My commentary, “The Danger Posed by the Growing Administrative State,” published in the Washington Times on August 2, began this way:
Talk of the “deep state” is much in the air these days. To some, the deep state refers to what they see as a conspiratorial intelligence community leaking secrets. To others, the deep state refers to what they see as an out-of-control bureaucracy out to bury – or at least trump – President Trump’s initiatives.
I am not especially enamored of the “deep state” label or of overwrought conspiracy theories. And I don’t much take to hyperbolic bureaucrat-bashing or indiscriminate attacks on all federal regulations. Indeed, there are many regulations, especially in the health and safety areas, that serve important public purposes.
But that said, surely there is a case to be made for the proposition that, as Chief Justice John Roberts put it in 2013 in his City of Arlington v. FCC dissent, “the danger posed by the growing power of the administrative state cannot be dismissed.” In that case, Chief Justice Roberts argued, on separation of powers grounds, that the deference regularly given by courts to statutory interpretations by federal administrative agencies – even to agency interpretations regarding their own jurisdictional boundaries – has led to an administrative state that “wields vast power and touches almost every aspect of daily life.”
In the commentary, I explain that the power-wielding by the administrative agencies is all the more problematic because, often, the same agency officials possess authority to promulgate regulations (a legislative function), initiate proceedings to enforce the regulations (an executive function), and adjudicate disputes regarding alleged violations (a judicial function.) In other words, viewed from a separation of powers perspective, a Madisonian nightmare!
The commentary goes on to illustrate the problematic nature of the growing power of the administrative state by focusing on the Federal Communications Commission’s Internet “conduct” rule. Telegraphing, perhaps inadvertently, the due process and rule of law problems inherent in conduct rule, the FCC, in a moment of candor, called the conduct rule a “catch-all” provision.
I end the essay this way:
There’s no need to conjure up the “deep state” to justify worrying, along with Chief Justice Roberts, about “the growing power of the administrative state.”
To read the complete Washington Times piece, please click here.