By Jessica Levinson, MSNBC Opinion Columnist
If it weren’t for a certain case about reproductive choice, we’d likely consider the biggest Supreme Court case of the term the one that was decided last Thursday: West Virginia v. Environmental Protection Agency.
The court ruled 6-3 with fossil fuel companies and conservative states and against the EPA’s power to impose greenhouse gas emissions caps, concluding that Congress failed to give the EPA the power to implement these sweeping environmental controls.
This essentially guarantees a significant roadblock to the Biden administration’s plans to fight climate change and shift from coal-burning power to cleaner energy sources.
Ultimately, the case has huge implications not just for the power of the EPA to try to curtail climate change, but also for how and whether federal government agencies can issue rules and regulations in the first place.
The specific issue in the case is whether, under a portion of the 1970 Clean Air Act, Congress had the constitutional power to allow the EPA to issue “significant rules.” These are rules that are “capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy—without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements.” This particular case involves rules that allow the EPA to regulate greenhouse gases.
The case brings up a major legal issue called, fittingly, “the major questions doctrine.” The doctrine dictates that a federal agency must have clear statutory authority before it decides an issue of major national significance.
In plain English, that means before a federal agency makes a huge decision, it better be sure Congress gave it the authority to do so. The specific question here is whether then-President Barack Obama tried to create a rule — the Clean Power Plan — that went beyond the admittedly broad authority Congress granted to the EPA under the Clean Air Act.
This type of action is often called, The Administrative State.
The Administrative State Is Under Assault And That’s A Good Thing
Forbes, by Chuck DeVore
Texas Public Policy Foundation VP and former California legislator
Although the “administrative state” has been in the news of late. Few Americans can define it.
The administrative state describes a form of government that uses an extensive professional class to provide oversight over government, the economy and society. It stands in stark contrast to a representative democracy with limited powers and reach.
The quintessential example of the administrative state are the 220,000 federal regulators working with a regulatory budget of about $63 billion who write and enforce 185,000 pages of rules that cost the economy in the neighborhood of $1.9 trillion annually. For perspective, $1.9 trillion is about what the federal government raises each year from individual and corporate income taxes.
Alexis de Tocqueville (French political scientist) only spent nine months in America in 1831, but that trip gave this keen observer of political systems and people enough to pen “Democracy in America.”
Understanding American character, he warned of a future where excessive government regulation “…compresses, enervates (weakens), extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.”
It took another 80 years before America started to accelerate towards the administrative state with its, as Tocqueville described, “network of small complicated rules” bringing about what he would call soft tyranny.
President Woodrow Wilson played big role in establishing and growing the administrative state as well as criticizing the Constitution as a roadblock to his vision of robust government.
Commenting on representative democracy, Wilson said, “The problem is to make public opinion efficient without suffering it to be meddlesome.” Investing unelected bureaucrats with great power, then insulating from representatives accountable to voters, goes a long way towards efficiently interpreting public opinion while in reality largely ignoring it.
In the Federalist Papers No. 51, James Madison, the architect of the Constitution and our fourth president, wrote that the human tendency to accumulate power required a government with checks and balances “…to control the abuses of government.” Madison sagely observed, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
Wilson scoffed at the idea of checks and balance, writing, “No living thing can have its organs offset against each other, as checks, and live.” Wilson elaborated, “The Constitution was founded on the law of gravitation. The government was to exist and move by virtue of the efficacy of ‘checks and balances.’ The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life.”
By Franklin Roosevelt’s presidency, the Federal Register, a compendium of federal rules, was created and the administrative state was off to the races.
Since 1960, the federal rule book proscribing American activities large and small has grown from 22,000 pages to 185,000 pages—ObamaCare regulations alone consume about 10,000 pages of that total. As the United States was created, there were some half-dozen federal laws such as treason and counterfeiting that could send you to prison. Now, violate any one of the estimated 300,000 rules—even if you’re completely unaware of the rule—and you may be sent to the federal slammer in what is referred to as “overcriminalization.”
Over the past 57 years, the ranks of the regulatory bureaucracy, many of them lawyers and other highly trained workers, swelled from 57,000 to more than 185,000.
Every dollar spent at the direction of the federal government is a dollar not spent by Americans exercising their own priorities. Federal spending dictated 17.2 percent of the economy in 1960. In the last full year of the Obama administration, it grew to command 20.9 percent of the economy.
The federal tax code runs to 2,600 pages requiring 70,000 pages to explain. Its complexity and rates largely shape economic activity. Although tax rates jumped in 2013, they were lower than they were in 1960, thanks to major tax cuts from the Kennedy and Reagan years.
For the past 57 years there have only been four periods where the growth of federal power has been reversed: President Kennedy’s tax cuts in 1963; in the early 1980s with President Reagan’s tax and regulatory reforms; the 12 years of spending restraint following the Republican takeover of Congress in 1994; and in the last administration with President Trump’s battle against the federal “swamp”.
The Federalist
How Our Administrative State Undermines The Constitution
BY: WILLIAM TURTON
FEBRUARY 08, 2019
When Justice Clarence Thomas served as chairman of the Equal Employment Opportunity Commission during the Reagan administration, he brought two political theorists, John Marini and Ken Masugi, onto his staff.
As close advisors to Thomas, they spent much time discussing the political principles of the Declaration of Independence and the Constitution and their application to contemporary American politics.
These principles of natural rights, the separation of powers, and constitutionally limited government have served as the cornerstone of Thomas’s judicial philosophy throughout his nearly three decades on the Supreme Court.
Marini’s new book, which is edited by Masugi, is Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century.
The collection of essays provides a critical analysis of how the administrative state has undermined America’s constitutional order and threatens to replace self-government with the rule of unaccountable experts.
In the chapters of this book, he argues that the administrative state—the centralized institutions of the federal bureaucracy—has produced a regime change in America.
It has overthrown the Constitution and seeks to replace it with the unlimited authority of a bureaucracy ruled by an intellectual elite. In practice, the administrative state, not Congress, now exercises the power of making the laws under which we live.
This is the foundation upon which the Supreme Court ruled against the EPA last week.
Rejecting the Founders
Marini writes that “constitutionalism as a theoretical doctrine is no longer meaningful in our politics…. When the principles that establish the legitimacy of the constitution are understood to be changeable, are forgotten, or are denied, the constitution can no longer impose limits on the power of government.”
As a number of scholars have pointed out, the Progressives of the late nineteenth and early twentieth century rejected the concept of natural rights and the idea that government is a creation of a social compact among the people.
In the view of the Founders, the people establish government for the purpose of protecting their natural rights, and the structure of the Constitution, by separating power between the branches, seeks to preserve this liberty from arbitrary rule.
As president, Franklin Roosevelt successfully realized the vision of the earlier Progressives by establishing a new understanding of rights as the gift of government that would require government to take on a new role as the organizing force of society.
He proclaimed a new understanding of the social contract in which “rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights.”
As Marini notes, “It was in the cause of this new understanding of freedom that America’s constitutional form of limited government was gradually replaced—beginning with the New Deal and culminating in the late 1960s and 1970s—by an administrative or welfare state.”
Roosevelt’s presidency inaugurated the founding of the modern administrative state, which would subsequently secure its central position as the cornerstone of a new regime of American government with the advent of Lyndon B. Johnson’s Great Society.
Article I of the Constitution declares, “All legislative Powers herein granted shall be vested in a Congress of the United States.” The people, in establishing the Constitution, delegated the power to make laws to Congress alone.
The non-delegation doctrine, which holds that the legislature cannot delegate its legislative powers to any other hands, is a logical conclusion of the Founders’ understanding of government by consent of the governed. The people delegated legislative authority specifically to Congress. It cannot turn around and pass that authority to any other set of hands.
As the political philosopher John Locke wrote in 1690, the legislature holds authority “only to make laws, and not to make legislators.” The administrative state has no constitutional authority.
At most, all administrative agencies would fall within the purview of the executive branch and be answerable to the president in his constitutional role of enforcing the nation’s laws. How, then, did this vast bureaucracy come to wield such sweeping powers to make the rules that govern us?
Over the course of the past century, Congress abandoned its legislative function and delegated its legislative powers to the unelected bureaucracy.
It still passed resolutions that were officially called laws, but have generally taken the form of sweeping grants of authority empowering agencies to craft rules and fill in the details of unfinished legislation.
The Affordable Care Act is an excellent example of this. On its face, the ACA appeared to be a law Congress passed to regulate health care and insurance. However, Marini observes, the ACA “is not a law in the constitutional sense. It makes sense only within the context of an administrative state.”
By leaving the law unfinished and incorporating broad delegations of power within the statute, Congress “established the legal requirements necessary to provide the administrative apparatus with the legal authority to formulate the rules that would govern health care nationwide.”
Instead of fulfilling its traditional lawmaking function, Congress delegated the authority to make rules and regulations to the agencies, who will rule by virtue of their supposed neutrality and technical expertise.
The unconstitutional delegation of the legislative power to the administrative state shifts the key decisions on policy from the halls of Congress to the conference rooms of the bureaucracy. Accordingly, the administrative state has taken on an increasingly central role in our politics.
In just the past few years, the U.S. Department of Health and Human Services sought to force religious organizations to provide birth control—despite their deeply held moral objections to some or all of the birth control methods—to their employees or face steep fines.
The Environmental Protection Agency attempted to extend its regulatory jurisdiction over private land by reinterpreting the Clean Water Act to cover ponds and wet meadows and over energy production through it’s cap and trade rules.
The federal government has even been forbidden to ask about citizenship in the 2020 Census because career bureaucrats opposed the decision by Secretary of Commerce Wilbur Ross.
The administrative state is not simply unconstitutional; it is anti-constitutional. In its structure and operation, it represents a system of government that cannot be reconciled with constitutional government.
In effect, the modern administrative state destroys the separation of powers by uniting all the powers of government in its hands.
Thanks to congressional delegation of legislative power and the judiciary’s acquiescence in the growth of the administrative state, agencies craft rules and regulations in what amounts to an alternative legislative process. They enforce these rules as they see fit, and the judiciary defers to the agency’s interpretation of its own rules in adjudication…….until last Thursday’s decision.
The administrative state, for all intents and purposes, has become the central institution of national authority. Furthermore, government by administration has played a major role in undermining the conditions of self-government.
According to Marini, “In attempting to provide administrative solutions to social, economic, and political problems, it [the administrative state] undercut or destroyed those institutions within civil society that had established the foundations of self-government, including the family and the church.”
The struggle between the defenders of the administrative state and those who challenge its claim to rule forms the central battleground of political conflict in America today. The administrative state institutionalized its authority in the mid-1960s, but it has today produced a backlash from citizens and political leaders who deny its legitimacy.
William Turton is a graduate student at the Van Andel School of Statesmanship at Hillsdale College. He is pursuing a master’s degree in American politics and political philosophy, and his interests include the American founding, Congress, and the separation of powers.