From Cafe Hayek: Is Administrative Law Unlawful?:
“Evidently, the lust for power outside the law is a recurring danger, and it is confined neither to monarchies nor to the past. Understanding this, Americans in their constitutions carefully repudiated power outside or above the law. Their constitutions, however, could no longer hold off the danger when an increasingly dominant knowledge class abandoned its attachment to the straight and narrow paths of law in pursuit of broader avenues of extra- and supralegal power.
The result, as in the past, is an alternate, parallel system of law, which is not law, but mere command, and which increasingly crowds out real law. Americans thus must live under a dual system of government, one part established by the Constitution, and another circumventing it.
….[E]xtralegal power again threatens the liberty demarcated by law. Of course, administrative law is said to have statutory authority. This, however, does not alter the fact that administrative law confines Americans, not through law, but outside it, thus displacing the liberty under law with a subjugation to administrative command.
The liberty established by the Constitution is a liberty under law, not a liberty under administrative fiat. It is a complete freedom to do whatever is not forbidden by law, and any attempt to impose extralegal constraints is unconstitutional.
We write often about the rise of the Administrative State – the unaccountable and unelected bureaucrats who, because of the fecklessness and laziness of our elected legislators, have taken the inch and turned it into miles. And when presented with “opportunities” like Obamacare with its 2000 iterations of “the Secretary shall decide / issue / decide / rule” in which Legislators have meekly given their power to the Executive branch, covered wide swaths of America under regulation.
The above example “displacing the liberty under law with a subjugation to administrative command” is perfectly illustrated by the HHS mandate concerning contraceptives (which is still being fought today in the courts) – no legislator said that companies were to provide contraceptives and abortifacients in their healthcare insurance coverage, no legislation specifically enumerated which procedures were covered and which were not, and no legislator EVAH said that people could never decide for themselves.
But the bureaucrats did and thus creates the perfect example that buttresses that one of the downfalls (and I believe one that will put us into the dustbin of history along with other countries of the past) of the Progressive end state – the turning of our Constitutional Republic where our elected Representatives actually GOVERNED into one where we still pay these self-assured incompetents and they continue to pontificate at the Well of the Senate and House, but the real power has left them.
And in turn, us. Consider it our adaptation of Hunger Games (after all, our Capital is now the home of the richest counties in the nation).