Commentary: Big Tent Ideas

The Government Nobody Voted For

Flickr/Tony Webster

The Supreme Court has just done what the Constitution always demanded. In Trump v. Slaughter, the Court ruled that the President has full authority to remove commissioners at independent agencies with or without cause, and in doing so, overruled the 90-year-old precedent that made the administrative state possible.

A century of unaccountable bureaucratic power has met its constitutional reckoning. Woodrow Wilson’s project is finally coming apart.

The greatest threat to America has long been the administrative state and the politicians who exploit it. Every crisis becomes a justification to reduce individual liberty. Every emergency becomes a reason to seize more control over the economy. Every disagreement becomes an opportunity to pit Americans against each other and to silence those who dare question it. A government that operates this way has severed itself from the consent of the governed. It answers to no voter and has no right to govern.

Three things matter to Americans: security, individual liberty and the opportunity to pursue economic prosperity.

That is the whole bargain — the one the Founders grounded in natural rights. It thrives only when individuals feel secure and free to pursue their own ambitions, not suffocated by the government they empowered to protect them. Security enables liberty. Liberty enables opportunity. And the opportunity to prosper under this bargain is the American promise. The administrative state has been slowly destroying all of it.

Woodrow Wilson and the Progressives built the administrative state to do exactly that. They did not merely disagree with the Founders. They repudiated them. Wilson called the Constitution a “bygone device” to be discarded, and in 1911, he told an audience in Los Angeles to ignore the Declaration’s preface — the part where Jefferson established that government exists to secure individual rights. The Founders grounded those rights in nature, not government.

Wilson’s goal was not reform. It was replacement — the administrative state was a deliberate ideological project, not an accident of history.

None of this was possible without Congress’s help. Article I vests all legislative power in Congress — not agencies, not career staff. When Congress passes a vague statute and lets regulators write every meaningful detail, it has not delegated.

It has abdicated — and handed the pen to unelected, unaccountable bureaucrats who adopt rules that bind every American. I made that argument before Congress in February. The result has been a permanent class of federal employees who cannot be fired, who resist presidents they oppose, and who entrench themselves under those who expand government.

The culture of unaccountable bureaucracy has a price, and ordinary Americans pay it. Federal agencies win an overwhelming majority of cases before their own judges and very few once the same case reaches an independent court. Michelle Cochran spent seven years fighting an SEC-hired judge at her own expense before the agency surrendered. George Jarkesy spent fourteen years before the Court ruled he had a constitutional right to a jury trial. The government’s resources are limitless. Most Americans’ are not. That is not a flaw in the system. It is the system.

Here is what the Constitution has always required: three branches of government. Independent agencies exist outside all three. They exercise executive power but answer to no president. They adjudicate disputes but answer to no court. They write rules but answer to no legislature. They answer to themselves. There is no constitutional basis for that. There never was.

Loper Bright ended judicial deference to agencies interpreting their own authority. Corner Post ruled that the clock on challenging a bad regulation does not start until you are harmed by it. Jarkesy restored the right to a jury trial. And now Slaughter has restored the most fundamental principle of all: executive power belongs to the President — the one officer in the federal government chosen by the American people.

The Founders designed a republic where power flows from the people to their elected representatives. Wilson designed a government where it flows the other way — upward, to a permanent administrative class that answers to no one. As this country turns 250 next month, the Founders’ bargain has been restored, and Americans have the Supreme Court to thank for it.

Christopher A. Iacovella is the President & CEO of the American Securities Association

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.