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Election winners should keep an eye on regulatory bureaucracy

Written by William C. Duncan

November 11, 2022

In the final few weeks of the election season, President Joe Biden and former President Barack Obama described the election as being a referendum on democracy. In a way, that is what all elections are about – voters choosing those who will represent them in making the laws.

Ironically, the election of new governors, combined with a federal government divided along partisan lines, is likely to increase attention – not to lawmaking by legislators, but to lawmaking through administrative regulations.

New policymakers – legislative and executive – should pay close attention to the policies promulgated by bureaucracy and apply the constitutional principles of American democracy to guide them and, in some cases, rein them in.

Administrative regulations are intended to allow executive branch agencies to create specific rules for implementing laws enacted by Congress or state legislatures. For two reasons, they have been increasing in importance in the past few decades.

First, there are many cases when the executive branch would like to implement changes and is unlikely to convince a majority of the legislature to go along, as with some of these new governors or a president in a divided government.

Second, when enacting laws, legislatures increasingly include broad powers for administrative agencies to determine specifics that might be unpopular. This arguably allows legislators to avoid accountability when dealing with unpopular issues, delegating the hard stuff to the rulemaking process.

Both undermine the American democratic principle of elected officials enacting the will of the people through policymaking. Thus, as one observer writes, “in truth, today’s federal government is better understood as an administrative state, in which the main engine of federal policymaking is not Congress but administrative agencies, which Congress for many decades has vested with immense power and discretion.”

Although the motives for deferring to legislators may be politically understandable, that approach has risks. As administrations change, regulations can change wildly. Additionally, our constitutional system is intended to ensure that the laws that impact everyday life are made by representatives closest to those impacted.

Using the example of religious liberty, Adam White of the American Enterprise Institute explains some consequences of the rise of an administrative state:

The rise of the modern American administrative state has done more than simply change who is making our laws. It changes how they are made, and thus it also changes what laws are made. This transforms the relationship between religious minorities and the laws that govern them—instead of participants in a legislative process, those minorities become the objects of an administrative process.

White notes that “constitutional institutions … were built to accommodate religious pluralism” while “the modern administrative institutions … were built to unify.” He explains that government agencies tend to use private actors (like insurers or employers) to carry out policy objectives that affect religious groups and individuals in their roles as employers or service providers. Additionally, agencies make decisions using cost-benefit analysis, which excludes “human dignity or religious faith per se.”

These risks make it critical that policymakers pay close attention to the impacts of regulation for religious freedom for day-to-day life.

The “blind spots” of regulators, in particular, should be controlled for – administrative regulations should be made with deference to the sincere beliefs of people of faith, even if the regulator does not understand or share them. These beliefs, commitments and exercises should not be treated as just another interest to be balanced with other government objectives. The First Amendment directs government not to do this.

Regulators should also recognize that when their rules involve private individuals and people, some of those people will have religious convictions that shape their actions, which may be affected by the regulations. Legislators have demonstrated that general rules can be coupled with reasonable exemptions, and administrators can tone down their predilection for uniformity to make room for pluralism.

Newly elected leaders may be tempted to rely on administrative law to get things done that would be difficult in the complicated and slow give-and-take of the legislative process. However, that process is still the safest way to protect important interests like religious pluralism. Allowing all those affected to participate in the lawmaking process by working with their representatives allows a wider range of perspectives to be considered. The give-and-take process of legislation also ensures greater acceptance of the resulting laws.

Realistically, though, a lot of lawmaking is (and will be) done by administrative agencies, and the principle described above should guide those decisions.

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