President Donald Trump is moving swiftly to keep his campaign promise of regulatory relief for American business despite the efforts of the entrenched bureaucracy, and his latest Executive Order to place regulatory reform task forces inside every federal agency is an inspired move to embed the reformers as moles inside the entrenched bureaucracy.
Recall in Greek mythology that Hercules was ordered by Eurystheus to slay the Lernaean Hydra as one of his tasks to atone for his sin of slaying his own children in a mad rage. The Lernaean Hydra was a nine-headed beast raised by Hera to kill Hercules and was immortal as long as one of its nine heads lived. The problem was that each time a head was severed from the beast two more grew back in its place, thus making the task of slaying it impossible for anyone but a hero. It took ingenuity on Hercules’ part to realize that dipping his arrows in the poisonous blood of the Hydra would kill the headless stump and prevent new heads from growing. At least that’s one version of the myth. Another was that Hercules had his nephew Iolaus cauterize each neck stump with a firebrand to prevent new heads from growing back. Apparently, like Hollywood, the Greeks weren’t above creating an alternate ending when the retelling of a popular myth began to grow stale. But, I digress.
The Founding Fathers sought to create a new nation conceived in liberty whereby its citizens would exercise liberty to the maximum extent possible so long as it was tempered by personal responsibility. Only when the citizens failed to exercise personal responsibility would laws be needed to redress abuses of liberty. This was an inspired idea that allowed our new nation to explode with growth and opportunity. Where civilization grew to be too much of a burden on men, they traveled westward to inhabit the frontier and live as free men just as the Founders intended. Many of these hardy pioneers were merely restless men unable to content themselves with the comforts of civilization and seeking adventure on the frontier. Some, like the whiskey makers of western Pennsylvania who fled to the Kentucky frontier in the wake of the Whiskey Rebellion, were seeking to escape taxation and the growing fiscal burden of government.
The Founders experimented with a weak federal government under the Articles of Confederation, but found its structure insufficient to resolve disputes between the states. They feared these disputes would grow to the point that individual states might go to war with each other to the delight of Europeans still incensed at America’s insurgency against its old order. The Founders realized that a strong federal government was necessary to align the interests of the states to the common goal of forming a nation that could resist the usurpations of European nations and protect the liberty won so dearly with the Revolutionary War. The government they created and documented with the Constitution has continued to serve America well by aligning her states and protecting our liberty from foreign encroachment.
In less than 400 years, America went from discovery to the world’s lone superpower with the highest standard of living in world history thanks to the creative genius of the Founders and their revolutionary idea of maximizing liberty for its citizens. This liberty freed Americans to engage in commerce under the free enterprise system so that they could identify needs and establish the means to satisfy those needs at a profit. An American’s hard work provided goods and services to others at a profit which allowed that American to satisfy his own needs through the hard work of other Americans. America’s standard of living quickly rose from that of the Pilgrims who struggled that first winter just to survive to the immense wealth enjoyed by Americans today.
In the Twentieth Century, the attitude of government began to change from that of promoting free enterprise to that of regulating business and stifling the free enterprise system all in the name of consumer protection. The origins of this shift in attitude lies in the Progressive Era under President Theodore Roosevelt with muckrakers like Upton Sinclair and Ida Tarbell who wrote scathing exposés of industries and institutions. Abuses did occur and did require redress, which Congress was all too happy to oblige in the protection of their constituents who were understandably upset over revelations to which they had previously been happily ignorant. Federal agencies were created to oversee the production of food and medicine, regulate labor to prevent the exploitation of children and improve safety, and curb the most egregious abuses of consumer manipulation through advertising among other things.
The curse of creating regulatory agencies lies in the fact that once the egregious situations they were created to redress have been regulated and policed their bureaucratic staffs grow bored and begin to look for other grievances to redress in a never ending cycle of regulation. The Food and Drug Administration went from ridding the public of patent medicine that ranged from merely intoxicating whiskey to dangerous concoctions harmful to consumers to an agency which now forces pharmaceutical companies to invest years of effort and hundreds of millions of dollars in expensive trials to guarantee the efficacy of their creations before controlled release to the public. While mostly a noble effort, their adherence to bureaucratic legalism even extends to the area of drugs for terminally ill patients who do not enjoy the luxury of waiting years for drugs that might prevent them from dying today just to ensure they aren’t harmed by those drugs.
One key component of the federal bureaucracy as it exists today was passage of the Pendleton Civil Service Reform Act of 1883 which established that federal government positions should be awarded on the basis of merit rather than political affiliation. While initially covering only about 10% of the government’s civilian employees, a key provision allowed outgoing presidents to lock in their appointees by converting their jobs to civil service positions, and a series of successive party reversals at the presidential level (1884 – 1896) resulted in most federal jobs being placed under civil service.
To ensure fairness in the civil service workforce and prevent politicians from bypassing the intent of the law through loopholes, an extensive series of rules were developed to protect civil service employees from being fired as long as they adhered to the rules even though they might be incompetent. The result of these civil service rules has been the creation of bureaucracies unaccountable to the voters and unable to be fired due to incompetence. These unaccountable bureaucracies grow legalistic and uncaring as they focus on obeying the rules to protect their jobs at the expense of providing needed customer service that actually assists Americans forced by the agency rules to deal with its bureaucracy.
The combination of agencies created to regulate along with civil service rules protecting regulating bureaucrats has created the present regulatory hydra bedeviling business and stifling the American economy. Regulators charged with regulating are regulating to such a fine degree of accuracy because they have already regulated the most pressing problems out of existence. Their regulations are strangling business and the economy as they seek to regulate increasingly farfetched scenarios with staggering compliance costs that accomplish no real consumer protection and only serve to give the bureaucrats an excuse to justify their continued existence.
President Ronald Reagan addressed this regulatory hydra with the creation of the Grace Commission whose mission was to identify burdensome regulations strangling the American economy. Led by businessman J. Peter Grace, the commission released its report identifying numerous unnecessary and burdensome regulations none of which were ever actually repealed as Congress promptly ignored their work. The commission projected that the federal debt would reach $13 trillion by 2000 if its reforms were ignored and only $2.5 trillion if they were enacted. The federal debt reached $13 trillion after the subprime mortgage crisis in 2008. Even President Reagan, as committed a man against bureaucracy and unnecessary government regulations as ever existed, couldn’t make a dent in the regulatory hydra with his commission and its recommendations.
Having learned from President Reagan’s experience, President Trump seeks to embed the regulatory reformers directly in each federal agency to force change from within. As embedded personnel, these reformers will be on the front lines of regulatory agencies able to note those bureaucrats who are compliant with the process of regulatory reform and those who are resistant. This invaluable information will allow steps to be taken to increase the pace of regulatory reform, but creation of regulatory reform task forces inside federal agencies will not be enough to slay the bureaucratic hydra. Recall that the Obama administration successfully sidelined the Inspectors General embedded within each federal agency to prevent bureaucratic fraud, waste, and abuse. To cauterize the stump left by the removal of a bureaucratic hydra head, Congress must act to reform the civil service to make bureaucrats more accountable to the voters, but even this is not enough. Congress must also act to reclaim the power it unconstitutionally ceded to the Executive Branch through creation of these federal agencies. These regulatory agencies must be reformed so that they only have the power to issue recommendations to Congress which then must vote on the enactment of laws based on these recommendations. This reform would prevent regulatory abuse by entrenched bureaucrats unaccountable to the voters or directly to Congress and restore voter accountability to the rulemaking process by placing it back under the control of Congress.
The Constitution clearly defines the power of each branch of the federal government and explicitly forbids one branch from ceding its power to another branch. In creating these federal agencies, Congress granted them the power to create rules with the binding power of law which only Congress was granted by the Constitution. Furthermore, these federal agencies were placed under the administration of the Executive Branch, a clear violation of the Constitution’s transfer of powers prohibition. Congress unconstitutionally transferred its ability to make laws to federal agencies under the Executive Branch and reduced its role to that of a mere budget administrator with no determination in the regulatory rules being developed by the Executive Branch. To further illustrate, the president, through his role as head of the Executive Branch of the federal government, has, through creation of these regulatory agencies, the power to both make laws and administer them in a clear violation of the Constitution.
It is this concentration of power that allowed Obama to harass his political opponents through such nefarious means as directing the IRS to deny tax exempt status to TEA Party political groups and directing the EPA to regulate the coal industry out of business to appease his environmental constituents. As president, Obama controlled the bureaucrats who reviewed applications to grant tax-exempt status and created the regulations that priced industries out of business. Liberal snowflakes are melting all over the place because President Trump is now in control of this regulatory machine and seeking to pare it back to the quick to place it at the service of Americans instead of the liberal entrenched interests.
President Trump has seized the initiative by issuing Executive Orders like his predecessor, but he has also learned from Obama that the power of Executive Orders is fleeting unless it is transferred by Congress into duly enacted laws. Obama was slow to recognize the opportunity to abuse the privilege of Executive Orders and failed to properly think through the strategy. His experience is being exploited by President Trump to radically transform the federal government using the ideas of disruptive technology that he so successfully used to transform the staid New York real estate market and enrich himself. His challenge now is to get a recalcitrant GOP-led Congress to get behind his strategy and enact the laws that will cement his disruptive transformation throughout the federal bureaucracy.
The bureaucratic hydra is a fearsome beast that is almost impossible to slay for anyone but the most committed champion of the American people. President Trump has proven his ability and willingness to fight on our behalf, and we must continue supporting his efforts if we are to have any hope of restoring our liberty and our country. We must identify those in Congress who remain as obstacles to President Trump’s agenda and remove them from office in the next election. We must make ourselves heard so that our pleas which have been ignored for far too long are finally acted upon. The bureaucratic hydra can be slain, but only through ingenuity and fierce, hard fighting. We must recognize that we are finally winning and take hope from this realization. And, we must endeavor to remain vigilant lest we allow others to take our liberty away from us.