The answer to the abuse of power is to separate it, divide it, and limit it by enumerating specific powers. Precisely what the U.S. Constitution prescribes.
But what is going on right in front of our eyes is the combining of powers of the three branches of government. It is as dangerous as the secret alliances warned of and, in fact, assists them.
Columbia Law Professor Philip Hamburger described it this way:
“Sometimes called the regulatory state or the deep state, it is a government within the government, run by the president and the dozens of federal agencies that assume powers once claimed only by kings. In place of royal decrees, they issue rules and send out “guidance” letters …. Unelected bureaucrats not only write their own laws, they also interpret these laws and enforce them in their own courts with their own judges. All this is in blatant violation of the Constitution …”[i]
Professor Hamburger then detailed how the abusive administrative state ignores the separation-of-power principle and hijacks judicial, legislative, and executive functions to itself. Using the Federal Trade Commission as an example, he describes the typical enforcement activities of federal agencies. My expert graphic-design daughter, Stephanie Smith, condensed his text into this diagram:
So, people who receive their paycheck from the executive branch use legislative powers to write laws, use judicial powers to judge and assess fines on those who break them, and again use executive powers to collect the fines. And the agency keeps the money, thus intensifying the incentive to write even more rules.
Gary Lawson of Boston University School of Law adds:
“The modern administrative state is not merely unconstitutional; it is anti-constitutional. The Constitution was designed specifically to prevent the emergence of the kinds of institutions that characterize the modern administrative state. … The destruction of this principle of separation of powers is perhaps the crowning jewel of the modern administrative revolution.”[ii]
In a way, the administrative state – insular, tight, closed to outsiders – is its own priestcraft religion. The three-pound god between their ears reigns; the Federal Register is scripture; bureaucrats are priests who impose religious doctrine; and taxation and penalties provide the funds without passing the plate.
This false religion wants power. And what easier way to gain it than when it has been combined and centralized rather than separated, divided, itemized and dispersed?
In Jaredite times, the daughter of (the bad) Jared, in planning to usurp power, asked, “Behold, is there not an account concerning them of old, that they by their secret plans did obtain kingdoms and great glory?”[iii] And others later “adopted the old plans, and administered oaths after the manner of the ancients, and sought again to destroy the kingdom.”[iv]
Alma explained to his son Helaman that the twenty-four plates from those times contained the oaths, covenants, murders and works of the secret combinations, and warned him to “trust not those secret plans unto this people…”[v]
Oaths, covenants, secrecy, plans … sounds organized to say the least. Ever wonder what’s in those planned strategies? If the adversary found them useful in times past, why not again now?
Might our own burgeoning bureaucracies with ever-increasing unconstitutional powers be where the two types of combinations … combine?
An excerpt and elaboration from the author’s forthcoming book “The Magnificent Gift of Agency; To Act and Not Be Acted Upon.” Available July 1 at Deseret Book stores or Deseretbook.com. Yay.
[i] “The Tyranny of the Administrative State,” Wall Street Journal, June 10, 2017
[ii] As quoted in Steven F. Hayward, The Threat to Liberty, Claremont Review of Books, Winter 2016-17, 54
[iii] Ether 8:9
[iv] Ether 10:33
[v] Alma 37:32