from Charles C.W. Cooke in The National Review, Our Presidents Are Beginning to Act Like Kings

This rejoinder, alas, is a poor one. If, as the American system presumes, we all have a right to a voice in making the laws that limit our freedom — and if there is a branch for which we vote that is charged with determining those laws — it is nothing short of tyrannical for the state to deny us that right. The United States is a constitutional republic, replete with a set of rules that govern how power may be wielded and by whom. There exists no provision within its codified order that ties the power enjoyed by each branch to that branch’s transient popularity. If there is a constitutional problem with the scope of the administrative state, it obtains regardless of the opinion polls. As one would not submit that a president’s 90 percent approval rating has invested him with the power to change the tax rates or to issue judicial opinions, so one should not assume that the problems attendant to administrative overreach evaporate because 51 percent of the public is on board. If Philip Hamburger is correct to argue that Article I does not permit any subdelegation of the “legislative powers that have been granted” — and I think he is — he is correct irrespective of the electorate’s will.

And if Hamburger is wrong, and the Constitution’s silence on subdelegation should be taken to imply permission? Well, we should still be concerned. Seductive as it may sound, the claim that the administrative state is subject to meaningful democratic oversight is in practice rather weak. By its nature, the modern bureaucracy is a quasi-permanent force, vast swathes of which remain in operation regardless of who holds elective office and with what brief. For the administrators’ apologists to contend that our contemporary rule-makers are legitimate because they were empowered by those who were at one point elected will simply not cut the mustard. Now, as in Washington’s time, we write our laws down so that those who are bound by them know what they are bound by. There is no advantage to our doing so if the men tasked with enforcing them are permitted to suspend them or to fill out their meaning as their political desires demand.

HKO

this addresses and disputes the contentions that the growth in bureaucracy is adequately addressed by democratic elections.

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