Membership in the Mandarin Class has its privileges

From The Rise and Rise of the Administrative State by Gary Lawson. H/T Gail Heriot.

The Commission promulgates substantive rules of conduct. The Commission then considers whether to authorize investigations into whether the Commission’s rules have been violated. If the Commission authorizes an investigation, the investigation is conducted by the Commission, which reports its findings to the Commission. If the Commission thinks that the Commission’s findings warrant an enforcement action, the Commission issues a complaint. The Commission’s complaint that a Commission rule has been violated is then prosecuted by the Commission and adjudicated by the Commission. This Commission adjudication can either take place before the full Commission or before a semi-autonomous Commission administrative law judge. If the Commission chooses to adjudicate before an administrative law judge rather than before the Commission and the decision is adverse to the Commission, the Commission can appeal to the Commission. If the Commission ultimately finds a violation, then, and only then, the affected private party can appeal to an Article III court. But the agency decision, even before the bona fide Article III tribunal, possesses a very strong presumption of correctness on matters both of fact and of law.

The flaw in our existing constitutional system is that increasingly large portion which was not in the Constitution but which now, by abdication of Congress, the Executive, and the Courts is deferred to without substantive control or oversight via the Chevron doctrine.

The Executive creates agencies of "experts" who make decisions on behalf of the Executive without tight supervision and those decisions are rarely reviewed or questioned by the People's branch, Congress and when they very occassionally are, Congress defers to the "experts". This is not a Left/Right issue. This is a breach of faith through laziness and fear of conflict by bureaucrats and the Mandarin Class. Everyone has a shield of deference and no one is held accountable to citizens.

The archetype example, though hardly the only one, is the IRS targeting controversy led or facilitated by Lois Lerner in which the tax status of selected citizen groups was targeted by an Executive Branch agency (the IRS) in order to deprive them of their constitutional rights for political partisan purposes.

The reveal of the illegal behavior was a long slow process with denials at every step of the way, deference from many members of Congress, and a turning of the blind eye by the Mandarin Class. And at the end, while the wrong-doing was achieved and acknowledged and the damage to citizen rights and activities demonstrated, no one was held accountable. Membership in the Mandarin Class has its privileges - one of which is to trample the rights of citizens and to escape scot free.