Yesterday, at the Federalist Society's Executive Branch Review Conference an extensive debate about the Rise of the Fourth Branch took place. RNLA’s Lawyer of the Year George Terwilliger took part. He spoke on the Criminal Law at the Federal Level Panel and started by saying that:
Liberty is the cornerstone of our constitutional system and that economic liberty is affected by over-criminalization because it is an economic drag.
He then went into talking about the Fourth Branch with respect to criminal law saying:
Criminal law has its place but that place is to protect the means and instrumentalities of commerce, not the power to enforce arbitrary regulations. These regulations are offensive to principles of fundamental fairness because people don’t know what the regulations are. There also can be disagreements about the interpretation of the regulations. Congress empowers agencies to write the regulations and the regulations define the crimes.
He argued that in order to correct this problem there needs to be a:
Rededication to fairness based on knowing and intentional conduct. Congress also needs to be held accountable because we shouldn’t be regulating commerce through criminal statutes.
Other speakers at the event included Former Congressman David McIntosh, Law Professor Jonathan Turley and Senator Ted Cruz.
Congressman McIntosh started by talking about how as the regulatory state has exploded, regulatory rights have disappeared. He also brought up issues with Separation of powers because Government agencies have the ability to circumvent the intended boundaries established by the constitution. Another practical problem is what constitutes due process in an agency action because the scales are usually heavily weighted in favor of the Agency. Especially with the adoption of the Chevron doctrine, which states that Agency interpretation, is given significant weight in court cases.
Professor Turley spoke about how the founders tried to arrange the branches in such a way that they were captured in orbit. With the rise of the Fourth Branch, administrative agencies have become insulated and independent. Our government wasn’t designed for four branches and that this transition is dangerous because unaccountable Federal agencies are dominating the government.
Senator Cruz talked about the expansion of the “Administrative State” and how it is "one the scariest things" of our time. He said the government is about two things: Power and Accountability. Bureaucrats who are not accountable to the people make these decisions. He ended by saying that the constitution was designed as chains bind the mischievous government.
The rise of the Fourth Branch is a frightening phenomenon because under Obama the government keeps growing as more and more nonelected bureaucrats are put into positions where they can impact Americans with additional regulations. At this point it’s unrealistic to think that even Obama has authority over all of these regulations being put onto small businesses and ordinary Americans. What we should be striving for is a smaller government that is more accountable to the people and not one that arbitrarily imposes regulations that harm our economy.
After his display yeaterday, it is only fitting that George Terwilliger will be honored as the Republican Lawyer of the Year on June 25, 2013 at the Capitol Hill Club.