Sunday, June 25, 2017

"Informal rule-making"

Oregon Muse recommends two other books that seem importantly relevant in today's America.
Liberty's Nemesis: The Unchecked Expansion of the State

...a dense work that will never be a bestseller but that nonetheless offers the most enduring conservative criticism of the Obama years. “Liberty’s Nemesis” (2016), edited by Dean Reuter and John Yoo and featuring some three dozen contributors, mixes scholarship, ideology and activism to argue that Obama has presided over an enormous and dangerous expansion of the administrative and regulatory state. “Its operations are so vast and its reach so sprawling that it lies beyond the control or comprehension of any one man or group of men,” Yoo writes, making “rational management impossible.”
Which is ironic, because the origin of the "administrative state" can be traced back to Woodrow Wilson who thought that government had grown too complex and technical for Joe Sixpak voters and politicians and instead, had to be managed by experts. So now apparently it has grown too complex even for the experts.

I'm glad to see that this issue has picked up a bit of traction. One of Glenn "Instapundit" Reynold's recent columns mentions The Administrative Threat by Philip Hamburger who traces the origins of adminstrative law back ever further:

Hamburger explains that the prerogative powers once exercised by English kings, until they were circumscribed after a resulting civil war, have now been reinvented and lodged in administrative agencies, even though the United States Constitution was drafted specifically to prevent just such abuses. But today, the laws that actually affect people and businesses are seldom written by Congress; instead they are created by administrative agencies through a process of “informal rulemaking,” a process whose chief virtue is that it’s easy for the rulers to engage in, and hard for the ruled to observe or influence. Non-judicial administrative courts decide cases, and impose penalties, without a jury or an actual judge. And the protections in the Constitution and Bill of Rights (like the requirement for a judge-issued search warrant before a search) are often inapplicable.

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