Watching the ongoing clown show in Washington, Americans can be forgiven for asking themselves, “Why did we give this bunch of clowns so very much power over our nation and our lives?”
Well, don’t feel so bad, voters. Because you didn’t actually give them that much power. They just took it. That’s the thesis of Columbia Law Professor Philip Hamburger’s new book, The Administrative Threat, a short, punchy followup to his magisterial Is Administrative Law Unlawful? Both deal with the extraordinary — and illegitimate — power that administrative agencies have assumed in American life.
But today, the laws that actually affect people and businesses are seldom written by Congress; instead they are created by administrative agencies through a process of “informal rulemaking,” a process whose chief virtue is that it’s easy for the rulers to engage in, and hard for the ruled to observe or influence. Non-judicial administrative courts decide cases, and impose penalties, without a jury or an actual judge. And the protections in the Constitution and Bill of Rights (like the requirement for a judge-issued search warrant before a search) are often inapplicable.
If you received a public school education, your civics teacher probably taught you that laws are written by Congress and signed or vetoed by the president. That’s a gross simplification of the actual process. While laws must be written by Congress and signed by the president, rules can be made by any government agency. Those agencies aren’t headed by elected officials yet they have the power to create rules that directly impact your life.
Gun owners are intimately aware of this since the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has the power to make rules based on its interpretation of the law. What is an Any Other Weapon (AOW)? According to the ATF you can turn your regular pistol into an AOW by attaching a vertical foregrip to its front rail. Likewise, according to the ATF an arm brace on an AR-15 pistol isn’t a short-barreled rifle… unless you hold it incorrectly. While the National Firearms Act (NFA) created these categories of weapons the ATF was given the power to decide exactly what those categories entail.