The Executive Branch: Celebrating the Semiquincentennial, Part IV

We’re continuing our monthly series celebrating the nation’s 250^th birthday.

·       Part I: The Declaration of Independence 

·       Part II: The Preamble of the Constitution 

·       Part III: Lawmaking 

·        In our Part IV today, as we’re walking through the Constitution, Article II covers the executive branch, the powers vested in the President of the United States of America.

Before we get started, I just want to mention a version of the Constitution I got in the mail, from Turning Point USA. It’s all there, like a pocket version, although it’s slightly bigger than pocket sized. It includes illustrations, and on every page a definition of terms down at the bottom. (Some pages the definitions take up half the page.) The whole thing is there—all the original wording. But with the helps, it just seems easier to understand. If you’ve got a young person in your life—or if you just want an easier way to read and understand the Constitution—this might be a handy version. They sent me mine for free, in an envelope requesting a donation. But you can get these from their website, here. 

Article II, Section 1: Electing the President

OK, Article II of the Constitution first goes over the election of the President, which is using the Electoral college.

To read the full article, follow LINK TO SUBSTACK.

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.

No, We Haven’t Evolved Beyond Our Constitution

This past week the Constitution turned 234 years old, signed September 17, 1787. I’d like to take a look at how well it is aging.

"Scene at the Signing of the Constitution of the United States" by Howard Chandler Christy
image found on Wikipedia

Back in the day, there were some things our founders probably couldn’t have imagined: cars, subways, trains, airplanes, rockets to space, satellites, electricity, lightbulbs, radio, telephones, television, computers, cell phones, internet. I was alive for the landing on the moon. I went through college doing term papers with the footnotes at the bottom of the page—where I had to roll the paper down to the right location on the typewriter to type the note, then roll back up to type the rest of the page, and hope it all fit. If it didn’t, I’d have to type the whole page over, correcting any errors with white out (a little bottle of white paint you brushed on over the typo). When we got really advanced, we used erasable bond paper, which smeared badly, so you had to be really careful, and then you had to get a Xerox copy to turn in, because teachers didn’t like the thin texture of the paper or the smearing.

Computers were around, even when I was in high school (or before), but they were large, room-sized devices that you fed programming cards into. Personal computers came out, in rudimentary forms, shortly after college.

illustration of technological progress found here

I remember one person with a mobile phone during college. It was connected to his car and was the size of a large brick, required a large antenna, and also did not have a very clear sound. I didn’t see a need for a cell phone until we moved to Houston in 1998. I didn’t have a “smart phone” until two phones ago (phone life is longer for me than for most at 3-5 years).

So all this technology surrounding us has changed. But have humans changed?

There’s a prejudice against older generations, a feeling of self-importance current generations have, where we think those people back then were primitive—not just technologically, but in their thinking as well. I think there’s a word for it, but I can’t come up with it right now. Presentism is close, the assumption that past generations are bad for not holding the same cultural morals as are held in present culture. But that’s not quite it.

Anyway, while we may think we’re better for all our technological advances, there have been tradeoffs. We’ve mostly let go of basics, like how to sustain ourselves during a famine, or how to treat ourselves in the absence of a hospital, or how to dispose of waste. Maybe even how to make cheese. Specialization has meant letting go of general knowledge, much of which was widely known by past generations but has been lost to us. Think about something as simple as going to the bathroom, where we find easy access to toilet paper and soap and water. I’ve experienced camping, but I bring along comforts of home, plus maybe some hand sanitizer.

The point is, technology doesn’t equal human advancement. Humans are still human. Even evolutionists talk in time lengths of millions of years, not the mere handful of millennia of recorded history. Humans today are flawed in the same ways as our ancestors—but maybe with the technology to spread the harm further.

So, here’s what our founding fathers—and all wise people throughout history—knew about human nature: Humans are imperfect. Among the imperfections are:

·         Pride

·         Selfishness

·         Deceitfulness

·         Manipulation

·         Cheating

·         Greed

·         Thievery

·         Prejudice

·         Short-temperedness

·         Impatience

·         Laziness

·         Tendency toward violence

·         Lust

·         Power mongering

I haven’t covered them all, of course. But they include the problems brought up in the Ten Commandments. They include the 7 Deadly Sins. They include human weakness depicted in stories, and from life over the centuries—regardless of what technology the people may have had. Ancient Greeks and Romans faced the same human weaknesses. So did people through the Dark Ages and the Renaissance. And in Ancient Israel, Ancient China, Ancient India, or Ancient anywhere.  

portraits of Greek philosophers Sokrates, Antisthenes, Chrissipos, and Epikouros
in the British Museum

The last one on that list, power mongering, is particularly important when we’re talking about government. There’s a scripture used in my faith to warn against abuse of power:

We have learned by sad experience that it is the nature and disposition of almost all men, as soon as they get a little authority, as they suppose, they will immediately begin to exercise unrighteous dominion. (Doctrine & Covenants 121:39)

James Madison put it this way in Federalist No. 51,

If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government that is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

Mark Twain said it this way, in A Connecticut Yankee in King Arthur’s Court, Chapter 10, “Beginnings of Civilization”:

Unlimited power is the ideal thing when it is in safe hands. The despotism of heaven is the one absolutely perfect government. An earthly despotism would be the absolutely perfect earthly government, if the conditions were the same, namely, the despot the perfectest individual of the human race, and his lease of life perpetual. But as a perishable perfect man must die, and leave his despotism in the hands of an imperfect successor, an earthly despotism is not merely a bad form of government, it is the worst form that is possible.

Humans are flawed. Even (especially) in 2021. If you’re looking at some human evolution since 1787, you’re probably not going to find any measurable progress. At all.

People are not angels. Until they are, there needs to be limits placed on the authority anyone is granted.

The question is, then, is there any reason to think the Constitution is outdated? Insofar as it addresses ways to protect us from human flaws like lust for power, then, no; it is definitely not outdated.

The Constitution, which we’re celebrating, is an instrument for limiting government in a way intended to give individuals as much freedom as possible while limiting their ability to harm one another—which is what government is instituted to do.

The Preamble is the mission statement. As opposed to the loosely governing Articles of Confederation, which weren’t doing their necessary governing job, the Constitution was set up by “We the People of the United States”:

In Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity….

Constitution detail, image from Wikipedia

The first purpose is to get the separate states more unified, to do the things a nation needs to be able to do—things like make treaties with other nations, establish trade with other nations, keep the peace among the member states, etc.

General Welfare does not mean a national-level charity giveaway program. It means promoting what is in the best interest of the nation as a whole, rather than favoring one state or region over another.

Does every nation have to have an identical constitution to this one in order to flourish? Not necessarily. But what they would have to do is meet the principles—the ways of dividing and balancing power so that the good could be done that needs doing by a federal government, while leaving freedom to the people and the local jurisdictions.

Our three branches of government separate the lawmaking duties, the executive duties (i.e., the carrying out of the laws), and the judicial duties (i.e., the judging according to the laws). And the lawmaking duties are further divided into state representation in the upper chamber and population representation in the lower chamber, which have to deliberate and come to agreement on any laws enacted. It's not meant to be easy.

Around this time of year last year, I wrote a 4-part series on the Constitution, with an introduction and then covering the first three articles:

·       Try Reading the Constitution, Part I 

·       Part II: Article I—Legislative Branch 

·       Part III: Article II—Executive Branch 

·       Part IV: Article III—Judicial Branch 

The point here was that the Constitution is readable and understandable—no lawyer or judge needed to interpret it. And we ought to be reading it and understanding it.

It’s hard to know at this point whether We the People will be able to take corrective action so that our country will once again be governed by our basic law, the Constitution. There are so many egregious violations right now. And the laws are only good for a people that respect them and adhere to them. Otherwise we just have tyranny of the most powerful—as most of historical mankind has had to deal with.

As with the treatments available for a certain virus, treatments for our beloved Constitution on life support are denied, as though they don’t exist. We may have to start small—at our school board races, and our local government. Stop tyranny there by our constant vigilance. And then work with others to stop tyranny at every level all the way up.

We’re going to have to be better, to overcome our human flaws, so we merit the help I hope God is willing to give. I believe He’s willing to give it, because He gave the help to our founders back in 1787 to come up with this Constitution. It’s a miraculous governmental instrument that leads to freedom, prosperity, and civilization—every time good people try it.

Try Reading the Constitution, Part III

We’re doing a series celebrating the US Constitution. See Part I and Part II.

The premise is that you might have had the idea that the Constitution is hard to understand, too much legalistic language as well as too many archaic words. I assert that it’s actually pretty accessible and together maybe we ought to give it another try. So you might want to get out your pocket Constitution to follow along.

Today, we’ll continue the Constitution reading exercise with Article II, pertaining to the executive branch. After the four sections of this article, we’ll cover some problems we’re having with this article.

 

Article II

Article II of the Constitution lays out the powers of the US President, the chief executive officer (CEO) of the United States.

He does not make laws—although he can use his influence to persuade Congress to make certain laws.

He does not make a budget—although he can use his influence to persuade Congress to budget according to his priorities.

Section 1 describes how the President, together with the Vice President, shall be elected. This is where the Electoral College instructions and rules are laid out, which were changed with the Twelfth Amendment in 1804. Then come the requirements to be the president:

·         Must be a natural born citizen.

·         Must be 35 years of age by the time of the election.

·         Must have resided within the United States for 14 years.

That last one means, if a person grew up as a citizen, but lived with parents outside the US, or additionally worked outside the US as an adult, and hasn’t accumulated 14 years living in the US, they can’t run for the office of president. The founders were trying to prevent someone whose allegiance was, either secretly or openly, to another country from using the technicality of citizenship to try to gain power in our country.

Then come the rules for removal from office—for impeachment and conviction of crime, or for death, resignation, or inability (possibly temporary until the disability is resolved). There’s more about this in the 25^th Amendment, passed in 1967.

Next comes information about the president’s compensation. Then there’s the requirement of taking an oath of office, which is:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Section 2 gets into what the President’s duties will include:

·         Be Commander in Chief of the US military and the militia of the several states (the state national guard).

·         Grant reprieves and pardons for offenses against the US (except in cases of impeachment).

·         Make treaties, with advice and consent (2/3 of those present) of the Senate.

·         Appoint ambassadors and other public ministers and consuls, with advice and consent of the Senate.

·         Appoint Supreme Court justices and other officers of the US, with advice and consent of the Senate.

·         Fill vacancies that may happen during the recess of the Senate, which expire at the end of the next Senate session.

Section 3 requires the President to report to Congress concerning the State of the Union. While this can be done in writing or some other way, it has become the traditional State of the Union Address, usually in the first quarter of the year.

And there’s this important statement:

“He shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”

He’s going to see to it that the laws are carried out. And he’s going to delegate powers to—that is, commission—the officers to do their assigned work in seeing that the laws are carried out.

Section 4 is one more word about impeachment, which applies to the President, Vice President, and all civil Officers of the United States—which includes federal judges and other appointees. Impeachment is the prosecution part, done by the House of Representatives. The trial on the offense(s) happens in the Senate, where the officer can be removed from office if convicted. Impeachable crimes include “Treason, Bribery, or other high Crimes and Misdemeanors.” That term “high Crimes and Misdemeanors” has been the subject of some debate, although it was clearly understood by the founders. The phrase was intended to include large crimes against the state that might not be labeled as either treason or bribery.

We covered this in more detail last December, when history on this subject was taking place. You can read that here. But, in short, picture a diagram that has a large circle encompassing all serious crimes against the state (nation), inside of which are treason and bribery. So anything that isn’t treason or bribery is included as “high Crimes and Misdemeanors.”

Problems with Executive Power

The Regulatory State

There has been a serious change in the balance of power in recent years. The founders assumed that each branch of power would jealously guard its own power, thus preventing any encroachment by the other branches.

But we’ve had a sort of new, extra-constitutional (that is, beyond the Constitution) branch we might call the regulatory state.

The balance of power has shifted, because laws are being written that cede power from the legislative branch to the executive branch. They delegate sweeping powers to these regulatory agencies to determine the laws, write them as regulations, and enforce them. In addition, they often have power to judge and punish as well.

So many things are wrong with rule by regulatory agency. Its rulers are unelected. Some are experts in particular fields, but mostly they are bureaucrats, administrators, who may not be in touch with the realities of those doing business in that economic sector.

They are granted lawmaking power—the legislative branch’s job—but they’re part of the executive branch. It’s as if the legislative branch said, “You’re smarter than we are; you just do what you think is best. We’re sure you’d never do anything but what is the right decision for everybody.” And then the legislative branch turns their attention to their other assignments, such as doing impeachment investigations.

As we talked about in our post on Article I, legislating is the only main assignment of Congress. In addition, they put out the budget. Although since 2006 they have mainly failed to put out a budget, and have done what is called a “continuing resolution,” which keeps funding everything as it was funded in the previous year’s budget with some set percentage of increase to balance against inflation. In other words, Congress is very busy not legislating or budgeting.

By ceding that power to “the experts,” the legislative branch has greatly increased the power of the executive branch. That hasn’t been a good thing; it has unbalanced the constitutionally designed balance of power. We’ve talked about that in more detail:

·         Regulatory Tyranny, August 26, 2013

·         Red Tape Cutting, May 31, 2018

Executive Orders

There’s another problem with the executive branch: Unconstitutional Executive Orders. This comes under Section 3, where we’re told about the President's duty to faithfully execute the laws and commission officers to do that work.

The purpose of an executive order is to direct the people working under the President concerning how to execute the laws duly enacted by Congress. Executive orders are meant to be procedural. And they must be simply a way to carry out of the laws; they cannot change the laws or create new laws. We have purposely separated powers so that the executive branch does not have lawmaking powers.

The number of executive orders a president gives is not relevant.

For example, If you have a president, say Reagan, who uses executive orders liberally but perhaps not even a single time for any purpose but directing the executive branch in how to keep the law, then you have no executive order problem.

Then, suppose you have another president, say Obama, who less frequently gives executive orders but often as an edict to create law rather than to follow laws set by Congress, then each of those offenses is breaking the law.

Party doesn’t matter. The policy itself—along with its efficacy or intent—doesn’t matter. The color of the president matters not a whit. What matters is the breach of the law.

The President cannot act extralegally. He cannot make law. We do not live in a monarchy, dictatorship, potentate, banana republic, or any other tyranny. We live in a constitutional republic. We have a written law granting only limited enumerated powers to the federal government, so that our God-given natural rights are not infringed.

Can a president act beyond those enumerated powers? Presidents have. But not legally. Presidents have typically gotten away with exertion of power beyond what is granted depending on their popularity.

So the next question is, How do we limit the damage of a president’s acting beyond his authority in direct conflict with Constitutional limits?

The ultimate constitutionally designed response is impeachment. But first there should be other ways, less painful to the nation.

Congress can write legislation to override the executive overreach, so there is no lack of clarity on what the law actually is.

Congress can stonewall the illegal orders. With the power of the purse, which they hold, they can defund anything that relates to executing his orders. They can do targeted defunding—rather than simply refusing to agree to a continuing resolution, for which the shutting down of the government will be blamed on them. It’s easier to target spending in an actual budget, so that’s incentive for Congress to do that basic job.

The Senate could withhold approval of political appointments until the president rescinds his illegal orders. Senator Ted Cruz attempted this back in 2014.

There are also lawsuits. Then-Texas Attorney General (and Governor-elect) Greg Abbott filed a lawsuit in 2014 based on the significant damage to the state caused by the president’s insistence on a porous border.

It may be that courts can suspend the immediate enactment of any illegal order. This usually requires someone with standing (a person, business, or state or local government that has suffered measurable damages) to sue for redress.

Assertion of 10^th Amendment rights by the states could also be a solution.

All of the solutions require political will, which means that many presidents do a political calculation before the intentional overreach.

So, executive orders used as lawmaking continues to be a threat to our constitutional republic.

The question for each executive order isn’t whether the president has the right to give an executive order; he does. The question is whether the order is following the Constitution and merely executing the law as defined by Congress.

The Executive Is No Angel

There are a couple of quotes I’d like to contrast. This first is from James Madison, in The Federalist Papers, #51:

What is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither internal nor external controls on the government would be needed.

The second quote is from that contemporary political mind, Gwyneth Paltrow, who held a fundraiser at her Santa Monica, CA, home last week. Besides gushing, “You’re so handsome that I can’t speak properly,” she advised all who would hear:

It would be wonderful if we were able to give this man all of the power that he needs to pass the things that he needs to pass.

James Madison, image from here;                      Gwyneth Paltrow, photo from here

If great minds think alike, then one of these divergent thinkers might not be a great mind.

Here’s what we know. Human nature means that no person—not even another George Washington—should be imbued with absolute power. If a person is neither God nor one of His angels, that person’s power should be limited. So, while it might be possible to pile up the complaints against our current president’s character (even though Miss Paltrow apparently can’t), the only necessary reason for being suspect and limiting his power is: he is not God, and he is no angel.

Our founders brilliantly identified three aspects of power—and wisely separated them: law making, law judging, and law executing.

There’s a new course offered online, for free as usual, from Hillsdale College, called The Presidency and the Constitution, with Dr. Larry Arnn giving the introductory lecture. In lecture 1, around 17 minutes in, he gives this background on separation of powers:

In the Declaration of Independence, there is separation of powers. It occurs in two ways. In the first way, in the middle of the document, a largely ignored but incredibly important part of the document, they gave the reasons why they’re doing it. The bad stuff the king has done. There are 17 of them, and several of them are violations of separation of powers: made judges dependent on his will alone, suspended legislatures and interfered with their operation. And so here you have an executive, and he’s actually getting control—and in English history sometimes the king did have control—of all of the processes of government, making him a law unto himself. And so, that’s condemned in the Declaration of Independence. That is grounds for revolution, if that happens.

But then the second way is, if anything, more sublime. And that is, the branches of government are named in the Declaration of Independence in relation to God. God appears four times. Once he’s the creator. That’s like a constitution maker, like a founder, if you see that in political terms. And it would be right, I think, to see it in political terms, because here we have a sublime political document. The first time He shows up, He’s the maker of the laws of nature and of nature’s God. He’s the legislator.

Then later, toward the end of the document, He’s named as the supreme judge of the world—the judicial branch. And as divine providence, the executive branch. And the lesson from that is plain. The way God is addressed is the way He is viewed.

And then these complaints against the king, about his violation of separation of powers, that it is in the hands of God alone that you would place all the powers of government. And any man, like King George III, who tried to arrogate those powers to himself—that would be an evil. Not to be trusted.

Absolute power is not a new threat. It wasn’t even new in the days of King George III. Tyrants seeking absolute power have been the norm. But not right. Absolute power in a human being—or even a small number of humans—is an evil to be avoided. On the Spherical Model, it is southern hemisphere statist tyranny.

I came across another source this week, also from Hillsdale, about separation of powers. September’s Imprimis article is “The History and Danger of Administrative Law," by Philip Hamburger, of Columbia Law School. He defines administrative power as a modern version of placing multiple powers in the hands of the executive—in other words, just another form of tyranny.

He says, in introduction,

Administrative law is commonly defended as a new sort of power, a product of the 19^th and 20^th centuries that developed to deal with the problems of modern society in all its complexity. From this perspective, the Framers of the Constitution could not have anticipated it and the Constitution could not have barred it. What I will suggest, in contrast, is that administrative power is actually very old. It revives what used to be called prerogative or absolute power, and it is thus something that the Constitution centrally prohibited.

He compares what our current form of executive-appointed administrative rule with the long-familiar prerogative power of kings. He uncovers three types of prerogative power—all of them precluded by our Constitution: extra-legal, supra-legal, and consolidated power. He explains:

Whereas ordinarily kings bound their subjects through statutes passed by Parliament, when exercising prerogative power they bound subjects through proclamations or decrees—or what we today call rules or regulations. Whereas ordinarily kings would repeal old statutes by obtaining new statutes, when exercising prerogative power they issued dispensations and suspensions—or what we today call waivers. Whereas ordinarily kings enforced the law through the courts of law, when exercising prerogative power they enforced their commands through their prerogative courts—courts such as the King’s Council, the Star Chamber, and the High Commission—or what we today call administrative courts. Ordinarily, English judges resolved legal disputes in accordance with their independent judgment regarding the law. But when kings exercised prerogative power, they expected deference from judges, both to their own decrees and to the holdings and interpretations of their extra-legal prerogative courts.

When we see our president—and not just the president, but the legislature, by not doing their duty, but turning it over to some regulatory agency—writing thousands of regulations, such that no human could possibly identify them and abide by them, that is the same old tyranny we’ve seen before. When he decides, using waivers, whom he will choose to exempt from laws and regulations, again that is the same old tyranny rule. When he has regulatory agencies judge whether a person is in defiance of a regulation and can then fine and/or imprison that “wrongdoer,” that is not what our founders would call divided powers. That is the executive branch (president, potentate, dictator, king…) making the laws, judging the laws, and executing the enforcement of them.

What we have is the very mess we declared independence from back in 1776. So what do we do now?

Hamburger offers this simple-but-not-easy starting point:

The Constitution carefully barred this threat, but constitutional doctrine has since legitimized this dangerous sort of power. It therefore is necessary to go back to basics. Among other things, we should no longer settle for some vague notion of “rule of law, understood as something that allows the delegation of legislative and judicial powers to administrative agencies. We should demand rule through law and rule under law. Even more fundamentally, we need to reclaim the vocabulary of law: Rather than speak of administrative law, we should speak of administrative power—indeed, of absolute power or more concretely of extra-legal, supra-legal, and consolidated power. Then we at least can begin to recognize the danger.