Never mind the Deep State, look at regulation

Dan Mitchell on the Deep Administration State in Washington DC. We have our own swamp as well of course.

What’s the greatest threat to liberty in America? …the enormous rogue beast known as the administrative state. Sometimes called the regulatory state or the deep state, it is a government within the government… Unelected bureaucrats not only write their own laws, they also interpret these laws and enforce them in their own courts with their own judges. All this is in blatant violation of the Constitution… Mr. Hamburger, 60, a constitutional scholar…says, sitting in his office at Columbia Law School… “The government can choose to…use an administrative proceeding where you don’t have the right to be heard by a real judge or a jury and you don’t have the full due process of law…” In volume and complexity, the edicts from federal agencies exceed the laws passed by Congress by orders of magnitude. “The administrative state has become the government’s predominant mode of contact with citizens,” Mr. Hamburger says. …“The framers of the Constitution were very clear about this,” Mr. Hamburger says…”Congress cannot delegate the legislative powers to an agency, just as judges cannot delegate their power to an agency.”

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13 Responses to Never mind the Deep State, look at regulation

  1. stackja says:

    Unconstitutional ‘government’? I am shocked!

  2. Singleton Engineer says:

    Peter Dutton’s new bureaucratic regime seems to have all of the hallmarks of the deep state as described above. Do we really want to go down that path?

  3. JohnA says:

    Yes, Minister!

  4. RobK says:

    There’s a lot of leeway in drafting and interpreting regulations. There’s lots of techniques to impliment new and suttle regulations. The state has deep pockets and a lot of departmental interpretation of regulation is never tested in court..

  5. nerblnob says:

    He is 100% correct.

    It’s the least examined reason behind Brexit and Trump: protest at the inexorable growth of the bureaucracies.

  6. Malcolm says:

    Rafe if you’re going to quote someone please get the name right. It’s John Tierney of the WSJ who wrote that. It’s clearly a quote in the link you have provided.

    But I don’t agree with the premise. Look at Australia. The laws we have seen implemented are those passed by the Parliament, not the public service. While there are some time servers, bad apples, aggrieved and petty public servants, the vast majority diligently serve the government of the day.

    What’s the alternative? Sack them all every time government changes? Do you really think Australia would be better off if the public service was sacked for Rudd, Gillard, Abbott, Rudd and Turnbull? I think not.

    The chaos and bad government in Australia should be sheeted home to the various governments.

    Now I would agree that the Coalition parties have tended to not appoint sensible, sound, competent and supportive people to the highest jobs in the public service. Turnbull appointing Martin Parkinson was a huge error.

  7. Myrddin Seren says:

    Turnbull appointing Martin Parkinson was a huge error.

    Lucy anointing Malcolm as PM was a huge error.

  8. max says:

    There is one more factor that is almost never talked about by conservatives or liberals. This is the missing piece of the puzzle. It is best described in the 1983 book, Law and Revolution.

    The Introduction to that book is the most important single academic article I have ever read. (In second place is Raymond Kurzweil’s “Law of Accelerating Returns.”) In his Introduction, legal historian Harold Berman described the six revolutions in the history of Western legal theory: the Papal revolution of 1076, the English Puritan Revolution of 1643-58, the Glorious Revolution of 1688/89, the American Revolution, the French Revolution, and the Russian Revolution.

    These six revolutions have shaped the West in ways that are barely understood by scholars or voters. They shaped the way in which the law applies to individuals.

    Berman was convinced that a seventh revolution began in the early 20th century: administrative law. This revolution separates the courts from the executive and the legislative branch. It separates the idea of law as possessing a separate foundation and separate jurisdiction from the executive. This revolution centralizes power in the state, and crushes the earlier legal revolutions.

    I disagreed with him with respect to the Russian Revolution. I think it was an administrative law revolution. But that tradition ended in December 1991.

    Here is Berman’s basic position on revolution. If there is no change in the legal order within a generation after a major political change, there has been no revolution. There has only been a coup d’état.

    This is why I do not take Keynesianism seriously. This is why I do not take Social Security and Medicare seriously. This is why I do not take politics seriously.

    The legal revolution of administrative law is the greatest single threat to liberty in the world today, and it is firmly locked into the American social and legal order. People unthinkingly accept it. They are unaware of it. They do not understand the implications of the Federal Register, which now publishes 80,000 pages of fine print administrative law every year.

    Politics is impotent to change this. Politics is unaware of it. Those few laws that get passed by Congress and signed into law by the President are then administered by the federal bureaucracy, and there is almost nothing that a President or Congress can do to stop it.

    Occasionally, the Supreme Court may hand down a ruling that will stop some minor aspect of the expansion of the federal bureaucracy, but this is rare.

    Berman did not see anything on the horizon that would indicate a rollback of administrative law.

    One thing can stop it: the Great Default.

    As long as the money rolls in, whether taxed, borrowed, or printed, administrative law courts are going to expand their jurisdictions, and our freedom is going to be constrained. Something else is shrinking it: Moore’s law.

    This was described best in Kurzweil’s article. The escalating effect of Moore’s law in reducing the cost of information is changing the whole world in ways we can barely perceive today. There is no way that any federal bureaucracy can keep up with the social, economic, educational, and political transformations that are taking place as a result of Moore’s law.
    Law is now moving back to the private sector. It is moving away from centralized government control. Arbitration is becoming more popular. People are finding ways to participate in the world economy that are outside the jurisdiction of the administrative state.

    I do not believe that bitcoin is going to make a difference, but I would like to believe that, someday, something like bitcoin will work. In any case, Moore’s law is on the side of decentralization.

    Decentralization is basic to Edmund Burke’s theory of conservatism. It is consistent with Ludwig von Mises’s system of economic analysis. It is consistent with private education. It is therefore a threat to Hamiltonianism, which means central banking and Keynesianism.

  9. Chris says:

    I propose that there is a system that should be implemented to rein in the so-called Deep State.

    Sunset Clauses and Renewal on Government as a system.

    Create an enterprise that implements a from-scratch replacement of Departments a whole business at a time. Dont just cut budgets 15% – that lets the timeservers and politicals cut service to the public to remove political mandate for cost reduction. Blow the Departments away by opening competition for their business sectors.

    Give the fuckers what has happened to us in the private sector – reduced and stagnant earnings, technological replacement, obliteration of industries, shrinkage and dying of remaining companies.

    Let entrepreneurs figure out how to achieve the good in the business models, while cutting costs and negatives and restrictions. Let blockchain do its stuff, the creative destruction.

    I bet China could outsource Centrelink entirely and rewrite their mandates for a slice of the savings…

  10. EvilElvis says:

    the vast majority diligently serve the government of the day.

    Bullshit. Go through the motions, get as much Facebook and paid time for personal reasons and just bludge through their fulfilling administrative work of tracking us plebs through whatever regulatory bullshit the government/bureaucrats have cooked up. Unfortunately, some are very diligent and take their jobs seriously, the pricks.

  11. Rob MW says:

    But I don’t agree with the premise. Look at Australia. The laws we have seen implemented are those passed by the Parliament, not the public service. While there are some time servers, bad apples, aggrieved and petty public servants, the vast majority diligently serve the government of the day.

    ROFL !!! People “Pass” a shit every now and again, this doesn’t mean they had a hand in the ingredients.

  12. Dr Fred Lenin says:

    Don’t knock the bureaucrats comrades they are doing a great job rot “democracy”, look at the magnificent job the Eu commissars are doing in mass illiterate peasant migration ,increasing their own numbers to administer the increased welfare reliant bludgers ,pure genius ! And the comrades at the untidy nayshuns ,standing by wringing their hands as mad muslims run riot,still they are good at watching horror,they watched a million people die in Rwanda .
    Our own capable “servants are following the general pattern of leftist destruction.
    Giving away and spending money they borrow that other people have to pay back .
    It would serve the money lenders right if the next generation said “stuff this ,we are not paying for money we didn’t borrow” and defaulted totally ,now that would change the system totally ,where would mongrels —-like soros.( schwartz’) be then?

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