American government is slowly moving away from a constitutional system toward a bureaucratic state not interested in guidance from elected officials or even the courts, said Matthew Spalding, associate vice president and dean of educational programs for Hillsdale College.
But there is a problem for the bureaucratic state, Spalding and a panel of regulation experts said on Thursday afternoon. That problem is President Donald Trump, a Republican.
Trump is moving forward with taking power back from the bureaucrats, and is fighting to gain control even of his own branch of the federal government, Spalding said. He spoke during a panel at the Conservative Political Action Conference at Gaylord National Resort and Convention Center in Oxon Hill, Maryland.
But it won’t be easy, the panel of experts said during the forum, titled “New Sheriff in Town: How Trump is Taking Down Lawless Government Agencies.”
Iain Murray, a former British regulator now at the Competitive Enterprise Institute, said the handing over of power to bureaucrats accelerated during the previous administration of President Barack Obama, a Democrat.
And Obama didn’t just want to move power to bureaucrats, Murray said. Obama was also eager to go around Congress.
Murray cited two famous quotes from Obama. One was “If Congress won’t act, I will.” The other was when Obama said he would not wait for legislation: “I’ve got a pen and I’ve got a phone.”
“For Obama, it was clear, the pen was mightier than the law,” said Murray.
Murray cited the creation, under Obama, of the Consumer Financial Protection Bureau, whose powers and budget are given so much leeway that a building renovation said to cost $55 million ballooned to $216 million. When the then-director of the CFPB, Richard Cordray, was asked about the expenditure by a member of Congress, he responded, “Why does it matter to you?”
The CFPB was created in 2010 by the Dodds-Frank law. It was the brainchild of Sen. Elizabeth Warren (D-Mass.), the liberal senator who blamed the financial sector for the recession from 2007 to 2009. The law instructs Congress and even the courts to give the bureau deference in regulatory rulings.
Murray said the current controversy at the CFPB demonstrates a federal agency protected too much from congressional oversight. Cordray resigned in November, then declared his deputy director as the new acting director.
Trump disagreed, and installed Mick Mulvaney, the head of the Office of Management and Budget, as acting director. Trump has so far won in court, but the case is still ongoing in the judicial system.
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Trump will be aided in his battle with the bureaucratic state by the courts. Trump is rapidly appointing conservative and constitutionalist judges throughout the federal court system. They include Neil Gorsuch, the newest Supreme Court justice.
Gorsuch has a strong knowledge of the “Chevron rule,” which refers to the 1984 case, and resulting test, that allows courts to judge when an agency should be granted deference in applying rules, and when an agency should not be granted deference.
But complicating matters for Trump is the huge size of the federal agencies, Murray said, and the many bureaucrats within. The bureaucrats cannot even agree on how many agencies there are.
“Nobody knows how many federal agencies there are,” said Murray, noting various federal government publications indicate there could be 262, 316 or 443 such agencies.