It is appropriate that the worst scandal of the Obama administration— the IRS targeting of conservatives — is a scandal of administrators and bureaucrats, of otherwise faceless people endowed with immense power over their fellow citizens and running free of serious oversight from elected officials.
They are the shock troops of the vast bureaucratic apparatus of the federal government. Its growth has been one of President Obama’s chief goals, and the one he has had the most success in achieving. He has greatly enhanced the reach and power of regulatory agencies that are an inherent offense against self-government, even when they aren’t enforcing the law in a biased way.
In an excellent essay in the journal National Affairs, Chris DeMuth calls the regulatory agency “the most potent institutional innovation in American government since the Constitution.” He notes that the regulatory state has three hallmarks, at least since the 1970s when its independent power began to grow.
One, Congress delegates lawmaking to the agencies by giving them massive discretion in implementing the vaguest of mandates. Two, there are no constraints on their effective spending power since the costs of their rules “are borne almost entirely by the private sector.” Third, they enjoy “relative insulation from public debate and criticism.”
Needless to say, this is not how American government is supposed to work. It reflects the mindset of the Progressives rather than the Founders. “The Constitution was designed,” DeMuth writes, “to make lawmaking cumbersome, representative, and consensual; the regulatory agency was a workaround, designed to make lawmaking efficient, specialized, and purposeful. It was a way to accommodate growing demands for government intervention in the face of the constitutional bias for limited government.”
And it has worked: “It has enabled the federal government of a vast, populous, diverse democracy to partake directly in the everyday affairs of scores of millions of citizens and businesses.” Some of them, like the conservative organizations that applied for 501(c)(4) status and got harassed by the IRS for their temerity, we hear about; most we don’t.
The administrative state is an open invitation to high-handedness. My colleague Ramesh Ponnuru wrote a piece for Bloomberg View on Obama’s lawlessness. Most of the examples have to do with the administration ignoring or distorting the laws via the bureaucracy. Obamacare says that states have to set up exchanges before the subsidies and penalties in the law apply? No matter. The IRS says it will pay out subsidies and impose penalties regardless of whether states set up exchanges.
We have immigration laws such that providing an amnesty for so-called DREAM kids would require a new statute? Not to worry. The president simply directed his agencies to ignore the law and institute a version of the DREAM Act.
The IRS needs about 2,000 additional full-time equivalent employees to undertake what one agency official calls “the most extensive social benefit program the IRS has been asked to implement in recent history.”
As a general matter, if there is a characteristic line in the major legislative initiatives of the Obama administration it is “the secretary shall….” The secretary of Health and Human services shall figure out how to make Obamacare work, and although they aren’t secretaries, the heads of an alphabet soup of financial agencies shall do the same for Dodd-Frank. Meanwhile, Congress works on the next sprawling enterprise it wants to set in motion and hand over to the administrative state.
Currently, it is the Gang of 8 immigration bill. Its architects want to do for immigration what Obamacare does for health care and Dodd-Frank does for the financial sector — invest an administrator (in this case the secretary of the department of Homeland Security) with extraordinary discretion, and entrust a bureaucracy with an enormous task beyond its capacities (the orderly, rapid processing of 11 million illegal aliens).
In Washington, the power of the administrative state always grows. It needs one, two, many Lois Lerners. The IRS official has already taken a fall, and may be headed for an even steeper one. But there are many more like her. They are indispensable to government by and for the regulators.