If I write a third edition of The Supreme Court Opinions of ClarenceThomas: 1991 — 2011 his concurring opinion discussed in Mark J.
Fitzgibbons’ splendid essay will surely be included.
American
Thinker
March 20, 2015
A little-noted masterpiece of constitutional
scholarship by Justice Thomas
Everything you really need to
know about the Constitution (and that’s barely an exaggeration) -- why it is
structured the way it is, what led to it, its purposes -- is found in pages 2 –
12 of the March 9 concurring opinion by Justice Thomas in the Dept of Transportation v Assn of American
Railroads case. Although it received
little media attention, Justice Thomas has provided us a masterpiece of
constitutional thinking, explaining why “administrative law” -- the practice of
delegating to bureaucrats the making and enforcement of rules with the force of
law – is so profoundly unconstitutional.
You could spend years reading
history books, the Federalist Papers, and case law, but you won’t find a better
explanation of the essence of our Constitution. If you understand what’s
in these few pages, you understand why we have the Constitution, why it is
structured the way it is, and why it is essential to the American experiment.
Pay attention to his words and the
words of others he cites -- arbitrary, unilateral, etc. Justice Thomas
describes the dangers that the Constitution was written to prohibit, and he
traces the roots of those dangers to abuses of the English “rule of law” on
which the Constitution was based, but perfected in America to address those
abuses. The Constitution corrected several flaws of the English system
including limiting the authority of the legislative branch by placing the
Constitution – this written law of the land – over all three branches of
government.
As to our system of administrative
law, we may often wonder how unelected bureaucrats got all sorts power to
regulate us. Citing not only James Madison, John Locke, Sir William
Blackstone and Montesquieu, but also modern legal scholar Professor Philip
Hamburger and his brilliant book, Is Administrative Law Unlawful?,
Justice Thomas shows America is back to the problems that the Constitution was
written to prohibit by writing a mini-treatise on the Constitution itself.
His explanation of the Constitution
provides a guide to how today’s administrative agencies are so out of whack
with the separation of powers. Concurring opinions rarely get much
attention. This one by Justice Thomas, however, was so effective that it
drew a snarky article in Bloomberg by President Obama’s former regulatory affairs guru,
Professor Cass Sunstein, stating that Justice Thomas is “eccentric,” and
claiming that Justice Thomas “usually interprets the Constitution in a way that
fits well with his admirers political convictions.”
That’s bitter rubbish, of course,
since the constitutional scholarship and fidelity that Justice Thomas has
always exhibited is in no better form than this March 9 concurring opinion,
which exploits the dangers of the radical, lawless, and unconstitutional
practices that Professor Sunstein and President Obama have used to advance
their ideological agendas.
Read the whole thing, but here are
some highlights, with most case and other references elided.
When the Government is called upon
to perform a function that requires an exercise of legislative, executive, or
judicial power, only the vested recipient of that power can perform it.
(snip)
For example, Congress improperly
“delegates” legislative power when it authorizes an entity other than itself to make a determination
that requires an exercise of legislative power. (snip)
An examination of the history of
those powers reveals how far our modern separation-of-powers jurisprudence has
departed from the original meaning of the Constitution. (snip)
The function at issue here is the
formulation of generally applicable rules of private conduct. Under the
original understanding of the Constitution, that function requires the exercise
of legislative power. By corollary, the discretion inherent in executive power
does not comprehend the discretion to formulate generally applicable rules of
private conduct. (snip)
The idea has ancient roots in the
concept of the “rule of law,” which has been understood since Greek and Roman
times to mean that a ruler must be subject to the law in exercising his power
and may not govern by will alone. (snip)
…it became increasingly apparent
over time that the rule of law demanded that the operations of “making” law and
of “putting it into effect” be kept separate…. But when the King’s power was at
its height, it was still accepted that his “principal duty . . . [was], to
govern his people according to law.” (snip)
…it was generally thought that the
King could not use his proclamation power to alter the rights and duties of his
subjects…. but he could not of his own accord “make a law or impose a charge.”
(snip)
King James I made a famous
attempt…prompting the influential jurist Chief Justice Edward Coke to write
that the King could not “change any part of the common law, nor create any
offence by his proclamation, which was not an offence before, without Parliament….”
Coke associated this principle with Chapter 39 of the Magna Carta, which he understood
to guarantee that no subject would be deprived of a private right—that is, a
right of life, liberty, or property—except in accordance with “the law of the
land,” which consisted only of statutory and common law….. When the King
attempted to fashion rules of private conduct unilaterally, as he did in the Case
of Proclamations, the resulting enforcement action could not be said to accord with “the law of the land.” (snip)
It followed that this freedom
required that the power to make the standing rules and the power to enforce them not lie in the same hands.
(snip)
William Blackstone…. defined a
tyrannical government as one in which “the right both of making and of enforcing
the laws, is vested in one and the same man, or one and the same body of men,”
for “wherever these two powers are united together, there can be no public
liberty.” … Thus, although Blackstone viewed Parliament as sovereign and
capable of changing the constitution, … he thought a delegation of lawmaking
power to be “disgrace[ful]” …. (snip)
… in The Federalist 47, Madison
wrote that “[n]o political truth is certainly of greater intrinsic value, or is
stamped with the authority of more enlightened patrons of liberty than” the
separation of powers…. “The accumulation of all powers, legislative, executive,
and judiciary, in the same hands, . . . may justly be pronounced the very
definition of tyranny.” …
This devotion to the separation of
powers is, in part, what supports our enduring conviction that the Vesting Clauses are exclusive and that the
branch in which a power is vested may not give it up or otherwise reallocate
it. The Framers were concerned not just with the starting allocation, but with
the “gradual concentration of the several powers in the same department.” The
Federalist No. 51, at 321 (J. Madison). It was this fear that prompted the
Framers to build checks and balances into our constitutional structure, so that the branches
could defend their powers on an ongoing basis….
In this sense, the founding
generation did not subscribe to Blackstone’s view of parliamentary supremacy.
Parliament’s violations of the law of the land had been a significant complaint of the American Revolution…. even the legislature must be made subject to the law. (snip)
At the center of the Framers’
dedication to the separation of powers was individual liberty…. This was not
liberty in the sense of freedom from all constraint, but liberty as described
by Lo>[in a footnote to this point] I do not mean to suggest here that the
Framers believed an Act of the Legislature was sufficient to
deprive a person of private rights; only that it was necessary. See generally
Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L. J.
1672, 1715, 1721–1726 (2012) (discussing historical
evidence that the Framers believed the Due Process Clause limited Congress’
power to provide by law for the deprivation of private rights without judicial
process). (snip)
The “check” the judiciary provides
to maintain our separation of powers is enforcement of the rule of law through
judicial review. (snip)
We have been willing to check the
improper allocation of executive power, see, e.g., Free Enterprise Fund,…
although probably not as often as we should…. Our record with regard to
legislative power has been far worse. (snip)
Implicitly recognizing that the
power to fashion legally binding rules is legislative, we have nevertheless
classified rulemaking as executive (or judicial) power when the authorizing
statute sets out “an intelligible principle” to guide the rulemaker’s
discretion…. Although the Court may never have intended the boundless standard
the “intelligible principle” test has become, it is evident that it does not
adequately reinforce the Constitution’s allocation of legislative power. I
would return to the original understanding of the federal legislative power and
require that the Federal Government create generally applicable rules of
private conduct only through the constitutionally prescribed legislative
process.
His conclusion from page 27 is
vintage Justice Thomas -- plainly written, and just plain brilliant.
We have overseen and sanctioned the
growth of an administrative system that concentrates the power to make laws and
the power to enforce them in the hands of a vast and unaccountable
administrative apparatus that finds no comfortable home in our constitutional
structure. The end result may be trains that run on time (although I doubt it),
but the cost is to our Constitution and the individual liberty it protects.
