“We all get to vote, but the ability to make legislation is no longer in the hands of the people we elect,” Columbia law professor Philip Hamburger said.
As the administrative state implements more regulations on Americans, a team of legal veterans has come together to fight the expansion of unelected government agency power.
Sometimes, they even win.
The New Civil Liberties Alliance (NCLA), which consists of a team of 27 lawyers and support staff, including former judges, had four of the cases they litigated go before the Supreme Court in 2023. One case was decided in their favor, the remaining three are pending.
Founded by Columbia Law professor Philip Hamburger six years ago, the NCLA targets cases where they believe federal agencies have blatantly overstepped their authority or violated civil liberties.
“Normally, administrative power is understood as a separation of powers question, but it’s also a civil liberties problem because it dilutes our voting rights,” Hamburger said. “We all get to vote, but the ability to make legislation is no longer in the hands of the people we elect.”
The U.S. Constitution vests Congress with law-making authority. However, government agencies are not only making laws today, he said, they also enforce those laws, then act as judge and jury over alleged violations.
Taking a historical view on this issue, Hamburger argues that such administrative “absolutism” is not a new phenomenon, but merely a modern expression of absolute power once wielded by medieval kings.
The group’s clients include Drs. Jay Bhattacharya, Martin Kulldorff and Aaron Kheriaty, and Jill Hines, plaintiffs in the case of Murthy v. Missouri, which is currently before the Supreme Court. This case involves alleged violations of the doctors’ First Amendment rights by the White House, the Centers for Disease Control and Prevention (CDC), the FBI, the Cybersecurity and Infrastructure Security Agency, and the Surgeon General.
“It deprives us of the right to a jury; it deprives us of ordinary burdens of proof; it deprives us of having an unbiased judge,” he said. “We have administrative law judges (ALJ)s and commissioners instead.”
ALJ’s are “executive judges for official and unofficial hearings of administrative disputes in the federal government,” according to a Cornell Law School definition.
“Administrative law judges are considered part of the executive branch, not the judicial branch, and ALJs are appointed by the heads of the executive agencies.”
In this way, Hamburger said, the administrative state has not only accumulated powers explicitly vested in other branches of government; it has consolidated within itself the power of all three branches.
Supreme Court taking notice
The NCLA’s actions have been resonating in America’s court system, particularly the Supreme Court.
“In 2018, we started filing briefs at the Supreme Court and almost immediately we were having an effect on the discussions of administrative power,” Peggy Little, senior counsel at the NCLA, said.
In one case, SEC v. Cochran, which Little led, appellate courts took the side of the SEC. This case challenged the lifetime tenure of ALJs, who act as judges for federal agencies.
“”We battled that for five years, and we had six circuit courts of appeals against us,” she said. “We got to the Supreme Court and we won unanimously.”
Little said she is optimistic that the tide of expanding agency power can be turned back.
“I think we are in a very important time for rethinking how our government should operate,” Little said, “and restoring the separation of powers and guardrails on agency power, that limit it to what Congress has actually empowered the agency to do, not what the agency itself thinks would be a good idea.”
Hamburger said the NCLA has several advantages when arguing their cases.
“We have the truth on our side, and I think the justices understand that,” he said. “Second, we take the Constitution seriously, while many agencies view it as a minor impediment to what they want to do in regulation.”
In addition, “the administrative state has changed,” he said.
“It isn’t like the 1930s where it was just an addition to the law; it is now the primary mode of controlling us,” he said. “It may eventually unravel our republic.”
The end of Chevron Deference?
One of the pivotal court decisions behind the expansion of the administrative state was the 1984 ruling in Chevron v. Natural Resources Defense Council.
The Supreme Court decision in that case gave broad discretion to federal agencies to interpret for themselves how much authority Congress had given them. This led to a concept known as “Chevron deference,” where courts tended to defer to agencies regarding the scope of their power.
There appeared to be a reversal of this doctrine with the 2022 Supreme Court Decision in West Virginia v. EPA, in which the court ruled that “the Government must point to ‘clear congressional authorization’ to regulate.” This case involved the Environmental Protection Agency’s (EPA) attempt to regulate CO2 emissions by power generators, effectively compelling them to shift from coal and gas to so-called renewables, like wind and solar energy.
But while this ruling may have slowed the expansion of the administrative state, it has by no means halted it. On April 25, the EPA set down a new regime for CO2 emissions, mandating that new gas and existing coal plants cut their greenhouse gas emissions by 90 percent by 2032.
While many U.S. presidents have pushed for greater powers for the executive branch, the Biden administration has been particularly aggressive. This includes a 2021 edict from the Occupational Safety and Health Administration (OSHA) requiring employees of large companies to take the COVID-19 vaccine; a Securities and Exchange Commission (SEC) mandate requiring all listed companies to submit audited reports on greenhouse gas emissions; EPA mandates designed to phase out coal plants and gas-fired cars and trucks; new restrictions on consumer appliances from the Department of Energy; and several executive orders to transfer student loan debt to taxpayers.
The OSHA vaccine mandate was partially overturned by the courts. The other edicts are currently being challenged, but as with many administrative edicts, Americans will often comply until and unless they are overturned by courts.
President Joe Biden’s executive orders to forgive student loans were blocked by the Supreme Court in 2023 on the grounds that he lacked the authority to do so, but he continues to issue them. His most recent order on student loan debt transfer was issued on April 8.
Many legal experts expect that a reversal of Chevron deference will come from cases currently in front of the Supreme Court, most notably Loper Bright Enterprises v. Raimondo.
The NCLA issued an amicus brief in the Loper case and has brought a similar case, currently before the Supreme Court, Relentless Inc. v. Department of Commerce.
The questions that Hamburger raises in his book (Purchasing Submission: Conditions, Power, and Freedom, Harvard University Press) are at the heart of the current political divisions within the United States.
Progressives often advocate the implementation of policies designed by unelected “experts,” while conservatives expect edicts to go through elected representatives.
The movement to vest power in the administrative state in America goes back more than a century and has enjoyed cumulative success via a ratchet effect, whereby authority is progressively ceded to the administrative state, often in response to real or perceived crises, but rarely surrendered back to citizens.
Big government advocates
Woodrow Wilson, the first progressive president and precursor to modern progressives, expressed contempt for voters and viewed representative lawmaking as an impediment to economic and social reforms. He was highly critical of the U.S. Constitution and its separation of powers, particularly the limitations it put on government bureaucrats.
“Wherever regard for public opinion is a first principle of government, practical reform must be slow and all reform must be full of compromises,” he stated in his 1887 treatise “The Study of Administration.”
“The people, who are sovereign, have no single ear, which one can approach, and are selfish, ignorant, timid, stubborn, or foolish.”
Writing at a time when racial theories were gaining traction in academic circles, President Wilson criticized what he saw as an anglo-American trait of wanting limited government and democracy. Instead, he favored Germany’s centralized and authoritative system, which he considered more efficient.
“The English race has long and successfully studied the art of curbing executive power to the constant neglect of the art of perfecting executive methods,” President Wilson stated. “It has been more concerned to render government just and moderate than to make it facile, well-ordered, and effective.”
And like today’s government initiatives to manage industries such as energy and transportation, President Wilson called for government control of transportation and communication, in which companies themselves had oligopolistic positions.
“Even if our government is not to follow the lead of the governments of Europe in buying or building both telegraph and railroad lines, no one can doubt that in some way it must make itself master of masterful corporations,” he wrote.
One result of concentrating such all-encompassing power in the executive branch is that presidential elections have become pivotal in determining the direction for the country, even in areas such as residential zoning and education, that are traditionally under the purview of states, counties, and towns.
“Presidential elections become existential conflicts, largely because of the expansion of administrative power,” Hamburger said.
Outside of the federal arena, however, resistance to administrative authority has emerged among state officials, almost exclusively in red states.
State attorneys general have sued the Biden administration on issues such as the alleged government role in social media censorship, the SEC green accounting rule and the various EPA and Energy Department mandates on cars, appliances, and electric utilities.
More recently, states such as Tennessee are attempting to pass a “nullification” law that would allow citizens to petition their state legislatures to ignore or invalidate federal mandates that violate their constitutional rights.
“The edicts that Biden puts out, and the agreements that he signs with world organizations that want to trample on the sovereignty of Tennessee people… those are the things that scare me the worst,” Tennessee state Rep. Bud Hulsey said.
“State legislatures are going to have to stand up and say to the federal government, we are not going to enslave people in our states by unconstitutional edicts.”
