We Must Scale Back the Regulatory Structure Left to Us by the Progressives
The new Congress has convened with the Democrats in control of the House. Committee chairs are gearing up for aggressive oversight hearings, far-reaching investigations, and probable impeachment proceedings. The "resistance" has a home. The political atmosphere is charged with anticipation of looming conflict, and filled with speculation about the future of the Trump presidency and its policy initiatives.
Some of the administration's most significant initiatives to date have been to implement by executive action a bold series of regulatory rollbacks and reforms. As a result of these deregulatory initiatives, American families and businesses have saved more than $30 Billion. This cost cutting, and the administration's clear commitment to rein in an overreaching administrative state, helped to turbocharge the economic expansion of the past two years.
With government power now divided, the outlook for continued deregulation and regulatory reform is uncertain. While the administration can continue to deregulate by executive action, there is no chance that its efforts will be supported by legislation. Indeed, the Democratic House can be expected to push back with gale force oversight hearings. While oppositional oversight cannot, by itself, overturn the administration’s prior deregulatory actions, the significant staff time and resources needed to prepare testimony, respond to information requests, and rebut criticisms can prove to be a draining distraction that lessons the impetus for further reform.
The longer term is clouded by the fact that the president’s measures implemented by executive action may be rescinded by other executive actions of future presidents more inclined to support expanded regulation. The deregulatory achievements of the Trump administration are significant, but it cannot be known how long they will endure.
Lasting regulatory reform will require more than executive action. It will require sustained and substantial work, including significant legislation. For such an effort to succeed, it must be based upon a widely shared understanding and agreement that the administrative state has been erected using a model for centralized bureaucratic governance that is increasingly outdated and fundamentally flawed.
For more than one hundred years, progressives have argued that unelected executive branch technocrats are better suited than private citizens and their elected representatives to manage and direct the affairs of the nation. In the progressive view, as the twentieth century unfolded, our founding model of republican self-government became increasingly outdated and ultimately unworkable. Questions of public policy became too complex to expect ordinary people to be able to sort things out properly. The economy became too complex to expect free markets to allocate resources efficiently in a manner that produced the most material welfare for the greatest number of people.
Progressives advanced an alternative model of governance for a "new republic," one in which an unrestrained executive branch bureaucracy staffed by subject matter experts would freely exercise professional judgment and consolidated powers to efficiently and effectively manage every aspect of American life in ways that ensured steady progress and widespread prosperity.
The elitist idea that the affairs of the nation should and could be directed by the discretionary governance of unaccountable bureaucrats got traction and achieved dominance because it suited the needs of a variety of significant interest groups. These included elected officials who could associate themselves with the widely supported overall objectives of administrative state programs while using the considerable material benefits dispensed by those programs to reward supportive constituencies. All through the twentieth century the programs multiplied and the benefits flowed forth.
Now, however, cracks are appearing in the administrative edifice. There are signs that the progressive model of centralized governance has itself become outdated and unworkable. The countless interrelated affairs of modern society have simply become too complex for bureaucrats to manage. Ever more costly regulatory requirements fail to produce commensurate benefits. Regulators continue to accumulate unaccountable powers even as regulatory failures increase in their frequency and severity. The costs associated with open-ended benefit commitments have grown to the point where they now pose a threat to national security.
The unaccountable technocrats who promised steady progress and widespread prosperity have failed to deliver. There is a growing awareness that fundamental reform is needed to restore sustainable vitality to our economy and accountability to our system of governance. How can that be done? By rediscovering American exceptionalism.
The progressives got it completely wrong when they sought to secure the nation's future using a centralized system of bureaucratic governance. Progress and prosperity are the result of a free economy, not a guided economy. True and lasting regulatory reform can be achieved but only if the effort is driven and directed by a steadfast commitment to revive the principles and revitalize the institutions of republican self-government, official accountability, and free markets embodied in the text of our Constitution.
J. Kennerly Davis served as Deputy Attorney General for Virginia from 2013-2014. He is an expert contributing to the Federalist Society’s Regulatory Transparency Project.