Rich Lowry:
Steve Bannon blew a dog whistle for constitutional conservatives when he spoke of “deconstructing the administrative state” at the Conservative Political Action Conference.
Although not everyone got the reference. Trump haters interpreted the line as an incendiary call to decimate the federal government, when “the administrative state” was a more specific reference to a federal bureaucracy that operates free of the normal checks of democratic accountability.
The administrative state has been called “the fourth branch” of government. It involves an alphabet soup of executive agencies that wield legislative, executive, and judicial powers and thus run outside of and counter to our constitutional system. The agencies write “rules” that are laws in all but name, then enforce them and adjudicate violations.
Boston University law professor Gary Lawson describes how this works in the case of, for instance, the Federal Trade Commission:
“The Commission promulgates substantive rules of conduct. The Commission then considers whether to authorize investigations into whether the Commission’s rules have been violated. If the Commission authorizes an investigation, the investigation is conducted by the Commission, which reports its findings to the Commission. If the Commission thinks that the Commission’s findings warrant an enforcement action, the Commission issues a complaint. The Commission’s complaint that a Commission rule has been violated is then prosecuted by the Commission and adjudicated by the Commission.”
Welcome to government by commission. James Madison called such an undifferentiated accumulation of powers, which the Constitution is meant to avoid, “the very definition of tyranny.” In his epic scholarship on the administrative state, Philip Hamburger argues that it is “a version of absolute power.” Constitutional law arose, Hamburger writes, to check the prerogative power of the British crown, and now the federal bureaucracy is replicating that prerogative power in extralegal practices.
If progressives in the Trump years were truly concerned with reaffirming the democratic accountability, they’d be delighted with a prospective deconstruction of the administrative state. But they built it and rely on it. A century-old ideological project, its roots are in the Progressive Era, and it grew apace during the New Deal and the Great Society. The idea was to circumvent the frustrations of constitutional government, with all its natural obstacles to action, and to institute rule by experts.
I see trump is going to e disassembling Obamas Global Warming/Climate Change plans and wait for the usial junk mail from GREENPEACE saying TRUMP IS GOING TO WIPE OUT THE POLARBEARS wait for DiCaprio and his NRDC wanks to be appealing to the usial soft headed little wanks to send $1000 to SAVE THE POLARBEARS