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The Bureaucracy -- The Unaccountable Fourth Branch Of Government

Originally Published in Investor's Business Daily on 7/13/16.

In arguing for the states to ratify the Constitution, James Madison wrote in Federalist 47, "The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many … may justly be pronounced the very definition of tyranny." In our time, the regulatory state has become a form of tyranny led by bureaucrats who have wrested power from Congress and even influenced the Supreme Court to bow to their power.

This concentration of power in the regulatory state has led to outrage after outrage as unelected, unaccountable bureaucrats act as tyrannical kings, issuing edicts that harm small businesses, restrict freedom and cost our economy almost $2 trillion per year. This fourth branch of government exists outside of and unrestrained by the constitutional system of checks and balances. It represents one of the greatest threats to the liberties of American citizens.

If our constitutional system is to be preserved, this concentration of tyrannical power must be addressed, and regulators must be stripped of their unconstitutional powers. The first step in redressing this balance must be reinstating the power of citizens to challenge the administrative state in court on a level playing field.

This restoration of due process, a fundamental civil right, requires the elimination of the judicially created doctrine of Chevron deference, derived from a 1984 Supreme Court case. Chevron deference is the idea that courts should defer to the interpretation of the administrative state whenever a statute is "ambiguous." In practice, however, this has meant the courts simply defer to the administrative state in virtually all instances, as a creative bureaucrat can manufacture at least some ambiguity in any statute.

But Chevron deference is not just harmful to our constitutional order, the very concept is contrary to law. The Administrative Procedure Act, which sets out the laws and procedures that are supposed to govern the regulatory process, clearly states that "the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action."