Decrying Trump while ignoring the tyranny of the administrative state.
By William McGurn
The Wall Street Journal
December 13, 2016
Guess it depends on what you mean by “authoritarian.”
During the election, Donald Trump was routinely likened to Hitler.The headlines suggest not much has changed.
From the New Republic: “Donald Trump Is Already Acting Like an Authoritarian.” National Public Radio: “Donald Trump: Strong Leader or Dangerous Authoritarian?” The New York Times: “Beyond Lying: Donald Trump’s Authoritarian Reality.” The New Yorker: “Trump’s Challenge to American Democracy.”
What’s striking here is that the same folks who see in Mr. Trump a Mussolini in waiting are blind to the soft despotism that has already taken root in our government. This is the unelected and increasingly assertive class that populates our federal bureaucracies and substitutes rule by regulation for the rule of law. The result? Over the Obama years, the Competitive Enterprise Institute reckons, Washington has averaged 35 regulations for every law.
In the introduction to its just-released report on how to address this federal overreach, CEI President Kent Lassman puts it this way: “It is time for a reckoning.”
Philip Hamburger is a law professor at Columbia and author of “Is the Administrative State Unlawful?” He believes the president-elect’s cabinet selections thus far—Scott Pruitt for the Environmental Protection Agency, Betsy DeVos for Education, Ben Carson for Housing and Urban Development, Andrew Puzder for Labor—may give Mr. Trump a unique opening not only to reverse bad Obama rules but to reform the whole way these agencies impose them. If Mr. Trump really hopes to drain the swamp, says Mr. Hamburger, cutting these agencies back to constitutional size would be a terrific start.
For one thing, almost all these departments are legacies of some progressive expansion of government. While an uneasy William Howard Taft, for example, made Labor its own cabinet office on the last day of his presidency, Woodrow Wilson named its first secretary.
Meanwhile, HUD is a child of LBJ’s Great Society. The EPA was Nixon’s attempt to buy liberal approval for his administration. As for the Education Department, it was a reward from Jimmy Carter for the endorsement the National Education Association gave him in 1976. At the time this cabinet seat was established, even the New York Times called it “unwise” and editorialized against it.
There’s a good case that Americans would be better off without most of these departments meddling in our lives and livelihoods, however politically unfeasible this might be. The next best news, however, is that Mr. Pruitt, Dr. Carson, Mr. Puzder and Mrs. DeVos are not beholden to the orthodoxies that drive the rules and mandates these bureaucracies impose.
Mrs. DeVos, for example, has spent her life promoting school choice, and her husband founded a charter school. It is difficult to imagine an Education Department under Secretary DeVos ever sending out a “Dear Colleague” letter to bully universities into expanding the definition of sexual harassment and then encouraging them to handle allegations in a way that has turned many campus tribunals into Star Chambers. Not to mention making a federal case about bathrooms.
Ditto for HUD. Under President Obama, HUD bureaucrats, under the banner of “fair housing,” have taken it upon themselves to decide what the right mix of race, income and education is for your town—and will impose fines and punishments for communities that resist. Anyone remember the people’s elected representatives directing HUD to impose its ideas of social engineering on the rest of America?
Or take the EPA. Whether it’s some Ordinary Joe running afoul of wetlands laws or the department’s deliberate attempt to destroy the market for coal, the EPA needs more than good science. It also needs some honest cost-benefit analysis about the prescriptions it pushes.
And then there’s Labor. Under Obama Secretary Tom Perez, the department has so overstepped the authority Congress gave it (for example, on its overtime rule) that federal judges have stepped in to block it, notwithstanding the courts’ traditional deference. As an employer himself, Mr. Puzder appreciates the fundamental reality of labor: which is that you don’t help workers by making them too expensive to hire.
The good news is that Mr. Trump does not have to fight government by regulatory fiat alone. House Speaker Paul Ryan has a raft of legislation that would reassert the authority of the people’s elected representatives over an unaccountable bureaucracy—including a regulatory budget that would limit the costs an agency can impose each year.
Even without legislation, there are things Mr. Trump could do. Mr. Hamburger, for example, dreams of a president ordering federal agencies to submit all their rules to Congress for approval. He further believes the stars are in rare alignment for reform, with Mr. Ryan pushing it in the House, cabinet secretaries who appear sympathetic to the cause and a popular mandate against rule from above.
“Oddly enough, the danger is that Mr. Trump will not think big enough,” says Mr. Hamburger. “To paraphrase him, the impact of changing the way Washington issues rules would be YUGE—and it would make him a historic and transformative president.”
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