combating the administrative state

Article: 

Supreme Court Targets the Real Enemy (paywalled)

The flurry of rulings from the Supreme Court has everyone’s head spinning. The most significant among them, even if it doesn’t capture all the headlines, is West Virginia vs EPA. The majority opinion is impressive but the part I found truly wonderful is the concurring opinion by Neil Gorsuch. This is where we see things headed, toward a major and much-welcome curbing of the power of the administrative state.

Just to review what this thing is, it is the unelected bureaucracy that rules the country without oversight from voters or legislatures. For well over 100 years, most courts have given it a pass, just assuming that the “experts” in the bureaucracies are handling things just fine, faithfully interpreting legislation, and merely creating rules for easy compliance.

Generations have gone by as this 4th branch of government has grown in size, scope, and strength. For the most part, its baneful impositions have been felt by one business or one industry at a time. You have heard the stories. The car dealer complains of how the Department of Labor is making him crazy. The machine-parts manufacturer is going bonkers about letters from the Occupational Safety and Health Administration. The energy company can never satisfy the Environmental Protection Agency.

They are stories and we find them unfortunate but we’ve generally avoided thinking of these as systematic, all pervasive, and truly dangerous to the idea of freedom itself. However, there are some 432 of these agencies. The authors of the Declaration of Independence noted their existence back in the day when they accused the English king of having “erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.” They fought a revolution to end the tyranny but now we have a home-grown form, starting in 1883 with the Pendleton Act and continuing throughout the 20th century as each new administration creates its own bureaucracy.

The thing has taken on a power of its own. Strangely, the topic hardly comes up at all during elections, and this is for a reason. Politicians running for office like to advertise their power to make change. They might even believe it. In reality, elected officials have very little influence over the conduct of public life relative to the administrative state. As Trump found it, not even the president is a match for the deep state.

Here is what has happened since March 2020: the beast showed its face. Seemingly out of nowhere, these strange agencies and people for whom we never voted were ruling our lives. They restricted travel, forced us to cover our faces, closed our churches and schools, and forbid our businesses from operating unless they were big enough to afford a powerful lobbying arm in Washington. The whole scene was appalling. It caused many people—including some earnest judges—to take notice.

Once you see the problem, you cannot unsee it.