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This is just such an insane understanding of the current state. You are complaining about a lack of checks and balances. Fine. Understand that for the last fifty years the administrative state has run amok with functionally no checks. No balances. They fund their own activists and media to make sure they get what they want.
So now we have an executive cutting down that bureaucratic state — an energetic executive trying to eliminate the unelected unaccountable and unconstitutional fourth branch. Yet you are upset about it from a checks and balances? No you need to kill the admin state in order for congress and the presidency to actually have power and therefor effort there to be actual checks.
Can you give a specific example of this you think is representative? I think there are a lot of possible criticisms of government bureaucracy, but they are very 'checked' by congress and the courts. Courts limit or grant power to agencies all the time, and Congress for the most part creates them and grants them any of the power they have. Agencies can't do most things they want to do, and they have to work within the complicated game the courts and legislature and president present them. That's the checks and balances doing their thing. The output is obviously not ideal, but 'bad outcome' doesn't mean 'no checks or balances'!
Scalia's dissent in Morrison v. Olson pretty much warns against this, but that's just a blatantly obvious example. The (over)expansion of bureaucracy generally is, by it's nature, mundane and hard to observe.
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Yes. In 1963 a federal administrative agency blew the President’s head off with a rifle because he wasn’t sufficiently cooperating with their policy goals. Then the surviving parts of the executive branch, the other federal administrative agencies and the Supreme Court helped cover it up because they were scared, bribed or compromised with blackmail. The legislative branch tried a milktoast subcommittee investigation fifteen years later that didn’t go anywhere because all the evidence had already been cleaned up by the time they got around to investigating. That doesn’t sound like checks and balances to me.
Presumably given that Trump just declassified all the JFK files, we're going get definitive proof for or against this claim in the coming months.
I highly doubt Alan Dulles was stupid enough to put anything damning down on paper.
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Well, USAID is a prime example. They funnel billions to pet projects clearly unrelated to their purpose with nary a peep. Indeed, it seems like they used these programs to help maintain control Over the narrative and therefore Congress. Another concrete example is the Hunter laptop story and the IC integrating itself at Twitter / Facebook etc. read the Twitter files. Infamously, Chuck Schumer stated that you don’t try to correct the intelligence community because they have six ways to Sunday to fuck you over.
More broadly, look at Chevron. It was a judicial theory that said “if the statute is ambiguous, then we defer to the agency’s interpretation of the law provided it is reasonable.” In practice, this meant if there was a hint of ambiguity the courts would defer to agency action.
But the rabbit hole goes even further as you had Auer deference. Auer deference is the idea that if an agency’s regulations are ambiguous then you defer to the agency’s interpretation of its own actions provided it wasn’t just a litigation position. So the very basic guardrails of the APA need not be respected because the agency can outside the APA turn ambiguous legislation into law.
And even the APA is pretty toothless. The standard for overturning agency action is arbitrary and capricious— a very high bar.
Of course the SCOTUS has been reducing the scope of agency power in recent years (eg major questions doctrine, Loper Bright, Kisor) but that’s changing the deck after 40+ years of largely unchecked power. Trump now is going after their narrative control.
What? This is completely implausible. I genuinely don't understand how one could believe this on any level other than 'someone on twitter said it'. So much money and energy is put into political ads, political entertainment, and such that what USAID is doing domestically is not relevant. It's absolutely true that USAID does a lot of media in foreign countries, and it's not necessarily untrue to describe it as propaganda aimed at foreign countries. But not the united states!
It could be reasonable to describe this as 'giving agencies too much power. It's just not a lack of checks and balances though. Courts still often blocked agency actions, and agencies still couldn't do most of the things they wanted to. Like, I think you're making a good argument for 'agencies had too much power', but that's literally a different thing from 'functionally no checks. No balances'. They have, like, 50% too little checks and balances.
Re the first point it wasn’t just USAID but the amount of money the Biden admin shoveled towards US media was not insignificant. For example I think Politico received about 5% of its revenue from the US government. Are you telling me that can’t buy positive coverage or at least limit negative coverage?
Re Chevron the amount of cases where the court found the statute unambiguous or the agency interpretation unreasonable was tiny. In effect, there was no check.
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Interstate commerce regulations are a big problem. Basically, Congress was given the power to regulate “interstate commerce”, which by now has been stretched by the administrative state to mean “anything a person can conceive of offering for sale, even if it never crosses sate lines, and even if nobody actually buys or sells it.” This redefinition of “interstate commerce” is the reason for most of the overreaching by the AS, because it allowed them to basically regulate all commerce anywhere. Which is why we have things like regulations on the kinds of toilets you can install in your house, or tge kinds of materials that can be used in mattresses. You name it, there’s a regulation for it, and most of it traces back to an insane court ruling that allowed the government to tax wheat grown on private property, and not only had no intention of selling it across state lines, but had no intention to sell it at all.
I think that's a great example of aggressive reinterpretation of the constitution effectively changing the meaning. To some extent I think that - constitutional statesmanship, legal realism - is a good thing - I don't think the country would be better without the interstate commerce hack, I like that I can buy food in Alabama and know it's bound by federal regulations. (The alternative isn't no regulation, it's just having individual states set all regulations, I odn't think that's necessarily better).
I don't think that's a good example of a 'lack of checks and balances' for 'the administrative state'. It's an example of a negotiation between different centers of power, where the judiciary grants somewhat more power to the legislature at the expense of the states. The legislature has selectively granted a small amount of that power to the administrative state.
Individual states would have laws about things that only are made, bought, and sold within that state. So if I own a restaurant with locations only in Alabama, using ingredients sourced in Alabama, then nothing about the situation would be subject to interstate commerce laws. That’s the world of the original intent of the laws. And a huge benefit is that such a thing offers protection to small businesses as any large conglomerates would be subject to a lot of federal laws that a small local business isn’t. It would allow local restaurants to compete against the chain restaurants by giving them enough of a break that they can stay in business because they don’t have as high of a cost to own or run a business.
The problem is that the definition of “interstate” has been stretched beyond all reasonable definitions. There’s no way that a person living in the United States even today would come to the conclusion that wheat grown on your personal property with no intention of selling it has anything to do with interstate commerce, heck, there’s not even a cause to call it commerce— nothing is being sold. There’s a case perhaps if you sell to someone else who has the intent of reselling across state lines that anything sold to such a reseller could be covered under interstate commerce laws, but things that don’t enter or leave the state are not interstate.
Yeah, and I think this is substantively, object-level worse than the current system. I want to go to a restaurant in Florida without thinking about Florida food safety laws. For someone who lives in a smaller state, I want EPA regulations to apply to economic activity in neighboring states, because I ultimately share their air and water. In general it's sometimes easier to notice examples of regulatory overreach and don't notice all the skulls that regulations exist to patch up.
Right but it'd give them breaks on things like 'the food not having parasites and bacterial overgrowth' and pesticide use. I don't want that!
... Also as many of the regulations stifling local businesses are state-level or local as are federal, so I'm not sure this'd help in the long run.
Yeah, it's an example of 'constitutional statesmanship'. The law says one thing, but it's just quite a lot better for the outcome to be the other thing, and this law's in the constitution so nobody else can change it - so let's just do the other thing. It shouldn't happen often, but it should sometimes! I mean, the decision giving SCOTUS the power to invalidate laws was itself an example of statesmanship, it's not really in the constitution either.
I’m not American and I’m pretty against having a constitution for various reasons, but surely this is what a constitution is meant to be for? To be prevent people saying ‘well, the constitution says we can’t do X and we can’t persuade a supermajority of people otherwise, but I think it would be better if we did so let’s do it anyway”.
It's just that it's not absolute! Having a constitutions moves you most of the way from 'the sovereign does whatever it wants' to 'you must strictly follow this document'. Just not all.
(I'm not claiming that the above is the way most lawyers or legal scholars would phrase it, although the article I linked was from a very good legal writer who also actively works on appellate and supreme court cases)
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Just off the top of my head: was anyone in the IRS ever punished for going after conservative NGOs?
I think the Trump admin settled the cases for cash, but I'm not aware of anything else. But, like, that's a specific example of overreach. I think agencies that truly had 'functionally no checks' would be able to get away with a lot more than that.
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I have already said words to the effect that I am fine with dismantling the administrative state, if that is what voters want Trump and Congress to do. I am less convinced than you are that Trump couldn't have done this the "right way" with actual laws. Sure, a few Republican lawmakers defecting would scupper his plans, but if they did, that too would be an important check in our system working as intended.
Trump has the bully pulpit. Trump claims he has a mandate. Let him actually do the work of getting the laws he wants passed.
This is a better path for one big reason: If Trump accomplishes his dismantling of the administrative state via EOs, that will mean that if Democrats ever get the presidency again they can just bring the administrative state back even if it will take some doing. This is all assuming we actually have a republic where Democrats could actually get back into power again, of course.
I would argue there is a constitutional requirement for Trump to destroy the current iteration of the admin state under the take care clause. Also if he waits to do it through legislation first nothing will happen. He needs to expose in full the fraud and abuse while showing the programs do shit to give republicans cover to gut a decent chunk of it. I will be disappointed if laws ultimately don’t come down but I see this as step one; not step one of one.
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Respectfully, are you an administrative lawyer? How familiar are you with the Administrative Procedures Act and the dozens of legislative and executive actions which together, in concert, have intertwined to create the tangled mess that is the current administrative state? How familiar are you with the history of the legislative veto and INS v. Chadha?
It's not reducible to schoolhouse rock-tier "you need congress to pass a law," and you shouldn't minimize the legal and bureaucratic infighting that's taking place.
Isn't it? Trump, 50 R senators, and a R majority of the House could pretty much immediately nuke the filibuster and repeal/revoke all of that. They're not going to, and that's, depending on your perspective, the checks and balances working, or the checks and balances failing, but they could.
They don't have to, and shouldn't have to just because people don't actually understand the state of the law and the left is willing to strategically misrepresent and/or lie about it when it suits their purposes (for the record the right isn't much, if at all, better). Significant powers have already been delegated to the President, or arguably unlawfully usurped from its constitutional power as commander in chief (e.g. protection from at-will removal).
I don't think this is true! All of Elon's biggest recent moves directly go against the Impoundment Control Act, an act that passed both houses by huge margins, to prevent exactly defunding parts of the government directly authorized by congress.
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This is silly. If you pass a law that is misrepresented or misapplied by the courts then you absolutely should have Congress pass a law that unambiguously makes that misrepresentation impossible.
There is no such thing as "unambiguously makes that misrepresentation impossible." The Civil Rights Act of 1965 was passed with the direct, spoken intent of not permitting such things as ethnic quotas or racially-preferential hiring/"affirmative action." It got perverted into, depending on who's doing the enforcing, either outright requiring or just permitting such actions anyway.
I think you didn’t understand or I didn’t clarify the word “that” in there.
It is not possible to unambiguously make all misrepresentations impossible in advance. But once you know of a specific singular and defined misrepresentation, it is quite easy to pass a statutory fix that makes just that specific one no longer possible.
As I said, it’s an iterative game. Except one side loses interest after a few rounds
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Their power to misinterpret is greater than your power to wordsmith; you cannot write something that cannot be misrepresented by a sufficiently hostile actor.
It’s an iterative game! You win because you always have the right of immediate response whereas the opponent has to go back to the district court and start over.
Meanwhile each misrepresentation because more and more fantastical along the way.
This is literally Congress’ primary job!
No, it takes longer to pass a law than to get an injunction.
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I feel like the administrative state is like Planet Fitness. It's easy to sign up for but impossible to cancel.
We should make it just as easy to get rid of as it was to implement in the first place. We voted for the Department of Education so that children would have better outcomes. But this hasn't happened. In fact, since the DOE was founded, our international rankings have tumbled.
Congress never voted for "Let's hire a bunch of workers with no accountability whatsoever and, once they are hired, they can never be fired for any reason whatsoever".
The President is in charge of the executive branch. He is empowered to enforce the laws passed by congress which clearly means firing workers for incompetence and dereliction of duty.
I think the president has a constitutional duty to ensure the laws are being properly enforced by the admin state and therefore any law that limits his ability to provide oversight infringes on a core constitutional power of the president. I have wholly bought into the Scalia dissent in Morrison.
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The original Civil Service Reform Act was passed by enormous margins
The most recent one passed by even larger margins
While on one hand today's GOP can only dream of such majorities in wiping it away, they really don't need much more than 50% + 1. Given that remove employees fixes the deficit, they can even use reconciliation to skip the filibuster.
Thanks. This is kinda nuts.
https://en.wikipedia.org/wiki/Civil_Service_Reform_Act_of_1978
Chalk one up for mistake theory I suppose. This act was supposed to do the very opposite of what it did.
It's mindboggling going back 50 years and seeing what a high-trust society really looks like. Back then Carter could propose a law that said "oh sure we're going to make the government accountable and efficient" and everyone just assumed that it would happen. Because, um, that's what the law says.
No one understood "who, whom" back then. They all just thought "We're all on the same team guys. I'm sure the government workers won't just rob us blind. After all, they love their country too."
Like many awful things, this was there to solve a different awful problem, and now that the original problem is gone we don't even realize it.
Prior to 1892, administrations routinely gave out the vast majority of federal commissions as graft. It was a giant crony network robbing the country blind. Hiring by merit and removing firing except for-cause was, believe it or not, a step forwards at the time.
Of course, in the end you can't destroy a power you can only shift it around the plate. And so instead of being robbed by nepotistic machine politicians, we empowered the civil service. And then the civil service turned around and robbed us blind.
You can only destroy a monster by summoning another monster.
If Final Fantasy X has taught me anything, you can destroy a monster without doing that. But you do have to kill God to do it.
But we did that 140 years ago. Nothing else should stand in our way.
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