New Civil Liberties Alliance Sounds Alarm on Unconstitutional Government
The New Civil Liberties Alliance hosted a very interesting event this week, as part of its “Lunch and Law” speaker series, featuring remarks by Hudson Institute Distinguished Fellow Chris DeMuth and American Enterprise Institute Senior Fellow Peter Wallison. The focus of the conversation was the overgrowth of executive lawmaking and Wallison’s recent book about the threat it poses to American democracy, “Judicial Fortitude: The Last Chance to Rein in the Administrative State.”
Wallison’s central critique—that Congress has delegated far too much authority to executive branch agencies and created an administrative/regulatory state that rules by press release and memorandum—will be familiar to many conservative and libertarian political observers. Wallison suggests that all of us, not just right-leaning legal scholars, should worry this trend. Seeing so much of their lives ruled by bureaucratic fiat rather than actual legislation “has created a significant threat that Americans will one day question the legitimacy of their own government.” If you were shaken up by the populist nationalism of the 2016 presidential election, you may be in for greater surprises down the road.
DeMuth supported this worry, referencing ideas be had aired in a Claremont Review of Books article published earlier this year in “Trumpism, Nationalism, and Conservatism.” He writes that “our [recent political] upheavals are the result of powerful social and technological developments that have weakened our institutions of representative government.” Contra to the popular right-leaning narrative that the current choking kudzu of government regulation is ultimately the result of Progressive Era theorizing and wrongly decided New Deal-era court cases, DeMuth traces it to much more modern sources.
In recent decades, the U.S. Congress has permitted its constitutional powers to atrophy. It has delegated its lawmaking powers: voting for clean air and gender equality by lopsided margins, but leaving the hard choices—the real legislating—to specialized agencies in the executive branch. It has abandoned regular budgeting and appropriations and put most federal spending on autopilot, which has greatly weakened its “power of the purse” over the executive agencies. And it has stood by passively, and often with palpable relief, as courts have resolved contentious issues of sexual autonomy and moral obligation that were previously matters for legislative deliberation.
He also compares it to the high-profile populist discontent we’re seeing in nations with broadly similar political traditions: “the revival of the spirit of nationhood in the [other] rich democracies of the North Atlantic.” The heart of the Trump-world critique of business-as-usual in Washington is that members of a permanent uber-class of highly educated experts and insiders are using the mechanism of government for their own purposes rather than to heed the democratic will of the nation’s voters and citizens. In the U.S., that’s expressed mostly as a fear of the “deep state” and “the swamp,” composed of career civil service officials. In the UK, it has manifested itself in a rejection, fitful and still incomplete, of rule from Brussels rather than Westminster.
[Trump’s] campaign and presidency have been strikingly similar to the nationalist movements in England and Europe, from Brexit to the E.U.-skeptic governments in Poland, Hungary, and Italy, to the neo-nationalist parties of Germany and France. In each case, the insurgents have claimed that their nation’s political and business leaders are really part of, and loyal to, an international elite with its own, self-serving agenda. The elites sacrifice the sovereignty of their home nations in ways—from free trade and open immigration to murky treaties and remote bureaucracies—that harm many of their countrymen.
Opponents of Brexit in the UK—the Remainers—have been gleeful over the last few years at depicting their pro-Leave neighbors as dunderheaded provincials too ignorant to understand the obvious advantages of greater integration with the continent. But that may say more about their own arrogant approach to politics than it does about the IQs of Brexiteers. Even people who cringe at being associated with Donald Trump or Nigel Farage should seriously question how such a large part of the voting public in their respective nations came to think that an arrogant cabal of anti-democratic power players had hijacked public affairs. Responding to them with “you’re too stupid to understand” will do little to quell the populist revolution.
As it turns out, there were plenty of smart people with plans for managing a graceful and principled Brexit, but unfortunately their ideas were given short shrift once the negotiations with the European Union actually began. The Competitive Enterprise Institute’s own Iain Murray (with co-author Rory Broomfield) provided an excellent roadmap for “cutting the Gordian knot” of the UK’s entanglement with the EU. They emphasized the same concern as DeMuth and Wallison—a quarrel not with the outcome of any particular policy or even with the total volume of rules per se, but with the nature of the process of government itself.
One of the strongest cases against the EU’s governing structure is the “democratic deficit”—the term commonly used to describe the unrepresentative nature of EU decision making. The European Parliament is unique among developed world legislatures in that it cannot initiate legislation. Instead, that lawmaking role falls to the EU’s executive branch, the European Commission. As a result, the Commission—an unelected clique of technocrats—makes policy decisions remotely from the people whom the Members of the European Parliament are supposed to represent. There has been repeated popular discontent across Europe over this problem.
Thus we have both theoretical and practical reasons to oppose the trend of executive rather than legislative lawmaking that Wallison, DeMuth, and Murray decry. For a more detailed taxonomy of what we should worry about, see Wayne Crews’s Forbes article, “Rule of Flaw and the Costs of Coercion: Charting Undisclosed Burdens of the Administrative State,” and the running outline he is fleshing out here at OpenMarket, “A Brief Outline of Undisclosed Costs of Regulation.”
While there may emerge some limited restraints owing to the makeup of the Supreme Court, the Administrative State and its largely impervious mega-scale regulatory apparatus have little to fear from the 1946 Administrative Procedure Act’s purported safeguard of a public-consultation rulemaking process. The APA’s checks on agency “tyranny” (the consolidation of powers in the same hands explicitly warned of in The Federalist Papers) entail public comment, judicial review and executive review and congressional oversight. But that same APA’s provisions enable its own avoidance for “good cause,” and Congress has been unable to resist delegation. Legislative reform of regulatory process is highly unlikely in the 116th Congress.
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Lack of awareness of what the heck is really going on makes for bad policymaking. Official policy seems to regard the entire sweep of 20th century Administrative State as being effectively zero-cost (indeed, the bipartisan story is that the regulatory state sports “net benefits”). This is alarming when progressives are ramping up sweeping new regulatory plans for which there will likely again be incomplete accounting presented to our descendants. Regulatory transparency is necessary but not sufficient, because, just as many “benefits” progressives tout are avowedly non-quantifiable, the same holds for costs of intervention and administration. That’s why reform proposals stress congressional accountability.
And, of course, check out the latest cost totals in Wayne’s study “Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State.”