By Kevin D. Williamson
Sunday, June 23, 2019
Conservatives typically have one of two reactions to the
headlines in left-leaning publications: Ninety percent of the time, we cringe
at the presumption on display, but 10 percent of the time, we wish they were
true.
“The Supreme Court’s Conservatives Are Ready to Take a
Wrecking Ball to the Entire Federal Bureaucracy,” Slate ejaculates. If only it were so!
At issue is Gundy
v. United States, a case in which Congress’s delegating a certain
law-enforcement issue to the attorney general was challenged as
unconstitutional. The law in question established the federal sex-offender
registry and imposed prison time for failure to register. Congress left it to
the attorney general to determine whether to apply the law retroactively to
offenders who had been convicted before it was passed. Justices Thomas,
Roberts, and Gorsuch argued in dissent that the constitutionality of such
delegation needed reexamination; Justices Kagan, Ginsburg, Sotomayor, and
Breyer agreed to uphold the law. Justice Kavanaugh had not yet joined the Court
at the time the case was heard, and so took no part in it. Because the case was
heard by only eight members of the Court, Justice Alito proceeded in an oddball
manner and provided the fifth vote needed to uphold the law in spite of his
broadly agreeing with the dissenters, expressing his hope that the full court
would “reconsider the approach we have taken for the past 84 years” on the
question of delegation. A clumsy showing all around.
Politics consists of excitement, high sentiment, and
soaring declarations. Governance is
boring. It consists of the little things, of the details, precisely of such
questions as how much authority the elected legislature can delegate to the
unelected and democratically unaccountable bureaucracy and what form that
delegation can take. Justice Kagan argued that if the disputed “delegation is
unconstitutional, then most of Government is unconstitutional—dependent as
Congress is on the need to give discretion to executive officials to implement
its programs.” Justice Kagan is a practitioner of outcome-first/argument-after
jurisprudence — she insisted during her confirmation hearing that there was no
constitutional mandate for homosexual marriage and then discovered one at the
first opportunity that presented itself — and is properly understood as a
political actor rather than a legal one. In that, she exemplifies the worst of
our legal institutions and the reason why so many Americans, myself included,
trust them so little.
But Kagan is not wrong to affirm the legislature’s need
to entrust the executive apparatus with certain discretionary questions about
how a law is enforced. That is how governance works, and it is why we have an
executive branch. It is difficult to get delegation just right. But
convenience, no matter how needful, is not an unrestricted license. Congress
cannot simply pass a law declaring “Americans shall have good health care, and
the secretary of health and human services is hereby empowered to do what is
necessary to make that happen.” A little more work is necessary. The so-called
Affordable Care Act was a litany of “the secretary shalls.” Some of those
delegated powers were very broad, for example the power to provide exemptions
to certain parties (favored political constituencies, inevitably) from parts of
the law. That is one of the reasons why it has failed, and why it remains
controversial. That kind of delegation begins to resemble lawlessness, or at
least arbitrariness in government, which amounts to much the same thing.
Americans tend to use the word “bureaucracy” as a
pejorative. But a well-functioning bureaucracy is a thing of grace and wonder.
Governments that do bureaucracy well — that achieve excellence in
administration — are effective. That, and not sentimentality about “the people”
and their wishes, much less vague notions of fairness, is what really separates
effective governance from ineffective governance. Much of what is admirable
about governance in Denmark or Switzerland has to do with institutional
effectiveness. They have built high-functioning bureaucracies.
We have not.
Like a concave mirror, American bureaucracy reflects
American pathologies and causes them to converge. American culture tends to
hold administrative work (and service work generally) in low regard, if not in
outright contempt, and the administrators in turn despise those they are
supposed to serve, using the office rulebook not as a blueprint for getting
things done but as an excuse for the opposite. If you have ever had the
experience of, say, registering a car in person, it is obvious enough that the procedures
and requirements involved have nothing to do with providing any benefit at all
to owners of vehicles but rather are optimized for the convenience of the
bureaucrats. Like about one-third of local police activity, it is
tax-collection masquerading as a public-safety project. This is by no means
limited to the public sector: Go to your doctor’s office and you’ll notice that
he collects your health information by handing you a pencil, but collects his
payment with one of the world’s most sophisticated arrays of information
technology. This is not eccentricity — it is an internal value hierarchy made
visible.
Better bureaucracies come from better administrative
cultures, but they also come from such relatively easy things as giving
bureaucracies less to do and restricting their activities to those areas in
which they have real competence. The failure of the Affordable Care Act — and
it is a failure on its own terms — is in part evidence of that.
And behind the failure of bureaucracy is the failure of
legislation. The great political crisis of our times is not Donald Trump’s
soggy nationalism or Alexandria Ocasio-Cortez’s callow socialism, but the
abdication of Congress, an institution that has substituted self-importance for
self-respect. Congress refuses to play its necessary constitutional role,
because that requires a great deal of work, and most members of Congress are
not willing to do it.
Congress always has been full of grifters, bush-league
demagogues, and mediocrities who were too slow-witted to practice law and too
lazy to sell real estate, but there was a time when it did its job, too. The
legislature must write the laws and see to the overall business of lawmaking.
Our current legislators have abandoned regular order and instead lurch from crisis
to crisis and artificial emergency to artificial emergency, steadily ceding
power to the power-hungry presidency and to the bureaucracies reporting to it.
There is a case — and it is not merely rhetorical — that the American people no
longer live under a government of laws of their own making. The business end of
the federal law that most Americans deal with is the work of bureaucrats, not
the work of lawmakers.
Justice Kagan may start to hear it, but there are more
than a few Americans — mostly conservatives — who believe that a great deal of
what we currently call government is in fact unconstitutional, who believe that
what the Constitution establishes is a limited federal government of enumerated
powers rather than a Napoleonic bureaucracy, and that substantive measures are
needed to achieve at least a partial restoration of that constitutional order.
At Slate, Mark Joseph Stern writes
that Justice Gorsuch et al. are working toward a constitutional doctrine that
would “dismantle landmark statutes protecting the environment, consumers, and
employees,” which is only partly correct. The question of regulating air
quality is separate from the question of whether the Clean Air Act is a
well-constructed law that accords with our Constitution. To the political mind,
the point is the “landmark statute.” But the point is clean air, honesty in
business, safe workplaces, etc. The “landmark statutes” that may have to be
revisited if Congress’s powers of delegation are brought more into line with
the Constitution are not proper objects of veneration, even if strange and
naïve cults have grown up around them. It is possible to believe that there
should be workplace-safety regulations but not these workplace-safety regulations, generated in this way, enforced
thus, etc.
Which is to say, what conservatives want is the rule of
law, rather than imperial bureaucracy. That is not too much to ask out of
Congress. It is not too much to ask out of the Supreme Court, either.
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