Welcome to the Administrative State


Hidden beneath the uproar of electoral politics, oil spills and the like is a mini-uproar over the EPA’s new lead paint rules, which will probably double the cost of every renovation job on any older building other than your own residence. First promulgated by the EPA in 2008, the regulations took effect last month, prompting howls from contractors and property owners from sea to shining sea.

Welcome to the Administrative State. This is just another example of the Congress outsourcing its legislative authority to executive branch agencies that it creates and to which it gives “rulemaking” authority with the full force of law. From a constitutional perspective, understand what’s taken place: Congress has given to the Executive Branch both legislative authority and the means of enforcement – in direct violation of a basic precept of constitutional government: the separation of powers.

Executive agencies created by Congress – like the EPA – now largely write the rules that govern our daily lives. Whether one thinks lead paint is good or bad is really not an issue. It’s the lack of accountability to our elected representatives that is. While the EPA would go through a process by which it would publish the proposed rules and elicit public comment, the administrators would ultimately decide what’s good for us and our property unless Congress acts (unlikely) or someone challenges the rules in court (probably a waste of time).

In the end, there are two governments: one we elect and the other we don’t. The former is accountable to the people through the political process and the latter operates without any significant political oversight. This is as true at the state level as it is at the federal. For instance, here in Maine we have all kinds of rules regulating the use of our land – and most were never passed by the Legislature. They come to us compliments of the Maine BEP.

How we got from elected, representative government to The Administrative State is quite a story – one that I’ll discuss in the next installment.