March 25, 2025
Dear Friends and Family,
Following publishing Segment 1, I learned that the Chevron Doctrine has been overturned. Here is the quote of what I found.
On June 28, 2024, the U.S. Supreme Court overturned the “Chevron deference” doctrine established in the 1984 case Chevron U.S.A. v Natural Resources Defense Council, in a 6 – 3 decision in Loper Bright Enterprises v Raimondo. This means courts are no longer required to defer to federal agencies’ interpretations of ambiguous statutes, instead, they must exercise their own independent judgment in interpretating laws.
As a result, we can conclude that one aspect of the administrative states’ power has been stripped away. However, as this segment will detail, it will likely have little impact unless Congress takes dramatic steps to detail their statutes with far more political rules and far less ambiguity. Without such a change the administrative state will likely continue to interpret the statutes, and the court will make an independent judgment. So, the court’s power increases and the administrative power decreases. In some cases, such interpretations may be better than the administrative state in others the courts may be worse, particularly on technical interpretations. In reality Congress has to make improvements in their work if meaningful change is to occur.
As the excerpts reveal real change will likely come only if a president can mobilize an ongoing political constituency that can begin to effectively oppose the entrench interests and their supporters in government and thereby put pressure on Congress.
Two presidents, as detail in the excerpts, have made such attempts: Reagan and Trump (first term) but did not make any significant headway.
Next: The excerpts for the next segment come from Associate Justice of the U.S. Supreme Court, Neil Gorsuch’s book Over Ruled. In the book he argues we are getting to the point of “Too Much Law.”
Happy Learning,
Harley
Dear Friends and Family,
Following publishing Segment 1, I learned that the Chevron Doctrine has been overturned. Here is the quote of what I found.
On June 28, 2024, the U.S. Supreme Court overturned the “Chevron deference” doctrine established in the 1984 case Chevron U.S.A. v Natural Resources Defense Council, in a 6 – 3 decision in Loper Bright Enterprises v Raimondo. This means courts are no longer required to defer to federal agencies’ interpretations of ambiguous statutes, instead, they must exercise their own independent judgment in interpretating laws.
As a result, we can conclude that one aspect of the administrative states’ power has been stripped away. However, as this segment will detail, it will likely have little impact unless Congress takes dramatic steps to detail their statutes with far more political rules and far less ambiguity. Without such a change the administrative state will likely continue to interpret the statutes, and the court will make an independent judgment. So, the court’s power increases and the administrative power decreases. In some cases, such interpretations may be better than the administrative state in others the courts may be worse, particularly on technical interpretations. In reality Congress has to make improvements in their work if meaningful change is to occur.
As the excerpts reveal real change will likely come only if a president can mobilize an ongoing political constituency that can begin to effectively oppose the entrench interests and their supporters in government and thereby put pressure on Congress.
Two presidents, as detail in the excerpts, have made such attempts: Reagan and Trump (first term) but did not make any significant headway.
Next: The excerpts for the next segment come from Associate Justice of the U.S. Supreme Court, Neil Gorsuch’s book Over Ruled. In the book he argues we are getting to the point of “Too Much Law.”
Happy Learning,
Harley
THE GOVERNMENT OF THE EXECUTIVE BRANCH – SEGMENT 2
UNMASKING THE ADMINISTRATIVE STATE -- EXCERPTS
INTRODUCTION: The twentieth-century Congress, followed by its most recent successors, has surrendered its powers to the executive branch and has been satisfied to pass hollow legislation that confers the real lawmaking to the unelected bureaucracy and judiciary.
Subsequently, Congress became, primarily, an administrative oversight body, which required greatly increasing its own technical staff. And it established itself as the keystone of the Washington establishment.
The bureaucracy has no constitutional authority, but it was given enormous power by the political branches. In the administrative state, the courts have been required to enter the policymaking process, as the final arbiters in the adjudication of cases arising in the administrative process. As a result, they have become fundamental players in the political and policymaking process.
Subverting Justice: The administrative state has undermined the capacity of our institutions to pursue public interest. Congress has delegated political authority to unaccountable knowledge elites in the bureaucracy who are shielded from the popular control that might be exercised through elections. It has forced the unelected branch of government, the courts, to enter the policy arena to determine the legality of administrative decisions made by agencies that have no constitutional authority.
In short, the administrative state reflects a concern with administrative detail rather than principle, rulemaking rather than lawmaking, and the attempt to placate every private interest rather than the obligation to pursue a common good. In these ways, it subverts the aspiration for the fundamental ideal of government, that which makes human community possible: the desire for justice. It seems that all modern bureaucratic governments are faced with the paradox of being less able to govern, the more completely they try to administer the social and economic detail of life in society.
The Administrative State in Practice: As for the interests of the two major parties, both agree that in some respects the power of the national government is unlimited. The Republicans deny any limitation on the power of government in terms of national security and foreign policy. The Democrats believe that government has unlimited power as regards domestic policy. Taken together, it becomes impossible to establish the ground of constitutionalism when there is no consensus between the parties on how to limit the power of government.
Congress: Reluctant Defender of the Administrative State: The electorate has no access to the centers of power in the administrative process, even when they are deeply unpopular. Congress, or the president, controls the administrative details of politics through the bureaucracy, and the judiciary reigns supreme in the realm of political principles. Insofar as Congress is still tempted to make general laws on behalf of the administrative state. For example, Congress passed what appeared to be a general law concerning health care reform, the Obama administration’s Patient Protection and Affordable Care Act. But it is clear that this is not a law in the constitutional sense. It makes sense only within the context of an administrative state. The health reform bill was more than 2,500 pages long. But it was not a general law; rather, it established the legal requirements necessary to provide the administrative apparatus with the legal authority to formulate the rules that would govern health care nationwide. Like the creation of the gigantic, bureaucratic Department of Homeland Security, or the Dodd-Frank legislation that regulates the banking industry, this was a congressional action on behalf of the expansion of administrative power. This kind of extension of legislative power is compatible with the government as part of the administrative state, but it cannot be understood within the letter, let alone the spirit, of constitutional government. The constitutional arrangement of power no longer establishes the political conditions out of which a common good can be articulated. The political institutions of the national government no longer understand their political power as subordinate to the Constitution; rather, the Constitution has been subordinated to the requirements of the administrative state.
As a result, the administrative process has become more important than the political, or formal, lawmaking process that has once been established in order to make the separation of powers work in practice. In addition, it has diminished the institutional power inherent in each of the respective political branches of government and has replaced political rule with bureaucratic patronage and interest-group privilege thereby undermining the rule of law. The actual practice of the political branches of the American government is driven increasingly by the ongoing necessity of accommodating the various interests and constituencies that have coalesced around the administrative state. The courts, too, have sanctioned that transformation by allowing Congress to delegate authority to administrative bodies through the use of vague and unfinished or incomplete mandates that cannot be characterized as legislation, and in no way resemble general law.
The Democratic Party has been far more effective in establishing political and legal control of the bureaucracy and has understood itself as the defender of the administrative state. It has supported bureaucracy expansion when in control of the legislative branch and defended or expanded its prerogatives when in control of the presidency. It was the primary force behind the bureaucracy’s establishment, and it has been perceived by the bureaucracy as its ongoing defender.
The bureaucracy has itself become a political faction on behalf of administrative rule. What then, can Congress do to change the administrative state? There is little incentive within the Washington establishment to change the way it does business. Any real change will likely come only if a president can mobilize an ongoing political constituency that can begin to effectively oppose the entrenched interests and their supporters in government. The administrative state has established tremendous power in Washington, but it has engendered considerable opposition in the country at large. That hostility to bureaucracy is often understood in terms of support or opposition to big government. Since Reagan, the Republican Party has been identified as the greatest threat to the expansion of the administrative state. The Democratic Party, on the other hand, has embraced the administrative state as the embodiment of the moral and political good. As a result, both the Democratic Party and the bureaucratic establishment are more likely to believe in the essential justice of the administrative state. Consequently, both are more likely to defend the use of administrative power against political opponents who appear to deny its legitimacy. Moreover, it has become clear that the neutrality of the bureaucracy, once thought to be the fundamental requirement of its legitimacy, and the condition of its acceptance by all partisans, is no longer understood to be the necessary ground of its bipartisan support.
In Sum: The administrative state, with the blessing of Congress, the presidency, and the Supreme Court, grew dramatically in the last third of the twentieth century, and it continues to expand in the twenty-first. Despite its expansion under both parties, it has not attained legitimacy within the American constitutional order. The Constitution itself remains the source of legitimacy for those in and out of government who are opposed to the administrative state. Until it becomes legitimized, or constitutionalism delegitimized, ongoing contentiousness between the political branches of government, within the parties, and in the electorate, concerning the desirability of expansion, limitation, or diminution of the size and scope of the federal government seems almost inevitable.
HOW THE ADMINISTRATIVE STATE HAS PLAYED OUT TO DATE
Reagan’s Attempt to Turn the Tide: Ronald Reagan addressed this problem of sovereignty at some length in his first inaugural, in which he observed famously: “In this present crisis, government is not the solution to our problem, government is the problem.” He was speaking specifically of the deep economic ills that plagued the nation at the time of his election. But he was also speaking about the growing power of a bureaucratic and intellectual elite. This elite, he argued, was undermining the capacity of the people to control what had become, in effect, an unelected government. Thus, it was undermining self-government itself.
In Reagan’s view it was the individual, not government, who was to be credited with producing the things of greatest value in America.
If we look to the answer as to why for so many years we achieved so much, prospered as no other people on Earth, it was because here in this land we unleashed the energy and individual genius of man to a greater extent than has even been done before. Freedom and the dignity of the individual have been more available and assured her than in any other place on Earth.
And it was the lack of trust in the people which posed the greatest danger to freedom.
We’ve been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. Well, if no one among us is capable of governing himself, then who among us has the capacity to govern someone else.
The Changing Character of the American Congress: As Seidman and Gilmour have suggested, the courts, too, have developed an important role in administrative decision making and execution. They have observed:
Perhaps the most important consequence of the growth of the regulatory state is the increasing involvement of the courts in administrative decision making and execution. Up to now public administration literature and theories have almost totally ignored the role of the judicial branch. This is no longer possible when substantially less than 10% of the federal budget is spent on domestic programs performed directly by federal employees and the lion’s share of federal programs are administered by independent third parties through grants, contracts, and transfer payments. Such arrangements not only invite litigation, but since disputes among parties in these relationships cannot be resolved authoritatively within the executive branch, they virtually command a litigation strategy by third parties and their supporting interest associations a vital means of dealing effectively with federal monitors, rule makers, and enforcers.
In this period of administrative centralization, Congress was unable to pass general laws that were sufficiently detailed to accomplish its purposes. This was particularly true when those purposes were so vague – such as a general desire to clean up the environment – that any specific measure could not get majority, let alone presidential, support. What Congress did was deliberately leave the law ‘unfinished,’ wait and see what bureaucratic discretion would do with the law, and then, if necessary, correct the bureaucracy.
The Crisis of Constitutional Government: As a legislative body, Congress was thought to be primarily concerned with making law. However, in recent years, it has done so with difficulty and reluctance. Moreover, Congress found it easy and useful to delegate authority to executive branch agencies or independent regulatory commissions. In a time when the power and presence of the federal government has become nearly all-pervasive, it is significant to note that “the total output of Congress in a typical session is usually no more than 400 pieces of legislation.” Moreover, not all such laws are general public laws; many are private or individual pieces of legislation. “By contrast, the total number of regulations each year is now in the neighborhood of 7000.” Rulemaking by executive branch agencies has surpassed legislative lawmaking in importance. In this new environment, members of Congress have found it convenient to emphasize the oversight function at the expense of lawmaking or general legislation.
Trump and the Future of the Administrative State: It is the technical requirements of the modern administrative state that have made it possible to politicize the elites in a manner that disguises their political role. When nearly every social, economic, scientific, religious, and political problem is decided in a bureaucratic or legal way – and always from a central authority; the professional elites are given a stake in the political world. Trump has apparently refused to acknowledge the authority of this policymaking establishment and in doing so has perplexed nearly all of the public intellectuals, both liberal and conservative. In refusing to allow the established vital center to mediate the political debate, he has gone directly to the people. And so doing, he has made it nearly impossible for the vital center to condone or even attempt to understand, let alone praise, his candidacy. They are united in their dependence upon intellectual authority, derived from empirical science and its methodology. Moreover, the latest progressive theories have established themselves as the closest thing to a public philosophy. And they are institutionalized, legitimized, and enforced by all the powers of the bureaucratic state.
The officeholders have alienated themselves from the political electorate. Under these circumstances, the Washington establishment itself became a political target. Only an outsider could have benefited from the hostility of the American electorate and their acute awareness that the federal government was no longer able to pursue, let alone establish, a political common good.
Trump may or may not succeed in transforming the landscape of American politics in a manner that makes it possible to reestablish political rule again. All of those who have a stake in preserving Washington as it now exists are his enemies. The public that is drawn to him is almost wholly unorganized. The ability of the established order to manipulate and control public opinion rests on the authority and respectability of the social, economic, and political elites, nearly all of whom oppose Trump. Trump has built his constituency in opposition to those elites who have denied his legitimacy as president. He has denied that the press and media, which establishes the medium that links the government to its people, fairly and accurately portrays the reality of Washington to those outside of it. He is the first president to vigorously contest the motives and the objectivity of the press, even in terms of presenting simple factual information without bias. He decries fake news and creates his own method of communicating with his constituency. His success thus far has revealed the need to restore the political rule of the people as a whole. This requires revitalizing the meaning of citizenship and reaffirming the sovereignty of the people and the political branches of the government, so that both can become the defenders of the Constitution as well as the country that has made it essential to its political existence.
If the people are to understand themselves as sovereign, they must reestablish the political authority of the Constitution in a manner that makes it possible to restore the moral ground of civil and religious liberty. A government that does not recognize the sovereignty of the people cannot defend the rights of individuals in a constitutional manner. A constitution is a compact of the people, and the government is created on its behalf. The people grant it power, but only the constitution can establish the limits on the power of the government. In the modern administrative state, the power of government is unlimited, and the rights of citizens, and the rule of law itself, rests on a precarious ground. For it the government alone creates and confers rights, the Constitution can no longer limit the power of government, nor can it protect the civil and religious liberty of its citizens. It is still possible to re-establish limits on government, but only by restoring the political conditions of constitutionalism.
Source: Unmasking the Administrative State by John Marini (2019).
The unabbreviated version of the above can be found in the pdf document below.
UNMASKING THE ADMINISTRATIVE STATE -- EXCERPTS
INTRODUCTION: The twentieth-century Congress, followed by its most recent successors, has surrendered its powers to the executive branch and has been satisfied to pass hollow legislation that confers the real lawmaking to the unelected bureaucracy and judiciary.
Subsequently, Congress became, primarily, an administrative oversight body, which required greatly increasing its own technical staff. And it established itself as the keystone of the Washington establishment.
The bureaucracy has no constitutional authority, but it was given enormous power by the political branches. In the administrative state, the courts have been required to enter the policymaking process, as the final arbiters in the adjudication of cases arising in the administrative process. As a result, they have become fundamental players in the political and policymaking process.
Subverting Justice: The administrative state has undermined the capacity of our institutions to pursue public interest. Congress has delegated political authority to unaccountable knowledge elites in the bureaucracy who are shielded from the popular control that might be exercised through elections. It has forced the unelected branch of government, the courts, to enter the policy arena to determine the legality of administrative decisions made by agencies that have no constitutional authority.
In short, the administrative state reflects a concern with administrative detail rather than principle, rulemaking rather than lawmaking, and the attempt to placate every private interest rather than the obligation to pursue a common good. In these ways, it subverts the aspiration for the fundamental ideal of government, that which makes human community possible: the desire for justice. It seems that all modern bureaucratic governments are faced with the paradox of being less able to govern, the more completely they try to administer the social and economic detail of life in society.
The Administrative State in Practice: As for the interests of the two major parties, both agree that in some respects the power of the national government is unlimited. The Republicans deny any limitation on the power of government in terms of national security and foreign policy. The Democrats believe that government has unlimited power as regards domestic policy. Taken together, it becomes impossible to establish the ground of constitutionalism when there is no consensus between the parties on how to limit the power of government.
Congress: Reluctant Defender of the Administrative State: The electorate has no access to the centers of power in the administrative process, even when they are deeply unpopular. Congress, or the president, controls the administrative details of politics through the bureaucracy, and the judiciary reigns supreme in the realm of political principles. Insofar as Congress is still tempted to make general laws on behalf of the administrative state. For example, Congress passed what appeared to be a general law concerning health care reform, the Obama administration’s Patient Protection and Affordable Care Act. But it is clear that this is not a law in the constitutional sense. It makes sense only within the context of an administrative state. The health reform bill was more than 2,500 pages long. But it was not a general law; rather, it established the legal requirements necessary to provide the administrative apparatus with the legal authority to formulate the rules that would govern health care nationwide. Like the creation of the gigantic, bureaucratic Department of Homeland Security, or the Dodd-Frank legislation that regulates the banking industry, this was a congressional action on behalf of the expansion of administrative power. This kind of extension of legislative power is compatible with the government as part of the administrative state, but it cannot be understood within the letter, let alone the spirit, of constitutional government. The constitutional arrangement of power no longer establishes the political conditions out of which a common good can be articulated. The political institutions of the national government no longer understand their political power as subordinate to the Constitution; rather, the Constitution has been subordinated to the requirements of the administrative state.
As a result, the administrative process has become more important than the political, or formal, lawmaking process that has once been established in order to make the separation of powers work in practice. In addition, it has diminished the institutional power inherent in each of the respective political branches of government and has replaced political rule with bureaucratic patronage and interest-group privilege thereby undermining the rule of law. The actual practice of the political branches of the American government is driven increasingly by the ongoing necessity of accommodating the various interests and constituencies that have coalesced around the administrative state. The courts, too, have sanctioned that transformation by allowing Congress to delegate authority to administrative bodies through the use of vague and unfinished or incomplete mandates that cannot be characterized as legislation, and in no way resemble general law.
The Democratic Party has been far more effective in establishing political and legal control of the bureaucracy and has understood itself as the defender of the administrative state. It has supported bureaucracy expansion when in control of the legislative branch and defended or expanded its prerogatives when in control of the presidency. It was the primary force behind the bureaucracy’s establishment, and it has been perceived by the bureaucracy as its ongoing defender.
The bureaucracy has itself become a political faction on behalf of administrative rule. What then, can Congress do to change the administrative state? There is little incentive within the Washington establishment to change the way it does business. Any real change will likely come only if a president can mobilize an ongoing political constituency that can begin to effectively oppose the entrenched interests and their supporters in government. The administrative state has established tremendous power in Washington, but it has engendered considerable opposition in the country at large. That hostility to bureaucracy is often understood in terms of support or opposition to big government. Since Reagan, the Republican Party has been identified as the greatest threat to the expansion of the administrative state. The Democratic Party, on the other hand, has embraced the administrative state as the embodiment of the moral and political good. As a result, both the Democratic Party and the bureaucratic establishment are more likely to believe in the essential justice of the administrative state. Consequently, both are more likely to defend the use of administrative power against political opponents who appear to deny its legitimacy. Moreover, it has become clear that the neutrality of the bureaucracy, once thought to be the fundamental requirement of its legitimacy, and the condition of its acceptance by all partisans, is no longer understood to be the necessary ground of its bipartisan support.
In Sum: The administrative state, with the blessing of Congress, the presidency, and the Supreme Court, grew dramatically in the last third of the twentieth century, and it continues to expand in the twenty-first. Despite its expansion under both parties, it has not attained legitimacy within the American constitutional order. The Constitution itself remains the source of legitimacy for those in and out of government who are opposed to the administrative state. Until it becomes legitimized, or constitutionalism delegitimized, ongoing contentiousness between the political branches of government, within the parties, and in the electorate, concerning the desirability of expansion, limitation, or diminution of the size and scope of the federal government seems almost inevitable.
HOW THE ADMINISTRATIVE STATE HAS PLAYED OUT TO DATE
Reagan’s Attempt to Turn the Tide: Ronald Reagan addressed this problem of sovereignty at some length in his first inaugural, in which he observed famously: “In this present crisis, government is not the solution to our problem, government is the problem.” He was speaking specifically of the deep economic ills that plagued the nation at the time of his election. But he was also speaking about the growing power of a bureaucratic and intellectual elite. This elite, he argued, was undermining the capacity of the people to control what had become, in effect, an unelected government. Thus, it was undermining self-government itself.
In Reagan’s view it was the individual, not government, who was to be credited with producing the things of greatest value in America.
If we look to the answer as to why for so many years we achieved so much, prospered as no other people on Earth, it was because here in this land we unleashed the energy and individual genius of man to a greater extent than has even been done before. Freedom and the dignity of the individual have been more available and assured her than in any other place on Earth.
And it was the lack of trust in the people which posed the greatest danger to freedom.
We’ve been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. Well, if no one among us is capable of governing himself, then who among us has the capacity to govern someone else.
The Changing Character of the American Congress: As Seidman and Gilmour have suggested, the courts, too, have developed an important role in administrative decision making and execution. They have observed:
Perhaps the most important consequence of the growth of the regulatory state is the increasing involvement of the courts in administrative decision making and execution. Up to now public administration literature and theories have almost totally ignored the role of the judicial branch. This is no longer possible when substantially less than 10% of the federal budget is spent on domestic programs performed directly by federal employees and the lion’s share of federal programs are administered by independent third parties through grants, contracts, and transfer payments. Such arrangements not only invite litigation, but since disputes among parties in these relationships cannot be resolved authoritatively within the executive branch, they virtually command a litigation strategy by third parties and their supporting interest associations a vital means of dealing effectively with federal monitors, rule makers, and enforcers.
In this period of administrative centralization, Congress was unable to pass general laws that were sufficiently detailed to accomplish its purposes. This was particularly true when those purposes were so vague – such as a general desire to clean up the environment – that any specific measure could not get majority, let alone presidential, support. What Congress did was deliberately leave the law ‘unfinished,’ wait and see what bureaucratic discretion would do with the law, and then, if necessary, correct the bureaucracy.
The Crisis of Constitutional Government: As a legislative body, Congress was thought to be primarily concerned with making law. However, in recent years, it has done so with difficulty and reluctance. Moreover, Congress found it easy and useful to delegate authority to executive branch agencies or independent regulatory commissions. In a time when the power and presence of the federal government has become nearly all-pervasive, it is significant to note that “the total output of Congress in a typical session is usually no more than 400 pieces of legislation.” Moreover, not all such laws are general public laws; many are private or individual pieces of legislation. “By contrast, the total number of regulations each year is now in the neighborhood of 7000.” Rulemaking by executive branch agencies has surpassed legislative lawmaking in importance. In this new environment, members of Congress have found it convenient to emphasize the oversight function at the expense of lawmaking or general legislation.
Trump and the Future of the Administrative State: It is the technical requirements of the modern administrative state that have made it possible to politicize the elites in a manner that disguises their political role. When nearly every social, economic, scientific, religious, and political problem is decided in a bureaucratic or legal way – and always from a central authority; the professional elites are given a stake in the political world. Trump has apparently refused to acknowledge the authority of this policymaking establishment and in doing so has perplexed nearly all of the public intellectuals, both liberal and conservative. In refusing to allow the established vital center to mediate the political debate, he has gone directly to the people. And so doing, he has made it nearly impossible for the vital center to condone or even attempt to understand, let alone praise, his candidacy. They are united in their dependence upon intellectual authority, derived from empirical science and its methodology. Moreover, the latest progressive theories have established themselves as the closest thing to a public philosophy. And they are institutionalized, legitimized, and enforced by all the powers of the bureaucratic state.
The officeholders have alienated themselves from the political electorate. Under these circumstances, the Washington establishment itself became a political target. Only an outsider could have benefited from the hostility of the American electorate and their acute awareness that the federal government was no longer able to pursue, let alone establish, a political common good.
Trump may or may not succeed in transforming the landscape of American politics in a manner that makes it possible to reestablish political rule again. All of those who have a stake in preserving Washington as it now exists are his enemies. The public that is drawn to him is almost wholly unorganized. The ability of the established order to manipulate and control public opinion rests on the authority and respectability of the social, economic, and political elites, nearly all of whom oppose Trump. Trump has built his constituency in opposition to those elites who have denied his legitimacy as president. He has denied that the press and media, which establishes the medium that links the government to its people, fairly and accurately portrays the reality of Washington to those outside of it. He is the first president to vigorously contest the motives and the objectivity of the press, even in terms of presenting simple factual information without bias. He decries fake news and creates his own method of communicating with his constituency. His success thus far has revealed the need to restore the political rule of the people as a whole. This requires revitalizing the meaning of citizenship and reaffirming the sovereignty of the people and the political branches of the government, so that both can become the defenders of the Constitution as well as the country that has made it essential to its political existence.
If the people are to understand themselves as sovereign, they must reestablish the political authority of the Constitution in a manner that makes it possible to restore the moral ground of civil and religious liberty. A government that does not recognize the sovereignty of the people cannot defend the rights of individuals in a constitutional manner. A constitution is a compact of the people, and the government is created on its behalf. The people grant it power, but only the constitution can establish the limits on the power of the government. In the modern administrative state, the power of government is unlimited, and the rights of citizens, and the rule of law itself, rests on a precarious ground. For it the government alone creates and confers rights, the Constitution can no longer limit the power of government, nor can it protect the civil and religious liberty of its citizens. It is still possible to re-establish limits on government, but only by restoring the political conditions of constitutionalism.
Source: Unmasking the Administrative State by John Marini (2019).
The unabbreviated version of the above can be found in the pdf document below.
| exec._2l_unmasking_the_administrative_state_--_segment_2.pdf |