"The Rise of Tyranny": How the erosion of separation of powers threatens American democracy
- Constitutional attorney Jonathan W. Emord argues in "The Rise of Tyranny" that the foundational principle of separation of powers in the U.S. has been systematically dismantled, leading to an unchecked administrative state that erodes democratic accountability and individual freedoms.
- Emord traces the roots of the crisis to the New Deal era, particularly the "switch in time that saved nine" in 1937, where the Supreme Court began upholding New Deal legislation, effectively abandoning the non-delegation doctrine and allowing the rise of vast regulatory agencies.
- The book highlights the phenomenon of "industry capture," where regulatory agencies become aligned with the industries they regulate, often prioritizing corporate interests over the public good, leading to reduced innovation, economic harm and public health risks, exemplified by the FDA's approval of unsafe drugs.
- Emord criticizes the judiciary for enabling the erosion of constitutional safeguards, particularly through the 1984 Chevron decision, which grants broad deference to administrative agencies. He also points to Congress' willingness to delegate legislative authority, weakening the checks and balances system.
- Despite the challenges, Emord remains hopeful and calls for a renewed commitment to the separation of powers, urging Congress to reclaim its legislative authority, the judiciary to enforce constitutional limits and the implementation of greater transparency, accountability and whistleblower protections in the regulatory process.
In "
The Rise of Tyranny," constitutional attorney and author Jonathan W. Emord delivers a sobering examination of how the foundational principle of separation of powers – once the bedrock of American liberty – has been systematically dismantled, paving the way for an unchecked administrative state.
Drawing on historical insights from the Founding Fathers, Enlightenment philosophy and modern legal precedents, Emord argues that the concentration of power in unelected bureaucracies has eroded democratic accountability and imperiled individual freedoms. Published in a time of growing public distrust in government institutions, the book serves as both a warning and a call to action, urging a return to constitutional principles to safeguard the nation's future.
The separation of powers, a concept championed by Enlightenment thinker Montesquieu and enshrined in the U.S. Constitution, was designed to prevent tyranny by dividing authority among the legislative, executive and judicial branches. James Madison, in "Federalist No. 47," hailed Montesquieu as the "oracle" on the subject, emphasizing the necessity of keeping these branches independent. Yet, as Emord meticulously documents, this principle has been increasingly undermined since the mid-20th century, with Congress delegating vast law-making powers to administrative agencies. This shift, he argues, has created a system where unelected bureaucrats wield unprecedented authority, often at the expense of public accountability and individual rights.
The roots of this crisis, Emord explains, can be traced to the New Deal era, when President Franklin D. Roosevelt's efforts to expand federal regulatory power faced initial resistance from the Supreme Court. However, the so-called "switch in time that saved nine" – a pivotal moment in 1937 when the Court reversed course and upheld New Deal legislation – marked the beginning of the end for the non-delegation doctrine. This doctrine, which prohibits Congress from transferring its legislative authority to other entities, was effectively abandoned, allowing the administrative state to flourish. Today, over 180 federal regulatory agencies and commissions regulate nearly every aspect of American life, from environmental standards to pharmaceutical approvals.
One of the most troubling consequences of this concentration of power, Emord argues, is the phenomenon of "industry capture," where regulatory agencies become beholden to the industries they are meant to oversee. Drawing on public choice theory, developed by economists James M. Buchanan and Gordon Tullock, Emord explains how agency heads, motivated by self-interest, often prioritize the interests of powerful corporations over the public good. This rent-seeking behavior, he contends, stifles innovation, reduces economic opportunity and harms consumers. The pharmaceutical industry, for example, has mastered the art of manipulating regulations to secure monopoly protections, often at the expense of public health.
The
Food and Drug Administration (FDA), Emord asserts, is a prime example of industry capture. Despite its mandate to protect public health, the agency has repeatedly approved unsafe drugs – such as Redux, Rezulin, Avandia and Vioxx – that have caused thousands of deaths and injuries. Whistleblowers have exposed a culture of intimidation and retaliation within the FDA, where safety concerns are often suppressed in favor of industry interests. Additionally, the agency’s censorship of health information, particularly regarding the relationship between nutrients and disease, has deprived consumers of vital knowledge needed to make informed decisions about their health.
Emord also highlights the judiciary's role in enabling this erosion of constitutional safeguards. The 1984 Chevron decision, which granted administrative agencies broad deference in interpreting their own authority, marked a turning point in the courts' abdication of their oversight role. Since then, the federal judiciary has largely failed to enforce the separation of powers, allowing agencies to operate with minimal accountability. This judicial deference, combined with Congress' willingness to delegate its legislative authority, has created a system where the checks and balances envisioned by the Founding Fathers are increasingly ineffective.
The consequences of this unchecked power are far-reaching. Emord warns that the concentration of authority in unelected bureaucracies undermines democratic accountability, as legislators can claim credit for popular regulations while deflecting blame for unpopular ones. This dynamic, he argues, severs the link between elected officials and the laws they enact, making it difficult for the public to hold their representatives accountable. Moreover, the suppression of information and the prioritization of corporate interests over public safety pose significant threats to both individual liberty and public health.
Despite these challenges, Emord remains hopeful that reform is possible. He calls for a renewed commitment to the separation of powers, urging Congress to reclaim its legislative authority and the judiciary to enforce constitutional limits on administrative agencies. He also advocates for greater transparency and accountability in the regulatory process, as well as stronger protections for whistleblowers who expose wrongdoing within government agencies.
"The Rise of Tyranny" is a timely and compelling exploration of a critical issue facing American democracy. By tracing the historical roots of the separation of powers and examining its modern-day erosion, Emord provides readers with a deeper understanding of the challenges posed by the administrative state. His call to action is clear: to preserve liberty and prevent tyranny, Americans must demand a return to the constitutional principles that once safeguarded their freedoms. As Emord concludes, "The future of our democracy depends on our willingness to confront these challenges and demand the reforms necessary to restore the balance of power."
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