The borough code issues we are faced with in Kodiak today are the nearly IDENTICAL issues faced by the founders of our country. Namely, what are the natural rights of human beings and what rights do governments have over those human beings? The founders of our country tried to address those issues in the Bill Of Rights. It was made explicitly clear that these Bill Of Rights were not rights that were given to us by government, they were a restriction on government! Not understanding this traps us in a “those that gave us rights can take them away” type of mentality where we adopt a king/rulers we might not even be aware of adopting. Go back to what the Declaration of Independence says. Men cannot grant other men rights. It violates the whole essence of being humans and it creates slavery.

Fundamentally, this whole code issue is a philosophical, perhaps even a religious question/issue.

I’ll let you be the judge. See the article below!

The History and Danger of

Administrative Law

Philip Hamburger

There are many complaints about administrative law—including that it is arbitrary, that it is a burden on the economy, and that it is an intrusion on freedom. The question I will address here is whether administrative law is unlawful, and I will focus on constitutional history. Those who forget history, it is often said, are doomed to repeat it. And this is what has happened in the United States with the rise of administrative law—or, more accurately, administrative power.

Administrative law is commonly defended as a new sort of power, a product of the 19th and the 20th centuries that developed to deal with the problems of modern society in all its complexity. From this perspective, the Framers of the Constitution could not have anticipated it and the Constitution could not have barred it. What I will suggest, in contrast, is that administrative power is actually very old. It revives what used to be called prerogative or absolute power, and it is thus something that the Constitution centrally prohibited.

But first, what exactly do I mean by administrative law or administrative power? Put simply, administrative acts are binding or constraining edicts that come, not through law, but through other mechanisms or pathways. For example, when an executive agency issues a rule constraining Americans—barring an activity that results in pollution, for instance, or restricting how citizens can use their land—it is an attempt to exercise binding legislative power not through an act of Congress, but through an administrative edict. Similarly, when an executive agency adjudicates a violation of one of these edicts—in order to impose a fine or some other penalty—it is an attempt to exercise binding judicial power not through a judicial act, but again through an administrative act.

In a way we can think of administrative law as a form of off-road driving. The Constitution offers two avenues of binding power—acts of Congress and acts of the courts. Administrative acts by executive agencies are a way of driving off-road, exercising power through other pathways. For those in the driver’s seat, this can be quite exhilarating. For the rest of us, it’s very unnerving.

The Constitution authorizes three types of power, as we all learned in school—the legislative power is located in Congress, executive power is located in the president and his subordinates, and the judicial power is located in the courts. How does administrative power fit into that arrangement?

The conventional answer to this question is based on the claim of the modernity of administrative law. Administrative law, this argument usually goes, began in 1887 when Congress created the Interstate Commerce Commission, and it expanded decade by decade as Congress created more such agencies. A variant of this account suggests that administrative law is actually a little bit older—that it began to develop in the early practices of the federal government of the United States. But whether it began in the 1790s or in the 1880s, administrative law according to this account is a post-1789 development and—this is the key point—it arose as a pragmatic and necessary response to new and complex practical problems in American life. The pragmatic and necessary character of this development is almost a mantra—and of course if looked at that way, opposition to administrative law is anti-modern and quixotic (foolish/unrealistic).

But there are problems with this conventional history of administrative law. Rather than being a modern, post-constitutional American development, I argue that the rise of administrative law is essentially a re-emergence of the absolute power practiced by pre-modern kings. Rather than a modern necessity, it is a latter- day version of a recurring threat—a threat inherent in human nature and in the temptations of power.

For the full article see this link: http://imprimis.hillsdale.edu/file/archives/pdf/2014_09_Imprimis.pdf

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