The United States Supreme Court will soon render a historic decision on the constitutionality of the Affordable Care Act (“Obamacare”). However the Court rules on the specific legal issues – those affecting the reach of congressional power over the lives of individuals and states — a much more basic question remains: How we are to govern ourselves?
It’s an unavoidable question. The massive edifice of Obamacare is the greatest triumph of Progressive governance in the last hundred years: It establishes the intrusive rule of appointed and tenured “experts” — operating though a multiplicity of boards, panels and commissions — who enforce their notions of what is good for us through detailed rules and regulations. This is rule by administrators — another stage in the evolution of the “fourth branch” of government, America’s expanding administrative state.
Obamacare is also just the latest expansion of a bureaucratic empire of many kingdoms. Step by statutory step, Congress has been transferring lawmaking powers to federal agencies. Their power to make rules having the force of law has been rooted in broad and often intentionally vague statutory language, and nourished by malign neglect. Congress has persistently failed to stop, re-examine, and roll back bureaucratic excesses.
When the Environmental Protection Agency (EPA) became operational in 1970, legislative delegation had locked in its regulatory power, which judicial rulings confirmed. The aggressive agency’s own initiatives, including the granting and withholding of waivers, became commonplace. When EPA decided in 2009 to classify carbon dioxide — a natural substance that sustains plant life — as a dangerous pollutant, Congress played a tertiary role as a mere stagehand in a national drama with vast economic consequences. The agency has thus emerged as one of the most powerful players in the American economy,
Meanwhile, Obamacare has fattened the Feds’ official rule book by over 12,000 pages. The edicts range from the kind of health insurance, plans, and benefits we must have to a weird requirement that we must fund federally certified abortifacients. If the law stands, it is only the beginning. As we have already seen with exemptions for the officially favored — ranging from union health plans to chic San Francisco restaurants — some Americans will be treated differently from others. Invariably, the rule of regulators is arbitrary.
One can, of course, complain. But tenured civil servants are not accountable to voters. Their rule-making is an often murky process, whose results are known but to those poor souls who take The Federal Register with their morning coffee.
However the Supreme Court disposes of Obamacare, Congress must never again repeat such a gigantic statutory mistake. If Congress can make the administrative state, Congress can unmake it. Lawmakers must write clear and intelligible statutes, undertake serious regulatory reform, and demand greater agency accountability in federal rule-making. They must first control themselves, and then the control freaks.
— Robert Moffit is a Senior Fellow at the Heritage Foundation’s Center for Policy Innovation.