The Politics of the Administrative State

Published January 8, 2018

National Review Online

About a month into the Trump presidency, Steve Bannon, a senior White House adviser at the time, identified “deconstruction of the administrative state” as one of the administration’s three core policy goals (protecting national security and reviving the economy, including trade, were the other two). Having no clear sense of what Bannon was talking about, the media at the time treated “deconstruction of the administrative state” as either a synonym for traditional Republican opposition to big government, or code for some sinister authoritarian populism. Virtually no-one in the mainstream press understood, or cared to fairly present, the gist of the growing conservative critique of the administrative state.

That critique focuses on a runaway bureaucracy’s threat to constitutional government. Congress has improperly delegated much of its law-making power to bureaucrats, who in turn have abusively expanded this authority. The courts, for their part, have turned a blind eye to the administrative power-grab. Meanwhile, agencies staffed by unelected bureaucrats now operate de facto courts. In effect, these agencies negate the separation of powers by simultaneously exercising legislative, executive, and judicial functions, the very definition of authoritarian rule. On top of that, administrative adjudication commonly evades constitutionally protected due process rights.

President Obama aggravated these problems in more ways than one. When Congress declined to endorse his proposals, he sought to accomplish essentially legislative goals through regulation. Even duly passed laws like health-care, Dodd-Frank, and the stimulus created administrative structures designed to evade congressional authority, or authorized spending later used to federalize matters properly left to states and localities. While the constitutional critique of the administrative state has been gestating for years, the Obama administration’s executive overreach stimulated its development and lent it force and urgency. This constitutional critique, shared not only by Bannon but by the president’s top legal advisors and judicial appointees (Justice Gorsuch very much included), is seldom explained to the public by the press.

As we approach the end of President Trump’s first year, however, thoughtful observers have been counting up the many steps he’s taken to rein in the administrative state. Those steps include working with Congress to rescind many Obama-era regulations via the heretofore little-used Congressional Review Act; introducing “regulatory budgeting” designed to remove several outdated rules for each new one put in place; as well as major deregulatory moves at the FDA, FCC (ending net neutrality), EPA (ending the Clean Power Plan), the Departments of Education (withdrawing guidance documents on Title IX), and Interior (reducing federal restrictions on public land use). Some of these deregulatory moves are high profile, while others play out behind the scenes. In any event, Trump’s deregulation has unshackled the economy and helped spur growth, even before to the advent of tax reform.

What are the politics of all this? The taming of the administrative state unites Republicans and dismays Democrats. Should the economy continue to improve, Trump’s deregulatory moves will be seen as part of that success story, thus extending their appeal from Republicans to Independents.

But what if something more is at stake? What if battles over the size, scope, and constitutional legitimacy of the administrative state were to become the centerpiece of our politics, energizing populist movements on both right and left? Or is this process already underway? And will intraparty divisions hold the key to this issue?

An important new book by Emmett McGroarty, Jane Robbins, and Erin Tuttle, Deconstructing the Administrative State: The Fight for Liberty, turns us toward these questions. McGroarty, Robbins, and Tuttle change the debate over the administrative state by shifting our angle of vision. As senior fellows at the American Principles Project (APP), McGroarty and Robbins helped lead the grassroots movement against the Common Core education standards. Tuttle, now a research fellow at APP, is one of the Indiana mothers who helped ignite the anti-Common Core movement in the states. Whereas critiques of the administrative state generally focus on history or law, McGroarty, Robbins, and Tuttle draw on their background to highlight the frustrating and sometimes ugly day-to-day politics of the administrative state, examining the state and local levels, as well as the federal. They also throw light on Republicans’ internal divisions over the administrative state. So after a quick survey of Deconstructing the Administrative State, we can return to the big political issues with new eyes.

Whereas recent commentary has focused on our unaccountable bureaucracy’s damaging effects on the economy, McGroarty, Robbins, and Tuttle spotlight the administrative state’s assault on the constitutional authority of the states. Sad to say, vast swathes of state policy are now effectively controlled by anonymous federal technocrats.

Former Nebraska Governor Ben Nelson once said, “I honestly wondered if I was actually elected governor or just branch manager of the state of Nebraska for the federal government.” The extent of this federal influence is often hidden behind state and local agencies, which function like field offices of the central government, and are themselves built up and sometimes even created by federal programs. In consequence, federal intrusion on state policy often needs no defense, because the public has no idea it’s happening. Even governors and state legislators can be unaware of policy end-runs imposed by federal agreements with a state’s own bureaucrats. At both the state and federal levels, then, bureaucracy has broken loose and effectively turned into a national fourth branch of government. McGroarty, Robbins, and Tuttle expose the complex web of incentives and relationships that constitute this undemocratic governing structure. As they see it, when it comes to federalism, the administrative state is winning and the Constitution is on the ropes.

The Founders designed our federalist system to secure liberty by dividing and disbursing power, and by ensuring that local and state governments would remain more accountable to citizens than a distant federal government ever could. In fundamental ways, however, the modern practice of conditioning federal grants on state acceptance of federal dictates undermines the Founders’ intent. Taxing state residents and then conditioning the receipt of these funds on states’ acceptance of federal demands is “coercive, confiscatory, and profoundly corrosive to the federal structure of our Constitution,” say McGroarty et al.

Even supposedly flexible “block grants” are subject to endless regulations. The Obama administration specialized in tying such grants to highly controlling regulatory schemes. State legislatures, which operate on compressed time schedules with few staffers, are poorly positioned even to understand these schemes, let alone resist them. In the Indiana General Assembly, for example, four state representatives share a single legislative aide. Above all, cash-strapped states’ fear of losing federal funds generally overcomes substantive policy concerns.

McGroarty, Robbins, and Tuttle also take an original look at the intellectual armature of the administrative state: government-sponsored research. While some of this research has value, plenty of federally-sponsored “research” merely enshrines the policy preferences of progressive bureaucrats and their academic allies. Too often, government research assumes favored policy positions, rather than offering neutral evaluations of key alternatives. And since state and local governments can’t match billions of dollars of federally-funded education research, for example, de facto federal control of education often follows. Ironically, education experiments launched by questionable “research” can achieve near immortality without ever having shown hard evidence of their effectiveness.

So not only overreaching regulations but a vast federal research apparatus tainted by funding-induced bias and phony objectivity buttresses the administrative state. Much of this research is authorized by “independent” boards insulated from control by political appointees. Unfortunately, these boards and the academics they fund have political biases of their own.

McGroarty, Robbins, and Tuttle highlight many other issues that ought to be part of our debates over the administrative state: efforts by federal bureaucrats to turn just about every policy they favor into a “public health” issue; federal control over the lion’s share of Western lands, politicized K-12 science curricula that prime students to support the administrative state, and more. They also draw on my account of Obama’s sweeping Affirmatively Furthering Fair Housing regulation (AFFH), but go beyond this to treat what they call regional “ghost governments.”

Yet the most controversial theme McGroarty, Robbins, and Tuttle treat is business’s role in expanding the administrative state. While business favors the Trump regulatory rollback at the federal level, many businesses are allied with progressive activists seeking to expand the federal bureaucracy’s hold over states and localities.

Businesses favor an unconstitutional federal takeover of education because they want national markets for textbooks and testing software. Businesses support the dumbed-down Common Core standards advocated by many progressives because they’re more interested in “workforce development” than classic liberal education for citizenship. Businesses favor federal attempts to force dense housing and public transportation on the suburbs when that means access to federal subsidies for building projects.

This brings us to business’s relationship with the political establishment in Congress. McGroarty, Robbins, and Tuttle show how desirable committee assignments and leadership positions are tied to fundraising, which in turn pulls the GOP’s congressional leadership in the direction of businesses that benefit from the largesse of the administrative state. So if business opposition to regulation at the national level separates Republicans from Democrats, the affinity of business for the regulatory state, especially at the state and local levels, separates the GOP establishment from the base.

McGroarty, Robbins, and Tuttle offer a battery of steps to tame the administrative state, from passage of the REINS Act (requiring congressional approval of major regulations), to prohibitions on the federal government making grants to state subdivisions, to bans on federal determination of the membership of state and local boards or commissions, and many other recommendations. Above all, they call for a movement of the people rise up and demand these reforms.

A populist wave on behalf of regulatory reform may sound far-fetched, yet in the last decade populist movements supporting or opposing the administrative state have moved to the center of American politics. The Tea Party was a constitutionally-themed populist response to the Obama administration’s executive overreach. Grassroots resistance to Common Core likewise foregrounded the constitutional ban on federal control of education. Candidate Trump’s repeated attacks on Obamacare and Common Core summoned the energy of those movements, while his promise to “drain the swamp” was a swipe at the bipartisan alliance of lobbyists and the political establishment. So the growing critique of the administrative state by conservative lawyers and academics is merely the tip of a populist iceberg. Likewise, a populist wave on the left during the Obama years mobilized around demands to regulate an oil pipeline (and ultimately the entire fossil-fuel industry) out of existence.

So the administrative state is already a populist rallying cry, even if not by that name. If some regulatory decisions still play out behind the scenes, the public has spotted the problem. Voters understand they’re being cut out of the loop by unaccountable bureaucrats, and they’re angry about it. Similarly, movements on the left have grown adept at elevating regulatory issues like approval for the Keystone XL pipeline into hinge-points of global destiny. We have entered an era in which abstruse questions like net neutrality are the stuff of late night TV. Even the Russia investigation has popularized the idea of a “deep state” bureaucracy at war with the president. The foundation-stones of a populist war over the administrative state have been laid.

Where is all of this going in the Trump era and beyond? On the left, Tom Steyer, who bankrolled the movement against the Keystone XL pipeline, now leads the crusade to impeach President Trump. Impeachment might not sound like a regulatory issue, but Steyer’s advocacy spends as much time on issues like DACA and the EPA as on alleged collusion. It’s disturbing to see mere policy disagreements used as impeachment fodder, yet revealing as well. Should Mueller come up empty handed, or Republicans retain the House, expect Trump’s regulatory policies to refocus populist resistance on the left.

Steyer’s climate crusaders were at the core of Bernie Sanders’ 2016 coalition, and for them Sanders’ socialism was a feature not a bug. An ever-more-openly-socialist Democratic Party will not be shy about demanding expansion of the regulatory state. Obama’s executive overreach, with its galvanizing effect on conservative populism, is unlikely to be a mere passing phase.

On the right, conservatives of all stripes are pleased by the president’s deregulatory moves, yet are far from staging the populist rebellion against the administrative state called for by McGroarty, Robbins, and Tuttle. Conservatives can only get but so worked up over issues like net neutrality and the structure of the Consumer Financial Protection Bureau. Health care mobilizes conservative voters in ways that most business regulation does not, as do federal intrusions on local control of education, housing, and transportation. These latter issues hit voters where they live, literally. Yet this is also where the intraparty split kicks in. While the Chamber of Commerce went all out against Obamacare, it stayed quiet, or even supported Obama administration intrusions into state and local government. Perhaps not coincidentally, the Trump administration has yet to move systematically either to weaken Common Core and restore local control over education, or to repeal Obama’s takeover of local government via AFFH.

If President Trump wants to mobilize the Republican base, he could announce major moves to restore local control over education and to repeal AFFH. Trump’s constantly reiterated campaign promise to free the states from Common Core has yet to be fulfilled. At the same time, he could summon voters to prevent these abuses from ever happening again by rising up to demand passage of the REINS Act and other legislative reforms of the sort recommended by McGroarty, Robbins, and Tuttle.

Failing this, such a movement will likely arise of its own accord once the next Democratic president re-seizes pen and phone on the Obama model. We are about a decade into an era of see-saw political battles over constitutionally questionable and vastly ambitious regulatory schemes. Increasingly, if perhaps without us yet quite recognizing it, the battle over the scope and legitimacy of the administrative state has moved out of the shadows and into the very center of our political life.

Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center. He can be reached at [email protected]

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