Reining in the Administrative State

Article excerpt


Call it legislation through regulation.

Increasingly, Congress writes sweeping, big-picture legislation (think Obamacare) and gives regulatory agencies a free hand to fill in the details. Meanwhile, it's the agency-written rules and regulations that determine how the law gets implemented and how it will affect the everyday lives of our people.

This is the last thing the Founders wanted. They created three distinct and independent branches of government - legislative, executive and judicial - to safeguard Americans' personal, political and economic liberty. Yet over the course of the 20th century, Congress habitually delegated its legislative/rule-making authority to executive branch departments and independent agencies.

Why? Typically, lawmakers are eager to do something about a problem. But that doesn't mean they're capable of grappling with the complex technical issues involved (e.g., determining cost-effective health and safety standards). Nor does it make them eager to leave their fingerprints on a rule that may prove quite unpopular. The easy way out is to pass a big picture bill that lets the other guy - an unelected bureaucrat - make the hard decisions.

The result is the creation of a fourth branch of government : the administrative state. Gary Lawson, professor of law at Boston University, notes:

Many administrative agencies have authority over matters that are far removed from any of the enumerations of the Constitution. .. Many of these agencies - the so-called independent agencies - are statutorily insulated from presidential control And to cap things off, the agencies perform all of the functions of government at the same time: They promulgate rules, enforce the rules, and adjudicate their own enforcement actions.

In exercising executive, legislative and judicial powers, these administrative bureaus possess precisely the dreadful combination of powers that Madison called, in Federalist No. 48, the very definition of tyranny.

The emergence of the administrative state has led to an explosion of red tape. In 2009 alone, agencies added a record-breaking 163,333 pages of rules to the Code of Federal Regulations. From March to September 2010, federal officials published more than 4,000 pages of rules on Obamacare alone.

The health care rule-making thus far exemplifies the arbitrariness of the administrative state. For example, the law calls for phasing out insurance coverage limits over five years, a provision that could mean that Americans enrolled in low-cost plans will be unable to keep them (notwithstanding the president's promises to the contrary). But the law also gives the secretary of health and human services authority to waive this provision temporarily on a case-by-case basis. …