Dismantling the Administrative State

Long time readers will know that I have been against the making of rules and laws by the executive agencies for a long time.  My reason?  It is Unconstitutional.  The Constitution rests the making of laws in the Congress, the execution of those laws with the Executive, and the courts rule on the laws in specific cases.  But in the Administrative state, one agency makes the rules, enforces the rules, and exacts punishment.  They have taken over the role of both Congress and the Courts, and yet they exercise the role of the Executive as well.  No wonder the Administrative state has grown to the proportions it has.  Madison would have called the Administrative state a tyranny.  And so it is.

David S. D'Amato has an article explaining how we find ourselves in this at the American Thinker entitled Dismantling America's Destructive Fourth Branch of Government. Remember that this is another "Progressive" idea designed to control you and me because the Progressives believe themselves more capable of managing our lives than we are. D'Amato:

How did such an abysmal change to the constitutional edifice come to pass so quietly? The story begins more than a century ago, when new assumptions about the role and configuration of government gradually superseded the classical liberal ideas of the founding generation. A look at the political thought of Woodrow Wilson provides a useful illustration of this new way of thinking about the state, now known as progressivism. Wilson believed the “science of administration,” which he saw as still in its nonage, must be adapted to accommodate widening “new conceptions of state duty.” To Wilson, “the weightier debates of constitutional principle” were passé, increasingly irrelevant to the more-pressing questions of running a large and complex government apparatus. The idea of limited government itself belonged to a simpler time.

Wilson’s answer to the admittedly “poisonous atmosphere” of corruption and confusion in government at all levels was an appeal to the “impartial scientific method.” Here, he was a product of his time. Successive breakthroughs in the natural sciences had convinced Wilson’s generation virtually everything, government included, could be understood and restructured in terms of fixed scientific laws; government and human nature were believed to be perfectible through science.

Once again, the egg heads proved to be stupider than the average man on the street. Wilson's notions of a scientific elite running things does not take into account the fallen nature of man. Ordinary people simply will not act as Wilson believed them to act. Even if they could, they would still be operating from a position of knowing but a small part of the whole.  If Wilson had but read the Federalist Papers and not dismissed them as the writings of some old fuddy duddies, he would know that the Founders had already considered the problem and come up with a solution. That solution put monkey wrenches in the wheels of government to keep it from becoming too large and powerful.  Many times I have heard people decry the slow pace at which government moves, but that slow pace is a feature, not a bug.

The D.C. Circuit, in an opinion authored by Ruth Bader-Ginsburg, held the EPA’s new rule was impermissible. As an energy company, Chevron had standing to appeal, and the Supreme Court heard arguments in February of 1984. Reversing the D.C. Circuit, the Supreme Court concocted a new test for determining whether a federal agency’s rulemaking ought to stand. Confronted with a statute that is “silent or ambiguous with respect to the specific question,” the proper inquiry is whether the resolution provided by the agency regulation represents a “permissible construction” of the law’s language. Courts must defer to any interpretation that is reasonable -- which is to say, that is not “arbitrary, capricious, or manifestly contrary” to the law -- an incredibly low bar for the government. Calling up the Wilsonian ideal of a bureaucratic state run by qualified, disinterested professionals, the Court noted, “Judges are not experts in the field.”

As a matter of practice, the Chevron doctrine completely precludes judicial review of an administrative agency rule. The rule thus perverts the constitutional order by allowing the federal government to interpret the meaning of the law for itself, without any material check on its interpretations and, therefore, its power. Such total deference fundamentally undermines the vision of the federal government reflected in the Constitution.

(Emphasis mine)

Even if one agrees with an agency’s interpretation in a given case, this repositioning of authority is a dangerous subversion of the rule of law (the irony, of course, is that in Chevron, deference to the fourth branch happened to result in less bureaucratic meddling). Left free to police itself, the federal bureaucracy has naturally arrogated to itself more power and discretion, its regulatory reach stretching into almost every area of life. It has acted in accordance with its nature. The administrative state is at base the embodiment of ruling-class condescension, contemptuous of its benighted wards and their efforts at self-organization.

And so we find ourselves being squashed by a leviathan that is never satisfied as long as one person out there defies their authority.  Part of the effort to return our country to the founding principles will be getting rid of the regulations and the agencies that make them) that grow like weeds everywhere and constantly. Trump's executive order to to reduce regulations is a modest start. Congress needs to take back the power to make laws, and deny it to the agencies. The agencies need to be scaled back to their proper role of enforcing laws made by Congress. Congress is not an innocent bystander here. They willingly ceded power to these unaccountable agencies because doing so took the heat off of them: they need to stand up to the plate and do their jobs.And the courts?  They need to be scaled back to their true role as well.  But that is a subject for a different post.