by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Rich Lowry‘s latest column at National Review Online urges policymakers to accept the challenge of tackling overgrowth within the federal bureaucracy.
Steve Bannon blew a dog whistle for constitutional conservatives when he spoke of “deconstructing the administrative state” at the Conservative Political Action Conference.
Although not everyone got the reference. Trump haters interpreted the line as an incendiary call to decimate the federal government, when “the administrative state” was a more specific reference to a federal bureaucracy that operates free of the normal checks of democratic accountability.
The administrative state has been called “the fourth branch” of government. It involves an alphabet soup of executive agencies that wield legislative, executive, and judicial powers and thus run outside of and counter to our constitutional system. The agencies write “rules” that are laws in all but name, then enforce them and adjudicate violations.
Boston University law professor Gary Lawson describes how this works in the case of, for instance, the Federal Trade Commission:
“The Commission promulgates substantive rules of conduct. The Commission then considers whether to authorize investigations into whether the Commission’s rules have been violated. If the Commission authorizes an investigation, the investigation is conducted by the Commission, which reports its findings to the Commission. If the Commission thinks that the Commission’s findings warrant an enforcement action, the Commission issues a complaint. The Commission’s complaint that a Commission rule has been violated is then prosecuted by the Commission and adjudicated by the Commission.”
Welcome to government by commission.