Among the foremost threats to individual freedom in America is the abusive and oftentimes lawless behavior…
CFIF on Twitter CFIF on YouTube
More Legal Shenanigans from the Biden Administration’s Department of Education

Among the foremost threats to individual freedom in America is the abusive and oftentimes lawless behavior of federal administrative agencies, whose vast armies of overpaid bureaucrats remain unaccountable for their excesses.

Among the most familiar examples of that bureaucratic abuse is the Department of Education (DOE).  Recall, for instance, the United States Supreme Court’s humiliating rebuke last year of the Biden DOE’s effort to shift hundreds of billions of dollars of student debt from the people who actually owed them onto the backs of American taxpayers.

Even now, despite that rebuke, the Biden DOE launched an alternative scheme last month in an end-around effort to achieve that same result.

Well, the Biden DOE is now attempting to shift tens of millions of dollars of…[more]

March 19, 2024 • 08:35 AM

Liberty Update

CFIFs latest news, commentary and alerts delivered to your inbox.
Kneeling Before Leviathan: The Rise of the Administrative State Print
By Troy Senik
Thursday, August 22 2013
The great secret of modern American government... is that this is now a country where increasingly large portions of the law are not written by anyone who voters can hold to account.

When it comes to conservative bon mots, former President Gerald Ford isn’t usually thought of as one of the more quotable figures on the right.

He is responsible, however, for one aphorism that is uniquely relevant to today’s era of the expanding, unresponsive state: “A government big enough to give you everything you want is a government big enough to take from you everything you have.”

Ford was right, of course. There is no such thing as a purely benevolent expansion of government. Even in the rare cases where the state grows larger in order to perform some necessary task (such as combating terrorism), the potential for abuse only grows.

In a democratic society, we manage that threat through the knowledge that if anything goes too far awry we always have recourse to the ballot box; we reserve the right to just throw the bums out. But what happens when government simultaneously becomes more abusive and less subject to public control? We’re about to find out.

The great secret of modern American government, virtually unnoticed by all but diehard political junkies, is that this is now a country where increasingly large portions of the law are not written by anyone who voters can hold to account. Instead, it is the product of the administrative state, the giant network of departments, bureaus and agencies that populate the executive branch.

What does this look like in practice? Take the example of the sprawling Dodd-Frank financial reform law. The version that passed Congress was itself corpulent, coming in at 848 pages. But the legislation itself was only a tiny sliver of the resulting law.

The bill delegated rulemaking power to the Securities and Exchange Commission, the Commodity Futures Trading Commission, the Consumer Financial Protection Bureau, the Federal Reserve’s Board of Governors, the Office of the Comptroller of the Currency and the Federal Deposit Insurance Corporation, amongst others. And the rules they issue have the force of law just as much as anything that Congress passes.

The result? As of last month, an analysis by the law firm Davis Polk showed that the implementing agencies have already written 13,789 pages of rules and regulations.

The ratio of words written into law by the administrative state to those written into law by the Congress was 42:1. In other words, the legislative branch – elected by the people of the United States – is responsible for less than 2.5 percent of the law.

The administrative state – elected by no one – is responsible for nearly 98 percent. And that balance will only get worse, as Davis Polk estimates that the rulemaking process for Dodd-Frank is less than 40 percent complete.

Where did this dominance by an unelected bureaucracy come from? Well, in the first place, it owes – like so many execrable developments in American life – to the progressive movement of a century ago, which imagined that the business of governing the nation was entirely too complex to be trusted to politicians (not an unreasonable assertion, it should be noted, but one that birthed a remedy worse than the disease). The progressive vision, however, had two major conceptual flaws.

The first was imagining that it could cultivate a class of dispassionate men who could discharge the responsibilities of government at a cold, objective remove. If you want to find dispassionate men, visit a cemetery. Those who have pulses are invariably swayed by passion, emotion and ideology. There’s nothing wrong with that – it’s inherent to the human condition – but it’s all the more reason to hold them accountable to the electorate rather than insulating them in the bureaucracy.

The second mistake was imagining that what government really needed in order to run efficiently was a class of people engaged in scientific management, experts who knew precisely which levers to apply pressure to in any given situation. This is an exercise in hubris.

The problem isn’t that we need smarter individuals at the helm; the problem is that there is no individual, or group of individuals, sufficiently intelligent to synthesize all of the information necessary to order a society. If you’d like to see that case made in the abstract, read the work of Friedrich Hayek. If you’d like to see it made in more concrete terms, watch the Obama Administration continually tripping over its shoelaces in attempting to implement health care reform.

While the rise of the administrative state may have initially been predicated on progressivism’s high-minded desire to improve government, it has endured and expanded for a much baser reason: political opportunism. The administrative state works to the advantage of Congress by removing from them the burden of actually figuring out how to make laws work. You simply insert a few clauses delegating the power to make those decisions to the relevant agency and you can be out of the office in time for your evening fundraiser.

If something goes wrong with the law? You get to blame the bureaucrats rather than your own sloppy draftsmanship. As for the executive branch, it gets dramatic new power to shape the law, which empowers the president but does so at just enough distance that he too is unlikely to be held culpable for anything that eventually goes wrong.  It’s a win-win … unless you’re a citizen living under the law.

Those factors are precisely why the growth of the administrative state has been so rapid in the past few decades. A recent study from the Mercatus Center at George Mason University revealed that the Code of Federal Regulations has increased from 71,224 pages in 1975 to 174,545 pages as of last year. In President Obama’s first three years in office alone, the code increased in size by 7.4 percent.

The rise of the Tea Party and the reassertion of the libertarian impulse within conservatism mean that this trend hasn’t wholly escaped political scrutiny. Senator Rand Paul, for instance, has sponsored the REINS Act, which would require regulations with a cumulative economic impact of over $100 million to receive congressional approval prior to implementation. It’s a modest step, but a good one.

What’s most striking, however, is the rhetoric of the bill’s opponents. They invariably claim that such scrutiny will weigh Congress down, that the sheer volume of rulemaking could never be accomplished by Congress. In its way, that argument is a gift. Who could think of a better case for why the administrative state should be restrained?

Notable Quote   
 
Happy Easter!…[more]
 
 
— From All of Us at CFIF
 
Liberty Poll   

Do you believe the U.S. Supreme Court will ultimately reject the new Biden administration automobile emissions rule as beyond the scope of administrative agency authority?