It's Time to Bring Back Remedies for Bureaucratic Abuse

Article excerpt

Noted constitutional law professor Jonathan Turley recently testified before the House Judiciary Committee, saying, "we are in the midst of a constitutional crisis with sweeping implications for our system of government."

That sounds almost like what Tea Party icon and constitutional expert Sen. Mike Lee, R-Utah, would say. Turley, however, voted for President Obama.

The massive shift in authority to the executive branch did not begin with Obama's abuse of the separation of powers, but "has accelerated at an alarming rate," explained Turley.

He also noted how "a fourth branch has emerged in our tripartite system that is highly insulated and independent from Congress."

Turley was referring to government administrative agencies often known by their alphabet-soup acronyms like the IRS, EPA, NSA and so on.

Lee, Turley's political opposite, has described administrative agencies as acting with "bureaucratic despotism."

Government bureaucracies have been given enforcement powers combined with quasi-legislative and adjudicatory authority. That is what James Madison called in Federalist 47 "the very definition of tyranny."

Bureaucrats are easily contemptuous of legal restraints when they lack sufficient consequences for their bad acts. It's human nature. Remedies against some bureaucrats exist, but are too few and too weak.

Despite an inspector general's findings of criminal conduct at the Internal Revenue Service in releasing confidential tax information about conservatives, Attorney General Eric Holder decided not to prosecute anyone.

Congressional oversight and even public humiliation don't work. After the IRS was exposed as shamelessly abusing Tea Party applicants seeking 501(c)(4) "social welfare" status, it decided to double down by issuing proposed regulations to censor those groups - - and more.

The Environmental Protection Agency violates property rights with regulatory takings under the guise of clean air and water enforcement. It has also created an absurd ban on wood-burning stoves.

Hardly a day goes by in which the Washington Examiner and other media outlets that are professionally circumspect of government don't report on administrative abuses.

The solution may lie in the past. In America's first 100 years, as federal bureaucracies were getting a toehold in our tripartite governmental system, citizens had judicial remedies against individual bureaucrats in state courts.

The remedies were based in common law suits such as trespass and replevin to recover goods obtained by government acting in excess of statutory and constitutional authority. …