The Rise of the Fourth Branch of Government

3branchesBelow is today’s column in the Washington Post’s Outlook Section on the dangers of America’s growing administrative state. Ask any elementary student and you will hear how the Framers carefully designed a tripartite, or three-branch, system to govern the United States. This separation of powers was meant to protect citizens from tyranny by making every branch dependent on each other to carry out the functions of government. These three branches held together through a type of outward pressure – each holding the other in place through their countervailing forces. Add a fourth branch and the structure begins to collapse. That is precisely what is happening as federal agencies grow beyond the traditional controls and oversight of the legislative and executive branches. The question is how a tripartite system can function as a quadripartite system. The answer, as demonstrated by the last two decades, is not well. The shift from a tripartite to a quadripartite system is not the result of simply the growth in the size of the government. Rather, it is a concern with the degree of independence and autonomy in the fourth branch that led me to write this column.

There were times this past week when it seemed like the 19th-century Know-Nothing Party had returned to Washington. President Obama insisted he knew nothing about major decisions in the State Department, or the Justice Department, or the Internal Revenue Service. The heads of those agencies, in turn, insisted they knew nothing about major decisions by their subordinates. It was as if the government functioned by some hidden hand.

Clearly, there was a degree of willful blindness in these claims. However, the suggestion that someone, even the president, is in control of today’s government may be an illusion.

The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.

When James Madison and the other Framers fashioned a new constitutional structure in the wake of the failure of the Articles of Confederation they envisioned a vastly different government. Under the federalism model, states would be the dominant system with most of the revenue and responsibilities of governance. The federal government was virtually microsoptic by today’s standards. In 1790, it had just 1,000 nonmilitary workers. In 1962, there were 2,515,000 federal employees. Today, we have 2,840,000 federal workers in 15 departments, 69 agencies and 383 nonmilitary sub-agencies.  [These numbers can be themselves misleading since much federal work is now done by contractors as part of “downsizing” but the work of the agencies has continued to expand.  Moreover, technological advances have increased the reach of this workforce].

This  growth since the founding has led to increasing power and independence for agencies. The shift of authority has been staggering. The fourth branch now has a larger practical impact on the lives of citizens than all the other branches combined.

The rise of the fourth branch has been at the expense of Congress’s lawmaking authority. In fact, the vast majority of “laws” governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

This rulemaking comes with little accountability. It’s often impossible to know, absent a major scandal, whom to blame for rules that are abusive or nonsensical. Of course, agencies owe their creation and underlying legal authority to Congress, and Congress holds the purse strings. But Capitol Hill’s relatively small staff is incapable of exerting oversight on more than a small percentage of agency actions. And the threat of cutting funds is a blunt instrument to control a massive administrative state — like running a locomotive with an on/off switch.

The autonomy was magnified when the Supreme Court ruled in 1984 that agencies are entitled to heavy deference in their interpretations of laws. The court went even further this past week, ruling that agencies should get the same heavy deference in determining their own jurisdictions — a power that was previously believed to rest with Congress. In his dissent in Arlington v. FCC, Chief Justice John Roberts warned: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”

The judiciary, too, has seen its authority diminished by the rise of the fourth branch. Under Article III of the Constitution, citizens facing charges and fines are entitled to due process in our court system. As the number of federal regulations increased, however, Congress decided to relieve the judiciary of most regulatory cases and create administrative courts tied to individual agencies. The result is that a citizen is 10 times more likely to be tried by an agency than by an actual court. In a given year, federal judges conduct roughly 95,000 adjudicatory proceedings, including trials, while federal agencies complete more than 939,000.

These agency proceedings are often mockeries of due process, with one-sided presumptions and procedural rules favoring the agency. And agencies increasingly seem to chafe at being denied their judicial authority. Just ask John E. Brennan. Brennan, a 50-year-old technology consultant, was charged with disorderly conduct and indecent exposure when he stripped at Portland International Airport last year in protest of invasive security measures by the Transportation Security Administration. He was cleared by a trial judge, who ruled that his stripping was a form of free speech. The TSA was undeterred. After the ruling, it pulled Brennan into its own agency courts under administrative charges.

The rise of the fourth branch has occurred alongside an unprecedented increase in presidential powers — from the power to determine when to go to war to the power to decide when it’s reasonable to vaporize a U.S. citizen in a drone strike. In this new order, information is jealously guarded and transparency has declined sharply. That trend, in turn, has given the fourth branch even greater insularity and independence. When Congress tries to respond to cases of agency abuse, it often finds officials walled off by claims of expanding executive privilege.

Of course, federal agencies officially report to the White House under the umbrella of the executive branch. But in practice, the agencies have evolved into largely independent entities over which the president has very limited control. Only 1 percent of federal positions are filled by political appointees, as opposed to career officials, and on average appointees serve only two years. At an individual level, career officials are insulated from political pressure by civil service rules. There are also entire agencies — including the Securities and Exchange Commission, the Federal Trade Commission and the Federal Communications Commission — that are protected from White House interference.

Some agencies have gone so far as to refuse to comply with presidential orders. For example, in 1992 President George H.W. Bush ordered the U.S. Postal Service to withdraw a lawsuit against the Postal Rate Commission, and he threatened to sack members of the Postal Service’s Board of Governors who denied him. The courts ruled in favor of the independence of the agency.

It’s a small percentage of agency matters that rise to the level of presidential notice. The rest remain the sole concern of agency discretion.

As the power of the fourth branch has grown, conflicts between the other branches have become more acute. There is no better example than the fights over presidential appointments.

Wielding its power to confirm, block or deny nominees is one of the few remaining ways Congress can influence agency policy and get a window into agency activity. Nominations now commonly trigger congressional demands for explanations of agencies’ decisions and disclosures of their documents. And that commonly leads to standoffs with the White House.
Take the fight over Richard Cordray, nominated to serve as the first director of the Consumer Financial Protection Bureau. Cordray is highly qualified, but Republican senators oppose the independence of the new bureau and have questions about its jurisdiction and funding. After those senators repeatedly blocked the nomination, Obama used a congressional break in January to make a recess appointment. Since then, two federal appeals courts have ruled that Obama’s recess appointments violated the Constitution and usurped congressional authority. While the fight continues in the Senate, the Obama administration has appealed to the Supreme Court.

It would be a mistake to dismiss such conflicts as products of our dysfunctional, partisan times. Today’s political divisions are mild compared with those in the early republic, as when President Thomas Jefferson described his predecessor’s tenure as “the reign of the witches.” Rather, today’s confrontations reflect the serious imbalance in the system.

The marginalization Congress feels is magnified for citizens, who are routinely pulled into the vortex of an administrative state that allows little challenge or appeal. The IRS scandal is the rare case in which internal agency priorities are forced into the public eye. Most of the time, such internal policies are hidden from public view and congressional oversight. While public participation in the promulgation of new regulations is allowed, and often required, the process is generally perfunctory and dismissive.

In the new regulatory age, presidents and Congress can still change the government’s priorities, but the agencies effectively run the show based on their interpretations and discretion. The rise of this fourth branch represents perhaps the single greatest change in our system of government since the founding.

We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

Washington Post (Sunday) May 26, 2013

[The statistics on the rule-making and agency case figures in the piece came from Anne Joseph O’Connell, Vacant Offices: Delays In Staffing Top Agency Positions, 82 S. Cal. L. Rev. 913, 923 (2009) ]

55 thoughts on “The Rise of the Fourth Branch of Government

  1. Clearly, there was a degree of willful blindness in these claims. However, the suggestion that someone, even the president, is in control of today’s government may be an illusion.”

    Great point.

    And quite real.

    Your column should help a lot of folk see that much of the illusion is bolstered by a kind of faith in government that approaches religious fervor.

    It really adds a charge to old timey jingoism.

    Thanks for the magnifying glass type of article Professor Turley.

  2. It is rude to point out that congressional republicans are purely obstructionist. Tea bag conservatives don’t recognize the problem and have no intent to fix anything.

  3. Great post. I have long maintained that the refusal to anoint Mr. O’s people by the Senate is not such a bad thing. Call it what you will, they are saying that that person does not share the views they want for the agency in mind. Don’t like the 60 vote rule? Fine change it, but remember that some day the majority today will be the minority tomorrow and that 60 vote rule is meant to slow down the crushing wheels of government. And as for those that like to throw out names like “tea bag”, just because someone espouses different views than yours is no reason for you to resort to a 2rd grade mentality and call people names.

  4. If an agency has autonomy …… Then how is it allowed to function within the frame work of the construction of the Constitituon?

    Does not congress have the ability to abolish the same effectively by cutting off funding?

    Excellent article and very informative….

  5. david, This is the common sense, libertarian philosophy that attracted me. We hear so much in physical therapy about developing a strong core. Without that, even people who work out regularly have physical problems. The same holds true for philosophy. Mr. Turley obviously does libertarian crunches every morning. Hopefully not after Captain Crunch.

  6. You Got Me, There’s only one way to change the House. And we are afforded that opportunity every 2 years, that being to clean house and vote everyone out. That is quixotic in this gerrymandered duopoly, but it was in the mind of our wise framers when they gave them only 2 year terms.

  7. However, why we justifiably bemoan our govt., the UK govt. is arresting people for making anti-Muslim profane comments on Twitter and Facebook. As the great, Monty Python would sing, “Always look on the bright side of life.”

  8. This little monster child was caused by dysfunctional parents in the personage of the Congress and the Executive who have decided that antagonism is better than cooperation. Little Johnny Bureaucracy has filled the power void left by the dueling, abdicating parents and has become an ogre. The political parties bear much of the responsibility but a lot of it lies with the Supreme Court who, like that doting uncle we all know, has decided to chide the parents every time they attempt to rein in the kid. It’s like a bad episode from that old show Divorce Court.

  9. mespo, Sticking w/ your famiglia metaphor, I believe it’s more like a Jerry Springer family..”Jerry, Jerry, Jerry.”

  10. From the OPM Historical Federal Workforce Tables:

    In 1962 there were 2,485,000 non-millitary federal employees and in 2011 there were 2,756,000. A rise of 11%.

    In 1960 the US population was 179,323,175 and in 2010 it was 308,745,538. A rise of 72%.

    Assuming the same level of service,this shows a remarkable level of productivity increase in the federal government.

    This is not meant to detract from the problems mentioned in Professor Turley’s article. I just found the perspective interesting.

  11. Judicial lethargy and an unwillingness of congress to reform judicial processes several decades ago led, in large measure, to the course of least resistance — the more expeditious solutions that were the benefits of an administrative judiciary.

  12. The points raised are very good, but I know that Congressmen can and do bring pressure and effective control to outrageous decisions and can get them changed or modified. So while it is not a perfect or swift process to limit or reverse the power of some agencies, there ARE avenues that can be used and the are effective. At the very least, the courts are the last resort which as the Prof has pointed out can fail at time too.

    Then the solution is to go to Congress and change the regulations as we did in aviation when the age 60 rule was done as a corrupt favor the the head of American Airlines. Unfortunately, a corrupt Congressman gutted that effort with unConstitutional provisions at the behest of ALPA. So we are in court trying to fight that injustice now. And STILL waiting for a decision. I hope I do not die before this is resolved.

  13. Nal, interesting point.

    The number of military personnel has decreased, so if we look at the total number of federal employees, the trend of doing more with less people is even more stark.

    It appears that the military has done the best job of doing more with less people.

    The opposite trend is in place if we look at only the personnel in the legislative and judicial branch of government. They have more than doubled their employees since 1962.

    http://www.opm.gov/policy-data-oversight/data-analysis-documentation/federal-employment-reports/historical-tables/total-government-employment-since-1962/

    If looking at revenues, when corrected for inflation, the federal revenue has well more than tripled, but if taken as a percent of GDP, not much change.

    http://www.taxpolicycenter.org/taxfacts/displayafact.cfm?Docid=200

  14. excellent article

    This really exposes a structural problem with the federal government and many state governments, with all the issues mentioned in the main article.

    Nothing I can really add here. Well done Professor Turley.

  15. What randyjet said about the age 60 rule. Amen to that. The age 60 rule is arbitrary and capricious, not based on actual data except what the FAA cooked up. The last two times I went to get my third class medical renewed, the FAA medical office wanted tests that cost as much as a late model used car. Then last renewal, Dr. Silberman signed off on it for only 13 months instead of two years, despite the fact the results were cold normal.

    Shades of Bob Hoover. Who knew that getting old enough to draw Social Security was a serious medical condition?

    I was working on a story for today, but will not get it finished in time to do a weekend post. It is about more Federal agencies engaging in activities that are either of questionable legality, or are outright illegal. Have to make some phone calls this week in order to get all the facts straight on exactly what happened. To say it was ugly is an understatement. Stay tuned.

  16. Great article.

    The military may be smaller but the CIA is bigger and militarized now and mercenaries are now doing some of the heavy lifting that the military previously did. The budget amount for military spending is about 50%. Then there are all of off-budget appropriations, including the black ops.

  17. What Mespo said. The agencies do need some autonomy to make sure that politics do not control them, but the real culprit is money in politics. The Citizens United decision is the root cause of the IRS problem because of the large number of 501c4 organizations that have been filed to take advantage of the tax deduction and to keep their donors secret. I wonder if ALEC is their own agency now??

  18. Problem is, the military may be getting smaller, but that does not stop Congress from buying hardware not even the Pentagon wants or needs. The average congresscritter wants money to flow into his or her district, and most of the major defense contractors make sure there are subcontractors in every critical district.

    Hey people. Bridges are falling into rivers. Spend some money fixing them. Of course, bridges don’t cruise supersonic in stealth mode, so they aren’t sexy. If there really is such a thing as Karma, a busload of congresscritters will be driving over the next bridge that collapses when it lets go.

  19. OS,
    my first post is lost in neverland, but if we do not get money out of politics this climate will be the norm forever. I would imagine that the House will be voting soon to give ALEC its own agency status.

  20. In the 70’s/80’s a Federal Court (FC) declared Oklahoma’s prison system unfit & order the state to fix it.

    The state legislature was unable to agree so the FC took over reforming the prison system.

    Maybe it’s better today in some regards, but we still have 1/2-2/3rds of the Non Wallst Banker/Insur people in prison who shouldn’t be inside because of the cost associated with keeping that many under control by paid guards, but I digress.

    (Note: Need to make more rm in prisons for Wallst Banks/Insur/Polecats. LOL;) )

    Anyway, I’m not sure why we haven’t seen any sharp lawyers stand up against these illegal unconstitutional Administrative Courts, (AC) maybe we’re fresh out of good ones?

    In recent years we’ve seen small farms/etc… being raided by violent swat teams for such things as having a club to share the cost of Raw unpasteurized Milk & the cases brought before AC.

    I don’t seen why those farmer’s lawyers didn’t file a counter suit in a real court, sue for relief/damages, but also to have the AC declared a Public Menace & have the Farmer/local citizens, in paid positions of authority, be put in charge of clean up those AC messes & firing who ever needs fired.

    Under court supervision, put regular citizens that have been harmed back in charge of clean up these rats nest of bureaucracies, corrupt DC, police, city halls, etc….

    I would also think Lawyers would like this expanded Ombudsman type solution as the lawyers could be paid as expert advisors to the Ombudsman committees.

    Regardless of what govt, courts, lawyers do, many of us know by just the simple math of this ongoing govt financial collapse this current system is on the edge a rapid massive change.

  21. davidm2575 1, May 26, 2013 at 11:41 am

    It appears that the military has done the best job of doing more with less people.
    =======================================
    You are leaving out contractors.

    The military budget doubled from 2000 to recently.

    The only department to do so.

  22. As for the “4th Branch” – the Professor has been quite coy in not giving it a name. Thus the issue needs clarification. Just in case no one has noticed the reality. Like the FBI now standing for Federal Bureaucrat Instillers, or the Department of [In]Justice, the U.S. [cant] Trust a US Trustee, Federal Judges who apply only “Color of Law”, the SEC (Selective Enforcement Commission) and so on – and so on.

    All of which exists to make sure that the CIA powers that be get away with everything they wish to (remember where Bush Sr. came from)

    And – the head of the 4th Government Agency

    Goldman Sachs – doing whatever the hell they please.

  23. Dear friends,

    In case you haven’t been paying attention to the simple math.

    Confiscation of your checking/savings/pensions is coming to North America without any doubt.

    **This will be remembered as the “Great Leveling” after the period of the “Great Flushing (Lehman Brothers)

    Not only can it happen here, but it will happen here. It stands on legal grounds by legal precedent both in the US, Canada and the UK.

    The FDIC, who contributed to the 2012 Bail-In Thesis white paper, makes no mention of insured account levels. The game of having multiple banks expecting to have multiple FDIC insurances, in my opinion, will fail ** JS

    **
    It Can Happen Here: The Confiscation Scheme Planned for US and UK Depositors
    Posted on March 28, 2013 by Ellen Brown

    Confiscating the customer deposits in Cyprus banks, it seems, was not a one-off, desperate idea of a few Eurozone “troika” officials scrambling to salvage their balance sheets. A joint paper by the US Federal Deposit Insurance Corporation and the Bank of England dated December 10, 2012, shows that these plans have been long in the making; that they originated with the G20 Financial Stability Board in Basel, Switzerland (discussed earlier here); and that the result will be to deliver clear title to the banks of depositor funds. **

    http://webofdebt.wordpress.com/2013/03/28/it-can-happen-here-the-confiscation-scheme-planned-for-us-and-uk-depositors/

    Also ck the latest US bankruptcy code of 2005 or 2006.

    Ck under the section regarding Banks/Insurance co’s.

    That’s another place where they claim they have the right to steal all of your assets.

    Understand now why Wallst is demanding you give up your 2nd amendment “Right”.

    Ya, they know you’re going to be pissed when the steal your assets right in front of your face under the color of law.

  24. President Obama insisted he knew nothing about major decisions in the State Department, or the Justice Department, or the Internal Revenue Service. The heads of those agencies, in turn, insisted they knew nothing about major decisions by their subordinates. It was as if the government functioned by some hidden hand.
    ———————————————-
    They’re all liars and cowards. They’re sycophants. That applies to the third branch as well.
    ++++++++++++++++++++
    Clearly, there was a degree of willful blindness in these claims. However, the suggestion that someone, even the president, is in control of today’s government may be an illusion.
    ——————————————–
    This is a Republic, not a Democracy. Somebody once said it’s a good thing if you can keep it.
    =====================
    The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.
    ———————————————————————————————
    The Fourth Reich?

    http://www.guardian.co.uk/world/2004/sep/25/usa.secondworldwar
    ++++++++++++++++++++++++++++++++++++++++++++++++++++++
    The judiciary, too, has seen its authority diminished by the rise of the fourth branch. Under Article III of the Constitution, citizens facing charges and fines are entitled to due process in our court system. As the number of federal regulations increased, however, Congress decided to relieve the judiciary of most regulatory cases and create administrative courts tied to individual agencies. The result is that a citizen is 10 times more likely to be tried by an agency than by an actual court. In a given year, federal judges conduct roughly 95,000 adjudicatory proceedings, including trials, while federal agencies complete more than 939,000.

    http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-6026.htm
    =========================
    The marginalization Congress feels is magnified for citizens, who are routinely pulled into the vortex of an administrative state that allows little challenge or appeal. The IRS scandal is the rare case in which internal agency priorities are forced into the public eye. Most of the time, such internal policies are hidden from public view and congressional oversight. While public participation in the promulgation of new regulations is allowed, and often required, the process is generally perfunctory and dismissive.

    http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-6026.htm
    ===================
    In the new regulatory age, presidents and Congress can still change the government’s priorities, but the agencies effectively run the show based on their interpretations and discretion. The rise of this fourth branch represents perhaps the single greatest change in our system of government since the founding.

    We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government.
    —————————————

    Very well said.

  25. A subject in the topic needs to be explored more fully. Brennan was prosecuted in a federal court for some strip thing he did in an airport. The case was dismissed or he won in that federal court. Then, the TSA brought some administrative agency case against him. It seems to me that the TSA should be barred from any adminstrative claim on the same subject matter. It should be a matter of res judicata. It could also be judicial estoppel. Or estoppel by judgment. If it is the same parties it is estoppel by judgment.
    Will the class please chimne in.

  26. Congress needs to act within sixty days on a presidential appointment to a federal agency. Perhaps ninety on a judicial appointment because it is for life. The President needs to fill all the appointments in the next recess to push this along. There was some judge whose name was up in Congress for 400 days. If Congress wont vote someone up or down but does the Tom Delay thing then the President should appoint that person on the following Sunday while the Congress is in recess. JT’s argument on the subject the other day was exactly wrong. Advise and Consent is not Advise and Consider Forever.

  27. We have far too many problems to chime in about an issue that is likely to resolve itself positively for Brennan. If you want to get involved;

    Seek to free Siegelman

    Help Richard Fine.

    Demand the Banks not benefit from Robo signing (arrest somebody PLEASE)

    So much cheap seat barking/dogging – and JT’ing;
    instead of getting in the muck – to clean things up.

    Where’s the Great JT (Traficant) – when you need him?

    Now that’s a guy who could articulate things on a grand scale – wonderfully!

  28. The Doctrines of Res Judicata and Collateral Estoppel

    These two doctrines establish the rule that once a case has reached a final judgment, relitigation of the claims and issues generally is barred.

    Res Judicata (Claim Preclusion)

    Rule: If judgment is rendered in favor of a plaintiff in a particular suit, the plaintiff is precluded from raising claims (in any future litigation) which were raised in (or could have been raised) in that lawsuit.

    Elements: Before a court will apply the doctrine of res judicata to a claim, three elements must be satisfied:

    There must have been prior litigation in which identical claims were raised (or could have been raised). In general, claims are sufficiently identical if they are found to share a “common nucleus of operative fact.”

    The parties in the second litigation must be identical in some manner to the parties in the original litigation, or be in privity with the parties in the first action.

    Note: A party is considered to be in privity with a party in the original litigation if:

    The nonparty succeeded to the interest of a party;

    The nonparty, though it did not technically participate in the first suit, controlled one party’s litigation in that suit;

    The nonparty shares a property interest with the party;

    The party and the nonparty have an agency relationship (agent/principal); or

    The party otherwise adequately represented the interest of the nonparty in the previous litigation.

    There must have been a final judgment on the merits in the original litigation. Note: Not all final judgments are based on the merits of the case (i.e., cases dismissed on jurisdictional grounds, etc.).

    Scope: Res judicata bars relitigation of claims that were previously litigated as well as claims that could have been litigated in the first lawsuit.

    Counterclaims:Res judicata is generally not applied to potential counterclaims by defendants, so defendants are not necessarily barred from raising a counterclaim in future litigation. However, remember that all counterclaims must conform to FRCP Rule 13(a), and that some counterclaims are compulsory (must be raised in original litigation or they are waived).

    Collateral Estoppel (Issue Preclusion)

    Rule: If an issue has been decided in a particular case, it is treated as decided—without further proof—in any subsequent litigation that involves the issue. In other words, a person or party who seeks to relitigate any already decided issue is collaterally stopped from doing so.

    Elements: Before a court will apply the doctrine of collateral estoppel, three elements must be satisfied:

    There must have been a prior litigation in which the identical issue was brought before the court.

    The issue must have been actually litigated in the first judicial proceeding, and the party against whom collateral estoppel is being asserted must have had a full and fair opportunity to litigate the issue in the first judicial proceeding.

    The issue must necessarily have been decided and rendered as a necessary part of the court’s final judgment.

    Scope: Unlike res judicata, collateral estoppel does not bar future litigation over issues not actually raised in the original judicial proceeding, even if the issues could have been raised.

    Who may be bound: The old rule that only the actual parties (and those in privity with the actual parties) to the first judicial proceeding may be bound by the court’s findings/decision on the issue has been virtually abolished. Increasingly, courts have been willing to allow strangers (persons not involved in the first litigation) to use collateral estoppel in various situations to prevent another party from relitigating an issue.

  29. Governor Siegelman put in prison by corrupt judge – via – Karl Rov’r

    Richard Fine spent 18 months in prison – without a charge

    When he (an attorney) asked a question about California Supreme Court Judges getting an extra $50,000 per year in salary through a bogus program. Governor Schwartznegger pardoned all the judges, Fine got out of prison and the judge who put him there resigned.

    They, like James Traficant and Rick Convertino – are True Patriots

    Many cases such as theirs deserves “our” time/efforts.

  30. Barkin banter on “res – stoppel’s

    Even if, arguendo, we were living in a legitimate world (which we don’t);
    your premise goes down the “evergreen” retainer pathway.

    Demurer – for sure – is the way to go (or vexatious, lacking standing)

    Again – that is – in a legitimate world!

  31. Rafflaw: if we do not get money out of politics this climate will be the norm forever.

    Money in politics is 90% of our problem, I agree, but what Turley is describing here does not seem to be a problem of corruption to me. I liken this more to a business situation in which a manager with hiring discretion hires an “assistant manager” that does all of his work, so he can be free to do nothing at all. I call that “over delegation,” and it is not some aberration of human psychology, I have seen it happen in small businesses and large. For both, this happens near the top where owners or officers have little accountability to anybody higher up; which applies to Congress too.

    To me that is what the Congress has done, and they agreed to the agency autonomy out of laziness and for political advantage.

    It is lazy because by granting power and autonomy they do not have to oversee that agency’s work. That is politically advantageous because autonomy means they can evade blame for whatever their agency did: The failings of an autonomous agency can be blamed on many, past and present, to a point of diffusion in which we aren’t sure who is to blame. That is a good political outcome for a politician, for one he can claim his hands were tied, then he can immediately promise to “work to fix it” if reelected.

    I think money in politics is probably the biggest problem facing our nation, threatening our civil liberties and rights, our economy and our democracy, but this particular problem does not seem very driven by money or favors to the wealthy or corporations, or even politics. To me this is more of a general failing of humans at the helm, that have lost all interest in the work but not the substantial rewards of their position.

  32. A good example is Congress creating the Consumer Financial Protection Agancy, but doing so with no rules, leaving it to the new agency itself to create the rules which it would then enforce. The idea that, for instance, that maximum credit card rate that banks will be allowed to charge will be set by unelected bureaucrats is appalling.

  33. The mindset of government is to grow in size, self-protection, and power until there remains only the tyrant and the slaves.

  34. John;

    We (the UN-United States of America) and its citizens, will never band together to stop the tyranny, cronyism and corruption that has become our 4th Branch of Government.

    It (the 4th protocol if you will) exists to keep U.S. feeding “Them”.

    If you get between a big man and his food;

    UH OH!

  35. If you get between a big man and his food;

    UH OH!
    ——————
    What about the expiration date? Maybe they want to move to Paraguay. Can they speak the language?

  36. John Lewis: So how do we go about getting rid of the fourth branch of goverment??

    There are many ways “how,” the problem is they all involve enough people giving a crap, and nobody knows how to make enough people give a crap.

    Seriously, if enough people cared then in two years we could take 100% of the House and 1/3 of the Senate; in another two we could take 2/3 of the Senate and the White House, and be immune to filibuster, and take the leadership of every state, including mayors and governors. If enough people band together they can almost instantly (in historical context) take over this government.

    I think we just don’t care enough to put aside partisan politics long enough to stop the corruption. They have got us cornered, we care so much about Democrat or Republican that it allows both parties to be corrupt, because for each camp, the other party is not an alternative.

    So Party A can be increasingly corrupt while in office, until their constituents get fed up. But the fed up do not switch to Party B, they just fail to turn out to vote. In the meantime, Party B is out of power and their constituents are getting increasingly agitated; and putting up new candidates.

    A tipping point is reached and Party B takes office. The new candidate doesn’t do anything, and more often than not finds the corruption will line their pockets with “investment opportunities,” so they get rich and the corruption continues.

    The fed up Party A voters are horrified. While Party B rules, they find their own new candidates, and become agitated, while Party B voters become increasingly disaffected and apathetic that their newly elected wonder child is no better than their last wonder child.

    A tipping point is reached, enough of Party B stays home, and enough of Party A turns out, that Party A takes office with a new champion…

  37. At the outset let me openly admit that in the topic of Administrative Law I am best described as Zachariah Johnston described himself in the Virginia Ratifying Convention, namely, ” of the Middle Rank”. My studies involve a few selected texts: Administrative Law and regulatory Policy, Regulation and DeRegulation, The Gilbert Series on Constitutional Law, Hart and Sacks Legal Process Theory.. These texts were studied outside of Academia, and accompanied readings of Madison’s Writings , which I have pursued for about 15 years, The Debate on the Constitution, series 1 and 2. I have additionally read as many public policy treatments that I can source.. In this admission the ‘Lettered’ amongst you will find many gaps that I have not filled in my curious quest, so if my conclusions seem sophomoric I must apologize in advance.

    The concern that I have is the excrescent growth of regulatory governance, which if I am correct, is agreed to by the Bench, the Bar, and Academia. With this trend agreed to, there is an implicit acceptance of a ‘4th’ branch necessity that is not lacking historical precedent. Attendant with the acceptance bureaus
    is the recognition that each has quasi governmental powers, executive, legislative, and judicial, and that those so charged are not elected, but rather appointed. My readings there suggest a real depth of expertise exists in many of the bureaus, and or agency members.

    I also must include the meager readings I have done on Executive or orders, I have only cursory readings there, going to the common law background of regulation and it’s origins. I have tried to comprehend the transitions of thought that exist between Madison’s fulfilling a congressional statute’s requirement of implementing a tariff at a given point, to the latest round of executive orders dealing with the PPACA dealing with time frames, and exclusions.. If I am correct this oft called ‘tweaking’.

    I understand the concept of agencies, the expertise they should contain, my best example there is Nuclear Regulatory Commission. I pay due respect to the concept of ‘evolving standards of decency’ when contemplating the advancement of ‘civil rights’ and the changes to certain elements of the Bill of Rights, there, in this last topic I absorbed the following books, ” Constructing Civil Liberties” by Kersch, and ‘Brandies and the Progressive Constitution’.

    Although my limited studies betray my self proclaimed ‘Middle Rank’, and the erudite can dismiss my musings with the well documented abridged field of my study, I must assert that I am a citizen of the United States, and also follow the Madisonian idea that ‘Constitutions are over governments, and people over constitutions’. I have a filiopietistic obdurateness to the ‘Consent of the Governed’.

    This post is as much a question as statement, and of the questions I have, are we a Constitutional Republic, or have we become a Parliamentary system ? Are we to trace our history to Madisonian Thought, or to source ourselves to a Wilsonian Origin ? Having once heard Newt Gingrich call himself a ‘Real Politique (sic) Wilsonian. Is the conclusion of Justice Roberts in NfIB V Sebelius a profound trenchant comment of Constitutional Principles, or is it a logomachy wrapped in an attempted ” switch in time that saved thine ( his legacy ), with neologisms that the much more urbane than I citizens than I, seem to accept.

    Can a ‘4th’ Branch of largely unaccountable govern, under the Constitution and keep the ‘separation of powers’ in tact ?? How far does delegation and sub delegations go before we are not sure who is sovereign, and how to hold them accountable ? Is the ‘revolving door’ the conduit for corporate control of agencies, what of ‘capture’.

    Having posed enough questions to documents my doubts, I am worried as to our Constitutional fate. The executive orders conundrum posed by Professor Turley should be call to liberals and conservatives, as he so ably elaborated upon, is it not right that we should take alarm at experiments not only with our liberties, but also our charter of government ? Can the Executive Branch function like a Prime Mimister, and preserve our heritage…. ?

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