Another Little Civics Lesson on the Three Branches of Government

Today’s civics lesson is on the three branches of government: legislative, executive, and judicial. This seems basic, but there are people who need reminding that the legislative branch writes the laws and budgets the money; the executive branch carries out the laws; the judicial branch adjudicates on lawbreaking and settles disputes.

Article I, Sections 1 and 7, of the Constitution

Why the need for the lesson today? Because of the hue and cry about an executive branch out of control—because it wants to reduce the regulatory burden.

Here’s an example from an “educator” in my school district (I do not know her, so I have deleted name and school identifiers).

Libs of TikTok discovered this example of a local Texas educator

First of all, authoritarians don’t, by definition, make people freer. So there must be something wrong in the perception of what’s happening. I think the misperception is that the regulatory agencies are independent, and therefore are a check on the power of the executive. That’s not accurate.

Regulatory agencies are part of the executive branch. But in many ways they are a perversion of all three branches, combining lawmaking authority with prosecution and adjudication of rulebreakers: all three separate branch authorities in a single agency—like a monarchy, or your common tyranny.

Regulatory agencies are formed when Congress, the legislative branch, decides that something is too complex for them—or for any non-expert—to understand and make rules on, so they dump their lawmaking duties into the agency and set it up to rule unilaterally.

To break that down, what Congress has done is relinquish its lawmaking duties to the agency, which will be—not a part of the legislative branch, but of the executive branch. The “law” the legislature set up was something like, “this agency will do anything outlined in these 998+ pages, plus anything they deem necessary to regulate this aspect of life for Americans.” And then that agency, with its experts in charge, will write myriad rules and regulations—too many for any person to be familiar with.

And, just to clarify, a just law must be known and declared to the people, so that compliance is possible; otherwise, it’s just a capricious ruling power—a tyranny.

Then the agency—because the assumption is, no typical judge would have the expertise to understand how and whether an accused violator had even done something wrong—creates its own internal judiciary to carry out sentencing, which could be anything from assessing a fine, denying property rights, shutting down a business, on up to incarceration for criminal actions. And up until recently, there wasn’t much an accused violator could do to appeal such a ruling.

You may remember that the Chevron deference was eliminated by the Supreme Court last summer. In the 1984 Chevron decision, the Supreme Court had decided that regulatory agencies were the "experts" in their field, and the courts should just defer to their "interpretation" of the law—thus the term “Chevron deference.” It was a bad decision. It meant that a regulatory agency could come in, inform you that you were in violation and were therefore a criminal, and they might sentence you on the spot. You didn’t get a jury trial; you often didn’t get to mount a defense. And you probably couldn’t appeal to anyone but the “judge” inside the agency.

The Loper case, which led to the Chevron deference being overturned, concerned a fishing company, Loper Bright Enterprises, which was being charged $700 per day by the National Marine Fisheries Service (NMFS) to monitor their company. Federal law never authorized NMFS to charge businesses for this monitoring “service.” NMFS just started charging the exorbitant fee in 2013. And it put any but the most lucrative businesses into bankruptcy. So it was about time they were challenged.

SCOTUS could have ruled narrowly, on just this NMFS case. But they broadened the ruling, to allow challenges to essentially all regulatory agency tyrannies—in other words, to throw out Chevron deference.

As Tom Woods commented at the time, 

Whenever something like this happens, when a wicked but seemingly irreversible feature of American life is suddenly overturned, it should lift our spirits: things we assume are forever may not be so forever after all.

The opposition to freedom has been clamoring on about the danger of weakening the regulatory state ever since.

And right now, with the Trump administration challenging—and cutting budgets and authority to—these agencies, the opposition is apoplectic. But their claim that this is authoritarian overreach is exactly opposite of true. What we are seeing, at last, is an administration willing to reduce centralized authority and tyrannical, unconstitutional regulatory agencies—and put lawmaking power back into the hands of the legislative branch where it belongs.

Madison, from Federalist #62, which Sen. Lee refers to below

So, that’s my opinion. But, while writing this I happened to hear Senator Mike Lee talk about this very thing with Glenn Beck on his Thursday radio show. The specific conversation was about the REINS Act, or Regulations from the Executive in Need of Scrutiny Act, which is a proposed law that would require congressional approval for major regulations issued by federal agencies before they can take effect. Here’s some of that conversation:

ML: The REINS Act, bottom line, is that it requires what the Constitution already mandates. In Article I Sections 1 and 7 we read that you cannot make a federal law without Congress. And that to pass a federal law, that requires a couple of things. First, bicameral passage, meaning passage of the same bill in the House and in the Senate. Secondly, you have to present that to the President, who can then sign it, veto it, or acquiesce to it.

Now—and it should be simple, right? Because Article I Sections 1 and 7 make that clear. And yet, for the last 85 years or so, Congress has been in a death spiral of delegating its lawmaking powers. In short, we will say things like, “Well, we should have good law in area X, and hereby delegate to agency Y the power to make good law in that area.” That’s nonsense. That makes the work easier for members of Congress, and it insulates members of Congress from political accountability, but in the wrong way.

GB: But even more, does it not violate my right to representation? No taxation without representation?

ML: 100%. Because these people who make most of your laws—measured by weight, volume, regulatory compliance costs, you name it—are now made by men and women not of our own choosing. This is a real problem.

Remember that Madison said, in Federalist 62, he said in effect, “It will be of little avail to the American people that their laws may be written by men of their own choosing, if those laws be so voluminous, complex, and ever-changing, they can’t know from one day to the next what the law says and what it requires.” We now live in that dystopian nightmare, Glenn. 100,000 pages a year—is what these bureaucratic pinheads put out every year.

And not only are they so everchanging you can’t know what the law says from one day to the next, they’re not even written by men and women of our own choosing. This is tyranny of the sort that would have made King George III blush with envy. These guys are tyrants. And we’ve got to take it back. It is Congress’s fault; Congress must fix that. Congress may fix it, and must fix it, by passing the REINS Act.

It is Congress’s fault. But it is also the fault of presidents who signed those bills to create administrative agencies—over 400, and only now for the first time is that number going to go down instead of up. And it is the fault of a judiciary who also allowed their power to be usurped and did not declare unconstitutional what these agencies have been doing.

For those concerned about the constitutional
authority of DOGE, Mike Lee clarifies.

So, no, we are not about to “lose our democracy”—unless what you define as democracy is a bureaucratic tyranny, rather than the will of the people. Finally, we have an administration acting to recover from this rule by bureaucrat.

As Elon Musk said recently, 

“If the people cannot vote and have their will be decided by their elected representatives in the form of the President and the Senate and the House, then we don’t live in a democracy. We live in a bureaucracy.”

For those in fear that a loss of regulations leads to a loss of safety or some other fear, I’ve written about that a few times:

·        Regulation—Too Much of a Bad Thing, April 5, 2011 

·        Regulatory Tyranny, August 26, 2013  

·        SCOTUS Finale, July 6, 2024  I linked to this above, with the Tom Woods quote. The middle section talks about the repeal of the Chevron deference.

·        Vote for Freedom, Faith, and Family, October 21, 2024 This was a “why vote for Trump as a person of faith” piece, but quotes Sen. Mike Lee saying very close to what I quoted him saying in today’s piece. 

That ends today’s lesson. I’m sure there will be plenty more to review about our Constitution in days to come.