Court willingness to rein in unelected and unaccountable bureaucracies in this way constitutes an underappreciated victory for individual freedoms and constitutional rights...

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In the Declaration of Independence, our Founding Fathers deemed bureaucratic excess so contrary to the concepts of ordered liberty that they explicitly listed it among the “long train of abuses and usurpations” by the British Crown:    

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance…  

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws, giving his Assent to their Acts of pretended Legislation…  

For depriving us in many cases, of the benefits of Trial by Jury…  

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever…  

Such bureaucratic abuses sound familiar to most Americans exasperated by today’s administrative state leviathan.  Multitudes of new offices, swarms of officers, harassment of citizens, jurisdictions foreign to our Constitution, deprivation of trial by jury, false assumption of legislative powers all strike a familiar chord.  

In previous decades the political left attempted to impose its agenda via unelected judges when they couldn’t pass their proposals via the proper legislative process.  

Conservatives, however, undertook a more sustained effort to secure judges who recognized that the proper judicial role is to interpret laws, not impose them.  

Consequently, the left shifted from imposing its views via unelected judges to imposing it via unelected administrative state bureaucrats.  Recall Barack Obama resorting to his “pen and phone” when voters rejected his governing agenda by electing a Republican House of Representatives and then Senate.  

Accordingly, in subsequent years administrative agencies have taken the lead in attempting to impose the left’s agenda where it can’t succeed more democratically.  

As a perfect current example, consider a wayward proposal by Joe Biden’s Securities and Exchange Commission (SEC) to impose its extremist “environmental, social and governance” (ESG) agenda upon the private sector economy, even as consumer gas prices continue to ascend.  

Under the SEC’s new proposal, public companies would be required to estimate and list their emissions and amounts of energy used, as well as the emissions and energy use of suppliers and subsequent customers.  The proposed rule exceeds the SEC’s statutory authority, it violates the First Amendment by compelling speech beyond the purely factual and uncontroversial, it constitutes crony capitalism by benefiting “green” industries at the expense of the existing energy sector, it would impose crippling compliance costs (especially for smaller businesses) and it elevates environmental activism over investor protection.  

The proposed ESG rule strays far from the SEC’s proper role, which is to facilitate consumers’ ability to ascertain the financial health of publicly traded companies in order to make investment decisions.  It elevates climate activism over consumer protection.  

Such administrative excess is hardly limited to the SEC.  Federal Communications Commission (FCC) overregulation of internet service, National Labor Relations Board (NLRB) attempts to impose anti-worker rules for the benefit of big labor bosses and now a new Consumer Financial Protection Bureau (CFPB) effort to activate what it calls its “dormant authority” to target non-banks constitute other flagrant examples.  

Fortunately, courts have begun to halt this long-term campaign to impose the left’s agenda via administrative state fiat.  

Recently, the Fifth Circuit Court of Appeals hammered the SEC by ruling its tribunal procedure unconstitutional in Jarkesy v. SEC.  For years the SEC manipulated a provision of the Obama Era Dodd-Frank law to determine at its own discretion whether to prosecute cases in traditional federal courts or before its own administrative law judges.  In a sweeping ruling, the Fifth Circuit ruled that the SEC’s discretion violated citizens’ Seventh Amendment right to jury trials by empowering itself to serve as judge, jury and prosecutor simultaneously.  The court also ruled that SEC officials cannot remain immune from removal by the president.  

The case will likely ascend to U.S. Supreme Court review, where Justices Gorsuch, Kavanaugh and Barrett have expressed objection to the administrative agency expansion in recent decades.  That speaks to the success of the conservative judicial reclamation project referenced above.  

Court willingness to rein in unelected and unaccountable bureaucracies in this way constitutes an underappreciated victory for individual freedoms and constitutional rights, and a payoff following years of effort to appoint strict constructionist judges to our courts.