Liberty Month Revisited: Federalism and the Administrative State
|Topics:||Administrative Law & Regulation • Federalist Society • Founding Era & History • Federalism & Separation of Powers|
This month we are sharing a selection of paired pieces from The Federalist Society's Liberty Month in July 2015. We hope you enjoy reading them. Click here to visit the paired piece for this entry.
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Forget the familiar refrain "Washington is broken! We must fix the gridlock." Past fixes to gridlock have broken Washington. Congress does too much, not too little. Separation of powers, as Madison explained, should slow down the legislative process. It is important, he said, to block bad laws even though some good laws will not pass.
Congress only does too little of what it should do -- like ensuring time to read and consider bills before Members vote. Congress is very good at passing laws that avoid accountability. The budgetary process and investigative hearings allow committee chairmen often to get their way without legislation. That circumvention encourages Congress to enact broad, ambiguous statutes later filled with executive agency regulations.
The Administrative State is the progeny of the 17th Amendment, which stripped state legislatures of control over their U.S. senators, a control based on the former system of state legislatures electing senators. Previously, a House-passed bill proposing to nationalize some issue could be blocked by state-protecting Senators. Since the New Deal, however, Congress has continually enacted legislation extending federal control over matters previously regulated or not by the states. The Senate still does block House-passed bills, but more for ideological and national, economic-group-interest reasons.
From an inside-the-Beltway viewpoint, America appears chaotic regarding whatever happens to be the issue du jour. Advocates for new federal regulations routinely decry “the patchwork of laws” in the states. Indeed, a “patchwork of laws” essentially defines federalism!
Politics is all about power. Those possessing power rarely care about the Constitution, unless that is, their own power is impinged by others possessing power. That reality explains why the framers architected the Constitution not simply to limit the powers of both the state and the federal governments. As Madison explained in The Federalist, the (pre-17th Amendment) Constitution provides a double protection for liberty, both separating powers within the federal government and pitting state and federal power against each other.
Progressives, since Woodrow Wilson, have criticized this constitutional structure for obstructing the democratic will. They have also, however, transferred governance to the “non-political” experts of the Administrative State. So in the name of democracy, the Administrative State has made our system much less democratic.
The legislative-lobbyist-bureaucrat iron triangle encourages regulatory expansion, largely through Congress’s commerce and spending powers. Virtually every new regulation takes some power from the states, often altogether pre-empting state law. When politically necessary or convenient, Congress greases the power-grab through grants that buy state acquiescence. That worked effectively, for example, with Medicaid until many states rejected Obamacare’s Medicaid expansion and prevailed in the Supreme Court.
The New Deal made states supplicants to Congress, with some states paying more and others paying less per capita in federal taxes than they received back in federal spending. The New Deal political coalition which made such redistribution possible has collapsed, but its subjugation of the states remains.
Those who justify subjugation of the states as a response to state racial discrimination ignore the fact that most of Congress’s consolidation of federal power has nothing to do with race. Indeed, the solidly segregationist South was essential to the New Deal coalition which built the Administrative State. It was not Congress, but the Brown v. Board decision which started the process of compliance with the post-Civil War amendments.
Both proponents and opponents of adopting the Constitution agreed that consolidation of all power in a national government would destroy liberty. The Federalists defended the Constitution’s important limitations on state power as necessary to correct the many state abuses of power. The Constitution was certainly not viewed at the time as a ”States’ Rights” document.
Rather than individual or states’ rights, the consolidation of federal power mostly concerns the centralization of money and power. Having subjugated the states, Congress concentrates increasingly on corporate America. Creating new regulations allows Members to extract contributions for exemptions from regulations and promises of deregulation.
Often portrayed as bribery of Congressional Members, the political-contribution process looks more like a shakedown by certain Members of Congress. Some Washington lobbyists do use contributions to foster crony capitalism and economic protectionism while others are primarily making protection payments in the extortion racket that increasingly dominates Washington.
Those who want to limit the influence of money on politics, often people who also want more power in Washington, seem oblivious to the reality that money that flows to congressional Members correlates with amassing of federal power. Real federalism limits the power of Congress and the Administrative State, thereby reducing the need for national lobbyists and their money.