Taking back the reins of power from the “administrative state”

City Journal has a good overview of the problem confronting President Trump, as he tries to establish his own authority over an executive branch that’s gotten used to having its own way.

Among the opportunities presented by Donald Trump’s election is that we may finally witness fundamental reform of America’s administrative state. This is no small thing, for administrative agencies—often called the “fourth branch” of the federal government—have been foisting countless rules on people and companies in lieu of Congress’s own laws, or, too often, in outright defiance of them. Instead of subjecting its policies to the checks and balances of the normal legislative process, the executive branch has been getting its way through the fiat of administrative law. Washington’s regulatory agencies exert a dangerous gravitational pull on our politics.

When Barack Obama and Congress negotiated over proposed greenhouse-gas legislation in 2009, for example, the president knew that he could simply walk away from the discussions and enact his preferred policies via Environmental Protection Agency regulations. Congressional Democrats knew this, too, and were happy to outsource policymaking to the EPA. Similarly with other policy areas: If administrative agencies are ready to do the president’s bidding, what need is there for legislative give-and-take?

Supreme Court Chief Justice John Roberts described the problem acutely in a 2013 dissent in a telecommunications case, criticizing the court’s deferential opinion in favor of the Federal Communications Commission. “The administrative state ‘wields vast power and touches almost every aspect of daily life.’ . . . The Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the authority administrative agencies now hold over our economic, social, and political activities. . . . ‘[T]he administrative state with its reams of regulations would leave them rubbing their eyes.’ ”

. . .

The Trump administration must confront a fundamental question: What should be the nature and purpose of administrative agencies in the twenty-first century? The contemporary regulatory state is defined largely by Franklin Delano Roosevelt’s New Deal, Lyndon B. Johnson’s Great Society, and Ronald Reagan’s revolution in White House regulatory oversight. We’re long overdue to return to questions of first principles, and the Trump administration suddenly has an opportunity to do so. Administrative agencies play a much more important role than they did two centuries ago, when the Constitution’s framers first envisioned them and the original Congress created them. Now we must think deeply about what powers to vest in them, what limits to place upon them, and what ends they should pursue.

There’s more at the link.

The amount of unchecked power wielded by the “administrative state” is mind-boggling.  The New York Post summed it up like this.

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.

Again, more at the link.

I’m willing to bet that a great deal of the fuss and bother over President Trump’s policies is being instigated and fed by organs of the “administrative state”, trying desperately to defend their turf before he can cut it out from under their feet.  One hopes he succeeds.


1 comment

  1. Deregulation is the absolute best route to economic revival.I can personally testify to the cost of invasive regulation in housing and medicine with numbers and documentation. The fruits of the regulatory state are visible everywhere and everywhere you look arbitrary and or discriminatory regulation and licensing destroys lives and consumes far too great a proportion of resources while it inhibits innovation and entrepreneurship. We are allowing a handful of uncontrolled idiots destroy a significant portion of our productive capacity and wealth while they protect their favored classes and friends.
    If Donald Trump can eliminate the burden of the omnipotent agencies he will make America great again. I certainly hope so.

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