Unlike the rolling rallies “Rise Up for Roe” — the headlining nine-city tour of pro-abortionists who oppose the nomination of Judge Brett Kavanaugh on grounds he would be part of a new conservative bloc on the Supreme Court to roll back Roe v. Wade — Americans are not likely to see this rally: pro-administrative state bureaucrats advocating hope for ever more intrusive government. But they should consider preparing their signs and speeches. Kavanaugh’s presence on the high court will alter today’s technocratic state. And that is a good thing.
The prospect of the judge challenging the modern “bureaucratic fourth branch” is gaining attention.
Siraj Hashmi, Commentary Writer and Video Editor for The Washington Examiner, posted a clip identifying five issues that Kavanaugh would influence were he to be seated on the court. His order of priority: abortion, Obamacare, privacy rights, Second Amendment, and, lastly, what he called “agency power and separation of powers.”
For progressives who believe that too much government is not (and never) enough government, they will surely wish the last issue on Hashmi’s list drops out of the top five and, like a flagging Division I football team, falls out of the Top 25. But that is unlikely.
Writing in The Washington Post, Robert Barnes and Steven Mufson observe that, “Hot-button social issues such as abortion and race have so far dominated the debate about Kavanaugh’s nomination.” However, the authors rightly understand, “there is no more important issue to the Trump administration than bringing to heel the federal agencies and regulatory entities that, in Kavanaugh’s words, form ‘a headless fourth branch of the U.S. Government.’”
Conservatives are cheering…
For the last century conservatives have bemoaned the growth of government, particularly the pervasiveness of the administrative state. That is the legacy of the first progressive era of Presidents Theodore Roosevelt, Woodrow Wilson, and Franklin Roosevelt.
Beginning in the early 1900s, they reasoned, citizens needed progress up from the Founders’ ideas. A powerful transcontinental nation needed a strong central government — comprised of unelected and supposedly non-partisan experts — to administer the modern state via agencies, authorities, and departments. The bureaucracy would master public and private affairs, thereby delivering happiness.
This new philosophy was rooted in the belief that the U.S. Constitution was inelastic; its limitations were to be disdained as impediments to the very progress government sought to engineer. Politics became a science.
Eventually, the republic would rely upon government, not self-sufficiency, for sustenance, especially during Roosevelt’s alphabet-laden “New Deal.” The philosophical underpinnings became entrenched policy as the first progressive wave peaked during Lyndon Johnson’s “Great Society” in the late 1960s.
But 50 years later — even with the conservative presidencies of Ronald Reagan and George W. Bush in between — there has been next to no retreat in the vast reach of government in all aspects of life. Much of it at the expense of individual liberties.
All that is changing under Trump.
Last autumn, White House Counsel Donald McGahn said in a speech to the Federalist Society, “The ever-growing, unaccountable administrative state is a direct threat to individual liberty.” He wondered, in light of these realities, why we even have elections today. He also reminded everyone about the size and expanse of today’s administrative state. In 1960, he said, the code of federal regulations was just over 20,000 pages. Now it is over 200,000 pages.
Progressives beware…
Last month, in The Los Angeles Times, Saikrishna Prakash and John Yoo wrote:
“Kavanaugh has written almost nothing significant about abortion or other ‘cultural’ hot topics; we know little about his legal theories on these matters. On the other hand, he has left a striking paper trail attacking the 20th century administrative state, a system that operates as a kind of perpetual-motion machine for progressivism.”
Prakash and Yoo’s analysis is instructive. While they provide an historical perspective largely lost in today’s sinking social media seas, they cite new additions to the federal family like the Environmental Protection Agency and the Consumer Financial Protection Bureau. They also provide this critical insight: “These bureaucracies issue regulations with all the force of laws, execute them and even adjudicate the results, effectively becoming a fourth branch of government.”
Kavanaugh has directly challenged aspects of the bureaucratic fourth branch.
Of the more than 300 opinions involving Kavanaugh on the appellate circuit, nearly one third of them involve the scope of the regulatory agencies.
Two recent court cases provide insights into Kavanaugh’s thinking.
Last year, regarding the matter of a Federal Communications Commission net neutrality regulation imposed under President Barack Obama’s administration, Kavanaugh wrote: “Congress did not clearly authorize the FCC to issue the net neutrality rule… The lack of clear congressional authorization matters. In a series of important cases over the last 25 years, the Supreme Court has required clear congressional authorization for major agency rules of this kind.”
Kavanaugh ruled earlier this year in the case PHH Corporation v. Consumer Financial Protection Bureau, of which an aspect of the sprawling bureau was declared unconstitutional. In what could be called the taming of the administrative state, he wrote, “This is a case about executive power and individual liberty.” Then he fired off a howitzer into the nearly-impenetrable independent agency. “When measured in terms of unilateral power, the Director of the CFPB is the single most powerful official in the entire U.S. Government, other than the President.”
Tellingly, Kavanaugh may be a benefactor to small business.
CNBC reported in July that “Main Street advocates are hopeful Kavanaugh will continue the Trump administration’s deregulatory tone, which has boosted sentiment among small businesses.” Karen Kerrigan, president of non-partisan Small Business & Entrepreneurship Council, told the business network, “[the judge’s opinions] related to unaccountable federal independent agencies are particularly important for small businesses, as navigating bureaucracy and not having the resources or recourse to challenge unfair rules is a daunting challenge for small businesses.”
Prakash and Yoo also offer some soothing balm to those romantics longing for pre-progressive government. “Kavanaugh’s paper trail,” they conclude, “indicates that he might very well seek to revitalize federalism and the separation of powers, rendering the administrative state more responsive and accountable.” That might be a radical concept for Democrats and Republicans today.
Isn’t that good for all Americans?
