January 18, 2019

ON THIS DAY IN 1689: Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, advocate of separation of powers, was born.

Montesquieu would likely have hated the modern administrative state, which liberally mixes the legislative, executive and judicial functions. I know I hate it. As Professor Gary Lawson wrote about the Federal Trade Commission in his well-regarded article The Rise and Rise of the Administrative State:

“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.”

This doesn’t work very well, you know.  Just ask Montesquieu.

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