Liberty, Government, and the Rule of Law; J. Duffy

T he experience ofthe United States in the twentieth century shows, I think, the truth of Friedrich Hayek's contention that the rule of law cannot survive the vagaries of politics once it begins to lose force as a cultural value in people's minds. The mental transformation wrought by socialist ideals has made many people willing to alter the prevailing mixture of freedoms and controls toward totalitarianism (though, of course, they did not see it that way) in the search for "social justice" and security. These may have been noble aims, but in the meantime it is not coincidental that the one area of law which has come into existence almost ex nihilo over the last century is the admin istrative law. The exigencies of the Great Depression made the rule of law vulnerable to politics, and the rule of law eroded accordingly, in favor of a jurisprudence which purports to justify the administrative state and which furnishes it with powers Mr. Duffy holds a law degree and is pursuing a master's degree in economics at the London School of Economics. He is the second prize winner of the 1995-1996 Olive W. Garvey Fel lowship. A copy of the full text of his prize winning essay is available upon requestfrom The Independent Institute (see page 3).

more extensive and more intrusive than any it held before. In the 1930s, the Supreme Court of the United States began to allow Congress to delegate extensive legislative authority to agencies located in the executive and legis lative branches of government, or "out side" any branch, by virtue of the political independence of the agency heads. In two great cases of 1935, Panama Refining Co. v. Ryan, and Schechter Poultry Corp. v. United States, the Supreme Court had struck down New Deal legislation on the grounds that Congress had delegated its powers unconstitutionally, but that doctrine fell into disuse with the Court's general acceptance of a New Deal worldview after President Roosevelt's court-packing plan gave them a fright in 1937. Since then, it has been the norm for Congress to create a federal agency and allow it to legislate its own agenda within statutory guidelines that may be quite vague. The rules and regulations promul gated by these agencies have proliferated to such an extent that no mere citizen can be apprised of them all; specialized law practices are built around the rulings and procedures of a single agency; and compli ance with the mass of technical legal re quirements by a citizen who cannot employ full-time professional counsel is largely a matter of luck. At the same time, the exer cise of police powers by government agents seems to have reached a new pitch of 42 effectiveness, to the detriment of the tradi tionalliberties of citizens: powers of sum mary enforcement by means of seizure or monetary penalty are legion, and the pros pect of judicial review of an administrative action can only be reassuring to someone who has not read administrative case law and seen for himself how deferential the courts have become to the judgments of government agencies.