By Robert Moffit, Ph.D. | April 2, 2012 | Heritage Foundation
Abstract: The triumph of the administrative state has been made possible by the emasculation of the legislative power. Washington’s problem is not merely federal spending and debt; it is the arrogance of centralized power. The time is therefore ripe for a major national discussion not only about the size of government, but also about the processes of government. Americans have a choice: to be governed by the rule of law, as hammered out in open legislative debate carried on by elected representatives who are directly accountable to us, or the rule of administrators who are most certainly not accountable to us. The rule of regulators is arbitrary and unaccountable government—exactly what the Founders wished to prevent in crafting the Federal Constitution.
Steve Kroft of CBS recently interviewed President Barack Obama. In response to a question on his job performance, the President ranked himself fourth among America’s chief executives (behind Lyndon Johnson, Franklin Roosevelt, and Abraham Lincoln) in the production of policy initiatives.[1]
Critics quickly ridiculed his self-assessment as narcissistic nonsense. They’re wrong.
President Obama is transforming American government. Few Presidents have enjoyed more success in enacting such a large policy agenda in such a short period of time.
- Within weeks of his inauguration, the President signed into law a major expansion of the State Children’s Health Insurance Program (SCHIP) and Medicaid.
- He quickly followed this up with the enactment of the American Recovery and Reinvestment Act of 2009 (the “stimulus” bill), adding $831 billion to our deficits.
- In 2010, Congress passed the Wall Street Reform and Consumer Protection Act (Dodd–Frank bill), providing for massive and far-reaching financial regulation.
- And on March 23, 2010, he signed into law the 2,800-page Patient Protection and Affordable Care Act (PPACA). It is the largest single piece of social legislation in American history, expanding federal control over one-sixth of the American economy and the personal lives of more than 300 million citizens.
Combine this massive legislative production with his zealous regulatory program. While Washington’s bureaucratic regime has been growing since the early 1900s, under President Obama its growth has exploded. In 2009 and 2010 alone, federal agencies issued 7,076 final rules.[2]
While the President insists that his regulatory output is less than that of President George W. Bush, a closer look reveals that his “major” regulations—those having an annual impact of at least $100 million each—were more numerous. Since President Obama took office in 2009, federal agencies have issued 75 major regulations with an annual additional cost to the economy of $38 billion.[3] Taken altogether, the Small Business Administration last year estimated that the total cost of America’s regulatory burden reached $1.75 trillion—more than twice what Americans pay in individual income taxes.[4]
The U.S. Departments of Agriculture, Commerce, Treasury, and Health and Human Services (HHS) and the Environmental Protection Agency (EPA) are at the center of this regulatory storm. They alone account for 43 percent of all rules in the federal pipeline.[5] Of the 43 major rules issued in 2010, 10 were based on EPA mandates.[6] With the President’s health and environmental initiatives alone, the Obama White House has dwarfed the regulatory agenda of its predecessors.
The national health law expands the administrative power of the HHS Secretary beyond anything previously attempted. The Secretary is required to act—indicated by the statutory language “shall”—1,563 times in the final language of the legislation, and 40 specific provisions of the law mandate or permit the issuance of regulations.[7] Senate Republican Policy Committee staff estimate that the new law creates 159 new agencies or entities, but the Congressional Research Service says that the exact number is “unknowable” inasmuch as certain powerful federal offices are created administratively without direct congressional authorization.
While the law’s schedule of implementation stretches out over eight years, the most far-reaching provisions—the mandates on individuals, employers, and states—take effect in 2014. Nonetheless, in less than two years, the national health law has already generated over 11,000 pages of rules, regulations, and guidelines and related paperwork in the Federal Register.
Just consider the law’s 15-member Independent Payment Advisory Board (IPAB). The powerful board will make its initial recommendations for detailed and specific Medicare payment cuts in January 2015, and the Secretary is empowered to put them into effect unless Congress enacts an alternative set of payment cuts to meet statutory Medicare spending targets.[8] The board’s automatic recommendations are subject to neither administrative nor judicial review, and the law further requires a three-fifths Senate majority to block IPAB’s prescriptions.
Peter Orszag, President Obama’s former director of the Office of Management and Budget (OMB), has observed that the extraordinary power of this new board is “the largest yielding of sovereignty from the Congress since the creation of the Federal Reserve.”[9]
In 2010 alone, Congress enacted 217 bills that became law, but that same year, federal agencies issued 3,573 final rules covering a wide variety of economic activities.[10] Today, more than at any other time in our history, we are less and less governed by the rule of law, hammered out in legislative deliberations as the Founders intended, and more and more governed by the rule of regulation. We are subject to edicts promulgated by administrators—persons we do not know and will never know, persons protected by civil service law and tenure who are not accountable to us and will never be accountable to us. Nonetheless, the administrators’ detailed decisions have the force of law.
Regulation, as law, can and does directly affect whether or not we can start or run our businesses, determine how many persons we can or cannot afford to hire, how we may or may not use our land or dispose of our property. Not only do administrators publish thousands of pages of regulations, but our fellow citizens can sometimes also go to jail for violating them.
THE TRIUMPH OF THE ADMINISTRATIVE STATE
Ladies and gentlemen, we are witnessing the triumph of the administrative state, but that conquest is only possible because of the emasculation of the legislative power. The Founders made Congress the lawgiver, as clarified in Article I, Section 1 of the Federal Constitution. So much of their focus, reflected in The Federalist and other writings, was on how to check and balance the predominant legislative power, to channel and contain personal ambition and factional interest, to restrain potentially tyrannical majorities and safeguard the rights of beleaguered minorities, to secure personal liberty and protect the rights of property.
Though federal power has grown steadily since President Washington took the oath of office, today the relationship between the individual and the government is changing in a qualitative way. Americans are increasingly the subjects of an administrative regime rather than the free citizens of a democratic republic with a limited government.
Picking Winners and Losers. This steady transfer of legislative power to administrators has another inescapable consequence: arbitrary rule. The champions of administrative power invariably couch their arguments in appeals to expertise. The more complex the economic sector to be planned or regulated, the more that strict uniformity in the application of the rules becomes problematic.
In broad congressional grants of power, lawmakers give administrators wide latitude in the development and enforcement of the rules, so those who make the rules can also unmake them by granting waivers and exemptions. In the case of the health care law, HHS has already granted over 1,722 temporary waivers to certain businesses, unions, and gourmet restaurants in San Francisco that don’t have to comply with national coverage rules that apply to other companies throughout the country.
Treating similarly situated Americans differently, either as individual citizens or as citizens of a particular state, amounts to arbitrary rule; and arbitrary rule is inherently unjust.
THE NEED FOR A HIGHER LEVEL OF PUBLIC DEBATE
Today’s debate over the powerful bureaucracy is usually framed in terms of economic impact: How will federal rules affect economic growth and job creation, the price of gasoline or electricity, the cost of health insurance or the quality of medical care? While this level of debate is necessary, it is insufficient. Yes, we cannot neglect the trees, but it is really the health of the forest that matters.
The big question is this: How does this bureaucratic ascendancy affect ordinary Americans? My answer: Our very civic life is at stake, not just our prosperity.
The current trend is an affront to our self-government. The tacit assumption: Millions of us are not smart enough to make our own decisions for ourselves. Rather, we need to be closely supervised by officials. They will prescribe for us, for example, what kind of light bulbs and washing machines we should use. The provision of nutritional or caloric information on restaurant menus, or food items dispensed through vending machines, is now a federal mandate under Section 4205 of the Affordable Care Act.
Our supervision, though distant and impersonal, becomes more precise and detailed. We are to become increasingly dependent on government for our well-being. Today, almost half of Americans (48.5 percent) live in households that are getting some form of government assistance, largely funded from federal revenues, but nearly half (49.5 percent) of our citizens pay no federal income taxes. But today’s Progressives are still dissatisfied. In their view, the many are to be even more dependent on the few, and the few (the hated “rich,” however they are defined) should be paying even more in taxes than they do today.
Over time, these dynamics will change the character of our people, with corrosive consequences for our political culture and our economic prosperity. America will have a progressively larger class of dependent citizens, and that spirit of freedom and independence for which the Founders risked their lives and fortunes will be broken.
It does not have to be this way. Our task is to paint the big picture, the overarching framework of American civic life. The great medieval philosopher St. Thomas Aquinas, the “First Whig,” defines law as an edict of reason, promulgated by the sovereign for the common good of the community.[11] The law instructs citizens in their rights and duties, and thus has a teaching function. That being the case, as lawmakers, you must become teachers of the Constitution, carriers of our rich political culture of republican government.
What must we do to preserve and protect the constitutional traditions of limited government, individual liberty, the separation of powers, and the unique advantages of federalism? James Madison, “the Father of The Constitution,” was not a lawyer, but he was a Congressman. And in that role, he was also a teacher: He routinely employed his formidable talents in the education of his colleagues and fellow citizens on the first principles of government.
In my reading of the public mood, you also have an eager audience. More and more Americans hunger for the wisdom of the Founders, are reading their biographies, and seek to understand their tightly reasoned arguments for the adoption of our Constitution. They are also becoming aware that there is something deeply wrong with the way in which they are being governed and that this process deviates from the intentions of the Founders. They correctly sense that modern government is ever more distant and disconnected from them. They are right.
HOW WE GOT HERE
President Obama, like President Woodrow Wilson, is a real “Progressive,” but what does that mean? In his recent speech at Osawatomie, Kansas, he recalled President Theodore Roosevelt’s “New Nationalism.”[12] A genuine Progressive, TR favored the imposition of inheritance taxes and the income tax and became the standard bearer of the Progressive Party in 1912.
Reflecting that tradition, President Obama and his ideological allies are also vigorous champions of aggressive executive power.[13] Commenting on President Obama’s governance, New York Times columnist David Brooks predicts, “When historians look back on this period, they will see it as another progressive era…. It’s a progressive era based on faith in government experts and their ability to use social science analysis to manage complex systems.”[14]
Welcome to the “100 Years War” of American politics. Progressivism, after all, was America’s dominant political movement from 1890 to 1920. While the Progressives are identified with social reform and the reining in of corporate interests and trusts, they focused intensely on structural reform of government, particularly civil service reform and the democratization of our politics.
No modern American political movement has been more successful. Within a relatively short span of time, progressives backed the adoption of four transformative amendments to the Constitution. They fostered the income tax (Sixteenth Amendment) and secured direct election of U.S. Senators (Seventeenth Amendment); many backed Prohibition (Eighteenth Amendment); and they allied with the suffragettes (Nineteenth Amendment). In the several states, they broke the power of the political bosses and enacted initiative and referenda and the recall of public officials.
Long before the New Deal of the 1930s, Progressives concentrated power in Washington. With the backing of the Progressives, Congress created the Federal Reserve System (1913) and the Federal Trade Commission (1914). Federal employment soared.[15] During the Great War, Congress (in the Overman Act of 1918) gave President Wilson enormous discretionary power to consolidate and rearrange executive offices and agencies. Meanwhile, dissent, especially criticism of America’s entry into the war, was suppressed.
“Permissiveness,” the hallmark of the Sixties, was never welcome among Progressives, old or new. Under the rule of the new Progressives, if you want to just “do your own thing,” you won’t. You will do what you are told. If you think you can just “turn on, tune in, and drop out,” think again. You will be forced, for example, to buy government-approved health benefits—including federally certified abortifacients—or pay a fine. You will behave. You will conform. You will comply. You will not march to a different drummer.
The old Progressives were earnest and well-intentioned—old-fashioned “do gooders.” They were also stern and sober social reformers. During the Progressive Era, Congress suppressed the lottery business and interstate prostitution. They enforced prohibition on the sale and manufacture of alcohol,[16] and they imposed taxes on narcotics. Personal vice had become a public enemy. Professor Charles Beard, a leading Progressive historian, wrote in 1930: “Perhaps no country in the world, except Russia, places so many restraints on what is called ‘personal liberty,’ the right to do as one pleases in personal conduct and on the use of property.”[17]
Because Progressivism is an old and recurrent stream in our public life, its influence on public policy is so immense that it is a given: part of our national landscape. Progressive intellectuals generally had—and still have—a profound faith in social science, a conviction that scientific expertise was the key to social progress, especially in a social and economic order that was increasingly complex. Administration was to be the change agent. Again, Beard: “Thus, in our day, a new social science is being staked out and developed—the science of administration in a ‘great society.’ If the ‘great society’ is to endure, then it must make itself master of administration.”[18]
For Progressives, true liberty was not merely freedom from, or “negative” liberty, meaning freedom from arbitrary rule or tyrannical coercion, as embodied in the venerable natural rights tradition of the American Revolution. True liberty was the freedom to be, to act, to grow personally and to fulfill one’s potential.
This was “positive” liberty. It was to be achieved by the removal of economic and customary restraints, creating fairness in social and economic relations, liberating all persons, regardless of class or condition, from the unwelcome vicissitudes of the market and providing child care, education, universal health care, and pensions: in short, security. Justification for government action would be grounded, as Beard argued, not in power, but in service. This new liberty would be secured through broad-scale central planning and social and economic regulation.
Positive liberty, therefore, was to be achieved through the positive state. Think personal “growth” in a straitjacket.
Such ideological assumptions justified a federal role in health care and a national system of social insurance (based on the German model) for pensions in the Progressive Party platform of 1912. They explain the passion for centralization of power, particularly in the executive branch of national government, where scientific expertise would be able to work its will. “Progressivism,” wrote Professor Ralph Gabriel of Yale University, “was an aspect of the rising cult of science.”[19]
But Progressivism carries within it the seeds of contradiction. While Progressives long championed the democratization of our institutions, sunlight in government, and the elimination of the baneful influence of corporate interests, they clung stubbornly to a faith that public problems could be effectively solved through bureaucratic decision-making: little bands of experts appointed to an expanding number of government boards, commissions, or panels. That is at the heart of the Progressive conception of modern government.[20]
Populist rhetoric notwithstanding, the reality of Progressive rule is profoundly undemocratic, precisely because it takes crucial decision-making that directly affects the lives of millions of citizens “out of politics.” Thus, you have the administrative state: the rule of administrators.
Read the full article here.
Related Articles
- Obama’s Second Term Transformation Plans (johnmalcolm.me)
- A New Declaration of Independence (johnmalcolm.me)
- White House Again Threatens SCOTUS on Obamacare (spectator.org)
- Dictator Obama Issues New Anti-American Decrees (gulagbound.com)
- Sen. Cornyn: Holder’s ‘arrogance knows no bounds’; Obama should force him to comply with Fast and Furious subpoena (dailycaller.com)
- How a bureaucratic dictate becomes a law (dailycaller.com)
- Obama Administration Regulatory Onslaught against American Energy Production Continues (canadafreepress.com)
- Obama administration heeds industry call to ease rail safety rules (kansascity.com)
- Romney’s EPA would look very familiar (politico.com)
- Making Regulation Smarter to Save Lives and Money (whitehouse.gov)
- Obama Gives Coal Miners the Shaft (gulagbound.com)
- Obama’s Narcissism: The Troops are Fighting for Me, Me, Me (wizbangblog.com)
- GOP attorneys general litigate, push back against Obama regulations (dailycaller.com)
- Federalizing fracking: a bad idea (dailycaller.com)
- Managing the Regulation Process will Define Barack Obama’s Success in Office (prweb.com)
- Conditional, Comprising, and Dereliction of Duty (onemorecup.wordpress.com)
- The Revolt Against the NDAA Hits Congress (mb50.wordpress.com)
- Dictator Obama Issues New Threat to Supreme Court over ObamaCare… (projectworldawareness.com)
- Obama’s Second Term Transformation Plans (mb50.wordpress.com)
- Will Obamas Refi Plan Be on Congresss To-Do List? (blogs.wsj.com)
- President Obama gives his wish list to Congress (fox6now.com)
John Malcolm 