Silence of the Bureaucrats

There’s much discussion about the tax consequences of Democratic candidate Liz Warren’s Medicare for All plan, as well there should be. But the “big ticket” items on the agenda will be subject to substantial scrutiny, from the public, media and Congress. Whether it’s the right answer to the health care situation will be the topic of a great many discussion.

So who’s talking about the “no cost” solutions? As became clear during the Obama administration, pen and phone in hand as Congress was paralyzed and persisted in its abject failure to do its job as legislature, we have a massive bureaucratic machine running America, and it largely happens below the radar until it does something radical that compels us to take notice.

Like when the Department of Education issued its “Dear Colleague” letters, creating the Title IX sex tribunals across America’s colleges and universities that have fundamentally reinvented the risks of expulsion of forfeiture for male students at the bare accusation of females. Or when the Department of Justice, together with the DoE, issued the transgender bathroom guidance, threatening prosecution for failure to adhere to law that didn’t exist, except in the fevered minds of a few bureaucrats.

Paying any attention to the many schemes to reinvent society being propounded and promoted, from ethnic math to freeing NYC schoolteachers from being slaves to the written word, there are a great many reform ideas that might seem ridiculous, not to mention disastrously damaging, to many people that have gained far greater traction within their circles than most people realize.

Bear in mind, the Democratic candidates held an LGBTQ town hall. There was no town hall for the middle class of all races, genders or sexual orientations. Warren, with voice cracking as she read the names of 18 trans women of color who have been killed this year, will her administration do anything about them? It’s quite possible it will, and will do so without anyone noticing.

Then there are issues about which the left feels very strongly, from hate speech to gun control to climate change. While some change will require law, much can be done just by the issuance of a bureaucrat’s letter. And once done, undoing it can be exceptionally difficult, as reflected in the damage done with Title IX.

This is true in education. This is true in law as well, as reform is taking hold, as reflected in a series of criminal reform laws enacted by the New York State legislature based largely upon fantasy ideological beliefs, that are highly likely to not merely fail, but to give rise to a significant backlash.

If there is regime change, as could very likely happen, the potential for the bureaucracy to issue its new “guidance” fundamentally reinventing social requirements, from “criminalizing” the failure to use required personal pronouns to eliminating mens rea requirements for imagined offenses against women are not only possible, but quite likely.

The bureaucrats have learned that they can accomplish a great deal of their agenda through administrative fiat, and without a viable legislative branch, the only thing to stop them are the courts. But lawfare takes time and is an iffy proposition, particularly given that the judiciary has been subject to such partisan characterization that any adverse ruling is immediately decried as reactionary, while any affirmative ruling proves the propriety of progressive change.

No Democratic candidate has broached the subject of denying male students due process on campus. At the same time, a few have suggested that if Congress doesn’t give them what they want, they’ll just sign an Executive Order and make it happen. Granted, it’s likely that there will be a plethora of lawsuits, such as happened with Trump’s EOs, seeking to prevent unlawful executive action, but will they be sufficient to prevent massive social upheaval in the meantime?

In the past, there was a degree of humility in the administrative state such that bureaucrats, for the most part, tried to remain within the limits of their authorization by Congress to effectuate the laws they were given. But as we’ve seen, that’s no longer the case, and the more aggressive and radical bureaucrats feel no constraint at all about pushing their power as hard and far as they can, daring Congress and the courts to do something about it.

While arguments will rage over health care, the entirety of woke culture is at risk of being unilaterally rammed down your, and your children’s, throats at the hands of the Secretary of Homeland Security, Roxane Gay. Given Chevron and Auer deference, there may not be much to be done to prevent a world you can’t live with, and can’t live with you, being constructed around you for the benefit of the marginalized at the expense of everyone else, including the marginalized when someone higher on the victim hierarchy demands their special flavor of “justice.” But nobody is talking about it. Almost nobody.

7 thoughts on “Silence of the Bureaucrats

  1. Skink

    I remember one of my first wanderings into the law school room full of books. On the left, along a top row, was the U.S.C. Below that row, on many shelves, was the U.S.C.A. But to the right, shelf after shelf, row after row, was the C.F.R. It seemed to occupy the whole library. That was long ago. Blame it on Section 5 of the 14th and Congress’ newfound power to delegate to agencies. Like so much stuff, it seemed like a good idea at the time, but there hasn’t been a serious challenge to federalism since.

    But it was all the rage before. When federal power was seen as just being the President and Congress, the solution to laws unliked was simple: vote them out. Battles raged over the differences in ideology. Once Congress was allowed to pitch its enforcement authority to the agencies, there was no one to vote out. Congress passes some general law; it sounds good; the President signs it. Then the agencies get to the work of implementing it with rules. So, if Congress passes a law making it unlawful to discriminate based on planet of origin, a couple clerks get to decide how it works:

    Bob: “what should we do today?”
    Sue: “Let’s put that planet thing to use. Pickup trucks and trains are rednecky. Let’s make it unlawful to drive a pickup truck to a train station.”
    Bob: “We can do that?”
    Sue: “Do you think there are pickup trucks and trains on other planets?”
    Bob: “Dunno.”
    Sue: “That settles it. Want lunch?”

    Reply
  2. B. McLeod

    This ideology on one side, and an oaf on the other. American voters are caught between the devil and the deep blue sea.

    Reply

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