To no one’s surprise, the desperate defenders of D.C.’s profitable status quo, having lost resoundingly at the polls and in the court of public opinion, are now clinging to their power and pelf with a weaponized judiciary. Although President Joe Biden wasn’t successful in his bid to reconfigure the Supreme Court, the inferior federal courts are all thoroughly compromised assets of the radical Left, thanks to the blistering pace at which Biden (and, before him, Barack Obama) appointed federal judges. And the tried-and-true leftist tactic of corrupting the judicial branch is now paying off handsomely, as judge after judge issues orders commanding President Donald Trump to halt his reforms — or else.

The very latest such outrage, at the time of this writing, is an imperious follow-up finding by Rhode Island District Judge John J. McConnell accusing Trump of defying his previous January 31 order to halt a broad-based federal funding freeze. “The broad categorical and sweeping freeze of federal funds is, as the Court found, likely unconstitutional and has caused and continues to cause irreparable harm to a vast portion of this country,” wrote McConnell (an Obama appointee). In other words, an imbecilic Rhode Island judge, responding to a calculated class action by 22 states, has forbidden Trump from taking any action to limit government spending, claiming such limits are unconstitutional and likely to inflict incalculable harm on the American public. The people, after all, cannot possibly be trusted to judge for themselves what the limits on government power or spending should be. 

The Doge of DOGE: Elon Musk with his DOGE organization is doing what any new CEO does in the private sector: finding out how money is spent and, where necessary, making cuts in budgets and personnel. But the sort of accountability demanded everywhere in the private sector has been anathematized by the secular priesthood of official Washington. (AP Images)

In other recent decisions, judges have blocked Elon Musk and Department of Government Efficiency (DOGE) officials’ access to the Treasury Department’s payment system, blocked the Trump administration’s efforts to dismantle the U.S. Agency for International Development (USAID), and paused a deadline for Trump’s buyout offer of federal employees. Doubtless more such actions will follow as Trump continues his efforts to roll back Big Government and the Deep State. And, as with everything else Trump has tried to do, his comprehensive efforts to cut spending and otherwise reform the executive branch are being decried as the actions of a dictator. Are they?

First, a few principles. The U.S. Constitution vests the executive power, clearly and unambiguously, in the president of the United States. As such, his powers over the country at large are few and clearly defined: the broad authority to pardon crimes and commute sentences, to nominate ambassadors and high officials (with Senate advice and consent), to negotiate and sign treaties (also with the consent of the Senate), to sign bills into law or to veto them, to serve as the commander in chief of the armed forces, and a few other things. He is otherwise the chief executive of the executive branch, much as a CEO is of a corporation; everyone else within the branch serves at his pleasure. From this state of affairs arose the institution of the executive order. Nowadays treated as Caesarean edicts, executive orders, from President George Washington onward, were originally internal executive branch memoranda with no application outside the executive branch.

A New Branch of Government 

But beginning with the New Deal, the entire complexion of the executive branch changed, as President Franklin D. Roosevelt effected an unprecedented “revolution within the forms.” Following the formula of the misnamed “Progressive movement,” which believed in the virtue of a permanently entrenched professional government bureaucracy to impose continuity, FDR set up a welter of new government agencies tasked with regulating every aspect of Americans’ lives, organs that could effectively legislate without the encumbrances of the legislative process, and which were “apolitical” — that is, unaccountable. All of this was accomplished by FDR via executive order, particularly during his fabled “First 100 Days,” which featured an effusion of executive orders and proclamations without precedent, along with an enormous volume of enabling legislation passed by a supine Congress. Although FDR’s executive actions ranged from imposing a bank holiday, taking the United States off the gold standard, confiscating privately owned gold coins and bullion, and establishing the Civil Works Administration, to locking up huge new tracts of federal land, none of his fawning admirers, now or then, ever accused him of acting dictatorially. Instead, the enacting of FDR’s radical agenda during the first half of 1933 is unironically upheld by the modern Left as the gold standard of activist government! Of the 69 new government regulatory agencies created by FDR, many of the most consequential were conjured into being during the first 100 days or very soon thereafter, including the Agricultural Adjustment Administration, the Federal Deposit Insurance Corporation, the Farm Credit Administration, and the Federal Emergency Relief Administration. Adding to its mystique, this new multi-agency “alphabet soup” regulatory apparatus was housed not in the legislative branch but the executive, where it was empowered to operate free of accountability not only to the American public, but to the chief executive himself. 

Following FDR’s lead, multiple other U.S. presidents and Congresses have added more and more unaccountable regulatory agencies to this novel “fourth branch of government,” such as the Environmental Protection Agency and the Occupational Safety and Health Administration, both signed into law by President Richard Nixon in 1970. 

It isn’t strictly true that the American regulatory behemoth originated with the New Deal (the Food and Drug Administration has been around since 1906, for example). But FDR’s success at transforming the federal government into a paragon of bureaucratic absolutism was indisputably the crucial precedent-setter. 

In other words, this sprawling regulatory regime, wholly illegitimate by any constitutional standard, has been inserted into the executive branch, largely beyond the oversight of the chief executive. In this way, the radical FDR administration, along with successive administrations and several generations of sympathetic jurisprudents, completely restructured the executive branch and redefined the powers of the presidency without even the formality of a constitutional amendment.

And now, at long last, the chief executive is fighting back. But the court rulings keep coming, against a backdrop of constant handwringing in the sycophantic media to the effect that somehow Trump’s actions to rein in the maligned regulatory state operating out of the president’s own branch of government are unconstitutional and dictatorial.

Rent-a-mob racketeers: USAID, one of Trump and DOGE’s first targets, has enjoyed total insulation from accountability while laundering billions of taxpayer dollars, not only to foreign governments and radical-left NGOs, but even to leftist media outlets. Small wonder the USAID’s Beltway beneficiaries are upset! (AP Images)

Enabling Legislation

Unbeknownst to most Americans, these noxious regulatory agencies and spendthrift alphabet-soup institutions do not operate in a complete legal vacuum. In fact, they enjoy the dubious legal cover of a little-known but critically important piece of legislation that has conferred on them a sort of shady legitimacy — and has made the task of hindering them in any way infinitely more difficult. In June 1946, after 10 years of contentious partisan wrangling, a key piece of enabling legislation, the Administrative Procedure Act (APA), was passed, casting in stone the regulatory fourth branch of government that had slowly been taking shape in Washington since the late 19th century, and that had been given such critical impetus by the late FDR and his congressional myrmidons. By 1946, of the dozens of such regulatory agencies in existence, most (though not all) were housed within the executive branch. It was Roosevelt’s (and his successor, President Harry Truman’s) desire to give them full legal legitimacy, so that they might go about their appointed mission of making law via direct regulation unimpeded by court or legislative challenges. 

Facing intense Republican partisan opposition, Roosevelt and his cronies welcomed an effort by the Special Committee on Administrative Law of the American Bar Association to craft legislation that would supposedly clarify the powers of these government agencies by making their activities more transparent — while limiting the ability of anyone to oppose them. The work of the bar association on new legislation began in 1938, but Democrats, flush with confidence in their radical New Deal agenda and public support of the same, were in no mood to worry about such niceties as preserving FDR’s regulatory state against GOP opposition. This state of affairs continued through World War II, with more far-sighted Washington insiders, anticipating an eventual reaction against Big Government, quietly continuing to plan for legislation that would protect FDR’s monstrous legacy against the inevitable backlash.

With the war over and FDR deceased, Democrats in 1946 awoke to the very real possibility that the new regulatory leviathan might indeed be eliminated should Republicans win big at the polls. By that time, the state of California had already enacted, the previous year, its own legislation to preserve its new state-level bureaucracy, and Big Government Beltway insiders recognized that they must follow suit. As Roni Elias summarized affairs in Fordham Environmental Law Review:

In the immediate aftermath of the war, Congressional Democrats began to consider how to preserve the New Deal without control of both the White House and Congress. This consideration led Democrats to support procedural restraints on agency action for two principal reasons. First, Democrats recognized that the absence of formal procedural requirements for agency action would give a Republican president exceptional discretion to direct agency decision-making in whatever way he might choose. Legislation that mandated a fairly rigorous system of procedural safeguards for administrative action would create a significant amount of inertia favoring the status quo established during the New Deal era. As one commentator has noted, “with the procedural restraints in place, the Republicans could only repeal New Deal regulatory policies if they gained control of both houses of Congress and the presidency.”

Second, Democrats began to appreciate that strengthening judicial review of agency action would favor the preservation of the New Deal status quo. In the wake of a sixteen-year Democratic administration, the judiciary was filled with Roosevelt appointees who were friendly to New Deal programs. A reform of administrative procedure that enhanced the judicial review of agency action would tend to favor Democratic political objectives — the inverse of the situation that prevailed for most of the 1930s, when empowering judges to review agency action meant giving Republican appointees power over Democratic programs.

In other words, cunning Beltway insiders and Deep State actors of the day shrewdly appreciated that, by creating legislation that required judicial review of all actions by, and with respect to, regulatory agencies, they not only maximally empowered a judicial branch already dominated by Democratic and leftist partisan interests, but also made it impossible for the president to do anything to cleanse the house of the executive branch, except in the exceedingly unlikely event that he enjoyed a majority in the House alongside a filibuster-proof majority in the Senate.

Self-preservation of Big Government

The Administrative Procedure Act, as subsequent history attests, has accomplished its design, not only of making permanent most of the New Deal regulatory state apparatus (which, by the way, is technically and accurately referred to in jurisprudence as “administrative law”), but also of ensuring the creation, with few impediments, of many additional seemingly deathless federal regulatory and administrative bodies since that time. In this way, the APA midwifed a bona fide new branch of government, complete with full legislative and funding authority reserved by the Constitution to Congress, as well as judicial authority once reposed exclusively in the federal judiciary. Superficially, the APA offers a sop to “democracy,” requiring publication of all new proposed regulations with a mandatory period of public comment (input which, even when forthcoming, is routinely ignored by bureaucrats) and defining the scope of judicial review. 

The standard of judicial review is deliberately ambiguous and latitudinarian, with courts needing to find that a proposed regulation is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.” Such a standard imposes the burden of proof on litigants and adjudicators, rather than on the regulators themselves, to show very good cause why regulations should not be upheld; otherwise, any and all new regulations are presumptively beneficial, whether burdensome to the public in any other way or not. In particular, no mention is made of any constitutional standard, nor is the sacrosanctity of individual liberty mentioned. Armed with such a potent enabling statute, is it any wonder federal regulators have wreaked havoc on American liberty over the past 80 years, behaving so high-handedly as even to defy Congress and the president himself?

In most of the judicial actions undertaken against Trump’s efforts to roll back the administrative state, the APA and its Byzantine procedural requirements are being brandished as the chief weapon. Somewhat ironically, selected federal judges are now using the “arbitrary and capricious” standard against Trump himself, claiming that he cannot insist on any change of regulatory policy for transient reasons, per the APA. For example, when lawyers representing USAID workers resisting Trump’s efforts to place them on leave claimed that “the dissolution of USAID is arbitrary and capricious in multiple respects,” the judge sided with the workers. Another lawyer involved in the lawsuits against Trump also invoked the APA, telling NBC that “what we’re seeing from the Trump administration is they are moving so fast, and they’re trying to do so much with so little reasoning, and they’re trying to disrupt as much as possible, as fast as possible, that these actions are inherently arbitrary and capricious.”

The Administrative Procedure Act is now doing precisely what its creators intended, serving not only as an immovable legal backstop to the whims of the illegitimate administrative state, but also as an unyielding obstacle to anyone — including the president himself — seeking to clip its wings. 

It may well prove Trump’s stiffest challenge to undo the decades of incalculable harm this profoundly dictatorial and utterly unconstitutional statute has done to the American body politic. Congressional repeal of the APA seems very unlikely anytime soon, because of the lack both of a Senate supermajority and of public awareness of this deliberately obscure statute. The most likely scenario would be an eventual Supreme Court rebuke of the APA — but, with the cultish fidelity of some of the Supremes to stare decisis (“let the decision stand”), even that is far from a foregone conclusion. 

In the long run, the APA must be repealed, as a necessary prelude to the abolition of an entire illicit branch of the federal government. Bureaucratic absolutism is a far more common and potent enemy of liberty than is generally appreciated (recall that a conspicuous complaint in the Declaration of Independence has reference to a “multitude of new offices” and to “swarms of officers” the English crown had sent to “harass our people, and eat out their substance”), and in our day, the APA is its canon. 

President Trump’s willingness to do battle with the administrative state is to be applauded, but as long as the APA remains in force, the chief executive will not even be lord of his own executive manor.