Friday, August 1, 2014

Phone and Pen: End Game for Liberalism

The reason that President Obama resorts so much to illegal executive orders is that big government is now so big that it's impossible to legislate entirely from the legislative branch.

You do something like Obamacare and it's impossible to put all the details into a 2,000 page bill.  You have to be able to tweak it administratively by executive action.  Problem is that the constitution says that Congress gets to write the laws.

Or, as Scott Johnson writes in a review of Philip Hamburger’s Is Administrative Law Unlawful?
The practice of rule by decree is of dubious constitutionality, to say the least, and Obama is extending it to the breaking point. While of dubious constitutionality, the practice is not without precedent. The precedent, however, is the prerogative power claimed in the past by the British king. It is the power against which the British revolted in the Glorious Revolution of 1688 and against which we revolted in 1776.
See the point?  It was precisely against administrative law that we rebelled back in the old days.  So how do we get today and President Obama recklessly ruling by decree?  According to Professor Hamburger it started with the Interstate Commerce Commission in 1887, got a big boost in the New Deal, and triumphed with the Administrative Procedure Act of 1946.

But why?  How come the ICC, the New Deal? The answer is: that's what liberals wanted.  The educated New Class that came into its own in the 19th century wanted to rule, in detail.  It wanted to supervise children's education, the terms of employment, commerce, advertising, racial percentages, everything.

The problem is that you can't do that with a small government and a legislature.  You need battalions of rulemakers dealing with the intricate problems that arise in any human endeavor.  The bandwidth you need to take care of all the contingencies just can't be provided by a committee of 535 politicians and their staffers.

It can't be done by battalions of rulemakers either.  Because Hayek.  But that's another story.

Common sense tells you that things would get worse as time goes by, as the thicket of regulations grows and as the memory of old days, when law was legislative law, grows dim.  Also, the government leaders are forced into more and more desperate work-arounds as the tangle of administrative law grows and interferes with the smooth running of the economy and society.

Obamacare is the poster boy for all this.  It was a law written behind closed doors.  And then it was passed in a hurry in draft form because Scott Brown's election to the Senate broke the Democrats' filibuster-proof majority.  The result is that the president has been forced to break the law in order to save the law.  He has needed to issue all kinds of administrative decisions to prevent Obamacare from collapsing under its own weight.

There's something else going on too.  Liberalism is old and it is losing legitimacy.  The things it wants to do -- Obamacare, marriage equality, green energy -- are minority or fringe concerns.  It is no longer offering -- Wow! -- free education for Our Children or health care for Our Seniors.  Most people have health insurance.  Most people are heterosexual.  Most people want cheap energy.  In order to get their agenda implemented, liberals have more and more relied on administrative dodges, because they can't get their agenda passed the honest way.

Think of corporate executives fiddling with the numbers when they don't hit their projections. It usually doesn't end well.

Self-obsessed with their own agenda, liberals don't seem to have thought about the message they are sending out to the rest of America.  They should think back to the days of the 17th century; they should recall the rage over the tax on tea (which was a crony capitalist deal to protect a crony capitalist monopoly, the East India Company).

The whole rigmarole of parliaments and legislatures is a cunning dodge to hide the mailed fist of government in a velvet glove.  When Congress passes a bill and the president signs it there is an aura of consensus: the nation has decided.  In fact, of course, as Buchanan and Tullock show in The Calculus of Consent, the bill was passed with hard-knuckle wheeling and dealing, the triumph of the majority over the minority.  But when the government resorts to the royal prerogative, or rule by decree, or executive order, it is displaying the true mailed fist of government force without the comfortable illusions of parliamentary solidarity.  And people don't like it.

The question is, as it always is, how much do people dislike the Obama rule-by-decree?  Are they angry enough to do something about it?  The answer to that will come in the next election, and thereafter.

No comments:

Post a Comment