Christopher DeMuth and Adam White on Conversations with Bill Kristol

On the Rise of the Administrative State

DEMUTH: The [Washington] system is broken if we think of our constitutional system of Congress writing the laws, making policy, and the executive branch executing the laws. Since the 1970s, Congress has delegated more and more, effectively, law making power to the executive branch. We now have a Washington establishment where most of the laws that people live under are made by the executive bureaucracy. The making of the laws is essentially unconstrained. It doesn’t face the sorts of constraints that you have in the Congress where you have to negotiate with many, many different views and come up with some sort of reasonable balance. We have hundreds and hundreds of highly specialized agencies, and they face few constraints not only of politics but of other kinds. They’re free of many of what most citizens [would] think of as “rule of law” values.
There are many good, well meaning people that work at EPA, the FDA, and the FCC, but the amount of discretionary power they have, combined with their zealous belief in the importance of what they do, leads them in a routine matter to engage in abuses that would shock many people.
WHITE: We’ve reached a point where the modern administrative state has its own gravitational pull on our politics. It is now such a big and heavy part of our government that it has deformed the rest of our politics. In Congress, a legislator knows [that] if he’s not going to get his way in Congress, he has the administrative state to backstop him. The president knows that if he does not get what he [wants] out of the political process, he can fall back and let the agencies fill that vacuum.

On the Opportunities for Bold Reforms

DEMUTH: I’m all for lawful and careful [reforms], but especially at the beginning of an administration, I’m particularly for bold [reforms]. Bold but smart. There are some very substantial problems [with the administrative state]. There are a host of terrible rules that can be withdrawn [or] reformed while making it clear that you are deeply committed to the ultimate purposes of the agency. This is not about stripping away air pollution protections or permitting dangerous drugs. In fact, what the agencies do is often perverse and counterproductive in terms of environmental quality and safe drugs and products. [The administration should make clear that what it wants to do is] eliminate the abuses but do a much better job at achieving the ultimate objectives. Dodd-Frank has not made our financial system safer and more competitive, and more attentive to the interest of consumers. That’s the rhetoric in Washington, but it’s actually been a highly perverse piece of legislation that has made things worse. [The administration] has to be smart [and show that]. Boldness at the beginning of an administration is a great virtue.

On the Importance of the Courts in Rolling Back Administration

WHITE: The courts have an important role to play. In the last few years, you’ve some discussion among the Supreme Court Justices, and the lower court judges, about the appropriate relationships between courts and agencies in terms of monitoring agency procedures, and in terms of the extent to which courts should defer to the legal interpretations of agencies. Some doctrines that have been settled for a long time, like the doctrine of “Chevron Deference,” had been pretty well settled. But in the last few years, both inside the Supreme Court, people like Justice Thomas, and outside the court, people like Charles Murray and Philip Hamburger, have started to ask some tough questions…But Congress also has a strong role to play.

Watch the Conversation here:
http://conversationswithbillkristol.org/video/christopher-demuth-adam-white/