Mulhall column: Biting off more government than we can chew
January 12, 2017
Big government is the antithesis of what the framers had in mind, but it's what we have.
As I flop the term "big government" onto the table of public discourse, I realize it occupies the entire surface area like a hefty side of beef, a repast way too large to consume in a single sitting and never recommended by Dr. Feinsinger. But what, besides an obtrusive mound of uncooked chow, is big government?
To answer this question, a good start is the Constitution and the Federalist Papers.
Article I of the Constitution says that Congress makes laws. As Federalist 75 put it, "The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society."
The Constitution does not say Congress can delegate its legislative authority.
To some this presented a quandary. The system of checks and balances put forth by the framers made legislation purposely cumbersome. Moreover, people elected to Congress lacked the expertise necessary to write laws on, for example, clean water (never mind the question of whether clean water warrants federal legislation).
So in 1928, a Supreme Court ruling changed this. In If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.", then-Chief Justice (and former President) William Howard Taft wrote, "
In other words, if a congressman doesn't know what constitutes clean water but knows his constituents want clean water, he can write a law instituting clean water that sets up a commission to figure out what clean water is and what standards, laws and enforcements are necessary to make water clean.
To bring this dynamic into recent focus, consider the Patient Protection and Affordable Care Act. When in 2010 then-House Speaker Nancy Pelosi said, "…[W]e have to pass the [ACA] so you can find out what is in it," she wasn't just referring to the towering paper stack you'd have to read for starters, but to the fact that the ACA delegated regulatory authority about many health-care matters to the Department of Health and Human Services. Speaker Pelosi wasn't trying to be cute. She didn't know. By voting for the ACA, she delegated her legislative authority to regulate, for example, whether nuns have to buy abortion coverage.
This three-card Monte approach to legislative responsibility gets creative, too. In 2002, after scandals involving corporations like Enron and WorldCom, thegave the Securities and Exchange Commission authority to appoint the to regulate corporate accounting — a sort of delegation double-dip.
So the delegation of legislative authority to departments, commissions, agencies and boards solves the problem of deficits in congressional expertise and makes law making more "progressive," right?
Here's some friendly advice: Beware of any law with the word "comprehensive" in the title, for when you see it (and sometimes even when you don't), government is about to get beefier, and the added muscle costs more than money.
For one, when Congress delegates legislative authority, it marginalizes your say in federal legislation. You can vote for or against your congressman, but you can't touch the minions who actually write laws. This makes your congressional vote at most an oblique voice in federal law making, much to the chagrin of the framers.
Second, this administrative world is an unelected ruling class, people who get appointed to define regulations, standards and policy, and they rarely get sacked. Get an appointment and setting standards, writing regulations and discerning propriety is your job until you retire or perish.
If that's not enough, delegation of regulatory authority has made Congress an oversight apparatus. When Congress delegates legislative authority, it — so far — keeps a firm hold on the purse. A program that Congress thinks may be operating outside its authority can be called before a congressional hearing. Unsatisfactory testimony may result in congressional defunding in part, though rarely if ever whole. What was once a branch of government constitutionally authorized to write law has become a form of corporate middle-management that evaluates and tweaks government administration.
If, like me, you became politically aware after 1965, you don't know anything but big government, and there are no signs of returning to the framers' vision, as far off as that now seems.
Yet to progressives like Peter Orszag, President Obama's former budget director, our big government isn't big enough. In 2011 Orszag wrote, "To solve the serious problems facing our country, we need to minimize the harm from legislative inertia by relying more on automatic policies and depoliticized commissions for certain policy decisions. In other words, radical as it sounds, we need to counter the gridlock of our political institutions by making them a bit less democratic."
Written, I think, like a sweaty gourmand who sees a side of beef as a miserly hors d'oeuvre.
Mitch Mulhall is a longtime valley resident. His column appears on the second Friday of each month.