The Administrative State

For John, BLUF:  The question of the place of Givernmental Bureaucrats in our scheme of Government is an important one.  It is becoming a topic of debate out in the public square.  Nothing to see here; just move along.

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Who Should Regulate?

Here is the sub-headline:

The question of whether federal agencies or the courts should have the right to interpret legislation may seem technical, but it significantly affects the power of the government.

From The New York Review of Books, by Professor Cass R. Sunstein, May 26, 2022 issue.

Reviewed:

The Chevron Doctrine:  Its Rise and Fall, and the Future of the Administrative State
by Thomas W. Merrill
Harvard University Press, 355 pp., $35.00

Here is the lede plus three:

Does the Centers for Disease Control and Prevention have the authority to impose a mask mandate on people who travel on planes, trains, and buses? In April a federal district court in Florida offered a clear answer: Absolutely not. The court gave an exceedingly narrow reading to the CDC’s powers under laws enacted by Congress. In the process, it sent an unmistakable signal: some conservative judges will not allow federal agencies to protect public safety and health unless Congress has unambiguously given them the authority to do so.

That signal is ominous. In a period of congressional deadlock, federal agencies often have to take the lead in responding to urgent social problems. During the Covid-19 pandemic, many of the nation’s most important decisions about vaccinations, air travel, masks, social distancing, and more have been made by White House officials, the CDC, the Food and Drug Administration, and the Occupational Safety and Health Administration (OSHA). Policy responses to climate change have also primarily come from the White House, the Environmental Protection Agency (EPA), and other agencies.

Because public policy is often made by administrative agencies, it can shift dramatically from one administration to another. Whether we are speaking about public health, civil rights, clean air, health care, food safety, tobacco, or immigration, fundamental policy judgments might well depend less on Congress than on who wins the presidency.

The administrative state has been with us since the founding. But much of modern government can be traced to the 1930s, when in response to the Great Depression Franklin Roosevelt created a host of new agencies, including the Securities and Exchange Commission, the Federal Communications Commission, and the Social Security Administration. These agencies exercise a great deal of discretion, and they affect the lives of millions of Americans every day. (They also have international influence.) They were born in a period of enthusiasm for technical expertise: Roosevelt and his New Dealers believed in the rule of law, but they did not believe in the rule of courts; they wanted to give authority to specialists.

Later in the article Professor Sunstein gives a look at the issue:

Justice Brett Kavanaugh describes the [Chevron] doctrine as “nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.”

And this is one of things that worries me about our Government.  We elect people to the Houose of Representatives and Senate, and we elect a President, but the Bureaucrats selfpropogate, under little supervision from the other branches of the Government (Judicial and Legislative).  It is the Admijnitrative State.  To quote the Wikipedia article:

Dr. Michael Greve, a law professor at George Mason University School of Law, defines the current implemented administrative state of the United States as, “a power once known as 'prerogative'—that is, the power to make binding rules without law, outside the law, or against the law, exercised by someone other than an elected legislature,"

You may find the idea of a technocentric government as good, based on the idea that the technocrats know what they are doing.  However, technocrats have brought us such things as eugenics and the Tuskegee Experiment.  Dependiing on the experts to deide what is good for the rest of us may be good with airline pilots, but semms antithetical to a Democratic or Republican form of Government.  When and where do the People decide?

If you thought Dr Anthony Fauci was supurb conducing the US response to the COVID, you might favor the Administrative State.  On the other hand, if you have been dubious of our overall response, if yoou wonder if Governor Ron DeSantis did a better job that Governor Andrew Cuomo in helping their state through the crisis, you might be opposed to the Administrative State.

I worry that the People, the Voters, might never get a voice in this debaate.

Regards  —  Cliff