Rich Lowry: The Lois Lerner state
It is appropriate that the worst scandal of the Obama administration — the Internal Revenue Service’s targeting of conservatives — is a scandal of administrators and bureaucrats, of otherwise faceless people endowed with immense power over their fellow citizens and running free of serious oversight from elected officials.
They are the shock troops of the vast bureaucratic apparatus of the federal government. President Barack Obama has greatly enhanced their influence and reach by augmenting the power of regulatory agencies that are an inherent offense against self-government, even when they aren’t enforcing the law in a biased way.
The administration’s corruption isn’t bags of cash or lies about interns; it is the distortion of our form of government by sidestepping democratic procedures and accountability and vesting authority in bureaucrats. The administrative state is, fundamentally, the Lois Lerner state.
In an excellent essay in the journal National Affairs, Chris DeMuth calls the regulatory agency "the most potent institutional innovation in American government since the Constitution." He notes that the regulatory state has three hallmarks.
One, Congress delegates lawmaking to the agencies by giving them massive discretion in implementing the vaguest of mandates. Two, there are no constraints on their effective spending power, since the costs of their rules "are borne almost entirely by the private sector." Third, they enjoy "relative insulation from public debate and criticism."
Needless to say, this is not how American government is supposed to work. "The Constitution was designed," DeMuth writes, "to make lawmaking cumbersome, representative, and consensual; the regulatory agency was a workaround, designed to make lawmaking efficient, specialized, and purposeful. It was a way to accommodate growing demands for government intervention in the face of the constitutional bias for limited government."
The administrative state is an open invitation to highhandedness. Bloomberg View columnist Ramesh Ponnuru wrote a piece on Obama’s lawlessness. Most of the examples have to do with the administration ignoring or distorting the laws via the bureaucracy. Obamacare says that states have to set up exchanges before the subsidies and penalties in the law apply? No matter. The IRS says it will pay out subsidies and impose penalties regardless of whether states set up exchanges.
We have immigration laws such that providing an amnesty for so-called DREAM kids would require a new statute? Not to worry. The president simply directed his agencies to ignore the laws.
It shouldn’t be a surprise that the IRS scandal is organically connected to the president’s signature initiative, Obamacare. Sarah Hall Ingram had been commissioner of the tax-exempt and government-entities division of the IRS, and now is in charge of the Obamacare office at the IRS. Looked at from one angle, Obamacare is less a health-care law than an expansion of the power of the IRS, which will need thousands of new positions to help administer the program.
As a general matter, if there is a characteristic line in the major legislation in the Obama era, it is "the secretary shall ..." The secretary of Health and Human Services shall figure out how to make Obamacare work, and although they aren’t secretaries, the heads of an alphabet soup of financial agencies shall do the same for Dodd-Frank. Meanwhile, Congress works on the next sprawling enterprise it wants to hand over to the administrative state, the "Gang of Eight" immigration bill.
Its architects want to do for immigration what Obamacare does for health care and Dodd-Frank does for the financial sector — invest an administrator (in this case the secretary of the Department of Homeland Security) with extraordinary discretion, and entrust a bureaucracy with an enormous task beyond its capacities (the orderly, rapid processing of 11 million illegal aliens).
In Washington, the power of the administrative state always grows. It needs one, two, many Lois Lerners. The IRS official has already taken a fall, and may be headed for an even steeper one. But there are many more like her. They are indispensable to government by and for the regulators.
Rich Lowry can be reached via e-mail at email@example.com.