The following is adapted from a speech delivered on September 26, 2013, at Hillsdale College’s Kirby Center in Washington, D.C., sponsored by the AWC Family Foundation Lecture Series.
Insofar as Congress is still tempted to make general laws on behalf of a perceived public good, it does so primarily on behalf of the expansion of the administrative state. Congress passed what appeared to be a general law concerning health care reform, the Affordable Care Act, more commonly known as Obamacare—but this is clearly not a law in constitutional terms, and makes sense only within the context of an administrative state. When passed it was more than 2,500 pages long, and all it did was provide the administrative apparatus with the right and power to formulate rules and regulations governing health care nationwide. This extension of governmental power, or more precisely the power of unelected bureaucrats, is compatible with the administrative state, but not with the letter or the spirit of constitutional government.
John Locke, the most important political theorist of the American Founding era, described laws as a community’s “standing rules, indifferent, and the same to all parties.” None of these elements are to be found in the Affordable Care Act. As Charles Kesler noted in the Claremont Review of Books, such laws
start not from equal rights but from equal (and often unequal) privileges, the favors or benefits that government may bestow on or withhold from its clients. The whole point is to empower government officials, usually unelected and unaccountable bureaucrats, to bless or curse your petitions as they see fit, guided, of course, by their expertness in a law so vast, so intricate, and so capricious that it could justify a hundred different outcomes in the same case. When law ceases to be a common standard of right and wrong and a common measure to decide all controversies, then the rule of law ceases to be republican and becomes despotic. Freedom itself ceases to be a right and becomes a gift, or the fruit of a corrupt bargain, because in such degraded regimes those who are close to and connected with the ruling class have special privileges.
In summary, Congress has become a major player in the administrative state precisely by surrendering its constitutional purpose and ceasing to defend limited government. As a result, the administrative state has grown dramatically since 1965, and it only continues to defend and expand its turf. Political opposition occasionally arises in the White House or in Congress, but thus far with little effect.
Despite its expansion under both parties, however, the administrative state has not attained legitimacy. The Constitution itself remains the source of authority for those in and out of government who oppose the administrative state, and a stumbling block to those who support it. Until either the administrative state or the Constitution is definitively delegitimized, the battle within both government and the electorate over the size and scope of the federal government— including government shutdowns and showdowns over the debt limit—will inevitably continue.