Liberty's Nemesis ― Obama's Unchecked Expansion of the State

If there has been a unifying theme of Barack Obama’s presidency, it is the inexorable growth of the administrative state. Its expansion, across diverse areas, has followed a pattern: First, expand federal powers beyond their enumerated constitutional limits. Second, delegate those powers to agencies and away from elected politicians in Congress. Third, insulate civil servants from politics so they can wield their discretion without accountability. Finally, force the courts to defer to congressional delegation and agency regulation. Since its introduction in American life in the 20th Century, the administrative state’s has steadily undermined democratic self-government, reduced the sphere of individual liberty, and burdened the free market and economic growth.

Obamacare represents the crescendo of this progressive wave. Congress claimed authority to take over one-sixth of the American economy. But instead of passing the rules for this massive new government program, the large Democratic majorities in Congress vested the power to regulate health care in the Department of Health and Human Services. Even the Supreme Court, with a majority of Republican-appointed justices, did not stand in the way.

We propose to assemble a book of essays, by national experts in their fields, which will examine and criticize this growth of power. Two to three chapters will address overarching themes, like non-delegation, separation of powers and the structural constitution. Other chapters will cover specific subjects, such as health care, climate change, financial markets, environment, criminal law, religion, immigration, property, high-tech innovation and antitrust, free speech, and communications and the internet. Easily understood yet alarming examples of overreach from each major agency will be discussed. Critical questions will be asked and answered. Should the government regulate when the benefits exceed the costs? Are regulations stifling entrepreneurship and economic growth? Is government more interested in expanding its power at the expense of Congress, the states, and private civil society? Does regulation rely more on science, guesswork, or ideology? At whose expense is this power being exercised, and with what consequences? Is the trend toward accumulation of power in the Fourth Branch reversible? What can Congress, the courts, and private institutions do to fight back?

Dean Reuter is a senior staff member of the Federalist Society, the premier conservative and libertarian legal group in the country.

John Yoo is a law professor at the University of California, Berkeley, a scholar at the American Enterprise Institute, and a former Bush Justice Department official.

Together, they edited Confronting Terror: 9/11 and the Future of American National Security, a 2011 anthology analyzing the legal and policy issues still in play on the tenth anniversary of the 9/11 terrorist attacks.