FREEPORT — What will be President Obama’s most significant legacy? The Affordable Care Act? Dodd-Frank’s regulation of financial markets? The withdrawal from Iraq and Afghanistan? The Iranian nuclear deal?
All of these will be recalled as key components of Obama’s efforts to fundamentally alter American society, the economy and the country’s role in the world. But the most significant legacy, and the one hardest to reverse, will be the dramatic expansion in the size and power of the administrative-regulatory state that the president has aided and abetted. This has been an expansion that rivals Franklin Roosevelt’s New Deal, and arguably exceeds that of Lyndon Johnson’s Great Society. Call this one the “Great Transformation.”
In his Gettysburg Address, Abraham Lincoln spoke of “government of the people, by the people, for the people.” But Lincoln’s vision of proper government is now little more than an eloquent memory, if it is remembered at all.
Article 1 of the Constitution is clear about who makes the laws: “All legislative powers shall be vested in a Congress.” That’s what the Constitution says, but the reality is that today a multitude of largely unaccountable executive and independent agencies, the “fourth branch” of government, make most of our laws in the form of thousands of rules and regulations that increasingly affect every aspect of our lives.
In many cases the same agencies adjudicate challenges to their edicts and enforce the regulations with often draconian punishments. An ostensibly democratic governing system couldn’t possibly be more rigged in favor of government power and against individuals and smaller business who do not have the means to engage in prolonged and expensive litigation with uncertain outcomes.
The administrative state is the natural and inevitable outgrowth of the guiding principle of progressivism, which is that society and the economy can improve, but only with the guidance of experts who know better than the rest of us how we should lead our lives and operate our businesses. The Donald Trump phenomenon is the natural and inevitable reaction to the implementation of this principle.
Examples of federal agency impositions and oppressions – ranging from uncompromising environmental policy that has cost thousands of jobs, to micromanagement of labor markets and financial institutions, to rules that repress free speech and due process on college campuses – are all too abundant. And more occur with depressing frequency. The question about government-by-bureaucracy is not whether the results are sometimes desirable, but whether this process of governance has any constitutional validity. If the answer is “no,” as many conservative and libertarian legal scholars contend, then the question is whether anyone will do anything about it.
Not Congress, which has allowed administrative agencies to usurp its legislative authority. Its progressive members are happy to have agencies bypass the majority consensus required for constitutional rule-making as long as they agree with the results, and Republicans, members of the party of Lincoln and theoretical defenders of the concept of limited government, fulminate about too many regulations and executive orders, but are too divided and dysfunctional to do anything about them, even when the Republican Party controls the House and Senate.
That leaves the third official branch, the courts. But the courts have abdicated their responsibility to check administrative power in favor of the doctrine that holds that the judiciary should defer to the expertise of agencies in statutory interpretation unless the interpretation and agency actions are so blatantly unconstitutional that even accommodating courts can’t ignore them.
Courts are starting to push back against regulatory overreach, but the resistance is still spotty and inadequate. Serial abusers of their authority, like the Environmental Protection Agency, take full advantage of judicial deference.
At the end of the Constitutional Convention in 1787, someone asked Benjamin Franklin, “Well, Doctor what have we got – a Republic or a Monarchy?” Franklin replied, “A Republic, if you can keep it.”
Whether or not we can is now in some doubt. The possibility that the country can escape a growing soft tyranny that is the result of a dangerous imbalance between the power of the administrative state and the people is not zero, but the outlook is bleak.
The country’s founders would be profoundly dismayed at what has happened to their great experiment in representative democracy based on a separation and balance of powers. The anti-federalists, who feared that a strong central government would become too powerful and oppressive, could say “we told you so,” but would do so with more regret than satisfaction.
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