The Administrative State and The Undermining Of Our Republic
“Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.” (John Adams)
A lot of ink (or pixels for the technologically savvy) has been spilled over Biden v. Nebraska, 600 U.S. ___ (2023) where the Supreme Court (Court) invalidated the Biden Administration’s plan to forgive a significant amount of student loan debt. However, most writers’ emphasis has not been on whether the Court correctly interpreted the law, but instead on whether the Court used the law and Constitution to implement public policy they desired. As I’ve written before, the former is the Court’s job, the latter is Congress’ responsibility.[i] To argue the Court should judicially implement public policy instead of interpreting the Constitution and law as written is dangerous and more often than not leads to poor policy that causes real harm and erodes the foundation of our Republic.
In this case the Court did two things. First, it correctly ruled that the Biden Administration exceeded its statutory authority. Merely because this ruling is contrary to what many wanted does not make it any less correct. Second, and of equal importance the Court strongly signaled that it was going to continue to rein in the Administrative State.
An important concept to keep in mind is that courts will resolve a case on statutory instead of constitutional grounds whenever possible. In other words, courts will only reach a constitutional issue if they must. In keeping with this concept, the Court resolved Biden v. Nebraska on statutory grounds but, and this is an important but, signaled that there were constitutional separation of power issues underlying their holding. Though the Court went to great pains to base its ruling on statutory grounds, they explicitly stated the Biden Administration usurped Congress’ authority.
In an attempt to forgive approximately $430 billion in student loans, the Biden Administration latched onto 20 U.S. Code § 1098bb, part of the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act). Under this statute the President can modify or waive some requirements imposed by Congress regarding student loans. So, the question became – does “modify” or “waive” include “forgive?” The Court found in a 6-3 decision that it does not. As important as the statutory interpretation is, the constitutional issues are more so. Chief Justice Robert wrote:
“The Secretary’s plan has “modified” the cited provisions only in the same sense that ‘the French Revolution ‘modified’ the status of the French nobility…this is a case about one branch of government arrogating to itself power belonging to another…The Secretary’s assertion of administrative authority has ‘conveniently enabled [him] to enact a program’ that Congress has chosen not to enact itself.” (emphasis mine)
Though these passages are not central to the holding, and therefore not precedent, they do signal the direction the Court is heading – which is to enforce the separation of powers between the three branches of government as mandated by the Constitution. This will require significantly curtailing the power of the administrative agencies, a power that has over the year grown to greatly exceed what the Constitution allows. Alas, I don’t think the courts can do it themselves, instead Congress has to step up and reclaim the authority it has ceded to the executive branch.
Unfortunately, the phrase “it’s a threat to our democracy” has become a cliché because in this case the Administrative State is truly threatening our Republic. In 1936 fewer than 5,000 pages were published in the Federal Registry. Today the Federal Registry consists of over 180,000 pages with over 88,000 regulations – each with the force of law -creating over 300,000 federal crimes…all created by unelected bureaucrats and all without a single vote in either house of Congress. Think about it - over 300,000 federal crimes created by unelected bureaucrats compared to roughly 4,500 federal crimes created by Congress and signed into law by the the President! That’s about 67 criminal acts created by unelected bureaucrats for every criminal act created by our elected representatives! How is that not usurping congressional authority, or at least an abdication of authority by Congress?
How did this happen? Simple, Congress writes complex laws but doesn’t want to put the effort into ensuring they’re correctly implemented, nor do they take the time to change them when needed. Take the HEROES Act for example, it ceded the authority to modify the terms of student loans to the executive branch in time of war and other “emergencies,” instead of requiring the executive branch to return to Congress to seek authority to do so. Further, Congress did not even attempt to define what constituted an “emergency” or what part of the law could be modified. This laziness in writing legislation is not the exception but is the rule.
Congress has also ignored their oversight responsibilities. Instead of requiring regulations, which are in fact laws, to be submitted to and approved by Congress before becoming effective, they just allow the executive branch and its department to run around willy-nilly creating any regulation they like. As a result, we’ve ended up with over 300,000 federal crimes Congress never enacted. The result is no one knows all of the conduct that’s unlawful in America today. That is beyond scary. In effect by passively allowing its authority to pass to the executive branch, Congress has transformed presidents into kings whose authority is limited only by the courts and the two term limit placed on them by the Constitution.
Yes, the Court has signaled that they are starting to rein in the Administrative State, but without Congress stepping up the best they can do is slow the spread of rule by regulation.
It’s our choice – government by the people or bureaucratic rule? Make your opinion known and write your senators and representative. Be polite, but clear that they have to rein in the Administrative State, or even dismantle it.
[i] See: U.S. Constitution Articles I and III, and Marbury v. Madison, 5 U.S. 137 (1803)