Administrative Agencies – The Fourth Branch of Government

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Centralization of power is inherently dangerous to human liberty. Whether it be in a corporation or a government, the sheer concentration of manpower and wealth is often a precursor to tyranny (if not also democide as well). This is why the Framers drafted throughout their Constitution an insistence on the separation of powers between the legislative, executive, and judicial branches of government, so as to precisely avoid such a concentration of power within any specific branch of the federal government.

 

 

According to the Congressional Record of March 12, 1946, United States Senator Pat McCarran said in support of the Administrative Procedure Act:

 

“We have set up a fourth order in the tripartite plan of Government which was initiated by the founding fathers of our democracy. They set up the executive, the legislative, and the judicial branches; but since that time we have set up a fourth dimension, if I may so term it, which is now popularly known as administrative in nature. So we have the legislative, the executive, the judicial, and the administrative.”

 

I must have just missed that provision or clause in the United States Constitution which delegated an enumerated power to the Congress to unilaterally establish a fourth branch of government by way of legislation. Senator McCarran goes on to say:

 

“Perhaps there are reasons for that arrangement. We found that the legislative branch, although it might enact law, could not very well administer it. So the legislative branch enunciated the legal precepts and ordained that commissions or groups should be established by the executive branch with power to promulgate rules and regulations. These rules and regulations are the very things that impinge upon, curb, or permit a citizen who is touched by the law, as every citizen of this democracy is.”

 

Excuse me, but how does this act of Congress not violate the separation of powers? If it is true that a single branch of government can just arbitrarily establish an entirely new branch of government outside the chains of the Constitution, then we are left to conclude that the alleged fourth branch in question is indisputably unconstitutional, and therefore, any “rules and regulations” it attempts to impose on the citizenry are null and void; as such, these “regulations,” which appear to enjoy the color of law, are not worthy of being obeyed.

How did Americans find themselves in such a political pickle? To determine an answer to that question requires us to travel back over a century to the ratification of the 14th Amendment in 1868. Putting aside the issue of the authenticity of the amendment with regard to Article V, the legitimacy of the 14th remains suspect because, as part of the Reconstruction Amendments, it was coercively imposed upon the legislatures of the former Confederate states as a condition for re-admission into the Union, and thus was also a condition for ending the war. Despite this, it has also been argued that the phrase found under Section 1 of the amendment where it says “…and subject to the jurisdiction thereof…” implies a recognition of the two classes of American citizenship.

An often ignored consequence of the 14th Amendment is how it gave rise to the corporatocracy. Justice Harlan explained in the United States Supreme Court’s ruling opinion in Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886) how the 14th Amendment’s Equal Protection Clause encompassed the characteristics of corporations, such as the ability to contract and to sue and be sued, which slowly began to establish the legal concept of corporate personhood. As an anti-free market entity for plutocrats who cheated their way to wealth by privatizing gains while socializing losses, corporations, by virtue of their status as government-sanctioned unions for the rich, enjoy privileges and honors the rest of the citizenry does not, such as corporate subsidies, tax breaks, and no-bid contracts (keep in mind, too, that corporations, unlike men and women, cannot be incarcerated).

Another equally ignored result of the 14th Amendment is how the many state constitutions have been trampled upon by the imposition of the United States Constitution outside of its own limits. The doctrine of incorporation, based upon a combination of the Privileges and Immunities, Due Process, and Equal Protection clauses found in Section 1 of the 14th Amendment, violates the concept of federalism itself by extending the application of the federal Bill of Rights against the states, under the pretext of expanding civil liberties, as given by the Court is a series of decisions over the course of a century. Their justification behind this was that the bills or declarations of rights found under the various state constitutions were not as good protections of liberty as were the Bill of Rights. By overextending the applicability of the federal Bill of Rights, the (perhaps) unintended consequences of this eventually justified the intervention of the federal government into the spheres of activity that was the purview of the several state governments, thus laying the groundwork for the administrative agencies “regulating” almost every aspect of our own lives.

Unfortunately, this case law, based upon stare decisis, has been used as the mechanism to justify the encroachment of the 14th Amendment against the various state constitutions. Although there were court cases both before and after the ratification of the 14th Amendment that rejected the doctrine of incorporation by recognizing both classes of citizenship, the incremental trend has been in favor of the federal government’s supremacy. In Barron v. City of Baltimore, 32 U.S. 343 (1833), Chief Justice Marshall explained that the Framers had intended the Bill of Rights to be applicable against the federal government alone. In the Slaughter-House Cases, 83 U.S. 36 (1873), Justice Miller said:

 

“Was it the purpose of the fourteenth Amendment, by a simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government?”

 

In Twining v. State of New Jersey, 211 U.S. 78 (1908), Justice Moody said:

 

“The 14th Amendment, it is observed by Mr. Justice Miller, delivering the opinion of the court, removed the doubt whether there could be a citizenship of the United States independent of citizenship of the state, by recognizing or creating and defining the former. ‘It is quite clear, then’ he proceeds to say (p.74), ‘that there is a citizenship of the United States and a citizenship of a state, which are distinct from each other and which depend upon different characteristics or circumstances in the individual’….[m]uch might be said in favor of the view that the privilege was guaranteed against state impairment as a privilege and immunity of national citizenship, but, as has been shown, the decisions of this court have foreclosed that view.”

 

In Palko v. Connecticut, 302 U.S. 319 (1937), Justice Cardozo explained that selective incorporation over time upon the states of some of the amendments within the Bill of Rights is preferable since not all of its enumerated rights were fundamental rights, such as the protection against double jeopardy; however, this is now a moot point because, in Benton v. Maryland, 395 U.S. 784 (1969), Justice Marshall explained how the Fifth Amendment’s Double Jeopardy Clause does apply to the states because of the doctrine of incorporation, thereby overruling Palko.

Most shocking is the admission made in Dyett v. Turner, 20 Utah 2d 403; No. 11089 (1968), by Justice Elliet, who explained the position that the Utah government found itself in because of the 14th Amendment:

“While we deplore such a situation as is now foisted upon the states by various rulings of the United States Supreme Court and acts of Congress based upon such rulings, yet we want it understood that we do not think the particular Utah federal district judge is in any manner to blame. He acts under the direction of the Supreme Court of the United States and must faithfully carry out the law as he believes that court would have him to do.” [page 266]

 

Elliet’s comments back in the late ’60s show just how deteriorated the situation of the federal government centralizing power unto itself had become. The judge went on to say:

 

“We feel like galley slaves chained to our oars by a power from which we cannot free ourselves, but like slaves of old we think we must cry out when we see the boat heading into the maelstrom directly ahead of us; and by doing so, we hope the master of the craft will heed the call and avert the dangers which confront us all. But by raising our voices in protest we, like the galley slaves of old, expect to be lashed for doing so. We are confident that we will not be struck by 90 per cent of the people of this Nation who long for a return to the days when the Constitution was a document plain enough to be understood by all who read it, the meaning of which was set firmly like a jewel in the matrix of common sense and wise judicial decisions.” [page 268]

 

If Elliet had made those comments today, he would, more likely than not, be profiled as a “domestic extremist” by the Department of Homeland Security or one of its fusion centers. Needless to say, Elliet’s statements reminds me of that passage from the Declaration of Independence when it says, “He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”

Sadly, many within the patriot faction consider themselves as being constitutionalists, yet they grossly misunderstand their own political philosophy whenever they inadvertently appeal to the doctrine of incorporation. For instance, at the Come & Take It! San Antonio rally held last October, several of the speakers (including Mike Vanderboegh and Alex Jones) constantly referred to the infringement of “our Second Amendment rights.” This was rather inappropriate for them to say, because the rally was held in protest of when the San Antonio Police Department issued a citation against three men who openly carried their rifles outside a Starbucks. As Gary Hunt correctly pointed out, article 1 § 23 of the Texas Constitution does impose a limitation upon the wearing of arms by the Texas legislature, and since no entity of the federal government was involved (such as the BATFaggots), the only way for the Second Amendment to be applicable here is through the 14th Amendment because of the incorporation doctrine. It is because of the Texas Constitution, not the federal Constitution, that openly carrying handguns is illegal in Texas.

To contrast the idiocy of the Come & Take It! San Antonio rally, we can look at how the reformist organization Restore the Fourth! is actually not appealing to the 14th Amendment’s doctrine of incorporation. Their political advocacy is appropriate because it was the National Security Agency (which is an administrative agency, and is thus within the fourth branch of government, as Sen. McCarran described it) that engaged in mass indiscriminate surveillance and data-mining of the citizenry, which, in many respects, is just a carry-over from the warrantless spying conducted during Bush, Jr.’s reign of terror.

Briefly recapping the story thus far, not only did the 14th Amendment justify the future invasive powers of the Administrative Agencies beyond the limits imposed by the Constitution, but the judicial case precedent based on the 14th Amendment also gave rise to the corporatocracy that endeavors to destroy the free market concept envisioned by the Framers. Although it is often claimed by statists that the Administrative Agencies must “regulate” the multinational corporations in an attempt to reign in “corporate greed,” more and more “regulations” are needed to be enforced by the Administrative Agencies as time goes on. Much to the detriment of our liberties, most contemporary patriots inadvertently appeal to the doctrine of incorporation while simultaneously refusing to acknowledge the two classes of American citizenship!

So, what does the 14th Amendment have anything at all to do with the Administrative Agencies and the fourth branch of government? To answer that question, you must turn your attention to Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), where Justice Brandeis, in a concurring opinion, laid out what became known as the Ashwander doctrine, which could be summarized thusly:

 

  1. Constitutionality is a last resort.
  2. Constitutionality will not be anticipated.
  3. Narrow interpretation of constitutionality only.
  4. Constitutionality will be avoided if at all possible.
  5. Statutory validity cannot be challenged by the uninjured.
  6. Constitutionality of a statute will be avoided if an individual has benefited from it.
  7. Constitutionality of statutes will be avoided if statutory construction can resolve the dispute.

 

In other words, the United States Supreme Court, whose very duty it is to safeguard the Constitution from the ambitions of the other two (constitutionally enumerated) branches by evaluating the constitutionality of an enactment or a presidential decision [as Chief Justice Marshall explained in Marbury v. Madison, 4 U.S. 137 (1803)], explicitly stated back in the mid ’30s that they will do everything they can legally to get away with avoiding interpreting the constitutionality of the laws involved in the cases brought before them for adjudication.

If one was a lifeguard at a swimming pool, and he stated in the official lifeguarding manual that all current and future lifeguards could choose to do everything possible to delay rescuing a drowning swimmer, common sense by the swimmers would dictate that, at best, the lifeguard is lazy and derelict in his duty, or worse, that he is an inhuman monster; but when the U.S. Supreme Court does the exact same thing in principle via the Ashwander doctrine, it’s considered to be “the law of the land” because it has become enshrined in the common law. And, to top it all off, the swimmer would have no standing to challenge the law that lead to the indifference of the lifeguard in the first place.

Remember when Sen. McCarran said that the fourth branch of government was to “promulgate rules and regulations?” This is the basis for the “rulemaking” authority so often touted by statists who have a throbbing hard-on for the Administrative Agencies. It could be said that these agencies operate in a unconstitutional consolidation of governmental powers, since they can legislatively issue (or “promulgate”) regulations, executively enforce those regulations, and judicially adjudicate disputes regarding purported “violations” of those very same regulations! The Code of Federal Regulations are the “rules and regulations” for the Administrative Agencies, and subsequently, the fourth branch of government; the Federal Register not only publishes new regulations, but also proposes new rules.

Just who are the Administrative Agencies, anyway? One partial list of the over 1,500 agencies would include:

 

 

As you can no doubt tell, the sheer scope of what comes under the fourth branch of government is so broad as to render the limits imposed by the Constitution as being essentially moot. Taking into account their popularly referenced acronyms, it is also why I refer to the Administrative Agencies as the “alphabet soup boys.” In a more serious attempt, though, to try and define them, consider Gary Hunt’s answer:

 

“They’re created by statute, aren’t they? The Department of Motor Vehicles in your state, for example, is an administrative agency of the government of the state. State courts tend to follow the [United States] Supreme Court, and the Supreme Court often imposes on the state court. In 1936, the Supreme Court said ‘one who avails himself of a statute’…there were already administrative agencies, and they were addressed in the Ashwander decision, they’ve existed for awhile; but, in 1946, Congress adopted the Administrative Procedure Act, thereby laying the groundwork for extensive administrative agencies. I don’t know if they had driver’s licenses before then or not, or maybe certifications, or maybe nothing (you didn’t need anything to drive a horse, may not have needed anything to drive a car), but the states picked up on the idea and created the Department of Motor Vehicles, issuing licenses and thereby binding you to statute, rather than the constitutional right of the freedom of travel (the right to travel), which is assumed to be a right, though not enumerated, but existent among a free people. So, the administrative agencies have become the means of despotic government that Thomas Jefferson told us about in the Declaration of Independence. They are outside the [United States] Constitution, and you can’t even bring them back into the Constitution based upon what Brandeis told us in the Ashwander decision…that’s what administrative agencies are – they are the means of removing the Constitution from the relationship of us to most agencies of government.” [1hr 17min – 1hr 20min; Behind Enemy Lines – State Citizenship: “Benefits” of the Fourteenth Amendment podcast on February 26, 2014]

 

When asked whether American citizens are obliged to obey the rules and regulations of the Administrative Agencies, he replied he couldn’t answer that question because of the U.S. Supreme Court’s failure to even hear Larry Myers’ habeas corpus ad subjiciendum.

Since the Congress has created the Administrative Agencies, have any of the state governments also created their own fourth branch of government? Well, the Texas Administrative Code was established by the Texas legislature according the Texas Government Code (sound familiar?). This administrative code is the Texan equivalent to the Code of Federal Regulations; similarly, the Texas Register is the Texan equivalent to the Federal Register. As the Texas Secretary of State Nadita Berry said about the administrative code:

 

“The Texas Administrative Code (TAC) is a compilation of all state agency rules in Texas. There are 16 titles in the TAC. Each title represents a subject category and related agencies are assigned to the appropriate title.

“In 1977, the TAC was created by the Texas Legislature under the Administrative Code Act (Government Code, §§2002.051-2002.056). In the Administrative Code Act, the Legislature directed the Office of the Secretary of State to compile, index, and cause to be published the Texas Administrative Code.

“State agency rule writers, in cooperation with the Office of the Secretary of State, had begun the task of organization and systematic dissemination of state agency rules in 1975 with the passage of the Administrative Procedure and Texas Register Act (Government Code, §2001 and §2002).

“With the passage of the Administrative Code Act, the Legislature intended for the Secretary of State to contract with public entities to publish the TAC. However, as more innovative technology became available, demand for the TAC in electronic format increased. In response to this increased demand, HB 2304 was passed by the Texas Legislature in 1995. HB 2304 allows the Secretary of State to make the TAC available through our web site and to charge for value-added services available through the web site.”

 

Right there, the Texas Secretary of State clearly admits that in 1977, the Texas legislature created a fourth branch of government, thereby unilaterally breaching the separation of powers found throughout the Texas Constitution. Just as Sen. McCarran admitted to the betrayal of the United States Congress in 1946, Secretary Berry confessed that the usurpation of the republican form of government that Texans are supposed to enjoy, pursuant to the Texas Bill of Rights, was committed by their own legislature.

One example of a Texas Administrative Agency worthy mentioning briefly, with which many Texans have had the pleasure of suffering under, is the Texas Department of Family and Protective Services (DFPS). On DFPS’ webpage entitled, “Child Care Minimum Standards,” it says:

 

Chapter 42 of the Texas Human Resources Code requires the Texas Department of Family & Protective Services (DFPS) to regulate child care and child-placing activities in Texas, to investigate alleged abuse/neglect in child-care facilities, and to create and enforce minimum standards.

“Charged with this task, the Child Care Licensing division of DFPS develops rules for child-care in Texas. Once proposed, reviewed, and adopted, these rules become part of the Texas Administrative Code (Child Care Licensing Rules). Each set of Minimum Standards is based on a particular chapter of the Texas Administrative Code and the corresponding child-care operation permit type(s). The Minimum Standards are designed to mitigate risk for children in out-of-home care settings by outlining basic requirements to protect the health, safety, and well-being of children in care.”

 

Notice how the licensure of “child care” is considered to be administrative in nature by DFPS. I bring this up only to illustrate just how intrusive the capacity is for Administrative Agencies, whether they be state or federal, to be in your own personal life. It is partially because of this I consider “the personal to be political,” although not in the same sense as the feminist who originally coined that phrase.

At this juncture, you may be asking yourself, what difference does it make that the Administrative Agencies are tyrannical? Consider the successful incrementalization that took place over the course of a century, and how the result of it affects Americans today. As Gary Hunt concluded in An Essay on the Fourteenth Article in Amendment to the Constitution:

 

“With the ratification of the Fourteenth Amendment, the groundwork was laid to subvert the state’s rights, as well as those of the people, violating the intent of the Constitution and those who ratified it.”

“The first step was the destruction of the intent explained in Dred Scott, that the ‘citizens of the United States’ were a singular group of people who had defied British authority to remove rights that were secured by the British Constitution. These ‘people’ were diluted and the foundation necessary for a true nation, common heritage and culture, were subordinated to an all inclusive acceptance of foreign cultures to undermine the fundamental integrity of the nation.

“The next step was to subordinate the people of the various states to an expanding role of the federal judiciary by extension of the federal ‘bill of rights’ (each state already had their own bills of right), intended as protection from federal intrusion, to impose upon the states, and their people, the federal interpretation of what was right, or wrong.

“The step that completed the embracing of this new concept of government was the creation of administrative agencies, to make rules which are not ‘positive law’, though are presented to the people as ‘laws’ enacted by Congress (positive law), and apply to all people. The nexus of the relationship between the people and the administrative agencies is obscured in Court decisions, leading us to believe that the laws do apply to us, when, in fact, they do only if we acquiesce to that [constitutional] nexus, which we blindly accept because the government would prefer that we know no better.

“The final step in assurance of obedience to the federal government is accomplished by encouraging other institutions, whether local, state, or educational, to believe that our relationship to the federal government is absolute and unquestionable.

“Thus, through a series of incremental changes in the nature of government, we have found that the concept upon which this nation was founded, and was assured, by both sides, to be the intent of the federal union, we have become more subject to arbitrary rule than those brave colonists who threw off the yoke of arbitrary power, in favor of a government that was intended to be, truly, for the people, were every subject to, or could ever have conceived to be, the result of their efforts. They would, without a doubt, be appalled at what we have become — as should we.”

 

Americans should be appalled at how their republic has been very slowly transformed into the new British Empire and its concomitant warfarewelfare state, with the King’s socialized mercenaries on the one hand, and the court favorites chomping on the bits of the hanging chads from the King’s table on the other.

It would do you well to heed the advice of men who have suffered under the boot of authority. As Frédéric Bastiat said in The Law:

 

“Thus, there is not a grievance in the nation for which the Government does not voluntarily make itself responsible. Is it any wonder that every failure threatens to cause a revolution? And what is the remedy proposed? To extend indefinitely the dominion of the law, i.e., the responsibility of Government…it is not true that the mission of the law is to regulate our consciences, our ideas, our will, our education, our sentiments, our works, our exchanges, our gifts, our enjoyments. Its mission is to prevent the rights of one from interfering with those of another, in any one of these things…and now, after having vainly inflicted upon the social body so many systems, let them end where they ought to have begun – reject all systems, and try liberty – liberty, which is an act of faith in God and His work.”

 

In an 1819 letter to Issac Tiffany, Thomas Jefferson says:

 

“Rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law;’ because law is often but the tyrant’s will, and always so when it violates the right of an individual.”

 

As Henry Thoreau proclaimed in On the Duty of Civil Disobedience:

“All men recognize the right of revolution; that is, the right to refuse allegiance to, and to resist, the government, when its tyranny or its efficiency are great and unendurable…I think that it is not too soon for honest men to rebel and revolutionize.”

 

And finally, as Étienne de La Boétie put it in The Politics of Obedience:

 

“As for me, I truly believe I am right, since there is nothing so contrary to a generous and loving God as tyranny – I believe He has reserved, in a separate spot in Hell, some very special punishment for tyrants and their accomplices.”

 

To loosely quote a contemporary vlogger, if Americans actually believe in unalienable rights and individual liberty, then they must stop asking nicely for sociopathic parasites to let them be free. Saying “no” to the arbitrary commands of Administrative Agency bureaucrats would be a good place to start, albeit not without some risk; but, then again, which is the greater risk – the risk of incurring punishment now, while the evils are still somewhat bearable, or the risk of having your descendents suffer under the boot of authority that much more worse than you ever were? If no one takes a stand, no stand will ever be made, yet, it’s not just about taking a stand once, but taking a stand as a lifestyle. Consider this excerpt from Jefferson’s Declaration as a parting thought regarding our current situation with this fourth branch of government, which is composed of Administrative Agencies:

 

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.”

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7 Responses to Administrative Agencies – The Fourth Branch of Government

  1. Eric Shine says:

    Extremely Important Stuff…..
    Knowledge is the answer.
    The first step.
    Only the first step.

    The English fought this before and did so from under a Constitutional Monarchy.
    People like Coke and others who stood up to the Crown on matters of principle.

    I have recently come to respect our “English” brethren much more so and how they laid the foundation for what Jefferson and others carried a step further.

    People really need to re-think everything – asap.

    I have personally endured [somehow – but have not survived them as I have been decimated] these “Administrative” Article I [Legislative] courts that are run by the Article II [Executive Branch] and rubber – stamped by the Article III Judiciary.

    In fact – a Branch of Military [Coast Guard in DHS] is now adjudicating matters under the APA for people who are not in its service – involving licensing and more of American Civilians.

    These proceedings are an unholy if not clearly un-Godly and un-Constitutional marriage of all 3 Branches or forms of Government in and from under the [unitry] Executive Branch.

    A must read is Columbia Law Professor Phillip Hamburger’s new book “Is Administrative Law Unlawful” wherein it gives all of the foundational arguments stemming from England/ UK and the Crown[s] and what they pulled in the Prerogative Courts like the Star Chamber and High Commission. Our Founder’s opposed the Administrative State and the purpose of the Constitution’s of the Central Federal and the various State was toward this end.

    Please get and read and support this book as it is an excellent primer toward the issues.

    Peace.

    ENS

  2. Eric Shine says:

    “unitary” Executive

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