A major part of the
Washington swamp that is suffocating the American republic is the
federal bureaucracies. In
the opinion of many, the federal workforce is over-staffed and grossly
over-compensated. Yet true as that is, it's
the least of the problem. The real damage the bureaucrats have been doing to
the economy and the freedom of the citizenry is their evolution into
an administrative state, and an entity unto itself. This
has enveloped America in a type of soft despotism that
President Trump must rein in.
Some explanation might be needed.
Soft despotism is a term coined by Alexis de Tocqueville to
describe the state into which a country overrun by “a network of small
complicated rules" might degrade. Soft despotism is different from
despotism in the sense that it is not obvious to the people.
Soft despotism gives people the illusion that they are in
control, when in fact they have very little influence over their government. Soft despotism breeds fear, uncertainty and doubt in
the general populace.
Here how this happens. Congress passes a bill and the
president signs it into law. As is not infrequent, the legislation is vague,
and it is left up to a government department or agency
to interpret it. From the legitimately passed law, the bureaucracies
then formulate regulations which have the force of the original law
behind them.
Rep. Nancy Pelosi, then Speaker of the House, seemed like
an utter fool when she said that ObamaCare would
have to be passed before we knew what was in it. When she said 'we,'
Pelosi didn't just mean the American public or even all those Democrats who
voted for ObamaCare without having read the bill. She also included herself and
other architects of that monstrosity.
That's because the ObamaCare law - like many others
laws - will come to mean what the relevant bureaucracies say it means. This is
done through the regulatory power invested the government
departments. In this manner, the passed law is like a skeleton. The
bureaucracy and regulatory agencies put the meat and muscle on the
bones and breathe life into the legislation. Sometimes a Frankenstein is the
result.
Administrations come and
administrations go, but the bureaucrats remain. Oh how the liberals and
their allies in the permanent bureaucracy love this arrangement. But
unfortunately this gives us a class of unelected and increasingly
assertive bureaucrats who define too much of the law for the country.
During the Obama reign, the Federal Register grew by some
18,000 pages. The Competitive Enterprise Institute estimated regulations cost the American people
$1.9 trillion a year, which is more than 10% of GDP or about $15,000 per
household.
Government regulations have gotten so that businesses and
even individuals are almost guaranteed to be violating one regulation
(or de facto law) or another. Such an administrative state is what Alexis de
Tocqueville had in mind when he defined soft despotism as a 'network of small complicated
rules' that while maybe not obvious to the people, breed fear, uncertainty and
doubt throughout society.
President Trump has promised to lasso government agencies
and then bring back a constitutional understanding of their limits. Judging his
executive actions and cabinet picks like Scott Pruitt
(EPA), Betsy DeVos (Education), Dr. Ben Carson (Housing), Tom Price
(Health), and Andy Puzder (Labor), the president obviously means what he says.
And it is heartening to know that the president is not the
only one intent on draining the federal swamp. The Republicans in Congress
are pitching in, too. Rep. Kevin McCarthy (R-Calif.), House Majority
Leader, reports on two steps the GOP House has already undertaken, as he put
it, to 'target the greatest threat to America's people, economy, and
Constitution: the
federal bureaucracy."
One is the Regulations From the Executive in Need of
Scrutiny (REINS). When this bill becomes law, it will require regulations that
cost over $100 million to receive congressional approval before becoming
administrative law.
The House also passed the Regulatory Accountability
Act. This would require agencies to choose the least costly regulatory
option to achieve their goals. This bill would also prohibit significantly
costly rules from going into effect if they are being challenged in court.
Furthermore, it would end the 'Chevron deference,' a doctrine that stacks the legal
system in favor of the bureaucracy by directing judges to defer to
an agency's interpretation of its own rules.
These two bills are systematic changes to the way
bureaucracies will be allowed to operate, and hence, if passed, they will be
far-reaching both in time and scope.
Rep. McCarthy also promises that the House will soon begin
repealing specific Obama regulations using the Congressional Review
Act. This law allows a majority in the House and Senate
to override any regulatory rule finalized in the past 60 legislative
days. Given the pace of President Obama's regulatory frenzy
as his term wound down, this is a target-rich environment.
But still there is yet another abuse from the
administrative state that some informed critics call the biggest, but least
talked about, threat to liberty. This is the use of what are called administrative
subpoenas.
Just what are administrative subpoenas? Under U.S. law,
they are subpoenas issued by a federal agency without prior judicial approval
or oversight. Critics say that such subpoenas violate the
Fourth Amendment of the Constitution while proponents claim they
provide a valuable investigative tool.
No doubt administrative subpoenas can aid in the
enforcement of law and regulations. But more to the point, they are also an
open invitation to abuse of businesses and even the citizenry by bureaucrats,
to the point of hardening the soft despotism of the administrative state.
To get an idea of the type of abuses that administrative
subpoenas can lead to, I refer you an article in Wired magazine appropriately
titled "We
Don’t Need No Stinking Warrant: The Disturbing, Unchecked Rise of the
Administrative Subpoena." This title is a takeoff of a scene in the
Humphrey Bogart classic The
Treasure of the Sierra Madre with the analogy being the
Mexican banditos after Bogie's treasure are our present day government
bureaucrats.
Legislation will probably be required to tame the abuse of
administrative subpoenas. To date, there seems to be little action on this
front. In a way, this is understandable. There is so much on the plates of
President Trump and the Republican Congress that priorities have to be
set. But in the not too distant future, the question of administrative
subpoenas will have to be faced, and this begins by first creating an awareness
of the problem.
And this reform
should not be done on the basis of individual cases, as can be accomplished by
President Trump's department heads. Legislation is needed so as to 1) cover all
federal agencies in one shot and 2) constrain future presidential
administrations that may not value The Bill of Rights as much as this present
one does.
Taken all together, the 2016 election has been such a shock
to the Democrats and their soul-mates in the liberal media that they still have
not fully grasped the ramifications of a president like Donald Trump
and a Republican Congress behind him. Perhaps the Womyn’s March in the nation's
streets last week is a harbinger of the hysteria to follow. Fine. The dogs can
bark to their hearts' content, but the Trump caravan will move on. And with
just a pinch of luck, the taming of the bureaucratic state will begin in
earnest.
Peter Skurkiss is a writer in Stow, Ohio.
