Leviathan’s Bane
Freedom Conservatives offer plan to tame the administrative state
When voters awarded Republicans a trifecta in Washington, along with majority control of most state legislatures and governorships, they gave the party’s leaders a chance to reinvigorate our republican institutions after decades of disarray.
Will these leaders rise to the occasion? Only if they’re willing and able to apply our timeless principles of individual liberty, the rule of law, the separation of powers, free markets, decentralization, and civic virtue to today’s most vexing challenges.
Freedom Conservatives stand ready to do our part. Among our hundreds of signatories and allies across the American Right are experienced policy practitioners, legal scholars and litigators, scholars, educators, communicators, donors, grassroots activists, and former elected officials with a proven track record of combining effective governance and political success.
Today we feature FreeCon ideas for reinvigorating American self-government and enterprise.
Restoring the Republic
Emmett McGroarty is the executive director of the Belmont House on Capitol Hill, the Washington program of Belmont Abbey College.
Previously, he served on the faculty of Catholic University of America’s Institute for Human Ecology and worked on regulatory reform at HUD’s Office for Community and Faith-Based Initiatives. A FreeCon signatory, McGroarty has testified before federal and state bodies on the administrative state on over a dozen occasions.
Adam Millsap is a senior fellow working on economic issues at Stand Together Trust. His writing on state and local policy, regulation, urban development, and labor markets is regularly published in national outlets such as Forbes, USA Today and The Hill.
A FreeCon signatory, Millsap is the author of Dayton: The Rise, Decline, and Transition of an Industrial City, published by the Ohio State University Press.
Together with Northeastern University’s Charles Keckler, McGroarty and Millsap have coauthored the newly released Restoring the Republic: A Blueprint for Constitutional Administration. Published by the Boston-based Pioneer Institute, the guide outlines “detailed, actionable reforms aimed at realigning federal government agencies with the Constitution.”
In his foreword, FreeCon signatory Adam White of the American Enterprise Institute and the Antonin Scalia Law School wrote that “it is good to find discrete ways to improve the administrative process. It is better to root those proposals in a deeper understanding of American constitutional government and to build a framework for reform that brings out the best in each of our governing institutions.”
“In recent years, some have claimed that we need to ‘deconstruct the administrative state,’” White continued. “But that misses the point. The challenge of our time is not deconstruction but reconstruction. We need to rebuild institutions of republican self-government. This Pioneer Institute report lays an excellent foundation.”
Administrative spate
Drawing on their expertise in regulatory reform and administrative law, the authors propose reforms in four categories: clarifying the president’s managerial powers, restoring separation of powers with a particular focus on Congress, making the division of state and federal power more meaningful, and mitigating the threats to individual liberty posed by the expansion of the administrative state.
Keckler, McGroarty, and Millsap also call for for the issuance of 17 executive orders in the first 100 days, including a requirement that “all regulatory agencies and commissions participate in the regulatory review process and accommodate the president’s constitutional duty to take care that laws be faithfully executed by requiring such agencies to report to the OMB.”
Another order would require adherence to the Appointments Clause in the rulemaking process by requiring that officials with rulemaking power be confirmed by the Senate.
Other recommendations include incorporating the Major Questions Doctrine into the regulatory review process; establishing a Congressional Regulation Office to enhance the legislative branch’s analytical decision-making capabilities; and applying Major Questions Doctrine Screening to federal grants to states.
“Pioneer is grateful to the work of this exemplary group of scholars, who spent well over a year analyzing and meticulously detailing ways to reform the federal Leviathan,” said Pioneer Executive Director and FreeCon signatory Jim Stergios. “We need the federal government to be more accountable and the states empowered to bring government practices into the 21st century.”
Supply guide
Jon Hartley is a research fellow at the Foundation for Research on Equal Opportunity (FREOPP) and a FreeCon signatory.
A former analyst for Goldman Sachs Asset Management and consultant for such institutions as the World Bank, the New York Fed, and the Dallas Cowboys, he is also a senior fellow at the Macdonald-Laurier Institute and host of the Hoover Institution podcast “Capitalism and Freedom in the 21st Century.”
In an essay in the new journal Civitas Outlook (edited by FreeCon signatory Richard Reinsch), Hartley outlined a new supply-side agenda for boosting economic dynamism and growth.
“The regulatory low-hanging fruit in the U.S. today concerns deregulating work and housing markets,” he wrote. “Zoning and land use regulations contribute to the housing shortage and unaffordable high housing prices, particularly in coastal markets.”
Occupational licensing is another barrier to growth, along with the mediocre performance of too many of America‘s educational institutions.
“Economic growth has been one of the greatest poverty-alleviating tools the world has known,” Hartley argued. That is why “strengthening market-based economic institutions” offers “a serious strategy that should be considered by policymakers in America and around the world.”
In the mix
• On his Substack, FreeCon signatory and Clemson University professor C. Bradley Thompson described the American Revolution as a response to the “rise of the British Deep State.”
“For a variety of reasons, British imperial officials decided the time had come to reorganize the British Empire financially and politically along lines more favorable to the mother country,” Thompson wrote.
“The Americans’ so-called ‘conspiratorial’ thinking, as some historians have called it, was grounded in evidence and the cause-and-effect relationship between principles and policies.”
• In The Dispatch, FreeCon signatory and Competitive Enterprise Institute writer-in-residence Kevin Williamson argued that America’s fiscal woes represent a collective-action problem, not a lack of information or solutions.
He wrote that “outside of a few cranks and economic illiterates — I mean such figures as Alexandria Ocasio-Cortez and Bernie Sanders, who are the economic equivalent of flat-earthers — pretty much everybody agrees that government at all levels requires spending controls and that this is critically true at the federal level, where debt is more of an issue than it is with the states and municipalities.”
But any controls tight enough to do the job seem to provoke public opposition.
“What we most need is a way to manage our fiscal affairs without lurching from crisis to crisis — and what we do not have is a powerful political incentive to manage our fiscal affairs without lurching from crisis to crisis.”
• At National Review Online, submissions editor Jack Butler argued that Arkansas Gov. Sarah Huckabee Sanders was right to insist on more state control of the Supplemental Nutrition Assistance Program (SNAP).
“The states are not quite laboratories of democracy in the way that progressive jurist Louis Brandeis meant it — that is, they and their citizens are not technocratic tableaux on which tinkerers can try top-down experiments,” wrote Butler, one of the organizers of the FreeCon project.
“But they can be excellent venues to try out new policies, especially ones that reduce a state’s reliance on the federal government, or a citizen’s reliance on government of any kind.”