Tag: administrative state

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Bureaucracy’s Unchecked Power

Despite efforts on the part of the Trump Administration to reduce the size and power of regulatory agencies, the impact of unelected and frequently unaccountable bureaucracies on the everyday lives of Americans remains vast.

On December 3, the Competitive Enterprise Institute  reported that:

  • Last week, 40 new final regulations were published in the Federal Register, after 50 the previous week.
  • That’s the equivalent of a new regulation every four hours and 12 minutes.
  • Federal agencies have issued 3,035 final regulations in 2018. At that pace, there will be 3,285 new final regulations. Last year’s total was 3,236 regulations.
  • Last week, 1,905 new pages were added to the Federal Register, after 2,157 pages the previous week.
  • The 2018 Federal Register totals 62,240 pages. It is on pace for 67,360 pages. The all-time record adjusted page count (which subtracts skips, jumps, and blank pages) is 96,994, set in 2016.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. Five such rules have been published this year, none in the last week.
  • The running compliance cost tally for 2018’s economically significant regulations is a net savings ranging from $348.9 million to $560.9 million.
  • Agencies have published 100 final rules meeting the broader definition of “significant” so far this year.
  • So far in 2018, 585 new rules affect small businesses; 24 of them are classified as significant.

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The Heritage Foundation calls administrative agencies the Unaccountable Fourth Branch of Government. “Though typically categorized as part of the executive branch, administrative agencies perform legislative, executive, and judicial functions by issuing, enforcing, and settling disputes involving regulations that have the force of law. James Madison called such an accumulation of power the ‘very definition of tyranny.’ … The modern administrative state…blurs the separation of powers and the system of checks and balances… oversight from the executive or judicial branches is limited. The President lacks the ability to actively supervise the myriad agencies, and Congress has even insulated some “independent” agencies from executive branch control by limiting the President’s ability to remove agency heads at will. As President Harry Truman put it, ‘I thought I was the president, but when it comes to these bureaucrats, I can’t do a damn thing.’

America’s entire way of government—with laws passed by legislators elected by the citizenry—has become increasingly jeopardized as the administrative state has grown to nearly uncontrollable levels.

Joseph Postell, writing for Libertylawsite during the Obama Administration, noted that “Multiple scandals involving myriad federal agencies have placed the administrative state front-and-center in many Americans’ minds. Though the scandals involve overreach by specific agencies, they raise broader and more profound questions that extend to the entire federal bureaucracy because the institutional problems are systemic…Astonishingly, we still don’t fully understand how responsible the President is for the actions of administrative agencies (such as the IRS…) Simply put, if the administrative state is really accountable, legally and practically, to the President, then it is not a “fourth branch” of government but merely part of the executive branch, accountable to the public… Today’s administrative state, therefore, makes a mess of the constitutional separation of powers and its careful adjustment of incentives, checks and balances. In such a system, what role can and should the courts play in reviewing agency decision-making? Here is where a deeper understanding of the courts’ historical role in administration is most needed.”

Peter Wilson, writing for the American Enterprise Institute, writes that “Not all administrations are, like the Obama administration [was], willing to abandon due process and legal restrictions to achieve certain policy ends. But we risk this kind of lawlessness in the future unless administrative power is limited by law.”

Administrative agencies are not directly run by individuals elected by the citizenry. As their power increases, and as they are increasingly governed by career bureaucrats who see themselves as immune from the influence of elected officials, the rights of Americans subject to their jurisdiction becomes increasingly imperiled.

Photo: Pixabay

 

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Quick Analysis

Rise of the Administrative State

America’s entire way of government—with laws passed by legislators elected by the citizenry—has become increasingly jeopardized as the administrative state has grown to nearly uncontrollable levels.

Joseph Postell, writing for Libertylawsite, notes that “Multiple scandals involving myriad federal agencies have placed the administrative state front-and-center in many Americans’ minds. Though the scandals involve overreach by specific agencies, they raise broader and more profound questions that extend to the entire federal bureaucracy because the institutional problems are systemic…Astonishingly, we still don’t fully understand how responsible the President is for the actions of administrative agencies (such as the IRS…) Simply put, if the administrative state is really accountable, legally and practically, to the President, then it is not a “fourth branch” of government but merely part of the executive branch, accountable to the public… Today’s administrative state, therefore, makes a mess of the constitutional separation of powers and its careful adjustment of incentives, checks and balances. In such a system, what role can and should the courts play in reviewing agency decision-making? Here is where a deeper understanding of the courts’ historical role in administration is most needed.”

Roger Pilon, writing in CATO, asks “…Is there anything today that is not fit for government’s attention? Large sodas and restaurant menus have lately garnered notice. Retirement, health care, day care, wages, rents, prices, charity, even public radio and television—all that and so much more is the regular business of modern American government …late 19th and early 20th century Progressives. … believed they knew better than the rest of us what our true interests were. …Progressive social engineering took many forms, but its efforts to change the world focused mainly on the political branches. Its aim was to replace judge-made common law, which established the legal framework within which individuals and organizations pursued their interests, with statutory law, enacted by legislatures and, in time, by the administrative agencies in the executive branch…Thus the shift from law grounded in principle to law as policy, from reason to will, and to the politicization of law—precisely what the Constitution sought to avoid. When all is politics, nothing is law.”

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In many cases, agencies’ budgets are also self-determined…The courts have… diminished their own authority to check the executive agencies by making it difficult for citizens to challenge agency actions in court…We need to stop kidding ourselves. Despite what is taught in our schools, we are not governed under the political structure envisioned by our founders. We are ruled by an imperious bureaucracy that creates vague rules, funds itself with fees that is sets at will, and controls the adjudication of disputes when citizens complain about its actions.”

Philip Hamburger, in the Hillsdale College publication Imprimis, warns: “[The] danger is absolutism: extra-legal, supra-legal, and consolidated power…we should demand rule through law and rule under law. Even more fundamentally, we need to reclaim the vocabulary of law: Rather than speak of administrative law, we should speak of administrative power—indeed, of absolute power…then we can at least begin to recognize the danger.”