A Sermonette on the Administrative State

A Sermonette on the Administrative State

by Steven Hayward in Dodd-Frank, US Constitution

So yesterday I teed off on Nancy Pelosi’s ridiculous explanation for her 2010 remark about Obamacare that “we have to pass the bill so that you can find out what is in it, away from the fog of controversy.” She was far from the only liberal who said this, recognizing the inner truth of what it reveals to us about how we are actually governed by unelected, unaccountable bureaucrats rather than elected representatives. Sen. Christopher Dodd said of his equally egregious Dodd-Frank Act; “No one will know until this is actually in place how it works.”

Indeed, Dodd-Frank is as unconstitutional as Obamacare, and it is likewise heading for a Supreme Court challenge on grounds that it violates what still remains of the separation of powers. C. Boyden Gray (President Bush 41’s White House counsel) and Jim Purcell explain the case in today’s Wall Street Journal. Sample:

Ordinarily, when regulators wield broad power, their discretion is still limited by checks and balances. The Constitution empowers the president and Congress, as well as our courts, to prevent regulators from running amok with excessive, arbitrary or even partisan regulations.

But Dodd-Frank does not honor checks and balances. It eliminates them. The CFPB is not subject to Congress’s “power of the purse,” which James Madison knew to be Congress’s “most complete and effectual weapon.” Instead, Dodd-Frank lets the CFPB claim more than $400 million from the Federal Reserve each year and prohibits Congress from even reviewing that budget. The president’s control over the CFPB is limited because by law he can remove the agency’s director only under strictly limited circumstances. Finally, Dodd-Frank limits the courts’ review of CFPB’s legal interpretations.

And while we’re looking at evidence for Congress abdicating its responsibility, let’s not forget Senate Finance Committee chairman Sen. Max Baucus, who said: “I don’t think you want me to waste my time to read every page of the health care bill. . . We hire experts.”

Question for the senator: If you’re going to hire experts to do the heavy lifting, why should we bother with you in the first place?

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