A WAY TO ROLL BACK THE ADMINISTRATIVE STATE?

Market Watch contributor Nicholas Grossman warns the people who thought it might be fun to make a truly stupid and futile gesture in the Federal Capitol that they're up against people with more juice than Dean Wormer.  It's the institutional power that I wish to concentrate on.

I’ve been teaching college students about the Deep State for years, and have interacted with it on occasion. By “Deep State,” I’m referring to executive branch agencies populated with unelected officials, especially those involving national security, law enforcement and intelligence. The non-nefarious name for it is “the federal bureaucracy,” with the subset that includes the military, Central Intelligence Agency and Federal Bureau of Investigation known as “the national security state.”

There are many other executive branch agencies, which is to say, all the Cabinet departments plus the offices that might be set up outside of the current departments.  And each one of those agencies has a good deal of latitude, as those offices came into being under language reading something like "The Secretary shall issue regulations and orders consistent with this law."  The president proposes, a Congress compromises and passes, then the responsibility rests with the people who enforce those regulations or orders.  Or not.

Federal agencies and their mandates were created by law, their annual budgets are determined by law, and they’re overseen by elected officials. Their main job is executing U.S. law, and one reason they’ve clashed with the White House is being asked to do things outside their legal abilities, or to not do things that are legally required.

Mr Grossman addresses his essay to the people who sacked the Capitol, which is a different sort of a crime than that committed by the people who sacked Macy's. Macy do not have a monopoly on violence, but the government does. If you require clarification on those points, dear reader, read his essay.

 I want to pivot to that "clashed with the White House."  In The American Prospect, David Dayen suggests there's an opportunity for continuing employees of the administrative state to clash with the incoming president, precisely because of the language of the legislation setting up those offices.

Student debt cancellation, for example, is derived from the Higher Education Act of 1963. Lowering prescription drug prices comes from using provisions of the Bayh-Dole Act of 1980, or Section 1498 of the U.S. Code. Effectively legalizing marijuana is achieved through the Controlled Substances Act of 1970. Biden can alter the measurement of poverty because it’s an administrative function, and several laws tie federal benefits to that poverty calculation. Biden can shape federal procurement policy thanks to the 1974 establishment of a dedicated White House office for that purpose, and requiring contractors to pay living wages or proper benefits can meaningfully improve the lives of millions of workers.

I could go on, but you get the point. It is not tyranny or dictatorship to ask a president to do their job and implement laws already passed.

Or, perhaps, the incoming department secretaries could issue memoranda calling attention to the legislation under which they are issuing orders and regulations, and remind the permanent staff that their responsibility is to faithfully carry out the duties spelled out in their job descriptions.

By the same token, an incoming department secretary might take stock of all the enabling legislation (and there is a lot) and issue new orders to the effect that any regulation more than five years old would be stricken from the Federal Register, and see how many rules might vanish unmourned.