How Did America Get Stuck With a Regulatory State?

Presidents Barack Obama and Donald Trump have proven the ability to disrupt millions of lives with the stroke of a pen. Last week, I wrote of how the EPA arbitrarily changed the rules simply because it didn’t like the results of Election 2016. The week before I noted that by placing its faith in unaccountable bureaucrats to pick winners and losers, the Regulatory State is a rejection of the core American values of freedom, equality and self-governance.

How did this hostile takeover of America’s government come about? There have always been people who preferred rule by elites, even in the earliest days of our nation’s history. For example, at the Constitutional Convention, Alexander Hamilton proposed that we elect a monarch for life and give him extensive powers.

A century later, a young scholar who later became president described voters as “selfish, ignorant, timid, stubborn, or foolish.” Woodrow Wilson dreamed of a nation led by “a corps of civil servants prepared by a special schooling and drilled, after appointment, into a perfected organization, with appropriate hierarchy and characteristic discipline.”

Elite support for centralized power grew steadily. Still, for most of our history, the public commitment to freedom and self-governance generally prevented things from getting too far out of hand.

That all changed on the morning of December 7, 1941. “Never before or since has America been so unified,” according to historian Craig Shirley. “There were virtually no Americans against their country getting into World War II after the unprovoked attack by the Japanese at Pearl Harbor.” In that unity, and in a desire to preserve the nation, Americans trusted their government as never before or since.

President Roosevelt used that trust, took command over every aspect of national life, and won the war. When it ended, the U.S. enjoyed an economic boom unrivaled in history. The response to Pearl Harbor gave the federal government a fair amount of credibility and a large dose of goodwill.

It was this historical aberration—a brief moment in history when Americans placed enormous trust in the federal government—that allowed the regulatory state to firmly take root in American society.

The moment didn’t last.

During the 1960s and early 1970s, the next generation of politicians squandered whatever good will and credibility the federal government had earned. But it wasn’t just the mistakes of politicians that created the distrust. It was simply a return to the natural order of things.

Unfortunately, before America’s natural and healthy skepticism about centralized power returned, the foundations of the Regulatory State were put firmly in place by the Nixon Administration. It was designed to reduce what Wilson considered the “meddlesome” influence of voters and it has done just that.

The good news, however, is that the culture leads and politicians lag behind. Today, that culture is leading away from centralized bureaucratic control. The 200 million smartphones and other digital tools place unprecedented power in the hands of the people. As Harvard’s Nicco Mele observed, “Radical connectivity is toxic to traditional power structures.”

Lacking any solid foundation in a culture committed to freedom and self-governance, the Regulatory State is now justified only by fading memories of an historical aberration. No matter how desperately those at the top cling to power, it cannot last. A one-size fits all central government cannot survive in the I-Pad era.

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Abuse of the Regulatory Process Is a Threat to America’s Founding Ideals

America’s founding ideals are threatened by a regulatory regime that often operates outside the Constitutional system of checks and balances. Recently, for example, the EPA ignored proper procedures to issue an arbitrary ruling just before President Obama left office.

The ruling had its roots in the Arab Oil Embargo of 1973-74 which sent the price of gas skyrocketing. Suddenly, everyone was concerned about conserving energy and Congress passed a 1975 law requiring improved fuel efficiency over time. The law was implemented under the guidance of the National Highway Traffic Safety Administration (NHTSA).

Since then, the auto industry and NHTSA have periodically squabbled about just what the right requirements should be, but the results have been pretty dramatic. The average miles per gallon for all cars sold in America has nearly doubled.

Over the years, however, public interest in fuel efficiency has ebbed and flowed with the price of gasoline. Interest in fuel efficient cars naturally goes up when the price of gasoline rises significantly. The reverse is true with lower gas prices.

The ongoing consumer interest in larger and less fuel efficient cars has been a source of constant frustration for many environmentalists. In 2009, the Obama Administration addressed this frustration by giving the EPA a voice in the process of setting fuel economy standards. Not only that, they gave California regulators a privileged position in that process. California’s role is significant because of its strong commitment to the electric car industry.

To reduce the confusion, the auto industry worked with all three regulatory bodies and agreed to a standard set of rules designed to dramatically increase fuel efficiency and decrease emissions of greenhouse gases. Recognizing the complexity of the issue, a formal Midterm Evaluation process was established. This was to be a data-driven review to see if the original assumptions used to set those rules still made sense.

It was the Midterm Evaluation process that led to the regulatory abuse.

The EPA announced and published a timetable that produced a draft analysis last summer. A preliminary “determination” was scheduled for release in mid-2017 and a final ruling in 2018. It was a typical regulatory timetable reflecting the fact that over 1,000 pages of technical data would have to be reviewed by all stakeholders in the process. Since the new standards would last all the way until 2025, it was appropriate to provide everyone with time for review and comment.

However, immediately following the election of Donald Trump, the EPA abandoned this process. Suddenly and without notice the agency declared that there was no need to reconsider the underlying assumptions or change the standards. On its face, this is an absurd position. The declining price of gasoline and consumer reluctance to purchase electric cars are certainly dramatic changes relevant to the field of auto regulation.

It is wrong for a government agency to arbitrarily change the process just because it doesn’t like the result of an election. To re-establish the legitimacy of the process, and to uphold the rule of law, the Trump Administration should direct the EPA to adhere to the agreed upon timetable for review.

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Do We Have a Legitimate Government?

Prior to last year’s election, supporters of Hillary Clinton worried that Donald Trump and his supporters might not accept Hillary Clinton’s victory as legitimate. It never occurred to them that the shoe might soon be on the other foot. Shortly after it became apparent that there would be no Clinton victory party, many of her supporters instantly switched gears and began to question the legitimacy of Trump’s victory.

No matter how much it angers some people, though, Donald Trump is the duly elected President of the United States. Still, there is a much more fundamental question about the legitimacy of the government he leads. It’s has nothing to do with who won the election.

Over the past four decades, American government has been completely transformed by the growth of the Regulatory State. Most governing decisions are now made by distant bureaucrats with little input from Congress. Courts rarely provide any checks and balances giving executive branch officials free rein to interpret laws according to their own preferences and agendas.

“An ‘unaccountable’ government, insulated from the public and their elected representatives, threatens the very legitimacy of a democratic political system,” according to Yale University’s Jonathan G.S. Koppell. The Regulatory State “is not merely unconstitutional; it is anti-constitutional,” adds Boston University Law Professor Gary Lawson. “The Constitution was designed specifically to prevent the emergence of kinds of institutions.”

By placing its faith in unaccountable government officials to pick winners and losers, the Regulatory State is a rejection of the core American values of freedom, equality, and self-governance. This hostile takeover of America’s government did not happen by accident or misunderstanding. Its architects “did not misunderstand the Constitution,” explains Lawson. “They understood it perfectly well. They just didn’t like it.”

Lacking Constitutional authority, the Regulatory State might conceivably claim legitimacy by appealing to the higher values expressed in the Declaration of Independence. But that great document says clearly that governments can derive just authority only from the consent of the governed.

The Regulatory State fails on that front as well. During the entire four decades of its existence, there has NEVER been a time when a majority of Americans trusted the federal government (other than a brief blip immediately following 9/11). The longer that people have lived under the regulatory regime, the less they support it. Over the past decade, the number trusting the federal government to do the right thing most of the time has fallen to 25% or less.

The Regulatory State, therefore, can claim no legitimacy from either the Constitution or the Declaration. Regardless of who sits in the Oval Office and who controls Congress, it is an illegitimate form of government. It gives far too much power to the president, a fact that instills tremendous fear of oppression among those who support the losing candidate.

It’s time to re-establish a legitimate government in America and restore our national commitment to freedom, equality, and self-governance. That means forcing the bureaucracy to live within our Constitutional system of checks and balances. It’s the only way to ensure a bright future for our nation. It’s also the only way to ensure that, regardless of who wins an election, all Americans can enjoy the right to life, liberty, and pursuit of happiness.

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Beginning of the End for the Regulatory State?

The shorthand description of Neil Gorsuch is that he’s a younger version of the man he’s likely to replace on the Supreme Court—Justice Antonin Scalia. Therefore, his nomination is seen by many as merely restoring the balance that existed on the Court for most of the past decade—4 conservative justices, 4 liberal justices, and Justice Kennedy as a key swing vote.

The idea that Gorsuch is a young Scalia is as accurate as such shorthand comments can be, but SCOTUS blog reports that there is one significant exception. Last year, “Gorsuch criticized a doctrine of administrative law (called Chevron deference) that Scalia had long defended.” That won’t make headlines the way that other hot button issues do, but it’s a difference that could bring about a huge and positive change to the way the federal government works.

To understand why, a little background is required.

Over the past four decades, as American society has been decentralizing, American politics has been heading in the opposite direction. Political elites have centralized more and more power in a distant bureaucracy set up to rule without interference from voters. By placing faith in government and bureaucrats—rather than everyday Americans and community organizations–the regulatory state is fundamentally a threat to American democracy and self-governance.

The rise of the regulatory state “represents perhaps the single greatest change in our system of government since the founding,” according to George Washington University law professor Jonathan Turley. “Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.”

Alarmingly, Turley notes, “Citizens today are ten times more likely to be the subject of an agency court ruling than a federal court ruling.”

In 2015, 224 laws were passed by Congress and 3,554 new regulations were implemented. In other words, Congress had nothing to do with ninety-four percent (94%) of all new federal laws. Regulators now have a bigger impact on the daily lives of most Americans than Congress, the president, or the nation’s courts.

The Supreme Court has consistently aided this sprint to impose top-down bureaucratic control. In 1984, the Honorables ruled that agency decisions should be given great deference by the courts. Later, the Court ruled that agencies should even receive deference in terms of deciding their own jurisdiction. That latter ruling prompted Chief Justice John Roberts to write a strong dissent highlighting significant concerns: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”

The addition of Neil Gorsuch to the Court will help Roberts address that very real danger. The likely next Supreme Court Justice sees this as a fundamental problem. He has written that permitting “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power more than a little difficult to square with the Constitution.”

Gorsuch clearly believes that bureaucrats should be subject to Constitutional checks and balances. If he can help the Court provide such accountability, the next Justice will play a great role in restoring America’s commitment to democracy and self-governance.

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