Hope for placing the administrative state on the path of ultimate extinction, as Lincoln might say, has found new light in the cabinet selections of President-elect Trump. But before conservatives get too jubilant, a cold dose of reality is in order.
On NRO, Andy Koenig recently argued that Trump has a unique opportunity to peel back the administrative state. Koenig proposed a two-pronged assault on the bureaucratic barricades: first, in the first 100 Days, Trump would rescind easily removable executive orders, and second, and more difficult, he would work with Congress to eliminate major regulations passed under longer-standing laws such as Dodd-Frank, Obamacare, and the Communications Act of 1934. “President-elect Trump and the new Congress have their work cut out for them,” Koenig wrote. “But if they adopt a strategy that both halts pending regulations before they go into effect and rolls back the many others that are already hampering our economy, they will be on their way to unleashing the economic, job, and wage growth that has been far too meager for the last eight years.”
Trump has assembled in his cabinet an impressive array of individuals committed to undoing the administrative state, which explains in part why so many conservatives have praised his selections. But before we mark the numbered days of that dastardly fourth branch of government, we ought to take a step back and heed Koenig’s conclusion: The new regulatory apparatus constituted under the Obama administration, to say nothing of the older foundations of the administrative state itself, will be difficult to remove even with concerted effort by Trump and Republicans in Congress.
Take, for example, the five recently finalized environmental regulations passed by the Department of the Interior and the EPA, which combined could cost around $5 billion, according to the American Action Forum. As CNN reports, under the best case scenario finalized rules take months, if not years, to rescind:
For any regulation, by law, an agency must have a formal proposal, based on a review of the status quo; must open that proposal for a public comment period; must review all the substantive comments and issue a final rule that responds to the substantive comments. And then there can be litigation from opponents as well as an inter-agency process to coordinate any overlapping jurisdictions.
Recent regulations are believed to have the least strength and legitimacy due to their short existence. But if the weakest regulations take as long to overturn as suggested, then the prospect of quick, easy removal of administrative excess turns to nil. Overturning these rules will require Trump and his cabinet to expend finite political capital in battle against a hostile, entrenched bureaucracy.
More broadly, and fundamentally, the administrative state itself is difficult to eject from our constitutional order because it enjoys a level of institutional security derived from the principle it seeks to subvert: the separation of powers.
Control over administration of the laws is one of the great unsolved mysteries of the Constitution. In Federalist No. 72, Hamilton explains that, broadly speaking, administration “comprehends all the operations of the body politic, whether legislative, executive, or judiciary,” but more precisely, it is “limited to executive details” and falls within the province of the presidency. Throughout American history, Congress and the Executive have competed for greater influence over administering the laws, particularly when it comes to spending. Even as early as the first Congresses, Jeffersonians argued that Congress ought to administer public funds because the power of the purse allowed it to dictate exactly how government spent its revenue. By contrast, Hamilton supported appropriating lump sums to be spent at the executive’s discretion, usually to protect American credit. Both sides agreed that the federal government had limited powers to operate on its designs, so with regard to administration, ambition countered ambition and government remained circumscribed.
The constitutional mystery of administration is used as a convenient cover for growing the state rather than keeping it limited.
But progressive reformers believed the separation of powers menaced the ability of government to achieve positive social change. So, starting in the late 19th century, they developed a new interpretation of separated powers wherein administration was meant to be separated from politics itself, on the belief that an enlightened bureaucracy should have broad powers to ensure that the law achieves social justice with minimal interference from the three constitutional branches of government.
Under this scheme, the “political” branches still use ambition to counter ambition, but in an altered form. By the late 1960s, Congress, originally opposed to the consolidation of power by the administrative state, became its “greatest benefactor and defender,” according to political scientist John Marini. By passing the 1974 Budget Control Act, it attempted to wrestle away budgetary powers progressive presidents had bestowed on the office, and return them to Congress. But asserting the power of the purse did not limit government. Instead, the administrative state grew because Congress used it to distribute favors to established special interests and create new ones. By using separation of powers arguments to counter presidential authority, Congress cemented greater consolidation of power at the national level — a far cry from the limited government the Founders desired.
#related#The separation of powers has thus protected the bureaucracy from limitation, even as the rationale for the administrative state supposes that separation of powers harms the public good because it interjects too much politics into public administration. The Founders believed that the mixture of politics and administration kept government limited. But in our day and age, inter-branch competition for greater control over the assignment of public funds fuels the growth of government. The constitutional mystery of administration is used as a convenient cover for growing the state rather than keeping it limited.
“Government there must be, this side of paradise, so that the challenge is, and always will be, how to restrain and direct that government without which we cannot get on,” William F. Buckley Jr. once remarked. The administrative state has underscored how difficult that challenge is.