Confronting the Leviathan: Reining in the Administrative State - America's Future

June 14, 2021

Limited GovernmentPolicy

Confronting the Leviathan: Reining in the Administrative State

By: Samuel Mangold-Lenett

The Administrative Procedures Act (APA) of 1946 enables federal regulatory agencies to create legally binding policies without earning the power to do so via election. All that is required of them is to allow Americans to submit comments about these potential rules that may become law. 

Staffed by unelected bureaucrats, these administrative agencies create and enforce domestic policy. They restrict constitutional liberties, as demonstrated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); they interfere with the American economy, as illustrated by the Environmental Protection Agency (EPA); and they threaten American federalism by forcing regulation upon state legislatures. These agencies, of which the listed are only scraping the surface, are consolidated under the Executive Branch and are never subject to approval from the electorate.

The ATF enacts legally binding policy through a process known as federal rulemaking; this is a process of legislating via bureaucratic fiat. Former Attorney General Jeff Sessions attempted to rein in administrative rulemakers but inadvertently created a system in which the ATF issues rules on a case-by-case basis. Meaning, the ATF creates specialized policies on an ad-hoc basis with no larger strategy in mind.

The ATF often implements regulations that impact the firearm industry and restricts aspects of private gun ownership. It’s the only institution within the federal government that can draft and implement binding firearm restrictions. When implementing a bump stock ban, they used ambiguous legal technicalities to confiscate private property. The ATF has proposed similar initiatives with semi-automatic handguns and AR/AK format pistols

The regulatory apparatus of the federal government poses a threat to more than just personal property. It also impedes one’s ability to earn a living. American manufacturing is greatly hindered by EPA regulation. Thousands of regulations drastically restrict the growth of domestic businesses and prevent further investment in American communities. Subsequently, fewer jobs are created, and less commerce occurs. 

These regulations have far-reaching consequences that impact critical industries. Businesses of all sizes must, by law, follow the EPA’s regulations. 

And the list of restrictions put in place by the EPA goes on. Regulations expanding oversight of waterways threaten rural landowners and ranchers’ livings. Counterintuitive regulations on surface-level ozone emissions have hindered economic recovery and prevented manufacturing companies from hiring. “Green” energy regulations drastically increase operating costs while yielding ineffectual products. 

Insulated from the public, the individuals comprising this institution have considerable sway over American society. 

The U.S. Department of Education plans faulty educational programs for the nation’s youth far removed from the individuals actually educating them. It removes decision-making authority from parents and communities by withholding critical funding from schools if they not comply with various mandates from the Department. 

A conservative estimate is that there are at least 300 regulatory agencies. Each consists of taxpayer-funded bureaucrats imposing regulations in many instances without explicit support or consent. That said, there is quite a bit that can be done to rein in the administrative state’s regulatory apparatus. 

One of the first things President Trump did in office was sign an executive order requiring regulatory agencies to repeal two existing regulations for every new one implemented. With the repealing of burdensome regulations, the American economy soared to new heights

Economic reform is essential, but what about our freedoms? What about the balance of power in the American experiment? 

Attorney General Sessions’ previous initiative backfired. Despite this, we now have hindsight that exposes a previous blindspot; a future Attorney General ought to utilize knowledge of this accordingly. In the vein of Ronald Reagan, there remains the possibility of terminating administrative agency employees that demonstrate disregard for the United States Constitution. Terminating the employment of bureaucrats that are out-of-step with an administration is not uncommon. 

These changes may be unorthodox and aggressive, but they may effectively relieve the burden placed upon Americans. Previously attempted solutions have proven ineffective and current solutions depend on continued reliance on the Supreme Court enforcing the substantive limitations of each agency’s legal authority. 

We must be creative, and we must be courageous if we are to rein in the leviathan that controls our society.