Medical Tuesday Blog

The Supreme Court Can Restore Separation of Powers

Dec 22

Written by: Del Meyer
12/22/2020 12:37 AM

Over the last several decades, many of the laws written in the United States have not been written directly by Congress as the Constitution directs. Many, if not most, laws are written and enforced by the executive branch. How did this happen, and how can it be stopped?

Presidential elections have become more important as the executive branch has become increasingly more powerful. In the wake of Congress’s unwillingness to write actual laws, the executive branch has taken it upon itself to write them through what’s known as the “administrative state.” More and more, it’s unelected bureaucrats in federal agencies that make policy decisions and write binding laws in the form of regulations.

Today, agency regulations are nothing more than a way for the executive branch to work around Congress. The only way to fix this problem is for the Supreme Court to put a stop to this violation of the separation of powers. However, while it’s simple in theory, it’s more complex in practice.
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Separation of Powers Is Vital to a Republic Form of Government

The Constitution created the government’s structure such that Congress makes the laws, the executive branch enforces the laws, and the courts, headed by the Supreme Court, interpret the laws. They are supposed to stay within their roles and not venture into another branch’s territory.

According to the Federalist Papers, the framers were deeply concerned about one person or group having the powers to both write and enforce laws. Madison said in Federalist No. 47 that if the “legislative and executive powers are united in the same person, or body of magistrates,” there would be no liberties for citizens.

Alexander Hamilton said in Federalist No. 78 that the purpose of the Supreme Court was to be the “Guardians of the Constitution.” Judges received lifetime appointments to ensure they never had to buck the other two government branches.

Where Did the Administrative State Come From?

In the wake of the Civil War, many cities experienced ongoing widespread poverty. In the early 1900s, President Woodrow Wilson decided the best way to tackle the problem was to create federal agencies responsible for regulating and supervising different parts of the private sector. Wilson created one of the most important agencies of all to control the economy – the Federal Reserve. Today, the Fed prints money, controls inflation and deflation, and is the economy’s principal driver.

However, it was President Franklin D. Roosevelt who created a revolution of sorts in government. He was responsible for the creation of the Departments of Commerce, Labor, Health and Human Services, the SEC, the FCC, and others.

These new agencies issued regulations that created bureaucratic laws on Americans. The nation never looked back. Instead of reigning in unelected officials, Congress empowered them over the next half-century.

Who’s Running America?

Over the years, the courts have deferred to the “administrative state” under the guise they are not experts and don’t have all the agencies’ information. Since 1993, federal agencies have created over 3,000 new regulations every year. There are now hundreds of thousands of regulations. There are so many that on any given day, an American is breaking at least one law they could be punished for not written by Congress.

It’s apparent that those making the laws in the United States are not in Congress, and the government is realizing the concerns expressed by Madison and Hamilton. Power is growing in one group of people over the lives and businesses of America.

Will elections even matter if unelected people constantly create binding laws?

At this point, Americans no longer control their government through their elected members of Congress.

Supreme Court Could Overturn the Administrative State

Of the nine justices on the Supreme Court, five have expressed support for what’s known as the Nondelegation Doctrine. It holds that Congress cannot avoid its responsibilities by delegating its powers to the executive branch – which is exactly what’s been going on for decades.

The doctrine must be accurate according to the separation of powers as established in the Constitution. The courts have the power to force Congress to take back their responsibility by writing laws that are not vague or subject to interpretation. By forcing Congress to fulfill its Constitutional duties, the courts would take power away from unaccountable administrative agencies’ hands and restore it to the peoples’ representatives.

Of course, that would require courage and dedication from members of Congress. It would force them to listen to their constituents and could also erode the power of the two-party political system.

Would that really be a bad thing?

Don Purdum, Independent Political Analyst

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