As the administrative state implements more regulations on Americans, a team of legal veterans has come together to fight the expansion of unelected government agency power.
Sometimes, they even win.
The New Civil Liberties Alliance (NCLA), which consists of 27 lawyers and support staff, including former judges, had four of the cases it litigated go before the Supreme Court in 2023. One case was decided in its favor; the remaining three are pending.
Founded by Columbia Law School professor Philip Hamburger six years ago, the NCLA targets cases in which it believes federal agencies have blatantly overstepped their authority or violated civil liberties.
“Normally, administrative power is understood as a separation of powers question, but it’s also a civil liberties problem because it dilutes our voting rights,” Mr. Hamburger told The Epoch Times. “We all get to vote, but the ability to make legislation is no longer in the hands of the people we elect.”
The U.S. Constitution vests Congress with law-making authority. However, government agencies are not only making laws today, he said, they also enforce those laws, then act as judge and jury over alleged violations. Taking a historical view on this issue, Mr. Hamburger argues that such administrative “absolutism” is not a new phenomenon but merely a modern expression of absolute power once wielded by medieval kings.
The group’s clients include Drs. Jay Bhattacharya, Martin Kulldorff, and Aaron Kheriaty and Ms. Jill Hines, plaintiffs in the case of Murthy v. Missouri, which is currently before the Supreme Court. This case involves alleged violations of the doctors’ First Amendment rights by the White House, the Centers for Disease Control and Prevention, the FBI, the Cybersecurity and Infrastructure Security Agency, and the surgeon general.
“It deprives us of the right to a jury; it deprives us of ordinary burdens of proof; it deprives us of having an unbiased judge,” Mr. Hamburger said. “We have ALJs and commissioners instead.”
“Administrative law judges are considered part of the executive branch, not the judicial branch, and ALJs are appointed by the heads of the executive agencies,” the school’s website reads.
Supreme Court Taking Notice
The NCLA’s actions have been resonating in the U.S. court system, particularly the Supreme Court.
“In 2018, we started filing briefs at the Supreme Court and almost immediately we were having an effect on the discussions of administrative power,” Peggy Little, senior counsel at the NCLA, told The Epoch Times.
In one case, SEC v. Cochran, which Ms. Little led, appellate courts took the side of the SEC. This case challenged the lifetime tenure of ALJs, who act as judges for federal agencies.
“We battled that for five years, and we had six circuit courts of appeals against us,” she said. “We got to the Supreme Court and we won unanimously.”
Ms. Little said she is optimistic that the tide of expanding agency power can be turned back.
“I think we are in a very important time for rethinking how our government should operate,” Ms. Little said, “and restoring the separation of powers and guardrails on agency power that limit it to what Congress has actually empowered the agency to do, not what the agency itself thinks would be a good idea.”
Mr. Hamburger said the NCLA has several advantages when arguing their cases.
“We have the truth on our side, and I think the justices understand that,” he said. “Second, we take the Constitution seriously, while many agencies view it as a minor impediment to what they want to do in regulation.”
In addition, “the administrative state has changed,” he said.
The End of ‘Chevron Deference’?
One of the pivotal court decisions behind the expansion of the administrative state was the 1984 ruling in Chevron v. Natural Resources Defense Council.The Supreme Court decision in that case gave broad discretion to federal agencies to interpret for themselves how much authority Congress had given them. This led to a concept known as “Chevron deference,” under which courts tended to defer to agencies regarding the scope of their power.
While many U.S. presidents have pushed for greater powers for the executive branch, the Biden administration has been particularly aggressive. This includes a 2021 edict from the Occupational Safety and Health Administration (OSHA) requiring employees of large companies to take the COVID-19 vaccine, a Securities and Exchange Commission (SEC) mandate requiring all listed companies to submit audited reports on greenhouse gas emissions, EPA mandates designed to phase out coal plants and gas-fired cars and trucks, new restrictions on consumer appliances from the Department of Energy, and several executive orders to transfer student loan debt to taxpayers.
The OSHA vaccine mandate was partially overturned by the courts. The other edicts are currently being challenged, but as with many administrative edicts, Americans will often comply until and unless they are overturned by courts.
The questions that Mr. Hamburger raises in his book are at the heart of the current political divisions within the United States. Progressives often advocate the implementation of policies designed by unelected “experts,” while conservatives expect edicts to go through elected representatives.
Big Government Advocates
Woodrow Wilson, a predecessor of modern progressives, expressed contempt for voters and viewed representative lawmaking as an impediment to economic and social reforms. He was highly critical of the U.S. Constitution and its separation of powers, particularly the limitations it put on government bureaucrats.
“Wherever regard for public opinion is a first principle of government, practical reform must be slow and all reform must be full of compromises,” he stated in his 1887 treatise “The Study of Administration.”
“The people, who are sovereign, have no single ear which one can approach, and are selfish, ignorant, timid, stubborn, or foolish.”
Writing at a time when racial theories were gaining traction in academic circles, President Wilson criticized what he saw as an Anglo-American trait of wanting limited government and democracy. Instead, he favored Germany’s centralized and authoritative system, which he considered more efficient.
“The English race has long and successfully studied the art of curbing executive power to the constant neglect of the art of perfecting executive methods,” President Wilson said. “It has been more concerned to render government just and moderate than to make it facile, well-ordered, and effective.”
And like today’s government initiatives to manage industries such as energy and transportation, President Wilson called for government control of transportation and communication, in which companies themselves had oligopolistic positions.
“Even if our government is not to follow the lead of the governments of Europe in buying or building both telegraph and railroad lines, no one can doubt that in some way it must make itself master of masterful corporations,” he wrote.
One result of concentrating such all-encompassing power in the executive branch is that presidential elections have become pivotal in determining the direction of the country, even in areas such as residential zoning and education that are traditionally under the purview of states, counties, and towns.
“Presidential elections become existential conflicts, largely because of the expansion of administrative power,” Mr. Hamburger said.
Outside of the federal arena, however, resistance to administrative authority has emerged among state officials, almost exclusively in red states.
State attorneys general have sued the Biden administration on issues such as the alleged government role in social media censorship, the SEC green accounting rule, and the various EPA and Energy Department mandates on cars, appliances, and electric utilities.
More recently, states such as Tennessee are attempting to pass a “nullification” law that would allow citizens to petition their state legislatures to ignore or invalidate federal mandates that violate their constitutional rights.
“The edicts that Biden puts out, and the agreements that he signs with world organizations that want to trample on the sovereignty of Tennessee people ... those are the things that scare me the worst,” Tennessee state Rep. Bud Hulsey told The Epoch Times.
“State legislatures are going to have to stand up and say to the federal government, we are not going to enslave people in our states by unconstitutional edicts.”
