The Destructive Administrative State

By Rodney Dodsworth – April 12, 2016

The US House of Representatives Judiciary Committee recently took testimony regarding the dangers posed by an ever expanding administrative state, especially in the hands of a ‘pen and phone’ president

Matthew Spalding, Ph.D. from Hillsdale College explained how a slow, evolutionary coup d’état in the form of an administrative state has overthrown free government. This transfer of lawmaking power away from congress to an oligarchy of unelected experts who rule through executive decree and judicial edict over virtually every aspect of our daily lives, under the guise of merely implementing the technical details of law, constitutes nothing less than a revolution against our constitutional order.

Rather than control or diminish the bureaucracy through lawmaking or budget control, congress has settled mostly on oversight of and providing “regulatory relief” from the bureaucracy.

Today, the primary function of modern government is to regulate. When congress writes legislation, it uses very broad language that turns extensive power over to agencies, which are also given the authority of executing and usually adjudicating violations of their regulations in particular cases. The result is that most of the actual decisions of lawmaking and public policy – decisions previously the constitutional responsibility of elected legislators are delegated to bureaucrats whose “rules” there is no doubt have the full force and effect of laws passed by congress. In 2014, congress passed and the President signed about 220 pieces of legislation into law, amounting to a little over 3,000 pages of law, while federal departments and agencies issued 79,066 pages of new and updated regulations. The modern congress is almost exclusively a supervisory body exercising post-legislative oversight of administrative policymakers.

The only way to reverse the trend of a diminishing legislature and the continued expansion of the bureaucratic executive is for congress to strengthen its constitutional muscles as a coequal branch of government in our separation of powers system. This is the solution envisioned by our Founders, and consistent with popular consent. A stronger legislative branch would go a long way toward making the role of government a proper political question, as it should be, subject to election rather than executive fiat or judicial decrees.

The Constitution is grounded in the principle that governments derive their just powers from the consent of the governed. This means that laws must be made by the representatives elected by the people and not by unelected bureaucrats. Thus the first step towards restoring the structural integrity of the Constitution is for congress to reassert its legislative authority, and as much as possible, to cease delegating what amounts to the power to make laws to bureaucrats and administrative agencies. In any case where it allows administrators the discretion to create significant rules, congress should assert its authority to approve or reject those rules. (One of Mark Levin’s Liberty Amendments would do just that.)

Congress needs to relearn the art of lawmaking. It must regain legislative control over today’s labyrinthine state, bringing consent and responsibility back to government through better lawmaking up front and as a result, better oversight after the fact. Regular legislative order, especially the day-to-day back-and-forth of authorizing, appropriating and overseeing the operations of government, will do more than anything to restore the Article I powers of congress and return legislative control over today’s unlimited government.

And the one place where the power of congress is not entirely lost – and where there is opportunity for gaining leverage over an unchecked executive – is congress’ power of the purse. Used well, it will also prevent congress from continually getting cornered in time sensitive fights over messy and incomprehensible omnibus budgets at the end of every year, the settlement of which works to the advantage of the executive. Strategically controlling and using the budget process will turn the advantage back to congress, forcing the executive to engage with the legislative branch and get back into the habit of executing the laws enacted congress – no more and no less.

– End of Testimony

Can our nation rationally expect congress to forcefully retrieve powers it has unconstitutionally assigned to the executive over the past eighty years?

Congress has proved to be impotent when confronted by the executive. The necessary reforms to restore congress’ Article I power can only be restored by We The People in our Article V sovereign capacity.

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