By J. Patrick Coolican
The writer is editor-in-chief of the Minnesota Reformer, where this piece originally appeared.
A faddish phrase on the right is something called “the administrative state,” which refers to the federal workforce deputized by Congress to craft and enforce rules over the environment, banking, health care, product safety, mass communications, the power grid, etc.
A recent profile of the Claremont Institute — which has the unenviable task of stitching together an intellectual fig leaf for Trumpism — noted that scholars there view our nation’s bureaucrats as a “fourth branch,” effectively overturning the Constitution.
For some years, the right has been dressing up this vision of government as a scary horror show. Here’s National Affairs in 2015:
“The domain of the administrative state is vast, ranging from the most trivial to the most significant matters of public and private life… With the issuance of an environmental rule, it commands once-sovereign states to re-order their electricity markets or face crippling blackouts. Its legions regulate our health care and our children’s dolls, our national banking system and our neighborhood stop signs.”
The writer cites Supreme Court Chief Justice John Roberts: “The Framers could hardly have envisioned…the authority administrative agencies now hold over our economic, social, and political activities.”
You know what else the Framers could not have envisioned? Flying machines.
But sure enough, two American brothers invented them. And then, the United States government, amid a massively destructive world war (which the fabled Founders also could not have envisioned) funded research to power the flying machines with jet engines.
Fast forward about 70 years, and in 2019 there were more than 1 billion passengers flown by American air carriers, according to FAA data.
Even during the pandemic, there was an average of about 5,300 flights en route in the National Airspace System every minute during peak hours.
Given all that air traffic, surely there were a lot of accidents and deaths, right?
The Bureau of Transportation Statistics reports that in 2019, American air carriers were responsible for four deaths. In 2020, the number was zero.
Journalists don’t report on the planes that landed, but maybe we should.
Every day, people get on a flying machine, and a few hours later they wind up 2,000 miles away, where they attend to business, see family or engage in some leisure activity. They complain about the foul smelling air, waiting on the tarmac too long and having to take their shoes off. But the rational among them don’t fear that they’ll die in a fiery crash.
Who on earth do you think made this happen?
It was the heroes at the Federal Aviation Administration, that’s who.
About 14,000 air traffic controllers help keep us safe, in addition to the pilots — many of them trained, with your tax dollars, on military aircraft — as well as maintenance crews.
The FAA’s air traffic operations budget for 2021 was $8.2 billion, which according to the latest estimates, is less than three times the total value of the Minnesota Vikings.
Although commercial aviation might be an extreme example, there are many daily activities requiring government oversight that we find commonplace but are miraculous, if you think about it for just a minute.
Do you stare at the food on your plate and fear it will sicken you?
Is the worker next to you in the assembly line a 12-year-old child? (Well, maybe not the best example given recent news out of Alabama.)
If you’re on Medicare and go to the hospital, do you assume the facility will meet some standards for safety and sanitation?
The administrative state — at the direction of our elected representatives in the United States Congress — did all that.
As David Schultz of the University of Minnesota Law School relayed to me, in 1946, Congress — by virtue of its authority granted in Article 1 Section 8 of the U.S. Constitution — enacted the Administrative Procedures Act, which governs how federal agencies shall be deputized to create and enforce rules.
We live in a complex society of 330 million people who are engaging in countless transactions with one another every minute, involving complicated and sometimes dangerous technology. We have bent nature to our will, though often at our own expense and without understanding (or caring) about the consequences.
To a large degree, a lot of this activity requires very little government intervention, and a lot of it is indeed largely unregulated.
But please explain to me how we’re supposed to fly a billion airline passengers around America without the FAA, i.e., the administrative state.
Or how, in the absence of the dreaded administrative state, the U.S. Congress is supposed to go about regulating the National Airspace System.
You can’t because it’s not possible.
As Schultz told me, “We can’t expect Congress to have the time or expertise to know how many parts of benzine per billion are hazardous to your health.”
That’s why we have the EPA. And thanks to the EPA and the rules it’s promulgated and enforced, combined emissions of the six most common pollutants have decreased 78% in the past 50 years.
Carbon pollution is another matter, and the EPA’s recent defeat at the Supreme Court is the cautionary tale here about the right’s effort to dismantle the administrative state.
We live in a glorious age of labor saving devices; abundant food, water and electricity; nearly instant access to Alexandrian libraries full of knowledge; and the ability to safely travel vast distances that would be unthinkable to those brilliant Founders.
These things require rules and people to enforce them. Otherwise, we’d be living in a chaotic hellscape. We know this because it’s happened in other places. Think of the Russian gangster state in the age of Putin, for instance.
And it was often true in America before we created modern governance. Do you know how many banking panics there were during the 19th century? A lot!
This new chatter among right-wing “intellectuals” about how we have to do away with the administrative state isn’t really new.
Its roots are in the 19th century.
It boils down to whether rich and powerful people should be able to do whatever they want.
It was always barbarism dressed up in gilded finery, and it still is.