Rick Esenberg, the President of the Wisconsin Institute for Law & Liberty, spoke at the 2018 States & Nation Policy Summit in November on the importance of taking on the administrative state and putting more authority back into the hands of elected officials.
On why restraining the administrative state is important:
“I want to start on a more sober note, and that is that there are no permanent victories in politics. We saw that nationally this month. The Democrats, a net gain of seven governorships, net gain of five legislative chambers, and a net gain of six trifectas. In Wisconsin, we lost a trifecta that has been in place for the last eight years when Governor Scott Walker lost his bid for re-election.
“And I think there’s a lesson in this, and it suggests we take a longer view. Understanding that the rules of the game, and not just today’s outcome, matters.
“When we have power, we want to win. We want to win now. We want to win everything. But there will be a time when we don’t have power and our objective will be to avoid losing, or to at least cut our losses.
“So, I want to suggest that you should also worry about process. Structural limits on the power of government may be the best guarantor of liberty and one of the most effective limits on the left progressive state. I want you to keep in mind that if the long game for progressivism is to consolidate authority in the executive, and in Washington, and I think it is. Then the long game for conservatives should be to stand up for our constitution’s separation of powers and for federalism.”
The Affordable Care Act example:
“We’re all familiar with Nancy Pelosi’s statement that we needed to pass the Affordable Care Act so that we would know what was in the Affordable Care Act. And she was mocked for seeming to suggest that Congress should pass a bill that they hadn’t read and that they don’t understand.
“But there’s a sense that she was absolutely right. Because even if you had read all 1900 pages of the Affordable Care Act, I dare say even if you have memorized it, you still wouldn’t really know what it did until the administrative agencies decided what it should do.”
Why support should be bipartisan:
“Regulatory reform is often seen as a Republican ploy to limit the power of government – and it is. It’s also something that should appeal to both the Democrats – at least some Democrats – and the TIGRs. Because the administrative agency, even though it is prone to regulate is also, because it is opaque, because it is complex and narrow issues, subject to regulatory capture, it’s a way in which, if you’re a TIGR, the elites and the globalists rig the game in their favor. And if you’re a Democrat, it’s the way in which nefarious corporations rig the game against the public interest.
“This type of process reform can have an appeal which goes beyond this sort of core and traditional Republican constituency.”
(A TIGR is a Trump Is Great Republican, according to Henry Olsen who spoke earlier.)
What can be done at the state level:
“You can enact an end to deference to administrative agencies. Now, we did this in Wisconsin by judicial decision but you can also enact legislation which makes clear that courts cannot defer to administrative agencies’ interpretation of statutes and interpretation of their own power.
“You can enact adequate limits on rule making first of all. You can require that when an administrative agency acts, that it act through rule making and not through guidances and what was known in the Obama Administration as ‘Dear colleague letters,’ as in a letter that was sent to regulated parties that said ‘Dear Colleague, do you what you want or you will find a V between your name and the name of your country. It’s quite an intimidating thing.
“You can require that rule making be done pursuant to adequate standards. In Wisconsin, we ended implied authority for rule making. We require there be a specific direction from the legislature to administrative agencies and that administrative agencies be cabined by those specific directives. This is presumably a constitutional requirement that there’s a non-delegation doctrine which was developed years ago, but it is rarely, might more accurately said, never enforced by courts.
“You can pass some type of a REINS Act in which the legislature acts as a check on administrative rule making. Now there are a numbers of ways which you can do that. It’s typical to give the legislature an opportunity to block administrative rule making. In Wisconsin, we passed a law which required gubernatorial approval of scope statements and final rules. Presumably, the governor would always have that authority. He controls after all the head of the administrative agencies but this makes rule making more transparent and contributes to accountability.
“The best thing of all, and we did this in Wisconsin as well, is for rules that exceed some threshold of economic impact, there be a requirement that the legislature confirm the rules before they go into effect.”
You can watch the entirety of Esenberg’s appearance beginning at 25:32 below.