Report
Mindszenty
February 2015
Cardinal Mindszenty Foundation
Vol. LVII-No. 2
The Biggest Threat to Constitutional Liberty: Federal Bureaucracy
I
n drafting the U.S. Constitution, our Founding Fathers
feared, above all else, centralized government. They
understood that power once gained would accumulate,
then corrupt, and inevitably subvert liberty. This understanding
led them to create a constitutional order of balanced government
with clearly delineated lines between the executive, legislative
and judicial branches of government, operating within a federal
system. Their close reading of history and recent experience
with England imparted a deep distrust of executive power and
the importance of a legislature to constrain this power. English
history showed how the rule of law and constitutional tradition
had been threatened by proclamations of the Crown and the
royal court, and extra-judicial trials and judgments of royal
court bodies such as the Star Chamber.
The Founding Fathers understood all too well how tyranny
can arise not only through a dictator, but through executive
administration that places itself above the law. In short,
executive administration itself, not just an executive officer—
even a duly elected president—could undermine liberty.
The essential principle of the American settlement, Thomas
Jefferson confirmed in a 1797 letter, “is that of a separation
of legislative, Executive and Judiciary functions.” And as far as
possible, he added, it is incumbent upon “every friend of free
government” to keep it that way.
This fear of centralized executive power found further
expression in the 19th century by Alexis de Tocqueville in his
second volume of Democracy in America (1841), in which
he warned of a soft despotism that could come through the
administrative power of a centralized government.
Today, the warnings of the framers of our Constitution
and Tocqueville about the erosion of the rule of law, the
Constitution and our liberties by centralized federal
bureaucracies should be echoing through the ears of every
American citizen. Federal bureaucracies willfully sabotage
the rule of law by issuing regulations, rules, waivers and
fines that have the power of legal enforcement without
regard to Congress, the states or the citizens. Federal
regulations spilling forth from bureaucrats in
Washington bind citizens in the same ways that previous
Crown proclamations and the Star Chamber did in premodern England.
To decry the Divine Right of Bureaucrats is not hyperbolic.
Examples of executive overreach abound. The most recent
example is President Obama’s actions on immigration. The
mainstream media have contended that President Obama’s
executive orders are not any more numerous than his
predecessors’. The issue, though, is not the number of Obama’s
executive orders, but the full implications of his actions that
replace legislative power with executive prerogative. In the
past, executive orders and rulings usually were intended to
implement and enforce laws passed by Congress. While there
are notable exceptions to this—Jefferson’s purchase of the
Louisiana territory and wartime actions by Abraham Lincoln
and Franklin Roosevelt—there are no examples of a president
of the United States mandating a change in immigration policy
because Congress, the constitutionally authorized legislative
power, could not agree on this issue. The immediate
consequences of President Obama’s immigration actions are
many, but the long-term implications for the rule of law under
the Constitution are profound and far-reaching.
B
Agencies Run Amok
ut this is just the tip of the iceberg of executive
overreach. The Department of Health and Human
Services, Environmental Protection Agency, Food and
Drug Administration, Federal Communications Commission,
National Labor Relations Board, Internal Revenue Service,
and on and on, have come under recent criticism for
some of their more outrageous regulations, waivers and
policies. These extreme actions deserve condemnation,
but a larger issue gets buried by focusing on the most
egregious examples of the out-of-control regulatory state.
The day-to-day actions of these agencies, whenever
Page 2
February 2015
they issue on their own regulations, rulings, waivers and
fines, systematically empower the executive branch to
assume the constitutional roles of the legislative and judicial
branches of government.
to complacent acceptance of a soft despotism that
Tocqueville warned Americans about over a century and
a half ago.
Skirting legislative bodies, whether the U.S. Congress or state
legislatures, has become so commonplace today that most
Americans take it for granted. Americans are pummeled with
news articles announcing new regulatory rules. The headlines
tell us about executive agency overreach coming from the
EPA, HHS, FCC and NLRB. Here is just a sample of some of the
federal agencies that are involved in issuing mandates without
congressional approval (headlines are taken from news and
opinion articles on the Internet during the last several years
of the Obama administration):
T
•“Obama EPA Issues Coal-Killing Rule to Cut Carbon
Emissions 30 percent”
•“HHS finalizes over 1,200 waivers under healthcare
reform law”
•“Delayed: Obamacare’s employer mandate for small
businesses”
•
“$174K-Per-Year Congressmen
Obamacare Subsidy”
Will
Get
Special
•“New Committee Report Outlines Fundamental Flaws of
‘Clean Power Plan’ ”
•“Senate Should Reject EPA’s Regulatory Overreach on
Global Warming”
•“12 States Sue Obama Administration for Regulatory
‘Overreach’ ”
•“House passes bill to limit EPA overreach on ditch
water”
•“FCC regulatory overreach threatens the Internet”
•“More Regulatory Overreach at the FCC”
•“U.S. innovation is hostage to regulatory overreach”
•“Is the FDA Getting Out of Control?”
•“The Latest FDA Overreach”
•“NLRB overreach in state education”
•“National Labor Relations Board Overreach Against
Boeing Imperils Jobs and Investment”
These actions by themselves—whatever we think of the
content of the regulations—undermine the principles
of constitutional government, replace the rule of law
with absolutist governance and acclimatize a citizenry
Is Administrative Law Unconstitutional?
his excessive regulation by executive agencies raises
the obvious question whether these actions break with
constitutional principles. This question is answered by
Columbia University law professor Philip Hamburger in his
scholarly study Is Administrative Law Unlawful? (University
of Chicago Press, 2014). His answer is a bold “No! It’s not
constitutional.” As author of two important historical books
on the separation of church and state and judicial review,
Hamburger brings great erudition to our understanding of the
conflict between constitutional principle and administrative
action. Other legal scholars, such as Richard A. Epstein,
have argued that many administrative regulations are
unconstitutional notwithstanding the U.S. Supreme Court’s
general acquiescence in the rise of the administrative state.
What Hamburger does is root this conflict in a longstanding
tension in English and American law between constitutional
principle and executive prerogative.
He observes that it is not a coincidence that modern American
administrative law looks “remarkably similar to the governance
that thrived long ago in medieval and early modern England
under the name of ‘prerogative,’” in which the Crown and
the royal court sought to impose binding mandates on the
citizenry outside the constitutional rights of the Parliament.
These royal prerogatives derived from absolutist principles
that ran outside the law and parliamentary rights founded
on English constitutional principles. This struggle between
Crown and Parliament was resolved in the English Civil War
in the 17th century in favor of the Parliament.
The struggle over absolutist power, Hamburger argues,
continues today. He warns that “administrative power threatens
the liberty enjoyed [by American citizens] under the law”.
Seventeenth-century English opponents developed clear
constitutional principles to bar royal prerogatives and
executive evasions. This fear of extralegal government
through royal prerogative drove American colonists to
declare independence in 1776 and to write a new constitution
following the revolution that clearly delineated the powers of
the executive and the legislature.
James Madison, a key constitutional theorist at the Philadelphia
Convention, expressed the widely held sentiment of the framers
when he noted that if “men were angels” there would be no
need for government. History taught, however, that men were
not angels, and that any government administered by men over
other men needed to be constructed to control itself as well as
February 2015
Page 3
the governed. The framers sought to limit centralized power
by constructing a political structure that separated the powers
of the legislature, executive and judicial branches within a
federal system of national and state powers. As a consequence
the U.S. Constitution carefully vests legislative and judicial
power in Congress and the courts. The U.S. Constitution was
designed to prevent government by executive edicts as had
been seen in England. Subversion of this separation of powers,
and the evasion of constitutional principles through executive
agency regulations and administrative law, working outside
legislative approval, rapidly reverses “what took a thousand
years to achieve” (Hamburger, p. 412).
morality. Writing in 1901 for the Atlantic Monthly, Woodrow
Wilson, then a university professor, captured this reform
sentiment when he told his readers, “It is no longer possible
to mistake the reaction against democracy. The 19th century
was above all others a century of democracy; and yet the
world is no more convinced of the benefits of democracy as
a form of government at its end than it was at the beginning.”
Wilson believed that if popular democracy had failed, a new
breed of “scientifically” trained men and women could be
placed in government administration to provide expertise and
specialized knowledge to overcome the corruption of elected
representatives and an ignorant electorate.
Progressives Revitalized an Ancient Threat
Wilson was blunt in his recommendation when he declared,
“Representative government has its long life and excellent
development, not in order that the common opinion, the
opinion of the street, might prevail, but in order that the best
opinion, the opinion generated by the best possible methods
of general counsel, might rule in public affairs.” Of course,
what Wilson meant by “best opinion” were those who shared
his disdain for popular democracy; and what he meant by
“representative government” were unelected bureaucrats
who served the new administrative state.
T
he threat of absolutist government, therefore, has a long
and continuous history. Although the regulatory state
emerged with greater strength in the late 19th century
and grew in intensity and power in the 20th century, it would be
a mistake to see this comparatively recent growth as a revival of
a dead theory of absolutism. Instead, it represents a continuation of
absolutist principles, which have deep ideological roots in English
and Continental history. For centuries major writers in Europe
upheld the “divine right of kings” and administrative power as
superior to parliamentary and representative government.
Absolutist ideology was repackaged by progressive architects
of the administrative state in the late 19th century, who drew on
French and German anti-constitutional thought. In the closing
decades of the 19th century, American reformers in academia
and journalism relied on Continental and especially German anticonstitutional ideas to justify administrative power. Typical in this
regard was Frank Goodnow, a political science and law professor
at Columbia University, whose books on municipal reform and
administrative law influenced ageneration of reformers.
Progressive social scientists such as Woodrow Wilson later
downplayed the German influence on their call for an
administrative state, but American and European progressive
reformers sought a single goal: Empower an administrative
state run by bureaucratic expertise trained in the “new”
science of administration. While American progressives
adopted a softer version of the German administrative
state, the American version of government was no less anticonstitutional in its transfer of power from the legislature to
the executive branch.
Tocqueville’s Warning of Soft Despotism
After studying in Paris and Berlin, Goodnow articulated the
need for expertise in administrative bureaucracies to overcome
the excesses of popular democracy. Goodnow found in the
German ideal of administrative government and law the means
for overcoming what he saw as the corruption of popular
government. The influence of the German absolutist model
was expressed in popular magazine articles published at the
time such as “The Government of German Cities: The Municipal
Framework” and “What German Cities Do for Their Citizens:
A Study of Municipal Housekeeping,” which appeared in the
widely read Century Illustrated magazine in 1894.
P
Beginning in the late 19th century, reformers, many of them
trained at German universities, became convinced that
the nation was threatened by a dangerous mass electorate
consistently manipulated by machine politicians who showed
unscrupulous and flagrant disregard for any notion of public
Hamburger turns to Tocqueville’s warning to Americans in
his second volume of Democracy in America, published
before the Civil War, that the greatest threat to the American
experiment in liberty is the rise of an apathetic electorate that
defers to unelected bureaucrats. Tocqueville shared with his
roponents of the administrative state at the turn of the
20th century and today have argued that modern times,
technological and scientific advancement, the complexity
of government and the need for specialization necessitate
administrative law and bureaucratic power. Hamburger
challenges this rationale, showing that in the end, “The liberty
established by the Constitution is a liberty under law, not a
liberty under administrative fiat. It is a complete freedom to
do whatever is not forbidden by law, and any attempt to impose
extralegal constraints is unconstitutional” (p. 497).
Page 4
Page
Page 444
Dikötter rejects the blithe use of the term famine or
Dikötter
the
blithe
of
famine
or
even Great
Famine.
Heuse
believes
this idea
lends
readers
onerejects
major
anxiety
about
America’s
future:
Americans,
Dikötter
rejects
the
blithe
use
of the
the term
term
famine
or
even
Great
Famine.
He
believes
this
idea
lends
credence
to
the
widespread
view
that
these
deaths
even
Great
Famine.
He
believes
this
idea
lends
as a people, were so egalitarian in their outlook, individualistic
credence
to
the
widespread
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deaths
were
consequence
ofthese
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credence
tounintended
the
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these
deaths
in
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spirit
and widespread
materially
competitive
he worried
were
the
unintended
consequence
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and
poorly
executed
economic
programs.
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were the
thedecline
unintended
of half-baked
about
of what heconsequence
described asprograms.
“civil
spirit” in
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and
poorly
executed
economic
Mass
starvation
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China
until
and nation.
poorlyDemocracy
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programs.
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new
worked,
he
asserted,
only
if
citizens
starvation
had
virtually
of
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Forward.
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discovered
factuntil
that
starvation
had been
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inthe
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remained
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the
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Leap
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discovered
the
that
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mass
starvations
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the Great
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Forward.
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fact
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in
that
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became
too
absorbed
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personal
lives,
countryside
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even greater
Mao
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the
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too
materiallyofand
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food.yet
still
demanded
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countryside
extractions
of food.
food. in place of civic involvement, America
extractions
of
economic
advancement
Dikötter
estimated
thatguise
at of
least
45 million Chinese
would
be left
only with the
democracy.
Dikötter estimated
estimated
that
atsystematic
least 45
45 reign
millionof Chinese
Chinese
perished
during the that
GLF’sat
torture,
Dikötter
least
million
perished
during
the
GLF’s
systematic
reign
of
torture,
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this occurred,
he
predicted,
Americans
would
be
governed
As
this
new
brutality,
starvation
and
even
murder.
during the GLF’s systematic reign of torture,
As
this
new
brutality,
starvation
and
even
murder.
evidence
demonstrates,
coercion,
terror
and
by
a “soft despotism,”
tolerated
by
citizens absorbed
brutality,
starvation
and even
murder.
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new
evidence
demonstrates,
coercion,
terror
systematic
violence
were the
founding
blocks
of and
the
evidence “petty
demonstrates,
terrorIn
and
individual
pleasures”
andcoercion,
selfish interests.
this
systematic
violence
were
the
founding
blocks
of
the
Great
Leap
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This
devastating
period
in
systematic
violence
were
the
founding
blocks
of
corrosive
culture,
democraticThis
government
is subverted
bythe
an
Great
Leap
Forward.
devastating
period
in
Chinese
history
ranks
alongside
the
gulags
and
the
Great
Leap
Forward.
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devastating
period
in
administrative
bureaucratic
sovereign state.
Tocqueville
bears
Chinese
history
ranks
alongside
the
gulags
and
the
Holocaust
as
one
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the
three
worst
events
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and
the
Chinese
history
ranks
alongside
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quoting
in detail
on this
“Afterworst
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each individual
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in
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having
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Thanks
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extends
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society
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it
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its
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CCP, scholars
journalists
have compiled
ascertained
that
Thanks
to the and
meticulous
statistics
by
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CCP,
scholars
and
journalists
have
ascertained
that
of the
fatalities,
or
roughly
six to
eight
percentcomplicated,
with
a scholars
network
ofand
petty
regulation,
minute, that
and
CCP,
journalists
have
ascertained
of the
the
fatalities,
or
roughly six
six to
tothree
eight
percent
approximately
million
Chinese,
werefatalities,
tortured
to
roughly
eight
percent
of
or
uniform—through
which
even
the
most
original
minds and
approximately
three
million
Chinese,
were
tortured
to
death
or
summarily
executed
during
the
GLF.
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approximately
three
million
Chinese,
were
tortured
to
vigorous
souls
know notexecuted
how to make
their way
past
theUntold
crowd
death
or
summarily
during
the
GLF.
numbers
simply
a trace
they
death
or summarily
during
the because
GLF. Untold
and
into thevanished
lightexecuted
thewithout
day.”
numbers
simply
vanished
without
trace
because
they
wereemerge
too old,
weak
or ofsick
to
work.
Dikötter’s
Chinese
numbers
simply
vanished
without
aa trace
because
they
were
too
old,
weak
or
sick
to
work.
Dikötter’s
Chinese
treasure
is
justorthesick
the iceberg.
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of the
toofwork.
Dikötter’s
Chinese
were
too trove
old,
Americans
now weak
confront
a tip
“soft
despotism”
of bureaucratic
treasure
trove
is
just
the
tip
of
the
iceberg.
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of the
the
sensitive
information
still
remains
locked
up.
treasurethattrove
is just constitutional
the tip of the iceberg.
Most
power
subverts
government,
theofOnly
rule
sensitive
information
still
remains
locked
up.
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CCP
strips away
opaque
veneer
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sensitive
still the
remains
locked
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of
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andinformation
individual
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cannot
expect
the Only
U.S.
when
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CCP
strips
away
theWeopaque
opaque
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from
its
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will
the
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China’s
early
when
the
CCP
strips
away
the
veneer
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Supreme
Court
by
itself
to
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problem.
Only
an
aroused
history
of
democide
will
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true
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China’s
early
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visible
to the
early historyascendancy
of democidebecome
will theclearly
true story
of China’s
citizenry,
who ascendancy
demand that become
their duly clearly
elected visible
representatives
Communist
to
free
world.
Communist
ascendancy
become
clearly
visible
to the
the
free
world.
in
Congress
and
state
legislatures
fulfill
their
responsibility
to
free world.
~
~
uphold constitutional order, can maintain our nation’s unique
William A. Borst,
Ph.D. for
canfuture
be contacted
at [email protected].
experiment
in liberty
generations.
William
William A.
A. Borst,
Borst, Ph.D.
Ph.D. can
can be
be contacted
contacted at
at [email protected]
[email protected]..
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April 2013
April
February
2015
April 2013
2013
The
Most
Important
The
Most
Important
The
Most
Important
Person
on
Earth
is
aa Mother
Person
on
Earth
is
Person on Earth is a Mother
Mother
Cardinal Mindszenty’s respect for mothers was deep. Below is
Cardinal
Mindszenty’s
respect
for
deep.
Below
the Cardinal’s
quote, available
5 11/2” x 3”was
card
in color.
Cardinal
Mindszenty’s
respect on
foramothers
mothers
was
deep.
Below is
is
the
Cardinal’s
quote,
available
on
a
5
1/2” x 3” card in color.
the Cardinal’s quote, available on a 5 /2” x 3” card in color.
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dwellingthan
for any
an
cathedral–a
for
cathedral–a
dwelling
for an
an
immortal soul,dwelling
the tiny perfection
immortal
soul,
the
tiny
perfection
of
her baby’s
... The
angels
immortal
soul,body
the tiny
perfection
of
...
The
angels
have
been body
blessed
of her
hernotbaby’s
baby’s
body
... with
The such
angelsa
have
not
been
blessed
with
such
grace.
They
cannot
share
God’saa
have not
been
blessed
withinsuch
grace.
cannot
share
in
creative
miracle
bring
new
grace. They
They
cannotto
share
in God’s
God’s
creative
miracle
to
bring
saints to Heaven. Only a human
can.to Mothers
are
creativemother
miracle
bring new
new
can.
Mothers
are
saints
to
Heaven.
Only
a
human
mother
can. Mothers
are
closer
the Creator
than anymother
other creature;
God joins
saints to God
Heaven.
Only a human
closer
God
the
than
God
closer
to
Godmothers
the Creator
Creator
than any
any other
other
creature;
God joins
joins
forces to
with
in performing
thiscreature;
act of creation
...
forces
mothers
in
this
of
...
forces
with
mothers
in performing
performing
this act
actthan
of creation
creation
...
What onwith
God’s
good earth
is more glorious
this: to be
What
on
What
on God’s
God’s good
good earth
earth is
is more
more glorious
glorious than
than this:
this: to
to be
be
a mother?
aa mother?
mother?
– Joseph Cardinal Mindszenty
–
– Joseph
Joseph Cardinal
Cardinal Mindszenty
Mindszenty
Order a supply of colorful cards with the beautiful pro-life message.
of colorful
cards
with the
beautiful
pro-life
message.
Order
aa supply
supply
colorful
cards
beautiful
pro-life
Order
supply
of
colorful
cards
with
the
beautifuland
pro-life
message.
Insert with
your of
letters,
bills;
givewith
outthe
at church
meetings.
Insertwith
with your
your letters,
letters, bills;
bills; give
give out
out at
at church and meetings.
Insert
Insert
with yourpostage:
letters, bills; give out at church and meetings.
Cost includes
Cost includes postage:
20 cards
100 cards
$10.00
Cost includes
postage:$4.00
­­
$6.00
100 cards
$12.00
20
$4.00
$10.00
50 cards
$6.00
500 cards
$39.00
20
cards
$4.00
100
$10.00
cards $6.00
$8.00
500 cards
$42.00
50
cards
cards
$39.00
1,000 cards $75.00
50 cards
$6.00
500 cards
$39.00
1,000 cards $75.00
$80.00
$75.00in Spanish
The Mother1,000
cardcards
is available
TheatMother
card
is as
available
Spanish
the same
cost
Englishin
above.
TheatMother
card
is
available
Spanish
the same cost as Englishinabove.
at the same cost as English above.
Mindszenty Report Reprints
FERGUSON AND THE RULE OF LAW: RHETORIC OF RACIAL
DIVISION FOMENTS VIOLENCE. Irresponsible reporting of
deaths of men resisting arrest undermines policing and leads to
more crime.
Ask for 1/15
ENGINEERING BABIES: SURROGATE MOTHERHOOD
UNDERMINES THE NUCLEAR FAMILY. The growing practice of
renting poor women’s wombs violates Catholic doctrine of the family
and often deprives the child of a mother’s love.
Ask for 12/14
A GRISLY HARVEST IN CHINA. Documentation of continuing
arrests, torture and detention of ethnic minorities, persecution
of the peaceful Buddhist Falun Gong, and a macabre practice of
profiting from the harvesting and sale of human organs
from dissidents.
Ask for 11/14
­­1 copy
20 copies
50 copies
$.75
$10.00
$15.00
100 copies
500 copies
1000 copies
$25.00
$110.00
$210.00
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