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Tuesday, January 31, 2017
With the Bureaucracy, Trump’s Got His Work Cut Out for Him
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.