The Administrative State Poisons Everything It Touches

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The sprawling, unaccountable administrative state is strangling America and killing common sense.

The U.S. Federal Aviation Administration (FAA) refused this week to join a growing list of countries—including, so far, Ireland, China, Indonesia, Singapore, the United Kingdom, Oman, Malaysia, Iraq, Mexico—as well as Europe itself, all of which have permanently or temporarily banned Boeing’s new airplane, the 737 MAX 8, from their airspace.

The 737 MAX 8 has crashed twice in the last five months, resulting in the deaths of 346 people. In Ethiopia, where the most recent crash occurred, the plane was in the air for all of six minutes before it plunged into the ground, tragically cutting short the lives of 157 souls.

The FAA’s obstinacy—it finds “no basis to order grounding the aircraft”—comes in the face of mounting pressure from U.S. lawmakers.

A bipartisan group of U.S. Senators has called on the FAA to ground the plane: Richard Blumenthal (D-Conn.), Ted Cruz (R-Tex.), Elizabeth Warren (D-Mass.), Dianne Feinstein (D-Calif.), and Mitt Romney (R-Utah). Andrew Cuomo, New York’s governor, agrees.

We should pause for a moment, however, and consider the absurdity of this entire situation. Article I of the U.S. Constitution states: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” That is a clear, unambiguous grant of authority—albeit a limited authority—by the nation’s founding charter to the nation’s legislative branch.

What Article I proclaims about the delegation of legislative power is true regardless of what one thinks about the validity of vast delegations of legislative authority to the legion of executive agencies that comprise the modern administrative state and make most of the law in this country; the wisdom of quick, sweeping governmental action in the face of a fluid situation like this; or the relative competence of the FAA compared with Congress to judge the safety of airplanes.

If Congress delegated to the FAA the power to ground the plane, then Congress also has the power to ground the plane. Obviously that must be so. Congress legislated the FAA into being and empowered it ex nihilo via an organic statute; if that agency has the power to ground planes, how can the body superior to it—Congress—not have that power, too?

This is crystal clear evidence of the ways the administrative state warps the entire constitutional structure. Congress has the authority to do what its preening members are whining for the FAA to do. But they won’t do it. Why?

Because it’s more fun to denounce and fulminate than it is to roll up one’s sleeves and draft legislation, which requires compromise, effort, and a concern about fostering the common good—and it might even make one unpopular in a way that threatens one’s reelection prospects. Quelle horreur!

Better, then, to complain about how horrible it is that the FAA isn’t doing what you manifestly could do yourself.

Madison wrote in Federalist 48 about the dangerous nature of the legislature and its propensity for tyranny, because, he thought, it would “everywhere [extend] the sphere of its activity, and [draw] all power into its impetuous vortex.”

Madison probably didn’t precisely envision the existence or precise operation of our modern administrative state—which fits the “vortex” metaphor much better than does our existing Congress—but he did say in Federalist 47 that if something like it ever were to exist—i.e., a massive blob that has the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . .”— it could “justly be pronounced the very definition of tyranny.”

That is the mess we are in now.

Congress is uniquely situated to determine what will advance the common good and act to secure it. Instead, it has decided that it is better willingly to de-fang and disempower itself in the face of an ever-expanding, regulation-mad bureaucracy—all the better, one supposes, to enjoy the aura of power without any of power’s pesky responsibilities and duties.

Congress can safely do that, however, because it knows that the administrative state is hard at work, day and night, making the tough choices that Congress would rather not make; there are for that reason no real downsides or costs associated with congressional abdication, dysfunction, weakness, and general impotence.

The Supreme Court’s life-tenured, robed guardians set national policy every June, ripping out of the sovereign people’s hands the ability to resolve for ourselves, through our democratically elected legislators, some of the the most important questions facing our nation. Congress shrugs in the face of its neglect of this sacred duty and the usurpation of it by judges; after all, impeachment isn’t really an appropriate remedy for judicial lawlessness, they reason, haunted by their failure in 1805 to convict the impeached Justice Samuel Chase. Besides, they’re more than happy to blast unfireable judges for their hubris in front of cameras—great for election-time campaign ads!

The president obviously loves having a massive administrative state at his disposal. Presidential candidates still feverishly seek the job to exercise power, unlike members of Congress, who seem to happy to play the part of “potted plants.”

And Congress gets to pass vague statutes (when they get around to doing that at all) with vague, aspirational, “who-could-possibly-disagree?” purposes like, “We in Congress want clean air” and then complain when the agency goes its own way and angers voters in their home districts.

Everyone benefits from this arrangement. Everyone, that is, except the only group that matters: the American people. We lose something precious, promised to us in the Declaration of Independence—a government that serves our interests, protects our rights, and is subject to our political judgement via regular elections because it derives its “just powers from the consent of the governed.”

The administrative state poisons everything it touches, including Congress, which refuses to act in a paradigmatic case where it should, for the public good. Airplanes are falling out of the sky, imperiling American citizens, but don’t ask Congress to stop their fiddling.

That’s someone else’s job, they say.

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Photo Credit: Acefitt

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About Deion A. Kathawa

Deion A. Kathawa is an attorney who hails from America’s heartland. He holds a J.D. from the University of Notre Dame and a B.A. from the University of Michigan-Ann Arbor. He is a 2021 alumnus of the Claremont Institute’s John Marshall Fellowship. Subscribe to his “Sed Kontra” newsletter.