The real answer to the democracy-killing ‘administrative state’
From different directions, conservatives have begun to aim their guns at our “administrative state.” Most of the rules we live by aren’t laws passed by Congress or court decisions. Instead, they’re to be found in the thousands of pages in the Code of Federal Regulations or in the interpretative advice found in agency opinion letters and policy statements. The agencies generally exercise their power in secret, and they’re barely accountable to anyone.
With formal regulations there’s at least a requirement that public notice be given and comments welcomed before new rules are promulgated. But agencies often provide far more detailed handbooks or interpretations of the regulations, not to mention the advice they might give over the phone or in letters to affected parties, and none of this goes through an administrative review process.
To give but one example, the Obama administration’s Deferred Action for Parents of Americans granted 5 million illegal immigrants immunity from deportation and gave them work permits. It reads like a statute, but it wasn’t one, and it wasn’t even a regulation or executive order.
Instead, it was a memorandum from the Homeland Security secretary. The Fifth Circuit held this an improper attempt to sidestep administrative review, and the Supreme Court split 4-4. But that was just one case, and virtually none of the nonregulation regulations end up before the courts.
The administrative state has been around for a good long time, but in the last few years it’s become a major political issue. First, the sheer accumulation of rules over time has made the problem seem exponentially greater, and even a threat to democracy.
To the extent that rule-making is taken out of the hands of the politicians and placed in the hands of a priesthood of expert regulators, we’re no longer a self-governing people or a country of laws and not of men.
Second, the election of Donald Trump, on a platform calling for a “draining of the swamp,” has encouraged regulators to work around the new administration by adhering to their own set of more progressive rules. That’s what Steve Bannon calls the “deep state,” an attempt at a bureaucratic coup d’état.
The regulators mostly hate Trump and have been encouraged to take him on by people like Bill Kristol, who tweeted, “obviously strongly prefer normal democratic and constitutional politics. But if it comes to it, prefer the deep state to the Trump state.”
We’re seeing this in the massive leaks from the White House, many of them made with the intention of weakening the president and hobbling his agenda.
So what do you do about it? That’s where the conservatives come up short. First, they’d like courts to defer less to the regulators. But that’s not going to do much of anything. Courts defer to the regulators precisely because they have the kind of technical expertise that courts lack.
There’s an administrative state in every First World country, and in each of them courts defer to the regulators. More importantly, courts are limited by their dockets and can’t micromanage the millions of administrative rules, not without becoming part of the deep state themselves.
Second, conservatives want Congress to review the agencies more closely. But then it’s Congress that’s created the problem by permitting the agencies to go their merry way, and it also has a limited expertise to micromanage the regulators.
More can be done, along the lines of the Regulations from the Executive in Need of Scrutiny Act that would require congressional approval of any rule that would impose compliance costs of more than $100 million a year. But since congressional staffers don’t have much technical expertise, you’d probably see them approve all the big-ticket regulations.
So do we throw in the towel? Not quite. There’s one more card to play, the one played by Andrew Jackson in 1829 with the Spoils System.
In an era before the goo-goo’s civil-service reform, Jackson fired 10 percent of the federal workforce and replaced it with people loyal to him. Was that so bad? Arthur M. Schlelsinger Jr. said it was a reform measure that helped restore the people’s faith in government, at a time when the bureaucrats had become a self-serving and unaccountable branch of government.
If that’s what job tenure for bureaucrats has given us today, maybe it’s time to take another look at it.
F.H. Buckley teaches at Scalia Law School. His most recent book is “The Way Back: Restoring the Promise of America.”
(Excerpt) Read more at:
http://nypost.com/2017/06/16/the-rea...trative-state/
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Originally Posted by helmuth_hubener
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