I will be testifying this morning at 10 am before the Senate Committee on Homeland Security and Governmental Affairs in SD-342, Dirksen Senate Office Building . The hearing, entitled “The Administrative State: An Examination of Federal Rulemaking” will look at the role of agencies in rulemaking in the federal system.
As I state in my testimony below, I have long written about the rise of a “fourth branch” in our system and, while academics have good-faith disagreements over the implications of this trend, I believe that this rise of an Administrative State is neither benign nor inevitable. By dismissing the rising power of federal agencies as irreversible and inevitable, many academics portray the changes in our constitutional system as a fait accompli—a reality as fixed as the weather in our system. Conversely, critics are often portrayed as quixotic figures tilting at the windmills of federal agencies. There is a false association with the natural growth of the size of government and the emergence of an Administrative State. Clearly, the government has necessarily grown with the increasing size of our population and governmental function. That does not mean, however, that federal agencies must inevitably possess the type of insulated, independent power that they wield today. No one is seriously questioning the need for federal agencies and no one should deny the myriad of important and beneficial actions that agencies take in supporting our security, public health, economy, and environment. Citing the need for federal agencies therefore is hardly an answer to the criticism of the Administrative State—no more than recognizing the need for banks is an answer to a criticism of banking abuses. The fundamental issue raised in hearings like this is how to maintain a large system of federal agencies and offices, without altering the foundation of our constitutional system—particularly our system of separation of powers.
I am honored to appear with the following witnesses:
Professor of Public Interest Law
George Washington University
Randolph J. May
The Free State Foundation
The Honorable Bradford P. Campbell
Counsel, Drinker Biddle & Reath, LLP and Former Assistant Secretary for Employee Benefits at the U.S. Department of Labor
Senior Vice President for the Environment, Technology & Regulatory Affairs
U.S. Chamber of Commerce