George Leef’s latest column for Forbes examines disturbing growth within the portion of the American government that lies outside the control of elected representatives.

Article One, Section One provides that all legislative powers vest in Congress. Neither the executive nor the judicial branches are to create law. Each branch is to stay within its narrowly and precisely prescribed functions to guard against encroachments on the people’s liberty.

It worked – for a while.

During the so-called Progressive Era (better called the Big Government Must Solve All Our Problems Era), Congress began establishing administrative agencies charged with implementing statutes it passed, the Interstate Commerce Commission, for example. That was constitutionally permissible, but before long, Congress sought to give such agencies legislative powers – to make law through regulations. The Supreme Court ruled that unconstitutional because Congress was not empowered to delegate its legislative power to any other body.

Thus was born the non-delegation doctrine, and it held through 1936. Numerous New Deal statutes foundered upon it. But in 1937, the Supreme Court chose to ignore it in the pivotal case of NLRB v. Jones & Laughlin Steel. In passing the National Labor Relations Act, Congress had put de facto legislative power over labor relations in the hands of a bureaucratic agency, the National Labor Relations Board. The Court did not overrule the earlier cases (such as Carter v. Carter Coal in 1936), but gave the NLRB the green light. Ever since, it has turned a blind eye to the increasing delegation of legislative power to unelected bureaucrats.

Along with most of America, the Court’s justices have blithely accepted the idea that Congress simply cannot write all the laws needed today because our problems have become “too complex.” Under that notion, the best (and constitutionally unobjectionable) course for Congress is to enact vague, general statutes that leave it to supposed experts in administrative agencies to figure out all the details and enforce them. Thus, our enormous body of administrative law is just a matter of necessity – or so the argument goes.