The Rule of Law
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Abuses in administrative discretion may be and frequently are brought
to the attention of Congress, but the massive outpouring of regulations
and all of the individual complaints far exceed the capacity of Congress for
corrective action. In those rare instances where a legislator is able to focus
on a particular case, there is often little that can be done to correct the
problem from a practical standpoint. Congress, and certainly not an individual member, has no authority to remove an arrogant bureaucrat from
office, and the President’s limited power of removal is almost equally feeble, as demonstrated by the fact that only a small handful of commissioners have been forced out of office; and their subordinates are immune
from reprisal or removal. Congress is always free, of course, to overturn
administrative rulings by corrective legislation, but again, this is an arduous chore that seldom is attempted, and an option that is not usually
available in the case of individual wrongdoings.
In the final analysis, it must also be admitted that the creation of so
many independent regulatory commissions has also weakened the republican principle of representative government and the ideal of democratic government in which the decision-makers are held politically accountable to the voters for their actions. Judicial review of administrative
decisions, which can address some of the worst abuses of power, offers
the hope that legal accountability may nevertheless be upheld. ‘‘What is
required under the rule of law,’’ notes Friedrich A. Hayek in his great
classic The Constitution of Liberty, ‘‘is that a court should have the power
to decide whether the law [passed by Congress] provided for a particular
action that an administrator has taken. In other words, in all instances
where administrative action interferes with the private sphere of the individual, the courts must have the power to decide not only whether a
particular action was [within the law], but whether the substance of the
administrative decision was such as the law demanded. It is only if this
is the case that administrative discretion is precluded.’’
C. The Rule of Law
The America of 1787 inherited from medieval England the concept of
rule of law, sometimes expressed as ‘‘a government of laws, not of men.’’