Trump's quiet assault on the voracious administrative state
One area where the federal government has expanded its power the most, and with the least public awareness, is through something called the administrative state. The term generally describes how vague laws and congressional indifference to its own constitutional powers combine to put too much discretion, and power, in the hands of unelected bureaucrats. The result is a creeping tide of regulations, rulings, memoranda, and unofficial understandings that choke freedom, and lead to arbitrary government.
But as Josh Blackman writes in National Review, the Trump administration is conducting a quiet campaign of its own to roll back the administrative state, and restore to prominence that quaint old constitutional notion of separation of powers. Here's a sample:
In a series of significant speeches at the Federalist Society’s national convention, the president’s lawyers have begun to articulate a framework for restoring the separation of powers: First, Congress should cease delegating its legislative power to the executive branch; second, the executive branch will stop using informal “guidance documents” that deprive people of the due process of law without fair notice; and third, courts should stop rubber-stamping diktats that lack the force of law.
Executive power is often described as a one-way ratchet: Each president, Democrat or Republican, augments the authority his predecessor aggrandized. These three planks of the Trumpian Constitution — delegation, due process, and deference — are remarkable, because they do the exact opposite by ratcheting down the president’s authority. If Congress passes more precise statues, the president has less discretion. If federal agencies comply with the cumbersome regulatory process, the president has less latitude. If judges become more engaged and scrutinize federal regulations, the president receives less deference. Each of these actions would weaken the White House but strengthen the rule of law. To the extent that President Trump follows through with this platform, he can accomplish what few (myself included) thought possible: The inexorable creep of the administrative leviathan can be slowed down, if not forced into retreat.
We urge you to read the entire article. It lays out ways in which the Administration can speed up the process, and ensure the century-old growth of administrative overreach is reversed. As Blackman notes, if the Trump administration is successful, it will result in a weaker presidency. Constitutionally, that is a very good thing. We have shifted far too much power to the occupant of the Oval Office. The result is an executive with more real control over the levers of government than were ever intended by the Founders, and far less in both their elected representatives and the courts.
We've often told folks to ignore the President's Twitter feed, and pay close attantion to what he's doing outside the media glare. That's where the real work is happening -- on deregulation, on judicial appointments, and now, possibly, a renewed separation of powers and a roll back of the administrative state.
That's good constitutional government in action.