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.”