Hendricks County Flyer, Avon, IN

Commentary

May 31, 2013

The Lois Learner state

It is appropriate that the worst scandal of the Obama administration – the Internal Revenue Service’s 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. President Barack Obama has greatly enhanced their influence and reach by augmenting the power of regulatory agencies that are an inherent offense against self-government, even when they aren't enforcing the law in a biased way.



The administration's corruption isn’t bags of cash or lies about interns; it is the distortion of our form of government by sidestepping democratic procedures and accountability and vesting authority in bureaucrats. The administrative state is, fundamentally, the Lois Lerner state.



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.



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. “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.”



The administrative state is an open invitation to highhandedness. Bloomberg View columnist Ramesh Ponnuru wrote a piece 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.

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