The Boundless Executive State: From Global Warming to Sexual Harassment

Two days ago Cato held a book forum to mark the publication of an excellent new book, Climate Coup: Global Warming’s Invasion of Our Government and Our Lives, edited by Pat Michaels. I coauthored chapter one, which shows how the modern executive state arose over the 20th century such that today the Environmental Protection Agency is able to regulate vast areas of life without ever having to go to Congress for authority to do so. It’s a remarkable inversion of the Founders’ vision. With emphasis added, the very first sentence of the Constitution, after the Preamble, reads as follows: “All legislative Powers herein granted shall be vested in a Congress …” — not in the executive branch, not in the courts, but in Congress. Yet today we are governed mainly by over 300 executive branch agencies that themselves exercise legislative, executive, and judicial powers, leaving the separation-of-powers principle in tatters.

And the executive’s reach extends, of course, far beyond environmental regulations. Thus we now learn from the Foundation for Individual Rights in Education (FIRE) — a fine organization dedicated to defending students and faculty caught in the jaws of higher education’s obsession with political correctness — that just last month the United States Department of Education’s Office for Civil Rights (OCR), all on its own, issued regulations requiring that colleges and universities receiving federal funding must employ not the beyond-a-reasonable-doubt standard, nor even the clear-and-convincing-evidence standard, but the low preponderance-of-the-evidence standard (a 50.01 percent, “more likely than not,” evidentiary burden) when adjudicating student complaints concerning sexual harassment or sexual violence. Institutions that fail to comply face federal investigation and the loss of federal funding.

It’s well understood, of course, that allegations of sexual crime involve difficult proof issues. Given that, FIRE’s open letter to OCR’s assistant secretary points out that Supreme Court precedent argues strongly against using the preponderance-of-the-evidence standard in campus hearings concerning allegations of sexual harassment and sexual violence. Lowering the burden of proof, FIRE notes in its press release,

will reduce confidence in campus judiciary systems and inevitably result in more incorrect guilty verdicts. Rather than provide for the “prompt and equitable” resolution of student allegations, FIRE contends that OCR’s new requirement “serves to undermine the integrity, accuracy, reliability, and basic fairness of the judicial process.” Further, relying on the preponderance of the evidence standard in sexual violence claims “turns the fundamental tenet of due process on its head, requiring that those accused of society’s vilest crimes be afforded the scant protection of our judiciary’s least certain standard.”

Yet already, FIRE adds, OCR’s new regulations have prompted colleges and universities across the country

to abandon their commitment to due process protections for students accused of sexual harassment and sexual violence. Brandeis University, Stanford University, Yale University, and the University of Massachusetts Amherst all have announced revisions, either already instituted or forthcoming. Given the threat of federal investigation and the loss of federal funding for failing to comply with OCR’s directives, hundreds of institutions will follow.

Thus, the modern executive state is at work, in this and a thousand and one other ways, writing and enforcing rules that Congress alone has the authority to write. But Congress long ago abdicated that responsibility, delegating it to politically non-responsible bureaucracies and bureaucrats. And that is where power rests today.