Deconstructing The Administrative State

by Peter Hong: What do you picture when you hear the phrase “administrative state?”

Do you think about the lexicon of federal agencies with acronyms that have come to dominate our everyday lives: IRS, EPA, OSHA, TSA? Envision sterile federal buildings populated by unelected bureaucrats rewriting laws to expand the scope of government overreach? Foresee a dystopian universe where administrative bodies supplant the constitutional system of checks and balances by simultaneously playing lawmaker, administrator, judge, and enforcement officer?

The bad news is you’re not far from the truth. Worse, for nearly a century, the administrative state has grown exponentially, taken root in our system of governance, and extended its tentacles over every aspect of our society.

What’s the good news?

At CPAC last month, White House Counselor Steve Bannon raised eyebrows with the Left and the mainstream media when he called for the “deconstruction of the administrative state.” On Monday, President Trump got the ball rolling by issuing an executive order to “reorganize governmental functions and eliminate unnecessary agencies.”

Under the order, departments and agencies will have to submit for comments plans to reorganize themselves: “Within 180 days of the date of this order, the head of each agency shall submit to the Director a proposed plan to reorganize the agency, if appropriate, in order to improve the efficiency, effectiveness, and accountability of that agency.”

What is this “administrative state?” Heritage Foundation scholar Joseph Postell defines it as a system of governance where “authority to make public policy is unlimited, centralized, and delegated to unelected bureaucrats.” Postell calls it a “‘fourth branch’ of government that typically combines the powers of the other three and makes policy with little regard for the rights and opinions of citizens.”

In other words, the administrative state is dangerous in principle because it amalgamates power by usurping the constitutional roles of the legislative and the judicial branches. For example, consider the powers of the Federal Trade Commission (FTC) whose ostensible primary mission is to protect consumers from unfair methods of competition, such as monopolies.

Like numerous other agencies, the FTC conducts most of its business through substantive rulemaking, carrying with it the force of law. It also has the policing power of investigating, prosecuting, and enforcing violation of these rules. Furthermore, it has at its disposal administrative law judges and hearing officers who adjudicate conflicts arising from these rules.

Agencies, like the FTC, have amassed these powers largely due to deference or inaction by the other two branches of government. The judiciary has given deference to administrative agencies having “quasi-legislative” or “quasi-judicial” — as well as executive — powers

Also, Congress increasingly has “written” laws simply by passing vague legislative language delegating to agencies the authority to fill in the blanks with regulations and rulings. When Nancy Pelosi said about Obamacare, “We have to pass the bill before you can find out what’s in it,” she couldn’t have known how on-point she really was.

Thanks to this abdication of authority, the administrative state has amassed powers that run contrary to a constitutional, republican form of government. Practically speaking, when the real business of governing, lawmaking and adjudicating is turned over to unelected bureaucrats, who can be held accountable by the people?

The easy answer is the president, but that ignores the fact that he can only appoint approximately 4,000 of the nearly 3,000,000 members of the executive branch civilian workforce. Nor does he have the power to directly fire “career” federal employees. In other words, the soldiers of the administrative state are generally bulletproof — and they know it.

Not surprisingly, the scope of the administrative state is almost unimaginably immense — and growing. According to Diane Katz with the Heritage Foundation, federal regulators have issued more than 22,700 regulations since the start of the Obama Administration in 2009, increasing regulatory costs by more than $120 billion each and every year. Today, there are nearly 300,000 career bureaucrats administering red tape at a cost to taxpayers of nearly $70 billion, according to a George Washington University study. And with our nation facing a national debt to GDP ratio approaching its historic high, the state of our economy — and the need to dismantle the administrative state — has never been more dire.

President Trump’s executive order is commendable, but only if it marks the opening salvo of a long-pitched war. The administration is going to have to think more like Gordon Gekko and less like Al Gore. Remember “Reinventing Government”? Neither does he. Simply consolidating a few agencies here and there is like rearranging the deck chairs on the Titanic: insufficient to avert disaster.

Donald Trump amassed a fortune building — among other things — buildings. Now he has the opportunity to return billions of dollars to the American people and the economy by doing more than just knocking down a few federal buildings in Washington.

It’s time to smash the administrative state.
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Peter Hong is a contributing reporter at Americans for Limited Government blog.

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