One of the most important issues facing this country today was not on the ballot on Election Day, and it won’t be anytime soon: the question of whether our laws will continue to be made by Congress, as the Constitution requires, or by the administrative agencies of the executive branch, often called the “administrative state.”
Rulemaking by unelected officials subject to little congressional or judicial oversight affects the lives of Americans in profound ways, but we have failed thus far to develop an effective strategy for controlling it. In the past few years, the Supreme Court’s conservative justices have begun to focus on using the “nondelegation doctrine” to limit regulations. But the Court would need the right case to arise before it could employ that strategy — and even then, fears of political opposition could cause the Court to hold back.
The U.S. Constitution creates a government of separated powers: Congress makes the laws; the executive branch, headed by a president, enforces the laws; and the judiciary, headed by the Supreme Court, interprets the laws. Each of these three branches is required to stay within its prescribed lane, avoiding any forays onto the others’ turf. The Framers … believed that the people’s liberty would be in danger if the same person or group had both the power to make the laws and the power to enforce them. …
… If the administrative state continues to grow, it won’t be long before the American people will recognize that elections don’t really change anything, because the real and binding laws are being made and enforced by a faceless bureaucracy that no one seems able to control. And when this recognition dawns, it will be a very dangerous moment for the country, comparable in some ways to the moment that produced Brexit.