Optimism On Administrative State Reform—With A Big Caution


There’s hopeful anticipation on the right of reforming the administrative state. In particular, many observers, pundits and policymakers take heart in recent moves by the Supreme Court to rein in executive branch and administrative office regulatory powers.

Most recently was West Virginia v. EPA, blocking the Environmental Prtoection Agency on Clean Power Plan emission rules it imposed using powers it didn’t posess.

Before that came the Court’s blocking of both the Centers for Disease Control’s eviction moratorium and the Occupational Safety and Health Administration’s vaccine mandate.

Responses on the outraged left include escalating their calls to pack the Court, end the filibuster and abolish the electoral college.

Those extreme reactions point to the real problem, which is less executive power, but the naked pursuit of raw federal power as such in the legislature.

To an unappreciated degree, given extreme political predation and abuse of crisis yet again during Covid and still ongoing, these Supreme Court victories are too little, too late.

It is not merely the extremists in Congress, but the “moderates” as well, who believe they can enact whatever they want to, even if we, as citizens, do not possess such powers over our countrymen to delegate to them. I cannot jab you or lock you down, close your businesss or deem you non-essential, and cannot delgate that non-existent ability to a federal or state representative.

That erasure of bounds on the federal Congress in particular is the fundamental reason the administrative state is beyond streamlining. It’s great that the Court is recognizing some of the adminstrative state’s inherent democratic unaccountability, something so extraordinary that even contractors outside agencies are writing rules and regulations for profit.

Congress can and will still delegate to agencies, only do it more explicitly after West Virginia v. EPA. It will do this even though agencies neither embody nor attract the expertise that serves as their entire justification. The adminsitrative state regime as such doesn’t work as a tool of regulation and discipline, but instead undermines those values.

Alas, the GOP that would purportedly streamline the administrative state is as committed to keeping it as the radical left is. Ongoing examples of that appart from Covid-era expansion of the state include antiturst intervention, speech and content control, and even an urge to disperse agency offiices throughout the nation.

In today’s context, the mainstream GOP is merely a sub-category of the progressive left. The GOP not only fundamentally agrees with the Elena Kagan dissent observation in WV v. EPA that “Congress knows what it doesn’t and can’t know when it drafts a statute,” they created the very EPA doing the overreaching.

Most matters are not public policy questions. Yet leadership of both parties believes Washington rather than private individuals and organizations should steer and dominate competition policy, tech, finance, health care, energy policy, manufacturing, education, child care, content, digital entertainment, and other routine spheres of human endeavor.

Much now is governed by independent agencies and their guidance documents and other sub-regulatory dark matter, so if the GOP were to run with some of the enthusiasm energizing Supreme Court watchers, salting of administrative earth could begin with those bodies.

Consider just three prominent manifestations of independent agency promience right now:

First, the Federal Trade Commission. Antitrust is an original sin of the administrative state, largely carried out by the “independent” FTC whose addiction to tech regulation is supported by both parties.

Second, the Federal Communications Commission’s presence is still tolerated despite its near-century of central planning having delayed FM, cable TV and cell phones by decades, destroying of hundreds of billions in wealth as noted by Thomas Hazlett.

Third, the Securities and Exchange Commission and other financial regulators’ ESG policies seek to transform corporate America into churches in the climate and woke religious.

Independence from administrative agencies is key to letting alone that which is not yet regulated, which, if we believe Ultimate Resource author Julian Simon, includes most future human endeavors and thus points to one important path to liberty and secession from progressivise administrative rule.

Getting rid of failed deep statism is both a short- and long-term endeavor. In the shorter term, a Regulatory Reduction Commission, like the military Base Closure and Realignment Commission, can aid in deciding which rules and agencies can be tossed. Guiding the purge should be Competitive Enterprise Institute founder Fred Smith’s Law that capitalism does not merely make the world richer, but also fairer, safer, and cleaner—all the values for which agency bureaucrats falsely claim credit and steal valor.

Context, though: it’s Congress that enacted the mega-laws creating agencies, both independent and executive. But even deeper, the root problem is not Congress’s delegation, nor even unauthorized agency power grabs, but Congress, as our purported representative body, exercising powers we ourselves do not possess and cannot delegate to it. Yes, it is naive to talk of administrative state reform when a socialist radical chairs the Senate Budget committee, but the same applies to Mitch McConnell’s debt limit increases and Covid spending and regulatory extremes we cannot legitimately inflict upon posterity.

Nineteenth Century politicians that pursued Henry Clay’s “American Plan” of a national bank, tariffs and internal improvements ultimately prevailed amid Lincoln’s war consolidations. These tower over later episodes creating the Interstate Commerce Commission, Sherman Antitrust Act, and even the Federal Reserve and New Deal.

With the inversion of the balance of power from individuals and states to the federal government, Leviathan was preordained with or without the particular incarnation of adminstrative state we have now. The “Great Reset” legislative enactments of the past two years, for example, are primary, not whether deep agency minions carrying them out or helping Biden pretend to lower prices for housing, gas or the Internet ultimately reside at executive departments like HUD or independent bodies like FCC.

Progressivism and power lust are indifferent to nomenclature, as long as the power is there to seize. And it is, thanks to Congress—and, sadly, to us.

Still, independent agencies unjustified at birth let alone now are the place to start given the urgency of their abuses and their existence apart from oversight, such as the financial regulatory conceits transforming corporations into climate servants. Atop that, Joe Biden has put Obama’s “pen and phone” on steroids with numerous self-described “Whole-of-Government” human engineering campaigns such as his “Equity” program mandating identity politics and the pitting of group against group, as well as other WOG pursuits on “competition policy,” “long covid” and “digital currencies.”

To inflict all this, Biden exploits contracting rules and federal “monopsony” procurement heft given its status as the largest purchaser on earth. Despite the GOP walking away from the misbegotten “Bipartisan Innovation Act, he counts on and gets the noted GOP help on the debt limit other one-way and aisle-crossing.

Deep state careerists and the mainstream GOP are happy to oblige Biden. To draft corporations, though, Biden’s antitrust-laden Whole-of-Government “competition policy” and continued pursuit of a version of “build back better” shrinks the sphere of free competitive enterprise in favor of supervisory public-private partnerships ranging from farming to high tech to space. Prior iterations of industrial policy conceits like federally funded EV charging stations bear blame for today’s supply disruptions, high consumer prices and wealth destruction by disruption of natural cross-sectoral business alliances.

So clearly, along with proscribing congressional power, another prerequisite for independence from agencies is refuting the aforementioned premise of agency “expertise” as those pretenses unfold—whether agencies be misinforming us on the components of healthy diet, destroying supply chains, creating inflation, misallocating drone airspace (and most other property rights evolution), misleading about fossil fuels or the relative risks of vaping, compromising science and journals with politicized federal funding of research, or continuing to award contractors with forever wars.

With his degradation of agency public transparency and protections, Biden is the Edward Scissorhands of government disclosure, and so has made pursuit of independence from federal agencies tougher. His repudiation of the Trump deregulation agenda is so extreme that it undermined even decades-old oversight norms. The Office of Management and Budget now reinforces progressive extremism, complete with abandonment of cost-benefit analysis.

The pressures are more ominous given Biden’s exploitation of Covid to suppress dissent on private platforms by the aforementioned “independent” FTC and FCC. Government should protect dissent, not suppress it; Instead, attacks on what the powerful consider “misinformation” are growing, with the accursed Department of Homeland Security issuring warnings about “the proliferation of false or misleading narratives, which sow discord or undermine public trust in U.S. government institutions.” Well, this article is a discordant narrative, so consider yourself warned, I guess, that your personal ESG Score is falling as you read it.

Upon reflection, a late report by the Trump Department of Justice on “Modernizing the Administrative State,” and a separate DoJ memorandum defending OMB review of independent agencies showcase our hurdles. Independent agency rules will never be scrutinized because even executive agency rules are not. Trump’s own attempt at Executive branch streamlining was ultimately unsuccessful.

Free enterprise and job creation at grand scale, as opposed to big public/private partnerships infected with ESG and wokeness, demands independence from the administrative state and its lords. Resolving these controversies ought not entail mere debates over administrative state reform, because addressing centralized power as such is existential for the more foundational ideas of the Framers. Limiting federal Government supremacy and power as such is the true North Star, around which can orbit a restored Constitution.

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