If there has been a unifying theme of Barack Obama’s presidency, it is the inexorable growth of the administrative state. Its growth, across diverse areas, has followed a pattern: First, expand federal powers beyond their enumerated constitutional limits. Second, delegate those powers to agencies and away from elected politicians in Congress. Third, insulate civil servants from politics so they can wield their discretion without accountability. Finally, force the courts to defer unthinkingly to Congress’s acts of delegation and agency regulation.
Obamacare represents the apotheosis of this administrative state. Congress claimed authority to take over one-sixth of the American economy. But instead of passing the rules for this massive new government program, the large Democratic majorities in Congress vested the power to regulate health care in the Department of Health and Human Services. Even the Supreme Court, with a majority of Republican-appointed justices, did not stand in the way.
Woodrow Wilson, who introduced the administrative state, thought that it would allow experts to solve social problems scientifically and without the push-and-pull of partisan politics. But it has had much the opposite effect. Unaccountable bureaucracy lacks both deliberation with accountability (the virtue of the Congress) and decision with vigor (the virtue of the president).
“A feeble execution is but another phrase for a bad execution,” Alexander Hamilton argued in Federalist 70, “and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.” By contrast, “good government” requires “energy in the executive,” in a vigorous president who is “essential to the protection of the community from foreign attacks” and to “the steady administration of the laws.” President Obama’s allegiance to the liberal administrative state guaranteed that his presidency would run aground on the very shoals that Hamilton marked out. Its operations are so vast, and its reach so sprawling, that it lies beyond the control or comprehension of any one man or group of men, making rational management impossible.
Its dispersal of authority and dilution of responsibility produced the debacle in Benghazi, where no one felt responsible for the fates of American diplomats trapped in the consulate, nor would any decision, had it come, have been executed with the speed necessary to save them. President Obama does not know the full scope of his own health-care law, nor can he and his aides figure out how to make its many moving parts work on time. His Justice Department instead resorts to the passive non-enforcement of the laws — the very opposite of energy in the executive — to try to bring coherence to its schemes and advance its policies.
This disease infects Obama’s handling even of national-security affairs, where the president’s virtues of “decision, activity, secrecy, and dispatch,” as Hamilton described them, should be at their height. Defending the nation’s security is the president’s paramount duty. But where earlier presidents stoutly defended their commander-in-chief power to protect the nation, Obama’s response to the demands of the War on Terror is to seek more judicial control over everything from surveillance to drones. At times, the Obama White House seems unaware of the surveillance and killing being done by his intelligence agencies and shows little interest in directing them. In a March 12, 2013, congressional hearing, for example, Obama’s director of national intelligence denied that the NSA was collecting “any type of data” on Americans. And President Obama has been noticeably absent in defending anti-terrorism surveillance, leaving the job to General Keith Alexander, director of the NSA, and the chairmen of the House and Senate intelligence committees. It is difficult to imagine George Washington, Lincoln, or FDR responding to their national-security challenges with the diffidence that afflicts Obama.
However much they may enjoy watching Obama flounder, conservatives should seize his problems as an opportunity to reform the administrative state. They should begin to develop a broader agenda to change the way government works.
Their previous approach unintentionally exacerbated the problems. When Ronald Reagan took office, conservatives did not seek to radically downsize and transform the administrative state. Instead, they tried to tame it by making its decisions more rational. Led by Chris DeMuth (later head of the American Enterprise Institute) and Douglas Ginsburg (later a judge of the U.S. Court of Appeals for the D.C. Circuit), conservatives created a powerful nerve center within the Office of Management and Budget that forced all new regulations to survive cost-benefit review. Led by Antonin Scalia (later D.C. Circuit judge and Supreme Court justice) and Robert Bork (ditto — almost), conservatives sought to turn the agencies toward deregulation to spark economic growth.
Three legal doctrines sat at the core of this campaign. First, the president must have the authority to fire the heads of any and all administrative agencies. Without the power of removal, a president could not force the agencies to follow his deregulatory policies or to submit to the rigors of cost-benefit analysis. Second, as ultimately codified in the Supreme Court’s 1984 decision NRDC v. Chevron, courts were to defer to agency interpretations of ambiguous laws, which had the effect of locating even more lawmaking power in the executive. Third, courts were to defer to agency regulations rather than give them a “hard look” unless they were “arbitrary and capricious,” which meant that courts almost never overturned an agency decision on the merits.
#page#For a time, this approach worked, because the Reagan and Bush White Houses focused their domestic policy on cutting back regulations and freeing the animal passions of the economy. The reforms clearly left the nation better off and pulled the economy out of a deep funk. But conservatives also, inadvertently, so insulated the administrative state from congressional and judicial influence that a progressive president could effectively free it from anyone’s control.
One ironic outcome of the Progressive era’s end run around the Constitution’s checks is that, in trying to remove policy from politics, it made the system significantly more susceptible to special interests. And the Reagan Revolution, in trying to protect liberty from the excessive lawmaking of Congress, increased lawmaking by agencies, which never have to worry about voters or judges or Congress. Rather than persuade both the House and the Senate, all the interest groups have to do now is capture the Federal Communications Commission or the EPA staff. It is unclear whether this outcome and the resulting state of our republic should be the subject of an Elizabethan tragedy or of a comedy.
If the White House does not care to force the administrative state to act in a unitary, rational manner, then agencies will be free to pursue their own ideological agendas. If the president believes government can make economic decisions better than the market, then officials can act without any effective restraint. Conservative principles have only allowed the welfare state to expand its reach, ousting the private decisions of the markets and undercutting the institutions of civil society.
Conservatives can begin the process of reform only by moving beyond the policies of the Reagan Revolution. Instead of making the administrative state more efficient and effective, they should disable and hobble it in its domestic (not national-security) operations. First, conservatives should jettison some of the favorite legal doctrines of the Scalia and Bork era. Rather than defer to agency interpretations of the laws, the courts should decide on their own whether regulations satisfy statutory requirements. Rather than give agencies wide running room to formulate regulations, courts should give the regulations a hard look or demand that they be based on scientific models and empirical evidence. Judges should also resuscitate the pre–New Deal non-delegation doctrine, which once held that Congress could not transfer true lawmaking power to the agencies but could only allow them to fill in the details of policy decisions made by the legislature.
A more aggressive rethinking of constitutional law could reexamine some classic separation-of-powers cases. Such decisions as INS v. Chadha, which struck down the legislative veto (which allowed the House or Senate, or even a committee, to overrule a regulation without an overriding statute’s passing the full Congress), and Bowsher v. Synar, which limited the powers of congressional agencies, reduced Congress’s ability to oversee the administrative state. If conservatives are going to put new constraints on the agencies, they should rethink their old hostility toward Congress.
Another conservative revolution could come in the area of individual rights. Many conservative lawyers and judges, especially those who came to the fore during the Reagan years, were taught that Lochner v. New York (1905) was the great example of the evils of judicial activism. In Lochner, the Supreme Court struck down a limit on the working hours of bakers as a violation of their due-process right to make contracts. In doing so, the Court endorsed a view of constitutional rights that had held sway since Reconstruction. It was derived ultimately from the Framers’ concept of natural rights, which the authors of the Reconstruction-era constitutional amendments shared. Nevertheless, conservatives endorsed the New Deal Court’s rejection of Lochner, and distanced themselves from the defense of individual rights, because the Founding-era understanding of natural rights had been distorted into a license for the judicial activism of the Warren Court in the 1950s and 1960s.
Such activism continues to this day. Often joined by a stray conservative, such as the ever-wandering Anthony Kennedy, liberals do not hesitate to conjure new rights out of the Due Process Clause, from Roe v. Wade’s right to abortion to U.S. v. Windsor’s right to gay marriage. In their opposition to this kind of jurisprudence, conservatives have embraced an impoverished, defensive understanding of constitutional law. Instead, they should reclaim the idea of natural rights that actually informed the Framing, and give it expression in a system of meaningful legal principles that judges can enforce non-arbitrarily.
Conservatives have correctly shared the Founders’ fear of excessive lawmaking, but they have focused on the wrong source: Congress. They should shift their aim to the administrative agencies, which are the greatest threat to our liberties today. Otherwise, our constitutional republic might devolve into something akin to the statist governments of Europe. President Obama’s efforts to encourage just such a devolution, and the problems his administration now faces in consequence, may ironically give conservatives a new opportunity to restore the original vision of the Constitution.
– Mr. Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He served in the Bush Justice Department from 2001 to 2003 and is a co-author of Taming Globalization: International Law, the U.S. Constitution, and the New World Order.