by Mitch Kokai
Senior Political Analyst, John Locke Foundation
In Common Sense, [Thomas] Paine sets the king and the law as being diametrically opposed. But what if, instead of holding him back, the law is happy to give the king carte blanche? And what if a Congress that we instinctively believe to be jealous of its territory is in fact content to cede it to the executive branch, thereby producing not traditional laws but enabling acts?
It is a small jump from regarding the Constitution as “living” — as swathes of the will-to-power Left unashamedly do — to regarding legislation as “living,” too. This is a jump that many appear to have made. One of the more insidious developments of this presidential era has been the replacement of prescriptive, detailed, and fixed domestic law with bloated and open-ended legislation that is punctuated ad nauseam with instances of “the secretary shall.” As my colleague Andrew Stiles has noticed, the Senate’s desired immigration bill fits this new model of “living law” perfectly. …
… This should come as no great surprise to anyone. Obamacare, which makes the Senate’s immigration bill look like an exercise in legislative restraint, contains over 2,500 references to the secretary’s discretion, 700 cases in which the secretary “shall,” 200 instances in which the secretary “may,” and 139 cases in which the secretary “determines.” Its twin, Dodd-Frank, which effectively allows an unelected Consumer Financial Protection Bureau to police the personal-finance sector, is little different, aggregating the power of the three branches into one, stripping Congress of its traditional capacity to set an agency’s budget and severely limiting the courts’ opportunity to review the CFPB’s legal interpretations. This is law, Jim — but not as we know it.
To ask for a concise explanation of what these new sorts of laws do would be futile, because the only meaningful answer is that they give the president the scope to run certain parts of the economy the way he wants. And what he wants is what Woodrow Wilson wanted in The Study of Administration: a means by which to “open for the public a bureau of skilled, economical administration” that is filled with the “hundreds who are wise” and that thwarts the “selfish, ignorant, timid, stubborn, or foolish.” Government of the expert, by the powerful, and for the unworthy, in other words.