The New Civil Liberties Alliance (NCLA), which consists of a team of 27 lawyers and support staff, including former judges, had four of the cases they litigated go before the Supreme Court in 2023. One case was decided in their favor, the remaining three are pending.
Founded by Columbia Law professor Philip Hamburger six years ago, the NCLA targets cases where they believe federal agencies have blatantly overstepped their authority or violated civil liberties.
NCLA Website
"Normally, administrative power is understood as a separation of powers question, but it’s also a civil liberties problem because it dilutes our voting rights," Mr. Hamburger told The Epoch Times. "We all get to vote, but the ability to make legislation is no longer in the hands of the people we elect."
The U.S. Constitution vests Congress with law-making authority. However, government agencies are not only making laws today, he said, they also enforce those laws, then act as judge and jury over alleged violations. Taking a historical view on this issue, Mr. Hamburger argues that such administrative "absolutism" is not a new phenomenon, but merely a modern expression of absolute power once wielded by medieval kings.
"It deprives us of the right to a jury; it deprives us of ordinary burdens of proof; it deprives us of having an unbiased judge," he said. "We have ALJs [Administrative Law Judge] and commissioners instead."In one case, SEC v. Cochran, appellate courts took the side of the SEC. This case challenged the lifetime tenure of ALJs, who act as judges for federal agencies.
"We battled that for five years, and we had six circuit courts of appeals against us," she said. "We got to the Supreme Court and we won unanimously."Mr. Hamburger said the NCLA has several advantages when arguing their cases. "We have the truth on our side, and I think the justices understand that," he said. "Second, we take the Constitution seriously, while many agencies view it as a minor impediment to what they want to do in regulation."
The questions that Mr. Hamburger raises in his book are at the heart of the current political divisions within the United States. Progressives often advocate the implementation of policies designed by unelected "experts," while conservatives expect edicts to go through elected representatives.
The movement to vest power in the administrative state in America goes back more than a century and has enjoyed cumulative success via a ratchet effect, whereby authority is progressively ceded to the administrative state, often in response to real or perceived crises, but rarely surrendered back to citizens.
Woodrow Wilson, the first progressive president and precursor to modern progressives, expressed contempt for voters and viewed representative lawmaking as an impediment to economic and social reforms. He was highly critical of the U.S. Constitution and its separation of powers, particularly the limitations it put on government bureaucrats.
"Wherever regard for public opinion is a first principle of government, practical reform must be slow and all reform must be full of compromises," he stated in his 1887 treatise "The Study of Administration."
"The people, who are sovereign, have no single ear which one can approach, and are selfish, ignorant, timid, stubborn, or foolish."
"The English race has long and successfully studied the art of curbing executive power to the constant neglect of the art of perfecting executive methods," President Wilson stated. "It has been more concerned to render government just and moderate than to make it facile, well-ordered, and effective."
One result of concentrating such all-encompassing power in the executive branch is that presidential elections have become pivotal in determining the direction for the country, even in areas such as residential zoning and education, that are traditionally under the purview of states, counties, and towns.
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New Civil Liberties Alliance: 2023-12-07 Biden State Dept. blacklists conservative news outlets, lawsuit claims: 'Censorship regime'
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New Civil Liberties Alliance: 2024-04-21 SEC hit with new lawsuit alleging 'mass surveillance' of Americans through stock market data
New Civil Liberties Alliance: 2023-12-07 Biden State Dept. blacklists conservative news outlets, lawsuit claims: 'Censorship regime'
New Civil Liberties Alliance: 2023-08-11 Biden DOJ to fight court order that blocked feds from colluding with Big Tech to censor speech