Tuesday, February 28, 2017

The Hidden Heart Of Unaccountable Big Government

By Rich Lowry
The New York Post
February 28, 2017

Steve Bannon blew a dog-whistle for constitutional conservatives when he spoke of “deconstructing the administrative state” at CPAC.

Although not everyone got the reference. Trump haters interpreted the line as an incendiary call to decimate the federal government, when “the administrative state” was a more specific reference to a federal bureaucracy that operates free of the normal checks of democratic accountability.

The administrative state has been called “the fourth branch” of government. It involves an alphabet soup of executive agencies that wield legislative, executive and judicial powers and thus run outside of and counter to our constitutional system. The agencies write “rules” that are laws in all but name, then enforce them and adjudicate violations.

Boston University law professor Gary Lawson describes how this works in the case of, for instance, the Federal Trade Commission:

“The Commission promulgates substantive rules of conduct. The Commission then considers whether to authorize investigations into whether the Commission’s rules have been violated. If the Commission authorizes an investigation, the investigation is conducted by the Commission, which reports its findings to the Commission.

“If the Commission thinks that the Commission’s findings warrant an enforcement action, the Commission issues a complaint. The Commission’s complaint that a Commission rule has been violated is then prosecuted by the Commission and adjudicated by the Commission.”

Welcome to government by commission.

James Madison called such an undifferentiated accumulation of powers, which the Constitution is meant to avoid, “the very definition of tyranny.” In his epic scholarship on the administrative state, Philip Hamburger argues that it’s “a version of absolute power.”

Constitutional law arose, Hamburger writes, to check the prerogative power of the British crown, and now the federal bureaucracy is replicating that prerogative power in extralegal practices.

If progressives in the Trump years were truly concerned with reaffirming democratic accountability, they’d be delighted with a prospective deconstruction of the administrative state. But they built it and rely on it.

A century-old ideological project, its roots are in the Progressive Era, and it grew apace during the development of the New Deal and Great Society. The idea was to circumvent the frustrations of constitutional government, with all its natural obstacles to action, and to institute rule by experts.

The administrative state is the friend of anyone hoping to aggrandize government. President Barack Obama would have been hobbled without it. He used it to institute sweeping new regulatory regimes on carbon emissions and the Internet. He imposed his preferred social policies on schools and universities through “dear colleague” letters issued by middling bureaucrats.

The administrative state was exactly what he needed — a way to govern without Congress.

Hostility to the administrative state isn’t necessarily natural for Trump, who isn’t a limited-government conservative or a constitutional purist. Yet he campaigned against regulation, he scorns the elite and federal bureaucrats have already made clear their desire to frustrate his plans. Dethroning the administrative state fits into a populist program to restore power to the people through their elected representatives.

It’s chiefly Congress that needs to reassert itself. It has delegated its legislative powers over the decades, and needs to pull them back. As Adam White writes in an essay for City Journal, it should pass the REINS Act to require congressional approval for major new regulations. It should revisit laws like the Clean Air Act and Communications Act of 1934 that give regulators too much leeway. It should limit the deference that courts give to administrative agencies.

None of this is the stuff of fire-and-brimstone, but rather the mundane work of slowly lurching the wheels of the federal government back onto a constitutional track. Something as entrenched as the administrative state won’t be “deconstructed” in one presidential term, or two. If it can be dialed back, though, it’ll be a significant victory for old-fashioned representative government.


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