AS ADMINISTRATIVE STATE GROWS, SO GROWS INJUSTICE
Attorney Jonathan Emord
November 9, 2009
One of the hallmark characteristics of contemporary big government is the expansive administrative state. Administrative agencies create laws (regulations), prosecute regulatees alleged to have transgressed the regulations (hold administrative hearings), and adjudge law violations (impose forfeitures and fines). Profound differences exist between the rule of law in courts and that in administrative agencies. Congress’s investiture of legislative, executive, and judicial powers in single administrative agencies has caused a progressive transformation of law from defense of individual rights to violation of them and from decentralization of power with tolerance for liberty to centralization of power with intolerance for liberty. Thus, as the administrative state grows, so grows injustice. The changes spell the end of substantive rights protection for many industrious Americans.
Under the system envisioned by our founding fathers, courts adjudicate disputes with a significant degree of independence from those who bring and defend charges. An independent judiciary does not create the law when operating in accordance with the separation of powers doctrine, constitutional precedent, and the canons of construction. It does not enforce the law beyond issuance of an order. An administrative agency, by contrast, is far more efficient and draconian. It is a one stop shop—law maker, law prosecutor, and law adjudicator. There is no true separation of powers. There is no keen interest in respecting constitutional precedent (indeed, in several instances I have heard administrative law judges tell me that they have no power to declare whether an agency regulation or the application of it violates the Constitution and, thus, they leave constitutional challenges unaddressed).
Consider how the DEA works, for example. The DEA Deputy Administrator drafts regulations for the governance of agency regulatees. The DEA Deputy Administrator also issues orders to show cause and for suspension of registration where she recites charges against regulatees. Then the DEA holds hearings before DEA administrative law judges but those judges rulings are non-binding on the Deputy Administrator. They are mere recommendations that the Deputy Administrator can accept or reject. Thus, the party who wrote the regulations and issued the charges, the Deputy Administrator, is also the ultimate judge. There is in this no justice but instead costly and burdensome process (another form of punishment). There is in this no separation of powers and, thus, no check on the abuse of power. Indeed, the DEA Deputy Administrator meets the founding fathers definition of a tyrant. Our founding fathers held to the view, authored by the French philosopher Montesquieu in The Spirit of the Laws, that the combination of any two of the powers legislative, executive, and judicial (or of all three) in single hands was the very definition of tyranny.
The anatomy of an administrative hearing further reveals how far from justice we have fallen. When the agency is the prosecutor, it often truncates or denies the accused any right of discovery against the agency. The accuser possesses the power of compulsory process to force the accused to turn over any document the accuser desires in proof of charges, but the accused possesses no power to discover the underlying bases for the charges and, thus, the discovery phase favors the agency and disfavors the accused. Moreover, when the matter proceeds to a hearing, the agency usually is allowed enormous leeway in making its case, dumping into the administrative record all manner of prejudicial information and testimony frequently having no direct bearing on the actions of the accused. By contrast, the accused is often boxed in, already limited because it has been denied discovery and then further compelled to defend against charges that are elaborated on for the first time in the hearing itself. Most administrative hearings are biased in favor of the agency that employs the administrative law judges.
In fact, those trained in appearing before the federal courts are often appalled by the lack of procedural protections afforded the accused in administrative proceedings. Hearsay is liberally allowed. People declared government experts need not be proven expert to have their testimony received into evidence and credited. Opportunities to depose government witnesses are generally denied, so lawyers scramble to prepare in the hearing itself. Often the proceedings are rich in character assassination, innuendo, and false charges and poor in substantiation for key charges and many times rife speculation is credited as if it were true. One might well regard these proceedings as the classic definition of a kangaroo court.
Once the administrative decision issues, it can be reviewed, sometimes by panels within the agency, but ultimately by the agency heads themselves. Agency heads harbor a bias in favor of their own regulations, their own prosecutors, and the charges that they often are intimately involved in bringing. Consequently, the decision maker is not impartial but is a partisan. Convincing partisans has never been easy, whether the judge is a cleric of a faith against which you are accused of heresy or an adherent to a particular view of the benefits of a regulation you are accused of violating. So, often, the conclusion is foregone.
The accused may then, after expending what is frequently a veritable fortune in legal fees, finally reach a federal court. Whereupon he or she learns that the courts adhere to a doctrine established by the Supreme Court of the United States that accords administrative agencies extraordinary deference in deciding cases. The effect is to rubber stamp nearly every administrative decision, leaving the regulatee without ever having had a sincere opportunity before an impartial judge to establish a lack of culpability.
What ever happened to the constitutional requisite of presumed innocence and that no man be deprived of his life, liberty, or property without due process of law—i.e., without a trial before an impartial magistrate and a jury of one’s peers? The administrative state gobbled up that system of justice courtesy of the Congress of the United States. Congress codified into law the administrative state and feeds it enormous appropriations each year that makes its growth luxuriant and noxious. We are now a people governed by administrators. When we unwittingly violate any one of a plethora of complex rules that few would think sensible or just we face the wrath of the federal agencies. We may fall into the administrative equivalent of a Venus fly trap from which escape is nearly impossible.
President Obama appears deaf to the cries that arise from the suffering of those who have seen their life’s dreams once wrapped in small businesses obliterated by an overzealous regulatory agency. Rather, he is encouraging administrative prosecutions and unleashing agency zealots who were heretofore dissuaded from exacting their will on business. We therefore see a significant rise in administrative prosecutions.
Looking back on a long career in defending administrative litigants, I am reminded repeatedly of Alexandre Dumas’ The Count of Monte Cristo. In particular, I find the macabre twists and turns that regulatees often experience akin to the injustices that Dumas’ character Edmond Dantes endured. A sailor granted his own command, Dantes arrives in Marseille expecting to marry his beloved Mercedes, but that dream is stolen from him by administrative intrigue. Dantes is given a letter from a compatriot to the exiled Napoleon Bonaparte who is imprisoned on the Isle of Elba for delivery to a Bonaparte collaborator in Paris. Dantes’ receipt of the letter causes him to become unwittingly entrapped in a false charge of treason when word of his intended delivery of the letter reaches Villefort, the Deputy Crown Prosecutor, who happens to be the son of the Bonaparte collaborator to whom the letter is addressed. To conceal his father’s complicity in treason, Villefort arrests Dantes and, without trial, exiles him to Elba upon a summary condemnation. Like our modern administrative state, Villefort is possessed of virtually unlimited power to condemn and can be the ruination of just men and women, falsely castigating them, destroying their enterprise, and leaving them without recourse to true justice.
John Adams presciently observed in reflecting upon the union of legislative, executive, and judicial powers in single hands: “[A] single assembly, possessed of all the powers of government, would make arbitrary laws for their own interest, execute all laws arbitrarily for their own interest, and adjudge all controversies in their own favor.” That, in a nut shell, is the problem with the modern administrative state and why it so often tyrannical rather than just.
� 2009 Jonathan W. Emord - All Rights Reserved