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.

Government by Consent or Expertise

I’ve been going through a Hillsdale online course (their newest, I think) called Congress: How It Worked and Why It Doesn’t. In his introduction, Hillsdale President Larry Arnn points out that the title refers to both past tense—“when it worked”—and present tense—“it doesn’t.” There isn’t anything in the title that says, “And how we get it to work again.” I’m halfway through, but I’m hoping there will be something hopeful like that.

Anyway, in our ongoing primer on the Constitution here, it’s appropriate to talk about what has been going awry with Congress over the past century.

According to Article I of the Constitution, legislation happens in the legislature, composed of two houses: the House of Representatives, which is based on population, and the Senate, which provides equal representation for the states. The two houses have to come into agreement on any legislation that they pass along to the president for his signature, before it becomes law.

But the self-proclaimed progressives, such as President Woodrow Wilson, and others of his time—Herbert Croly, John Dewey, both Theodore and Franklin Roosevelt—thought they knew better than the founders about how things should be run.

They set out, rather matter-of-factly, to overturn the US Constitution, and replace it as they saw fit. And they and their followers, over the course of a century, have been far too successful.

The idea, they claimed, was that life in the industrialized world was too complex to be handled by anyone but experts. They liked the idea of using the legislature to express the general will of the people—a desired outcome, like clean water or safer working conditions, for example—and then turning over all the details to some expert administrative body.

They claimed that this would better do the will of the people, and do it more efficiently—and separately from politics.

Dr. Kevin Portteus
screen shot from lecture 5 of
Congress: How It Worked and Why It Doesn't

Dr. Kevin Portteus, the teacher of this Hillsdale course, in Lecture 3: “Politics and Administration,” offers this definition:

Politics is politics in what we might think of as the ordinary sense, the martialing of votes, the changing of public opinion, and the enactment of a political program. Whereas, on the contrary, administration constitutes the implementation of the broad policies laid out in the political process.

It didn’t matter to the progressives that the legislature would be giving up their lawmaking power. Their “progressive” vision was all that mattered.

So Congress would pass vague “laws” requiring a general desired outcome. And they’d turn over the authority to accomplish that to administrative bodies of bureaucrats, with practically unlimited authority to set the rules, enforce them, and adjudicate disputes—all branches of power in one.

So now, besides voters and elected officials, the process has a third party. Dr. Portteus describes these extra-constitutional lawmakers, and three basic characteristics required in order to be one. Pay attention to the second one; there’s a lot there. And then, if you understand the second, how do you square that with the third?

That’s the bureaucrat, the administrator, the official. What does he look like? Well, Croly says, “The experts charged with the administration of these laws would become the official custodians of a certain part of the accepted social program. In other words, they must implement some portion of the progressive social platform. So if you’re put in charge of EPA, your job is to implement clean air and clean water policy. That’s your corner of a just society that’s your responsibility.

But, in order to do that, we need people who have three basic characteristics.

The first one is that they’re experts. They have to be trained experts in their particular fields. And we’ve seen this.

The second attribute of a progressive bureaucrat is that he be independent of the partisan political process. And this was the driving force throughout the Twentieth Century behind the creation of entities like independent regulatory commissions. Get the policymakers out of the electoral process, and get them out from under the control of elected officials, so that the people—public opinion—and the people’s elected representatives don’t get in the way of the application of expertise to solve these social problems.

It’s kind of interesting, when you think about it, because, in the progressive mindset, we’re going to have bureaucrats who are pretty far removed from the political process. And if you follow the logic of this argument, the end result of restricting the people’s ability to control government officials—the end result of that is going to be greater implementation of democracy. That is to say, the goals stated in the people’s legislation are going to be less likely to be subverted, because the people who are implementing them are going to have no interest except serving the public interests.

It sounds kind of naïve to us, but they really believed this. They really believed that you were going to have these people who were not gripped by self-interest in the way that the rest of us were, that somehow they would be outside of the ordinary limitations or foibles of human nature. And they would be responsive only to the public good.

And they really believed this. This was not cynical on their part. They were serious.

But, there was one other characteristic that you could not get around. And that is that these people must be committed progressives. They cannot be anti-progressives. Because, if they’re not committed progressives, then they will not zealously enforce the mission of the agency of the program over which they were put in charge.

Because, the danger in that circumstance is that, if such a person is put in charge of a program or of an agency, he would use that position as a vehicle for circumventing the will of the people as stated in legislation.

To give an example, a while ago, about ’99 or 2000, Bill Clinton had to fill a spot on the Federal Elections Commission, and he chose to fill that spot with a man named Bradley Smith. Now, Brad Smith is the expert in federal campaign finance law. And, so, there’s no doubt that he knows his stuff. And by putting him on the commission, he would be independent of the partisan political process. Now, Smith recounts in his book on free speech that his chief opponent, when he was nominated, was Clinton’s own vice-president, Al Gore. And, as Smith recounts in his book, he says, “The reason that Gore opposed me was not because I didn’t know my stuff, and it’s not because I was going to be a captive tool of special interests, because I had my position on the committee. What he objected to was the fact that I questioned the wisdom and the constitutionality of current and proposed campaign finance restrictions. In other words, that I was not committed to zealous enforcement of federal campaign finance programs and the implementation of new and ever more restrictive programs.”

So, you can’t have someone who doesn’t believe, for instance, in greater restrictions on pollution at the head of the EPA. That person is, by definition, because of ideology, ineligible for the position. He must accept—the progressive administrator must accept the basic progressive impulse of society and of the program he is supposed to run. And, as Croly says, “He qualifies for his work as an administrator quite as much by his general good faith as by his specific competence.” So, in other words, as important as his technical ability is his commitment to progressivism.

So, non-progressives, if you want to call them conservatives, are by definition ineligible to hold any of these administrative positions.

You saw similar dismay over various Trump appointees, but in particular Betsy DeVos over Education. The Department of Education still exists at the federal level after almost two years—which is disappointing to some of us. But the fear from the other party is that she might “gasp!” find something to cut. And the very nature of a federal agency is that it must keep growing. Reagan found similar pushback on his policies as well, even failing to end the then-new Department of Education.

In this and other agencies, some of the difficulty come from within the agency. Perhaps not every employee in an agency is a fully committed progressive (which means Democrat or socialist, but only very rarely a non-conservative Republican). But most are, by definition.

Thomas Sowell
image from here

There’s a story, a pivot point Thomas Sowell talks about his time at the Labor Department, after finishing his PhD in Economics as a Marxist. In short, he was studying the sugar industry of Puerto Rico, and whether the Labor Department’s setting of minimum wages was leading to unemployment. There was a way to test whether this was true, or whether a competing theory about hurricanes harming the crops was the cause. Thomas Sowell figured out they could get data about crops standing in the fields before hurricanes to tell them. That data wasn’t in the Labor Department; it was in the Department of Agriculture. There was huge pressure not to even ask for it, but he filed a request:

That was 1960. I have yet to receive an official reply to my request.

This was more than an isolated incident. It forced me to realize that government agencies have their own self-interest to look after, regardless of the interests of those for whom a program has been set up. Administration of the minimum wage law was a major part of the Labor Department’s budget and employed a significant fraction of all the people who worked there. Whether or not minimum wages benefited workers may have been my overriding question, but it was clearly not theirs. They had reasons to want to believe that it did, but no real incentive to probe too deeply to find out.[i]

Learning that the administrative state had nothing to do with helping people, but only in preserving their own jobs, or putting forward their own ideology—that’s when Thomas Sowell went from Marxist to free-market economist.

In Lecture 5, “Legislation and Regulation,” Dr. Portteus says that government by consent, which we have in the Constitution, and government by expertise, as in the administrative state, are mutually exclusive.

What’s more, any intention of insulating the administrative lawmaker from politics is an abject failure. As Dr. Portteus concludes: 

It does not insulate rule makers from legislative politics. Regulatory agencies are buffeted by all of the political forces that affect legislators and sometimes more so.

It does not base rules on expertise, or even reason. And the CAFE[i] standards example is a wonderful case in point in this regard. And at the end of the day, it doesn’t serve the public interest. That is to say, this process gives undue weight to organized special interests, who influence the regulators and key politicians.

This is why, for instance, it has become so critically important, if you own a business of even modest size, that you have a lobbying operation….

So the regulatory process is something very different from the legislative process…. Over the course of the 20th Century, the regulatory process developed and established in the Administrative Procedure Act is a very different way of making policy from the process established in the Constitution for making laws. The modern one attempts to substitute for, and posit itself as, the parallel legislative process. But it really leads to a transformation of the regime, because it yields a transformation in the way legislation is made.

Another day we can talk about what Congress is doing with its time, if it isn’t making laws. But for now, let’s just remind ourselves of this Spherical Model axiom:

Whenever government attempts something beyond the proper role of government (protection of life, liberty, and property), it causes unintended consequences—usually exactly opposite to the stated goals of the interference.

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[i] Thomas Sowell, A Person Odyssey, © 2000, pp. 130-131.

[ii] CAFE is Corporate Average Fuel Economy