February 21, 2024
The Administrative State – Judge, Jury, Executioner

Sat, Jan 20, 2024  | 
By John Schroeder

The Administrative State – Judge, Jury, Executioner

” In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime; and the district attorneys, who prosecute the offenders. ” We’ve all heard it.  Making the laws those groups enforce are the legislatures and overseeing their actions directly are the judges and the judges have layers of appeal.  It is a system of checks and balances wherein all those groups hold each other accountable because each has a somewhat different vested interest.  But the Administrative State can be a very different matter.  An agency may exist by legislative action but thereafter the legislature, providing accountability to the people, becomes uninvolved.  An agency promulgates regulation, enforces them, up to and including with police power, bringing notices of violation, holding administrative hearings, adjudicating said hearings and levying penalties – all within a single agency.  Where exactly, are the checks and balances?

“Due process,” says Wikipedia:

Due process of law is application by the state of all legal rules and principles pertaining to a case so all legal rights that are owed to a person are respected. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law.

Without checks and balances, what is it that ensures due process, that protects the rights of the individual?  Some agencies, particularly the federal ones, have armies of lawyers advising them, reviewing policy and procedure and they generally make sure that due process is followed.   But there are times when a federal agency, empowered by a legislature, may cede some of its authority to a state agency, which in turn cedes some of its authority to a local agency and often said local agency lacks the resources to ensure due process is consistently followed.  Rather than lawyerly review, they get a few hours training from the agency above ceding the authority and off they trot, citing, hearing and finding.

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We’ve seen it a thousand times on television where the guy that is clearly as guilty as can be skates free on “a technicality.”  That’s due process at work – it can be frustrating.  Movies like “The Beekeeper” and series like “Reacher” are built on those frustrations and feature guys taking the law into their own hands, generally executing the evil doers when the law could not get the job done.  They are quite satisfying to watch.  But when you watch those things, the bad guys are 1) really bad and 2) clearly and overwhelmingly evidently bad – even if our heroes obtain the evidence extralegally.  What if the evidence were not so clear, and what if rather than being a murderous barbarian, the perp just filed their paperwork errantly?  Many agencies of the Administrative State fancy themselves such heroes, but they operate in areas where the stakes are not nearly so dire.

Think about it – John Wick kills just about everyone he lays eyes on because they killed his dog and stole his prized car.  But everyone he kills is a bad guy to begin with.  Would those movies be so cool if he were involved in a standard car accident, the other parties just being people trying to get to work, yet destroying that car and killing his dog in the process?  Suddenly he would no longer be “Fred Astaire with guns,” and instead be a mass murderer – even if the other parties were looking at their cell phones when they should have been watching the road.

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The system is unbalanced.  If you or I file errant paperwork, an agency may come down on us with fines, penalties, and interest.  But what happens if they screw up their paperwork?  How does one appeal?  If an agency screws up, do you honestly think going higher in the agency is going to get you anywhere?  Of course not – if an agency admits a mistake, they undermine their authority and in some cases their legitimacy.  So you sue, but simply retaining a lawyer may cost more than what’s at stake in the administrative case.  Even if it makes financial sense to sue, the cost in time, energy, attention and emotion may be more than you are willing to bear.   Now what do you do?  And once the agency has prevailed on a few lower stake cases, they will be emboldened to reach for more – until eventually only the pretext of due process remains.

And Chevron Deference is out there saying, in essence, the agencies can do no wrong.

The Administrative State is a monster that not only threatens to over-regulate life generally but is each day eroding the fundamental rights the Constitution affords us.  Like The Blob, it starts out small and fairly innocuous, but each time it eats it grows larger and more dangerous.  I have seen it consume entire companies, even industry segments.  Soon it’ll come for us all.