The shrinking of the administrative state
Religion & Liberty Online

The shrinking of the administrative state

In just the last year, the regulatory apparatus of the federal government has endured a range of healthy threats and corrections. Approximately 1,579 regulatory actions have been withdrawn or delayed, according to the Office of Information and Regulatory Affairs, and that wave is set to continue. “Agencies plan to finalize three deregulatory actions for every new regulatory action” this fiscal year, a recent report noted.

“We’re here today for one single reason,” said President Trump said last December, holding a pair of scissors aside a symbolic mountain of papers: “to cut the red tape of regulation.”

It’s a welcome development for many businesses, who have struggled amid a growing string of onerous and arbitrary rules and measures. But it’s also a movement that could help restore a bit of hope for republican democracy—taking power away from an unelected, unaccountable regulatory regime and shifting it back to Congress and its constitutions.

As the Hoover Institution’s Adam J. White explains in a recent PolicyEd video, the administrative state has, up until now, largely shielded itself from the eyes and ears of the people it’s supposed to serve:

As we regulate more economic activity, these federal agencies take an ever larger role in day-to-day governance. The consequence is an unelected, largely unaccountable part of the government called the “administrative state.” The growth of the administrative state isn’t an accident. Over time, our elected leaders in Congress have relinquished immense power to federal agencies. The judicial branch is given too much deference to federal agencies. And presidents, who oversee most agencies, have happily accepted the discretion they’ve been granted. The result is that agencies routinely create regulations with little oversight, transparency or incentive to minimize the costs they impose.

So how do we realign the interests of the administrative state with those of the public?

The most obvious is the aforementioned actions of our leaders at the highest levels of government. Trump has claimed to have “begun the most far-reaching regulatory reform in American history,” and his administration is off to a soaring start. According to a letter from Neomi Rao, administrator of OIRA, this isn’t just about freeing up businesses; the administration sees a strong connection between reducing regulation and expanding individual freedom for all:

The Trump Administration recognizes that excessive and unnecessary federal regulations limit individual freedom and suppress the innovation and entrepreneurship that make America great. Starting with confidence in private markets and individual choices, this Administration is reassessing existing regulatory burdens…Our regulatory philosophy and approach emphasize the connection between limited government intervention and individual liberty. Regulatory policy should serve the American people by staying within legal limits and administering the law with respect for due process and fair notice.

But before and beyond Congress and the current President—whose actions can quickly be reversed, in time—we shouldn’t forget that plenty can also be done at the bottom-up levels of the agencies themselves.

With such vocal support for deregulation at the top, these agencies shouldn’t wait passively for specific instruction. As White explains:

[Agencies] can unilaterally adopt reforms to promote transparency and accountability within their own houses. Perhaps the best example of this so far are the efforts at the Justice Department and Education Department to scale back their reliance on “guidance” documents, a broad category of agency pronouncements that regulate the public but that do not undergo even the minimal procedures for public accountability otherwise required of new regulations. If these two departments succeed in reforming their own practices, they could come to be seen by the public (and by judges and legislators) as the regulatory equivalent of “best practices,” raising the bar for what we expect of other agencies.

While such changes might seem minor, their impact could long outlive the agencies’ more prominent substantive work…[If] Trump agencies succeed in improving their own transparency and procedural rigor, and if those agencies trumpet those reforms loudly, their Democratic successors may find it difficult to credibly undo those reforms—just as the Clinton administration largely accepted the dramatic OIRA reforms established and entrenched by Presidents Ronald Reagan and George H. W. Bush.

Dismantling those rules and the power of the rulemakers may not have the shimmer and shine of other policies or programs, but it has significant sway over the freedoms and flourishing of everyday Americans going about their everyday lives. Whether from the bottom-up or the top-down, we have the opportunity and climate to rightly assign and confine the regulators to their proper place.

Joseph Sunde

Joseph Sunde's work has appeared in venues such as the Foundation for Economic Education, First Things, The Christian Post, The Stream, Intellectual Takeout, Patheos, LifeSiteNews, The City, Charisma News, The Green Room, Juicy Ecumenism, Ethika Politika, Made to Flourish, and the Center for Faith and Work, as well as on PowerBlog. He resides in Minneapolis, Minnesota, with his wife and four children.