‘Administrative state’ exists, but it's not a liberal conspiracy

Government is too complicated.

People dislike government that is remote, bureaucratic and burdensome. Some conservatives believe we live under “the administrative state,” many regulations are written by anonymous agency staff.

Is government under the control of bureaucrats who cannot be held politically accountable and probably have a liberal agenda?

An easier and more obvious explanation of why government seems to have become disconnected from average voters is that it results from the current legislative process. Members of Congress and state legislators empower bureaucrats by the laws they pass – or don’t pass.

Let’s say Congress, composed of the elected representatives of the American people, decides the government should do more to protect air quality. It passes a law expressing that intention, but leaves it to executive branch agencies to produce the regulations necessary to achieve the new law’s goal.

Because we believe that many issues are complicated and technical, legislators accept that they cannot deal with the details but must leave them to experts who will act in good faith to carry out legislative directives. They routinely ignore the possibility that a simple mandate would not need detailed rules.

Legislators can give voters the impression of being responsive to popular sentiment, while allowing the moneyed interests that support their campaigns the opportunity to influence the regulations. 

Action by major interests, represented by an army of lobbyists, may be the true lawmaking.

The most suspicious critics call rulemaking by civil servants and powerful interests “the deep state.” 

Unlike Congress, the regulatory process takes place outside of the public view.

The result is not a simple new law, but many complicated regulations, quite far from the original statute. The intent to improve air quality may be lost.

In the end, issues may end up in court where judges are asked to tell us what legislators meant. That’s why we now pay great attention to the political views of Supreme Court justices. They have been forced to legislate, because Congress has intentionally avoided making unambiguous statements of law.

President Trump last week announced action to cut back on the job protection of federal employees. It looks like an erosion of the non-political civil service, which may make it more vulnerable to political control.

Americans take pride in government employees who follow the law. They are supposed to act without pushing their own views or following directives of elected officials that violate the law’s intent. But the law may have allowed Trump to remove employees arbitrarily. His action may end up in court.

The new tax law requires too many rules. For example, it could have directly addressed how far states might go to work around the newly restricted deduction for property taxes. Instead, Congress left it to the states and the IRS to work it out.

The Federal Communication Commission decides on “net neutrality,” the system that prevents Internet search providers from charging more or providing less service to some consumers. The law should have made that determination without leaving any discretion to regulators.

Laws should not leave loose ends. Civil service laws, environmental protection and consumer financial safeguards should not be subject to change by the will of executive branch officers or powerful interests.

Congress needs to make clear and simple policy decisions and to ensure that their meaning does not depend on who is applying the law. That requires legislators to be more hands-on rather than passing responsibility on to bureaucrats.

Incomplete lawmaking happens at the state level as well, though for different reasons. The fact that Mainers will use ranked choice voting in June while at the same time deciding if they want to suspend it pending constitutional action reflects the failure of the Legislature to make a simple and clear decision.

Proponents of referendums and bond issues seem to believe that the governor will follow the popular will and not his personal views. They continue to propose bonds without stripping away his discretion to refuse to issue them. Similarly, voters pass Medicaid expansion, but the proposed bill lacks funding.

The political problem with seeking legislative clarity is that legislators may more readily be held responsible when voters understand their actions. That’s a risk of leadership.

Popular confidence in government could grow if legislators chose to make the laws more simple and clear. If problems arise in the application of the law, they can be fixed by legislators, not by courts.

The “administrative state,” though not a liberal conspiracy, is a real threat. To halt its growth, Congress and state legislators must take more responsibility.