Titled “Government by the Unelected: How It Happened, and How It Might Be Tamed,” Dr. Pestritto carefully traces the origin of the bureaucratic leviathan to the Progressive Era’s assault on the Founders’ constitutional vision. Dr. Pestritto examines how federal courts enabled the administrative state’s growth across nearly a century, and assesses the current administration’s systematic campaign to roll it back.

“Roosevelt, like Wilson, understood that the newly empowered federal bureaucracy could not coexist with the original constitutional vision of federalism or of separation of powers,” wrote Dr. Pestritto. “While the framework of the Constitution rested on each branch of government maintaining firm control over its own jurisdiction and kept administration subservient to an elected executive, this framework was inadequate for the scope and efficiency needed for modern administration.”

As early as the late nineteenth and early twentieth centuries, Dr. Pestritto highlights that progressive “reformers” like Woodrow Wilson and Frank Goodnow undermined the Constitution’s separation of powers, replacing the founders’ vision of limited government with a centralized national administrative apparatus.

The administrative state’s enabling partner, shortly after Congress passed the New Deal, became the Supreme Court. Landmark decisions from the 1930s onward systematically cleared the way for agencies to make significant policy decisions with minimal oversight or accountability to the elected branches or to the voters who elect them.

“Congress has, by law, long ago abdicated the bulk of its Article I powers in creating, empowering, and funding the administrative state,” explained Dr. Pestritto.

However, President Trump’s victory in 2024 brought with it the hopes of stopping the seemingly endless spiral towards unaccountable bureaucratic rule. So far, Dr. Pestritto concludes, the Trump administration has launched the most systematic effort since the New Deal to recapture executive power from the unelected class. 

“The Trump administration’s deeper project to rein in the bureaucracy has proceeded on two primary fronts: (1) a wide scale reconsideration of regulations implemented during the Obama and Biden administrations; and (2) making bureaucratic entities fall in line with the president’s agenda through a robust assertion of the president’s power to remove agency commissioners and other top officials,” reads the report.

Significant obstacles do remain, Dr. Pestritto cautions. Federal courts continue to obstruct presidential initiatives through preliminary injunctions granted by district judges sympathetic to the administrative state. Ultimately, he emphasizes, genuine restoration of popular government depends on Congress asserting its own Article I powers—a muscle the legislative branch has not stretched for quite some time.

“It is certainly a positive development that agencies must now undergo greater legal scrutiny; yet if the end result is to shift governing power out of unelected agencies, and into the unelected courts, one can reasonably ask how useful this shift is for restoring government by the consent of the governed,” concluded Pestritto.

“Courts have many means at their disposal for second-guessing administrative decision making, means that can be applied with equal force when administrative decision making is in line with the policies of the elected president, and when it is against his policies,” he added.

The Claremont Institute’s Center for the American Way of Life released this analysis as part of its special edition Provocations series commemorating America’s 250th anniversary, designed to guide current and future administrations in the project of restoring the principles of constitutional self-government that animated the American Founding.

About the Author

Dr. Ronald J. Pestritto is a Senior Fellow at the Claremont Institute, writing primarily on the history and pernicious origins of progressivism and the administrative state. Dr. Pestritto is also Dean of the Van Andel Graduate School of Statesmanship at Hillsdale College, where he holds the Charles and Lucia Shipley Chair in the American Constitution. He earned his B.A from Claremont McKenna College in 1990 and Ph.D. from Claremont Graduate University in 1996.

About The Claremont Institute

The Claremont Institute is dedicated to restoring the principles of the American Founding to their rightful, preeminent authority in our national life. Through scholarship, public policy, and educational initiatives, The Claremont Institute seeks to recover America’s founding principles and advance a government based on the enduring truths of the Declaration of Independence.

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The brief, authored by Dr. John C. Eastman, specifically urges the Supreme Court to grant certiorari in Trump v. Washington and Trump v. Barbara to resolve key constitutional questions surrounding the Fourteenth Amendment’s Citizenship Clause after years of confusion sown by unelected bureaucrats and, more recently, lower courts.

“The Fourteenth Amendment codified and constitutionalized the language of the 1866 Civil Rights Act, which expressly conferred automatic citizenship only on children born to parents who were not subject to any foreign power,” wrote Eastman, founding director of CCJ.

“This understanding … was confirmed by the leading treatise writers of the day. And it was put into effect by Executive Branch officials in the 1880s rejecting the claims of citizenship advanced by children who had been born to temporary visitors from other countries,” he added.

The Claremont Institute recognizes that citizenship under the Fourteenth Amendment should only extend to those born to parents fully subject to U.S. jurisdiction because the amendment’s ratifiers intended “subject to the jurisdiction thereof” to require complete allegiance—not mere territorial presence.

As the brief notes, two U.S. senators instrumental to the passage of the amendment and the 1866 Civil Rights Act explicitly confirmed that they did not intend for children born to those owing allegiance to foreign powers to receive automatic citizenship by birth alone.

That principle did not spring from thin air. The repudiation of the feudal doctrine of birthright subjectship is evident as far back as the Declaration of Independence, which transformed the legal conception of political membership from one based on birthright subjectship to one based on mutual consent.

Meanwhile, the evidence to the contrary cited by the lower courts is inconclusive at best.

“The lower courts cite a patchwork of historical sources ranging from early Supreme Court cases to fragments of congressional debates and isolated comments from later decisions,” reads the brief. “But none of these authorities, properly understood, support their conclusion that the law on this subject is ‘well-settled.’”

The Center’s brief brings needed clarity and historical rigor to one of America’s most consequential constitutional debates. The Supreme Court should formally settle the true scope of the Citizenship Clause and restore the Founders’ intention to condition citizenship on genuine allegiance and consent.

Click here to read the amicus brief.

About The Claremont Institute

The Claremont Institute is a leading think tank dedicated to restoring the principles of the American Founding to their rightful, preeminent authority in our national life. Through litigation, scholarship, teaching, and policy advocacy, Claremont defends the Constitution and equips lawmakers and leaders to uphold its guarantees.

The post The Claremont Institute Files Brief Challenging Abuse of Birthright Citizenship appeared first on The Claremont Institute.

The case, Trump v. Slaughter, challenges the constitutionality of the FTC’s structure and the precedent of Humphrey’s Executor v. United States. That decision, issued in 1935, limits the president’s ability to remove commissioners only to instances of “inefficiency, neglect of duty, or malfeasance in office.”

“Although the President’s removal power is not expressly stated in the Constitution, it is clearly implied, as a President cannot ‘faithfully execute the laws’ if his appointees or, as will often be the case with the statute at issue here, the appointees of a previous President, become defiant and insubordinate,” wrote Eastman.

The Claremont Institute contends that the FTC’s for-cause tenure provisions unlawfully curb the President’s removal power, thereby allowing unelected commissioners to exercise legislative, executive, and judicial functions in defiance of constitutional design. 

Citing the 1926 Myers v. United States and two recent cases this decade, the brief urges the Court to overturn Humphrey’s Executor and restore full accountability within the executive branch as well as the Constitution’s separation of powers principles.

“[Humphrey’s Executor’s] reliance on the ‘quasi-legislative’ functions assigned to the Federal Trade Commission is incompatible with a majority of this Court’s renewed focus on the non-delegation doctrine, which requires that the core decisions of legislating be made by the Congress, not by unaccountable agencies to which Congress purports to delegate its lawmaking authority,” continued the brief.Trump v. Slaughter presents the Court with an opportunity to reaffirm the Founders’ vision that all executive officers ultimately answer to the President—and, through him, to the people.

Click here to read the full amicus brief.

About The Claremont Institute

The Claremont Institute is a leading think tank dedicated to restoring the principles of the American Founding to their rightful, preeminent authority in our national life. Through litigation, scholarship, teaching, and policy advocacy, Claremont defends the Constitution and equips lawmakers and leaders to uphold its guarantees.

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“This study makes clear that VMI’s transformation is emblematic of a national trend, where historic institutions lose their core purpose when forced to conform to modern sensibilities and bureaucratic mandates, rather than upholding their traditional standards and values,” wrote Yenor. “Restoring American excellence depends on respecting differences and defending institutions that cultivate virtue and leadership according to their founding mission.”

In 1996, the Supreme Court ruled in United States v. Virginia that the VMI was required to admit women—a dramatic shift of its unique adversative system and standards. Formerly, VMI’s code fostered a distinct ethos of qualities rooted in the Western tradition, among them honor and self-reliance. Under relentless pressure in the following years to demonstrate conformity to the new idols of equality and inclusivity, VMI revised its standards. The esteemed institution relaxed physical benchmarks and uniform standardization, while increasing its accommodations to female cadets. 

Most jarring was the gradual transformation of the lauded “Code of a Gentleman” into the more inclusive “Code of a Cadet.” While the original Code was largely handed down by tradition and cadets themselves, the new Code is formal, and cadets are required to memorize it.

Efforts to remodel VMI in the image of the new civil rights regime ramped up in 2021 in the wake of social upheaval following George Floyd’s death. One report into the military college, commissioned by then-Gov. Ralph Northam, unsurprisingly prescribed diversity, equity, and inclusion policies as a remedy to fix longstanding “inequities” at the institution. Some of the suggested changes included dedicating funds to hiring more women, appointing a chief diversity officer, building a DEI plan, and intensifying implicit bias training.

“A DEI office and Title IX office now regulate VMI’s honor and class systems,” explains Yenor. “While the older code stressed that students should police themselves and stigmatized those who bypassed the student-led Honor Court, taking complaints to the administration directly is now said to be courageous when it involves exposing discrimination, defusing a ‘hostile educational environment,’ or putting a stop to ‘hazing.’”

Reversing VMI’s gender integration policy is a good start, but is ultimately insufficient. Restoring the military college and similar institutions requires affirmative efforts at the legal and political level to permit and encourage single-sex education and gender-specific training consistent with America’s founding values. VMI was once dedicated to cultivating manly honor and martial valor, and a new VMI should do that again. The Claremont Institute urges policymakers and the public to build schools that point men and women in different directions and to craft laws that uphold robust, time-proven traditions in military schools. This would meet the boy crisis and help save the republic. 

The Claremont Institute chiefly recommends that the Supreme Court overturn United States v. Virginia in a manner that demonstrates the public can benefit from an arrangement that encourages and equips men and women for (at least somewhat) distinct life trajectories. A victory in a case like this would create space for additional victories that uphold sex-specific goals.

“The lessons of VMI should speak to every American concerned with the strength and character of our republic,” emphasizes Yenor. “True progress lies not in the flattening of differences, but in the flourishing of complementary excellence that honors both men and women in their distinct paths.”

About the Author

Dr. Scott Yenor is a Washington Fellow at The Claremont Institute’s Center for the American Way of Life, specializing in the intersection of feminism, sexual liberation, and the collapse of excellence in American institutions. Yenor is the author of Family Politics: The Idea of Marriage in Modern Political Thought and The Recovery of Family Life: Exposing the Limits of Modern Ideologies. He is a professor at Boise State University and a prominent scholar on the restoration of civic and family traditions.

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Charlie was a Lincoln fellow, supporter, and passionate defender of Claremont. When he attended our Lincoln fellowship in 2021, he was already one of the most famous men in American politics. His security detail was always close. And yet, busy and renowned as he was, he was a model Claremont fellowship participant. He was there to learn because he wanted to continue to hone his understanding and arguments on behalf of America and her founding principles.

His murder has affected the Claremont family in a profoundly personal way. I know the same is true throughout the movement he was a pillar of and the country he so loved. One of our senior staffers yesterday asked me, “What do we do?” I had nothing of my own to reply in the moment, but I think Charlie would have said, “Get back to work.” Yet not work as usual. He would have advised unflinching realism about what this means for America and the Right going forward.

We must face some ugly truths about our degraded civic bonds in recent years. I have urged friends not to overread the ugly gloating on display from some of the more nihilistic and fetid sectors of the online Left. An overwhelming majority of Americans, ordinary citizens and leaders alike, are horrified by Charlie’s murder.

But we must be clear-eyed about the sentiment at the fringe of the Left in America. It’s the same ethos that has always lurked in the Left’s revolutionary iterations and evolutions, whether communist, anarchist, socialist, woke, antifa, or tran-tifa. “For our friends and fellow travelers: mutual moral and financial support, rhetorical cover, coalitional power-sharing, celebration; for our enemies as we define them, at home and abroad: tyranny, war, and death.”

The left-of-center media, or parts of it, are trying to conceal, for as long as possible, the nature of the shooter’s motivation. We do not yet have a suspect in custody, and details are murky, but the Wall Street Journal has reported that there are etchings of pro-trans and anti-fascist messages on the unused ammunition in the assassin’s gun. Here is CNN’s version of those alleged facts: “Federal officials probe rifle and ammo scrawled with cultural phrases after Charlie Kirk killing.” The coy mendacity of that headline speaks for itself.

Trump ordered flags at half-mast through the weekend. There are likely a substantial number of people in America who regard that gesture with scorn and contempt. If a mere 0.5% of the American population celebrates, condones, or excuses this political assassination, that’s still over a million people.

Bridging America’s deep divisions and advancing the cause of civic friendship and harmony is a tall order. This is the very project that Charlie was undertaking the day he was shot, speaking in a public forum to anyone who cared to engage him. Nothing is fated, and public-spirited attention to the restoration of regime health is always a work in progress. It’s work we all should continue to pursue in good cheer. We should not, however, be too sanguine about the looming threats to American survival. We must give stern attention to the financial, intellectual, social, and cultural sources of violent left-wing extremism. President Trump announced his administration’s commitment to disrupting the networks that incubate and enable such extremism. This should not be a controversial policy and should be defended and assisted.

Charlie’s friends, allies, and admirers can honor his memory by doing what they are able, in their different spheres of influence across the country, small and large, to continue his work to return America to her ancient love of liberty, constitutional propriety, and greatness. May his life’s work and its powerful example of active patriotism inspire this generation and many hence to get back to work, with dedication and courage, on Charlie’s project of saving America and Western civilization.

Sincerely,

Ryan P. Williams, President

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After years of being unrecognized, the Supreme Court ruled in 2015 that the Constitution contains a “right” to same-sex marriage—prematurely ending a robust debate sweeping the nation in the process. The decision has also spawned constitutional conflicts regarding religious liberty for Americans whose faith traditions preclude recognition of same-sex marriages.

The case of Kim Davis, a former Kentucky county clerk, presents such an example. Shortly after the Obergefell ruling, Davis was jailed for refusing to issue marriage licenses to same-sex couples based on her religious beliefs. A federal jury later ordered her to pay $100,000 in emotional damages to one of the couples she denied, even though they received a marriage certificate without Ms. Davis’s name on it.

Now, the Center for Constitutional Jurisprudence, joined by the National Organization for Marriage, is championing Davis’ bold appeal, seeking justice for her brave stand of conscience and working to reclaim the vital protections that millions of Americans saw swept aside by the 2015 ruling.

“Obergefell was wrong when it was decided, and it remains wrong now,” reads the brief. “The so-called ‘right’ identified in Obergefell was not a right contained anywhere in the text of the Constitution and was no part of the history and traditions of this or any other country.”

“By ruling as it did, the Obergefell Court cut off an important debate that was being waged in the democratic political process across the country, repeating the same mistake made in Roe v. Wade … that fractured this country for a half century,” it continues.

The Claremont Institute urges the Supreme Court to grant certiorari in this pivotal case, correct the errors of Obergefell, and reaffirm the nation’s commitment to both democratic debate and religious liberty.

Read the amicus brief here.

About The Claremont Institute

The Claremont Institute is a leading think tank dedicated to restoring the principles of the American Founding to their rightful, preeminent authority in our national life. Through litigation, scholarship, teaching, and policy advocacy, Claremont defends the Constitution and equips lawmakers and leaders to uphold its guarantees.

The post The Claremont Institute Defends Religious Liberty in Obergefell Challenge appeared first on The Claremont Institute.

At the center of the case is “corner crossing,” which impacts millions of privately-owned acres, especially in the American West. We are urging the Supreme Court to reinforce longstanding constitutional protections, ensuring that private property cannot be commandeered for public use without following due process and ensuring just compensation.

Earlier this year, the United States 10th Circuit Court of Appeals ruled that Fred Eshelman’s trespass action against four hunters who crossed over the corner of his southern Wyoming ranch to access public lands was preempted by a late-nineteenth century federal statute that prohibited private landowners from fencing their private property in such a way as to prevent access to the public lands.

Wyoming, Colorado, Kansas, Oklahoma, New Mexico, Utah, and parts of Yellowstone National Park in Montana and Idaho—states with complicated, public-private grid land divisions—are directly affected by the appeals court’s decision.

Citing Supreme Court precedents, including Cedar Point Nursery v. Hassid and Leo Sheep Co. v. United States, the Center for Constitutional Jurisprudence contends that:

• Property rights, including the right to exclude others from one’s land, are fundamental.
• The Fifth Amendment’s Takings Clause prohibits the government from taking private property for public use without paying just compensation.
• The 10th Circuit’s ruling effectively creates an easement, undermining the foundational right to exclude and conflicting with established Supreme Court decisions.

“Moreover, the odd circumstances that have led to the ‘lack of access to public lands’ problem at the heart of this case was created by Congress itself, and Congress itself can fix the problem by use of its power of eminent domain, as long as it does so in conformity with the requirements of the Takings Clause,” the amicus brief continues.

Click here to read the amicus brief.

About The Claremont Institute

The Claremont Institute is a leading think tank dedicated to restoring the principles of the American Founding to their rightful, preeminent authority in our national life. Through litigation, scholarship, teaching, and policy advocacy, Claremont defends the Constitution and equips lawmakers and leaders to uphold its guarantees.

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Vice President Vance was honored for his courage, clarity, and enduring commitment to the principles of the American Founding. In his keynote remarks, Vance delivered what many in attendance hailed as a historic speech — a stirring call to reject cynicism and reclaim the will to build. He spoke of gratitude for America, the need to see our civilization rise again, and the importance of an American nation working together to build great things once more.

The Claremont Institute’s President Ryan P. Williams presented the award, praising Vice President Vance’s statesmanship and bold leadership in an age of institutional decay and ideological confusion.

The evening’s master of ceremonies was Claremont Lincoln Fellow and Turning Point USA founder Charlie Kirk. A panel discussion followed the dinner with Williams, Kirk, and former Claremont Senior Fellow Michael Anton, who now serves as Director of Policy Planning at the U.S. State Department.

The dinner was a private event for Claremont supporters and friends, and Vice President Vance’s speech is available in full below.

The Claremont Institute’s Statesmanship Award honors public figures who are courageous, prudent, and devoted to the American constitutional order. Vice President Vance joins a distinguished line of past recipients, including President Ronald Reagan, Prime Minister Margaret Thatcher, and Supreme Court Justices Clarence Thomas and Samuel Alito–statesmen whose leadership has shaped the trajectory of the West and defended the cause of liberty at home and abroad.

“Vice President Vance is a leader who wishes to reclaim the lost art of statesmanship, ranking and facing down America’s most urgent challenges with realism and resolve. He is a man with gratitude for what we’ve inherited and the will to build on it with his fellow Americans,” said Ryan P. Williams. “We were proud to honor his public-spirit and moderation as he continues to shape the forthcoming golden age of America.”

For press inquiries, contact:

media@claremont.org

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