Beyond the Administrative State

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Beyond the Administrative State

The U.S. Constitution created three independent branches of government, each with exclusive powers within its constitutional domain. 

  • Congress alone can make a law;
  • The president and the executive branch alone can enforce or execute a law; and
  • It is the province and duty of the Judicial branch to say what a law means.

The Framers divided the powers of the government because they believed that if the power to make the law and the power to enforce the law were to fall into the same hands that would be a threat to the people’s liberties.

That structure worked as designed for about 150 years.  But during the 1930s New Deal era, Congress began to abandon its role as the principal lawmaker for the nation, relying increasingly on the executive branch for policy direction.  This meant that Congress did not have to make the most important and controversial decisions for society, which were also the decisions most likely to endanger the members’ re-election.  Instead, it was easier to set goals for administrative agencies, requiring them to ensure things like clean air or water, without taking the necessary step of describing who was to get the benefits and who was to bear the costs.

Thereby, Congress, of its own volition, gave the agencies of the administrative state the power to make the major policy decisions that Congress was supposed to make as representatives of the people.  As a result, today’s nearly $2 trillion-a-year regulatory compliance burden is the product of a permanent, unelected bureaucracy acting within very broad guidelines set by Congresses in the distant past.

This is a serious problem for a country whose legitimacy depends upon the broad assumption that it is a representative democracy.  And, as we’ve seen in recent years, the time has come when the American people recognize that they no longer have control over their own government.  Instead, they increasingly see themselves as living in a kind of benign dictatorship, where the rules are made — not by the Congress they elect— but by faceless and unelected bureaucracies assembled around Washington, DC.

Nor is it possible for the president to rein in rulemaking by the administrative state.  Each year from 1993 to 2017, according to Clyde Wayne Crews of the Competitive Enterprise Institute, the agencies of the administrative state-issued significantly more than 3000 rules and regulations for a total of more than 101,000 over 25 years. 

President Trump has made it an objective to reduce the number of these rules, and he has had some limited success (with the number of new rules in 2017 falling to just over 3000...

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