As the administrative state implements more regulations on Americans, a team of legal veterans has come together to fight the expansion of unelected government agency power.
Sometimes, they even win.
The New Civil Liberties Alliance (NCLA), which consists of a team of 27 lawyers and support staff, including former judges, had four of the cases they litigated go before the Supreme Court in 2023. One case was decided in their favor, the remaining three are pending.
Founded by Columbia Law professor Philip Hamburger six years ago, the NCLA targets cases where they believe federal agencies have blatantly overstepped their authority or violated civil liberties..
“Normally, administrative power is understood as a separation of powers question, but it’s also a civil liberties problem because it dilutes our voting rights,” Mr. Hamburger told The Epoch Times. “We all get to vote, but the ability to make legislation is no longer in the hands of the people we elect.”
The U.S. Constitution vests Congress with law-making authority. However, government agencies are not only making laws today, he said, they also enforce those laws, then act as judge and jury over alleged violations. Taking a historical view on this issue, Mr. Hamburger argues that such administrative “absolutism” is not a new phenomenon, but merely a modern expression of absolute power once wielded by medieval kings.
The group’s clients include Drs. Jay Bhattacharya, Martin Kulldorff, and Aaron Kheriaty, and Ms. Jill Hines, plaintiffs in the case of Murthy v. Missouri, which is currently before the Supreme Court. This case involves alleged violations of the doctors’ First Amendment rights by the White House, the Centers for Disease Control and Prevention (CDC), the FBI, the Cybersecurity and Infrastructure Security Agency, and the Surgeon General.
“It deprives us of the right to a jury; it deprives us of ordinary burdens of proof; it deprives us of having an unbiased judge,” he said. “We have ALJs and commissioners instead.”
ALJ’s are “executive judges for official and unofficial hearings of administrative disputes in the federal government,” according to a Cornell Law School definition.
“Administrative law judges are considered part of the executive branch, not the judicial branch, and ALJs are appointed by the heads of the executive agencies.”
In this way, Mr. Hamburger said, the administrative state has not only accumulated powers explicitly vested in other branches of government; it has consolidated within itself the power of all three branches.
Supreme Court Taking Notice
The NCLA’s actions have been resonating in America’s court system, particularly the Supreme Court.
“In 2018, we started filing briefs at the Supreme Court and almost immediately we were having an effect on the discussions of administrative power,” Peggy Little, senior counsel at the NCLA, told The Epoch Times.
In one case, SEC v. Cochran, which Ms. Little led, appellate courts took the side of the SEC. This case challenged the lifetime tenure of ALJs, who act as judges for federal agencies.
“We battled that for five years, and we had six circuit courts of appeals against us,” she said. “We got to the Supreme Court and we won unanimously.”
Ms. Little said she is optimistic that the tide of expanding agency power can be turned back.
“I think we are in a very important time for rethinking how our government should operate,” Ms. Little said, “and restoring the separation of powers and guardrails on agency power, that limit it to what Congress has actually empowered the agency to do, not what the agency itself thinks would be a good idea.”
Mr. Hamburger said the NCLA has several advantages when arguing their cases.
“We have the truth on our side, and I think the justices understand that,” he said. “Second, we take the Constitution seriously, while many agencies view it as a minor impediment to what they want to do in regulation.”
In addition, “the administrative state has changed,” he said..
“It isn’t like the 1930s where it was just an addition to the law; it is now the primary mode of controlling us,” he said. “It may eventually unravel our republic.”
The End of ‘Chevron Deference’?
One of the pivotal court decisions behind the expansion of the administrative state was the 1984 ruling in Chevron v. Natural Resources Defense Council.
The Supreme Court decision in that case gave broad discretion to federal agencies to interpret for themselves how much authority Congress had given them. This led to a concept known as “Chevron deference,” where courts tended to defer to agencies regarding the scope of their power.
There appeared to be a reversal of this doctrine with the 2022 Supreme Court Decision in West Virginia v. EPA, in which the court ruled that “the Government must point to ‘clear congressional authorization’ to regulate.” This case involved the Environmental Protection Agency’s (EPA) attempt to regulate CO2 emissions by power generators, effectively compelling them to shift from coal and gas to so-called renewables, like wind and solar energy.
But while this ruling may have slowed the expansion of the administrative state, it has by no means halted it. On April 25, the EPA set down a new regime for CO2 emissions, mandating that new gas and existing coal plants cut their greenhouse gas emissions by 90 percent by 2032.
While many U.S. presidents have pushed for greater powers for the executive branch, the Biden administration has been particularly aggressive. This includes a 2021 edict from the Occupational Safety and Health Administration (OSHA) requiring employees of large companies to take the COVID-19 vaccine; a Securities and Exchange Commission (SEC) mandate requiring all listed companies to submit audited reports on greenhouse gas emissions; EPA mandates designed to phase out coal plants and gas-fired cars and trucks; new restrictions on consumer appliances from the Department of Energy; and several executive orders to transfer student loan debt to taxpayers.
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