Op-ed views and opinions expressed are solely those of the author.

When one reads the Constitution, one is impressed with the dominance of three ideas, beginning with the first line of our governing document: Article I, Section 1: Congress: “All legislative powers herein granted shall be invested in a Congress of the United States, Which shall consist of a Senate and House of Representatives.” 

The remainder of the document goes on very deliberately to design a separation of power between three branches of government, which in addition to the legislative, detailed the executive office of the presidency and the judicial power of a Supreme Court. The purpose of separating these powers was to act on Montesquieu’s warning in his “The Spirit of the Laws:” “When the legislative and executive powers are united in the same person, or in the same body of magistrates there can be no liberty…lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” To create a separation of powers in our Constitution, one of its principle authors, James Madison noted in Federalist 45: “The powers delegated by the proposed Constitution to the Federal Government are few and defined.” 

A further guarantee of the separation of powers was written into the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  

The other idea that dominates the work is the definition of defenses each citizen has from the arbitrary will of the government, it goes back to the Magna Carta, that there must be a trial before one’s peers.

These ideas held in our country for 150 years, owing to the bulwark of constitutional defenses afforded by our Supreme Court. 

Yet, there came a time in our history when constitutional definitions became undefined. About 90 years ago, two remarkable men led our country who were of one mind: Franklin D Roosevelt and his close advisor, Felix Frankfurter, wanted to concentrate government power into one capital Washington D.C., and into one place – the unenumerated power of the Administrative State. 

Roosevelt sent legislation to a Democrat-dominated Congress with the aim of taking over control of the American economy but was stopped by a Supreme Court which Roosevelt then relentlessly attacked: threatening to expand the number of justices to 15. Roosevelt called the court the “nine old men” in the “Mausoleum of injustice,” until the court changed its stance from being, as it was designed, the defender of the Constitution, into being an active branch of a left flank, dedicated to changing how America is governed. The first deciding case was NRLB v. Jones & Laughlin Steel in 1937, which was hailed as “the switch in time that saved the nine,” and opened the floodgates to Administrative Agency power. 

Felix Frankfurter became a justice himself and did more… he ensured that everyone who clerked at the court, in preparation for high judicial office, came from the same schools and shared the same philosophy of an activist judiciary dedicated to administrative governance under one branch of government, the Executive. From that point in time, the court decided in favor of the unenumerated power of the Administrative State for decades.

The problem with Agency authority is they have been given the power to legislate, to execute laws they create, and to judge persons who violate their rules, combining the three powers our Constitution explicitly designed should never be combined.

One might object that the Administrative State has little power compared to the Congress, right? In 2023, the Congress passed 27 laws on a constitutional basis, while the federal registry ended the calendar year having amassed 90,402 pages of rules, that have the effect of laws. Rules written by persons that no one ever elected, and they are the same people who enforce their rules and the same people who determine what penalties are paid by whom.

Case in point, Andy Johnson is a rancher in Wyoming, who decided to create a pond to provide water for his chickens. The EPA decided he had violated one of their rules which derived from their expansion of the Clean Water Act. The EPA decided to fine Johnson $37,500 per day that his pond remained in existence, and another $37,500 per day for defying their orders. This is textbook tyranny.

The good news is the Supreme Court has begun to defend the Constitution again with two recent rulings. In Loeper Bright Ent.v. Sec. of Commerce, Raimondo the court struck down the Chevron ruling, opening agency rules to judicial review. While in SEC v. Jaresky, the Supreme Court determined that Jaresky had a right to a civil trial by jury, rather than a hearing before an SEC tribunal dedicated to finding him guilty. These rulings signify a return to the idea of a separation of powers and a limit to the unenumerated power of the Administrative State.

Further, in Trump v. U.S. the court ruled that a president has immunity in the course of his official duties. This means that if a 2nd Trump administration takes office and acts to renew the principles of our original Constitution and its design of enumerated and separated powers which prevent leftist agency tyranny, these same agencies will not be able to attack him as they did during every single day of his first administration, while he fought for America.

Richard C. Lyons, author of The DNA of Democracy: Volume I and Shadows of the Acropolis: Volume II is a third-generation printer, whose early career centered on religious and special education publishing. Lyons has since engaged in literary pursuits as a poet, essayist, screenwriter, and indie publisher.

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Richard Lyons

Richard C. Lyons, author of The DNA of Democracy: Volume I and Shadows of the Acropolis: Volume II is a third generation printer, whose early career centered on religious and special education publishing. Lyons has since engaged in literary pursuits as a poet, essayist, screenwriter and indie publisher.

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