to be the
bulwark for liberty by preserving the separation of powers. The courts have
dismantled the constitutional structure by yielding powers to the
Administrative State in ways not authorized by the Constitution. By conceding
to the accretions of power within the Administrative State, the courts have
institutionalized violations of the Constitution, and replaced its carefully
planned structure with the Leviathan.
The
other villain is Woodrow Wilson and his progressive roadmap of transplanting
the Constitution by giving government officials “large powers and unhampered
discretion.”
