The Administrative State

The administrative state is no fourth branch of government. It is a parallel government, operating in the shadows, outside the light of democratic transparency. The best indicator of this stems from the fact that members of the administrative state are not subject to the same system as the rest of us. Charles Murray describes this system well:

If you are prosecuted for violating a regulation issued by the EPA, OSHA, HHS, Department of Energy, or any of the myriad other federal regulatory agencies, you appear before an administrative law judge (ALJ) sitting in an administrative law courtroom. An ALJ is selected by the agency whose cases he will hear, and is subsequently an employee of that agency. The agency gets to choose its preferred candidate from among the three top-rated candidates identified by the office of Personnel Management. An administrative law judge is exempt from performance reviews and other oversight by the regulatory agency, but may be overruled by the head of the agency.

There's no jury. When appearing in an administrative court, you do not get a lawyer unless you pay for it. Most rules of evidence used in normal courts do not apply. The legal burden of proof placed on the lawyer making the case for the regulatory agency is "a preponderance of the evidence," not "clear and convincing evidence," let alone "evidence beyond a reasonable doubt" that you are guilty. If the administrative judge thinks that it's a 51/49 percent call in favor of the regulatory agency that accused you, you're found guilty. If the administrative court judge's decision is adverse, you may, in most cases, appeal that decision to another body within the agency.

In other words, you’re pretty much screwed.

Source: Suicide of the West. How the Rebirth of Tribalism, Populism, Nationalism, and Identity Politics Is Destroying American Democracy (2018) by Jonah Goldberg.