When government agencies have the power to write, enforce and interpret the law, private citizens are disadvantaged and the government always wins, said Anthony Francois, senior staff attorney, environmental and property rights law for Pacific Legal Foundation.
In a workshop at the American Farm Bureau Federation’s 2017 Annual Convention & IDEAg Trade Show, Francois discussed forces that are making government so different from what it was intended to be, and what can be done to return it to its original design.
“The purpose of the government’s founding documents was generally to protect freedom,” Francois said, “and yet a lot of people don’t get that customer service experience.”
Constitutional law, separation of powers, limited powers and due process, which Francois calls the “elements of freedom,” are the main areas where government has lost sight of the design.
“For the government to follow the law, it can’t be its own judge in that,” Francois said. “And it can’t simply re-write the law in order to say it followed it.”
Francois explained how the “four Ds” – division, delegation, deference and due process – have created an “administrative state” in which agencies have in many ways become the government. And in some cases, one junior staffer within an agency can overrule a judge in a legal proceeding.
Division, or the separation of powers in the Constitution, assures that no one branch of government has absolute power. When division is ceded, agencies become the “bully on the playground” who always wins, Francois said. Delegation, in which Congress surrenders lawmaking power to agencies, concentrates power in those agencies. Deference, in which courts accept agencies’ interpretations of the law, means that by rule agencies always win. Finally, when citizens are deprived of due process, they have no access to government information or decisions, no ability to make their own case, and the government ceases to be a neutral decision-maker by eliminating the burden of proof on federal agencies.
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