When reading the United States Constitution, three main ideas stand out, beginning with the very first line of our governing document: Article 1, Section 1, states, “All Legislative Powers herein granted shall be vested in a Congress of the United States, consisting of a Senate and House of Representatives.”
The remainder of the book deliberately outlines the separation of powers between the three branches of government: legislative, executive, and judicial. In addition to Congress, it details the judicial powers of the presidency and the Supreme Court. The purpose of this separation was to comply with Montesquieu’s warning in The Spirit of the Laws: “There can be no liberty where the legislative and executive powers are united in the same person, or in the same body of judges; for the same prince or senate may make tyrannical laws and execute them in a tyrannical manner.”
Frankfurter was appointed to the Supreme Court by President Frankfurt in 1939. Frankfurter ensured that all of the court’s clerks shared the same philosophy of judicial activism.
To properly establish the separation of powers in the Constitution, James Madison pointed out: Federalist 45“The powers delegated to the Federal Government by the proposed Constitution are few and limited.”
Further guarantees of separation of powers include: Tenth Amendment“The powers not delegated to the United States by the Constitution, and not prohibited by it to the States, are reserved to the States respectively, or to the people.”
Another idea that dominates the work is the definition of the defence each citizen has against the arbitrary will of his government, which dates back to Magna Carta and requires that he must be tried before his peers.
These ideas have endured in our country for 150 years, thanks to the Supreme Court providing a bulwark of constitutional defense.
But there was a time in history when constitutional definitions became blurred: Nearly 90 years ago, two brilliant, like-minded men led the country. Franklin D. Roosevelt and his aide Felix Frankfurter They wanted to centralize government power in Washington, DC, into a single institution called the unnumbered administrative state.
Roosevelt introduced legislation to the Democratic-controlled Congress that sought to seize control of the American economy. But when the Supreme Court blocked his efforts, Roosevelt launched a relentless attack on the Supreme Court. He called the Court the “nine old men” in the “Mascot of Injustice” and threatened to increase the number of justices to 15. Under this pressure, the Supreme Court changed course, moving away from its original role as the defender of the Constitution and instead becoming an active wing of the left focused on changing how America is governed.
The first significant example of this change was NRLB v. Jones & Laughlin Steele In 1937, this decision became known as the “Swift Turnaround that Saved the Nine.” The decision opened the door to expanding the powers of the executive branch.
Frankfurter appointed him to the Supreme Court in 1939. In preparation for his high judicial office, Frankfurter ensured that all of the court’s clerks came from the same school and shared the same philosophy of an active judiciary dedicated to administrative governance under the executive branch. From that time on, the court ruled in favor of the myriad powers of the administrative state for several decades.
The problem with agency power is that agencies have the power to legislate, enforce the laws they make, and bring to justice those who violate their rules — a consolidation of three powers that the Constitution clearly lays out to be separate.
One might argue that the administrative state has less power than Congress, but consider this: In 2023, Congress passed 27 laws based on the Constitution. Meanwhile, the Federal Register ended the year with 90,402 pages of regulations that have the force of law. These regulations were written by unelected bureaucrats who not only make the rules, but also enforce them and determine the penalties for violations.
Consider the case of Andy Johnson, a Wyoming rancher. He dug a pond on his land to water his chickens. The EPA determined that he had violated one of the rules of an expansion of the Clean Water Act. The EPA decided to fine Johnson $37,500 for each day the pond existed, plus an additional $37,500 for each day he did not comply. This is classic tyranny.
The good news is that the Supreme Court has once again begun to uphold the Constitution in two recent decisions. Roper Bright vs. RaimondoThe Supreme Court overturned the 1984 ruling. Chevron v. Natural Resources Defense Councilopening agency rules to judicial review. SEC vs. JahkesyThe Court ruled that hedge fund founder and investment adviser George Jarkiesy was entitled to a civil trial by jury rather than a trial before an SEC court to convict him. These decisions represent a return to the idea of separation of powers and a limit on the unquantified power of the administrative state.
moreover, Trump vs AmericaThe court ruled that the president enjoys immunity from prosecution while in office, meaning that once a second Trump administration takes office and acts to update the original constitutional principles and design of the enumerated and separated powers that prevent the tyranny of left-wing institutions, those institutions will no longer be able to attack Trump as they did during the days of his first administration, when he was fighting for America.
Little by little, we are taking back our Constitution.
