Government By Consent or By Regulation?

Government By Consent or By Regulation?

Ronald J. Pestritto spoke at Ave Maria University last week on “Government By Consent or By Regulation? How Today’s Bureaucracy Threatens Our Constitution and Our Liberty.” Pestritto is Graduate Dean and Associate Professor of Politics at Hillsdale College. “This is a place,” he said of Ave Maria, “whose mission I’ve admired from afar for a long time.” He has recently established a closer connection to Ave Maria, with the enrollment of two AMU alumni in Hillsdale’s Van Andel Graduate School of Statesmanship.

Pestritto spoke to the Ave Maria community shortly after Election Day. In spite of some elation at the recent election results, his lecture painted a sobering picture of government bureaucracy in the United States today. Pestritto set out to explain why it is so difficult for citizens to change government policy by way of election. “I’m always the cynical guy,” he offered as a warning of what would follow. “So sorry for that in advance.”

Elections in the United States, he began, have come to matter less and less. Agencies, far more than elected officials, make policy. Looking at how these agencies “came to be in a position to make law without legislative warrant,” Pestritto said,  “is a very good way of understanding the novel legal and institutional principles of the modern American administrative state.” Pestritto went on to give an explanation of the history and formation of executive agencies.  

In the late 19th and early 20th centuries, progressives were arguing that the original Constitution was no longer up to the task of dealing with the modern American state. Congress, they urged, couldn’t possibly address all the things the modern state needed to address by simply passing laws in the ordinary sense. New times called for new measures.

For the sake of efficiency, progressives proposed a national bureaucracy where agencies, weighing in with their objective and expert opinion, overcame the corruption and inefficiencies of politics. Progressives envisioned a Congress that would enact vague policy laws, giving executive agencies—the “experts”—the power to make specific rules and regulations. Many Republicans came to be in favor of this move, since Congress and the courts were seen as “the sole province of the left.” The executive branch, Pestritto explained, looked like the one area in which Republicans might be influential in the national government.

As the administrative state moved into the implementation-stage, the courts began to adopt an attitude of deference toward federal agencies. The administrators were the experts, Pestritto pointed out, and judges were cautious about substituting their own amateur opinion. With the Chevron ruling, the Supreme Court concluded that gaps in the law are to be filled in by the agency charged with its implementation. In effect, deference means that “federal agencies say for themselves what their power is,” Pestritto explained. “They define the extent of their own powers.”

“The concept of the separation of powers,” Pestritto went on, “is completely gutted in the operations of administrative agencies.” The increasing power, authority, and autonomy of the administrative state is worrying for many. The application of the Chevron ruling has even led Supreme Court Justice Roberts to fret publicly about its implications on self-governance and the principles of the Constitution. Pestritto quoted Roberts’ dissenting opinion in Arlington v. FCC:

“The Framers could hardly have envisioned today’s “vast and varied federal bureaucracy” and the authority administrative agencies now hold over our economic, social, and political activities… [T]he danger posed by the growing power of the administrative state cannot be dismissed.”

Pestritto concluded with little expectation that citizens will be able to do anything about the increasing power of the administrative state. He did suggest that we may be approaching a point at which citizens must decide “whether they’ll form government by consent, or by regulation…going the way of Europe, where elections have little or no consequence.”

In the question and answer session that followed his remarks, Pestritto offered a glimmer of hope: “Congress created this, and Congress can un-create it—or at least amend it.” The amending wouldn’t require constitutional change. Reform could be done in the ordinary course of law.

But when someone asked why Congress would have given executive agencies such power in the first place, Pestritto returned to the bleak. “What Congress likes to do,” he said, “is get credit for enacting vague, nice-sounding platitudes into law.” When the rationing of perks inevitably comes, Congress gets the credit for the platitude, and the bureaucrats are blamed for the rationing. The policy-making power of the bureaucrats “is the thing that enables Congressmen to get reelected.”


Ronald J. Pestritto’s lecture on November 6, 2014 was sponsored by the Department of Politics and the Intercollegiate Studies Institute Society at Ave Maria University.