How two men turned America into a bureaucratic nightmare

When you read the Constitution, three dominant ideas stand out starting with the first line of our governing document: Article I, Section 1, which states, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

The rest of the document deliberately outlines the separation of powers among three branches of government: the legislative, the executive, and the judiciary. It details the office of the presidency and the judicial power of the Supreme Court in addition to Congress. The purpose of this separation was to heed Montesquieu’s warning in “The Spirit of the Laws”: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty ... lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”

FDR appointed Frankfurter to the high court in 1939. He ensured that everyone who clerked for the court shared the same philosophy of an activist judiciary.

To establish a separation of powers in our Constitution properly, James Madison noted in Federalist 45: “The powers delegated by the proposed Constitution to the Federal Government are few and defined.”

A further guarantee of the separation of powers was written into the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The other idea which dominates the work is the definition of defenses each citizen has from the arbitrary will of the government, it goes back to the Magna Carta, that there must be a trial before one’s peers.

These ideas held in our country for 150 years, owing to the bulwark of constitutional defenses afforded by our Supreme Court.

Yet, there came a time in our history when constitutional definitions became undefined. About 90 years ago, two remarkable men led our country who were of one mind: Franklin D. Roosevelt and his close adviser Felix Frankfurter wanted to concentrate government power in Washington, D.C., in one institution — the unenumerated administrative state.

Roosevelt sent legislation to a Democratic-dominated Congress aiming to take control of the American economy. However, the Supreme Court blocked his efforts, prompting Roosevelt to launch a relentless attack on the court. He threatened to expand the number of justices to 15, referring to the court as the “nine old men” in the “mausoleum of injustice.” Under this pressure, the court shifted its stance, moving away from its original role as the defender of the Constitution. Instead, it became an active branch of the left, focused on changing how America is governed.

The first pivotal case in this change was NRLB v. Jones & Laughlin Steel in 1937, which became known as “the switch in time that saved nine.” The decision opened the floodgates to the expansion of administrative agency power.

FDR appointed Frankfurter to the high court in 1939. Frankfurter ensured that everyone who clerked for the court, in preparation for high judicial office, came from the same schools and shared the same philosophy of an activist judiciary dedicated to administrative governance under the executive branch. From that point in time, the court decided in favor of the unenumerated power of the administrative state for decades.

The problem with agency authority is that they have the power to legislate, execute the laws they create, and judge those who violate their rules, combining the three powers our Constitution explicitly designed to keep separate.

One might argue that the administrative state has little power compared to Congress, but consider this: In 2023, Congress passed 27 laws based on the Constitution. Meanwhile, the federal registry ended the year with 90,402 pages of rules that have the force of law. These rules were written by unelected bureaucrats who not only establish the rules but also enforce them and determine the penalties for violations.

Consider the case of Andy Johnson, a rancher in Wyoming who dug a pond on his property to provide water for his chickens. The EPA determined that he had violated one of its rules, stemming from its expansion of the Clean Water Act. The agency decided to fine Johnson $37,500 per day that his pond remained in existence and an additional $37,500 per day for defying its orders. This is textbook tyranny.

The good news is that the Supreme Court has begun to defend the Constitution again with two recent rulings. In Loper Bright v. Raimondo, the justices struck down its 1984 ruling in Chevron v. Natural Resources Defense Council, opening agency rules to judicial review. In SEC v. Jarkesy, the court determined that hedge fund founder and investment adviser George Jarkesy had the right to a civil trial by jury rather than a hearing before an SEC tribunal dedicated to finding him guilty. These rulings signify a return to the idea of separation of powers and a limit to the unenumerated power of the administrative state.

Further, in Trump v. the United States, the court ruled that a president has immunity from prosecution in the course of his official duties. Which means that if a second Trump administration takes office and acts to renew the principles of our original Constitution and its design of enumerated and separated powers that prevent leftist agency tyranny, these same agencies will not be able to attack him as they did during every single day of his first administration while he fought for America.

Little by little, we’re getting our Constitution back.