I’ve been listening to the audio book “The Road to Serfdom” by F. A. Hayek. I guess I’m about halfway through. I’m shocked at how well he rebuts the statements made today about democratic socialism. It’s like no one has read his book.
But the thing that leapt out at me was his discussion of the rule of law. Here is how he starts it:
“Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law.”
I would sum up what he is saying is that the laws must be established by the right people in the right way and applied in the right way for them to follow the rule of law. He explains later that Adolf Hitler amassed power through legal means but he did NOT follow the rule of law. It’s an important distinction.
That’s why Jen Psaki’s press briefing from October 12th was particularly concerning to me. Regarding the vaccine mandate she said:
“Well, Josh, these requirements are promulgated by federal law. So, when the President announced his vaccine mandates for businesses — that, of course, we’re waiting on OSHA regulations, as far as a next step — that was pursuant to federal law and the implementation of federal law because it’s an executive order.”
And here we see the contradiction. It is “the implementation of federal law because it’s an executive order.” The legislative branch writes laws!!! Not the executive branch and not the President. Right?
Frankly, this is where I think our federal government has gone off the rails. I wish I could describe it more succinctly. The separation of powers is a brilliant strategy for government. It was in place already in many of the states, if not all, before our constitution was written. Instead of having a king to write decrees, enforce them and adjudicate afterword, the powers were dispersed to diminish corruption and authoritarianism and promote liberty.
In many ways we have abandoned the separation of powers. The legislative branch writes laws, but not really. They are often a framework that the executive branch uses to write the legal code that is actually enforced. It gives new meaning to Nancy Pelosi’s “We have to pass the bill so that you can find out what is in it”. And there is a process where the executive branch writes rules that become law. Congress has 60 days to review the rules before they become law, but they have only been denied by congress one time since 1996 according to federalregister.gov.
Similarly, the executive branch has taken on judicial duties as well. For example, the EPA has its own “independent” Office of Administrative Law Judges whose judges “conduct hearings and render decisions in proceedings between the EPA and persons, businesses, government entities, and other organizations that are, or are alleged to be, regulated under environmental laws.” So the EPA can write rules that become laws, enforce those laws and then adjudicate those laws administratively. This is not just a thing within the EPA. Pick an agency and search for it with the words “administrative adjudication” and see what you find. My understanding is that the federal courts often defer to the findings of these administrative law judges, so a great deal of judicial power has been given to the executive branch.
So, we see the legislative and judicial branches handing their authority and responsibility over to the executive branch. With the latest example of the CDC ignoring the Supreme Court’s ruling on the eviction moratorium, will we see the executive branch continue to go rogue? Time will tell.
My question to the group is, how do we fix this? Will the legislative and judicial branches take back their jurisdictions that have been either stolen by or given to the executive branch? Can we the people have a strong enough voice to make this happen? Is there a point of no return where the executive branch has amassed too much power, and will we recognize when that has happened?
Or am I not seeing this right? That’s always an option. I’m not a lawyer and I don’t play one on TV. It seems to me that Hayek is saying that the movement toward executive power is a movement away from the rule of law and leads to the loss of liberty. In my opinion we are living that reality today.
One reply on “Abandoning the Rule of Law”
Excellent post……and yes we are living in the reality predicted long ago by Hayek. I have a couple of his books, but managed perhaps half of Road to Serfdom – it’s tough plowing, and it’s a lot easier to get riled-up by a nightly dose of Tucker and throw Nerf bricks at the TV. I think I’ll have to spice-up my hour-long commute with some Hayek on audio.